Kentucky Reports

COMMONWEALTH v. GILBERT, 2005-CA-001203-MR (Ky.App.
1-12-2007) COMMONWEALTH OF KENTUCKY APPELLANT, v. JOHN
DAVID GILBERT APPELLEE. No. 2005-CA-001203-MR. Court of
Appeals of Kentucky. JANUARY 12, 2007.

Appeal From Todd Circuit Court Honorable Tyler L. Gill,
Judge Action No. 05-CR-00004.

BRIEF FOR APPELLANT: Gregory D. Stumbo, Attorney General of
Kentucky, George G. Seelig, Assistant Attorney General,
Frankfort, Kentucky.

BRIEF FOR APPELLEE: Euva D. May, Assistant Public Advocate,
Frankfort, Kentucky.

Before: ABRAMSON AND GUIDUGLI,[fn1] JUDGES;
BUCKINGHAM,[fn2] SENIOR JUDGE.

[fn1] Judge Daniel T. Guidugli concurred in this opinion
prior to the expiration of his term of office on December
31, 2006. Release of the opinion was delayed by
administrative handling.

[fn2] Senior Judge David C. Buckingham sitting as Special
Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS
21.580.

OPINION AFFIRMING

BUCKINGHAM, SENIOR JUDGE.

The Commonwealth appeals from an order of the Todd Circuit
Court granting John David Gilbert’s motion to suppress
evidence that the Commonwealth intended to use in its
criminal prosecution of him. The issue is whether the
evidence must be suppressed because the officer who had
stopped Gilbert’s vehicle for a traffic violation continued
to detain him for several minutes after the time it would
have taken to write a traffic ticket so as to await the
arrival of a narcotics-detection dog (K-9 unit). In
accordance with Illinois v. Caballes, 543 U.S. 405, 125
S.Ct. 834, 160 L.Ed.2d 842 (2005), we affirm.

Elkton Police Officer Rodney Moberly observed Gilbert’s
pickup truck leave a residence in Elkton at approximately
11:52 p.m. on January 9, 2005. The residence had been under
observation by the Elkton Police Department due to
citizens’ reports of suspicious activity. Although they had
yet to confirm it, the officers suspected drug activity.

Officer Moberly noticed that the brake lights on Gilbert’s
truck were not working, so he initiated a traffic stop.
After making the stop, the officer also noticed that the
license plate on the truck was damaged and somewhat
obscured. As the officer approached Gilbert’s truck, he
immediately recognized Gilbert and recalled that he had
previously arrested him on drug charges.

Claiming that the window on the driver’s door on his truck
did not work, Gilbert opened the door to respond to the
officer. Upon confronting Gilbert, the officer noticed that
Gilbert’s eyes were bloodshot and that there were empty
beer cans in the back of the truck. Gilbert admitted to the
officer that he had been drinking the day before, but he
denied drinking or using any drugs on that date. The
officer then administered two sobriety tests to Gilbert, and
he passed them both.

Officer Moberly then asked Gilbert for consent to search
his truck. Gilbert ultimately denied the request, and the
officer directed Gilbert back in his truck and radioed a
request for a K-9 unit. The only unit available was one
utilized by the Guthrie Police Department, which was
located approximately 15 miles away. The officers estimated
that it would take 15-20 minutes for the dog to arrive.

Approximately 12-14 minutes after Gilbert returned to his
truck, a second Elkton police officer, John Lancaster,
approached the truck to explain the delay and to press
Gilbert on his refusal to allow a consensual search. As
Gilbert opened the door, the officer noticed that the door
panel was missing. During the course of the discussion, the
officer happened to look into a cavity in the door and saw
the handle of a handgun. Knowing that Gilbert was a
convicted felon, the officers arrested Gilbert for
possession of a handgun by a convicted felon.

Shortly after arresting Gilbert, the K-9 unit arrived.
After the dog alerted the officers to the presence of drugs
in the truck, the officers conducted a search. As a result
of the search, the officers seized a set of scales, a piece
of burnt tin, marijuana, and methamphetamine. The evidence
led a Todd County grand jury to indict Gilbert on various
drug and firearm offenses and for being a first-degree
persistent felony offender.

Gilbert moved the court to suppress the evidence, and the
court conducted a suppression hearing. See Kentucky Rule of
Criminal Procedure (RCr) 9.78. The court heard testimony
from the two officers, and it viewed the video tape, which
consisted of two recordings from two police cruiser
cameras.

On May 6, 2005, the court entered an order granting
Gilbert’s suppression motion. The court found that Gilbert
was detained approximately 12 to 14 minutes after the
sobriety tests and that the detention was several minutes
longer than it would have taken the officers to issue a
traffic citation to Gilbert and allow him to leave.[fn3]
The court also found that there was a considerable
discussion between Officer Lancaster and Gilbert before the
handgun was discovered. Thus, the court rejected the
Commonwealth’s argument that Gilbert was detained no longer
than the time required to write him a citation or warning
as well as the argument that the handgun would likely have
been discovered at any rate when the officer delivered
Gilbert a citation or warning ticket. This appeal by the
Commonwealth followed.

RCr 9.78 states in part that the fact findings of a trial
court in a suppression hearing shall be conclusive if
supported by substantial evidence. In determining the
substantial nature of the evidence, the court must look to
the totality of the circumstances. Taylor v. Commonwealth,
987 S.W.2d 302 (Ky. 1998). These decisions are subject to
de novo review by appellate courts. Commonwealth v. Opell, 3
S.W.3d 747 (Ky.App. 1999).

The Caballes case, relied upon by the circuit court,
addresses this issue. Under similar but somewhat
distinguishable facts, the U.S. Supreme Court held that
evidence seized as a result of the use of a
narcotics-detection dog following a traffic stop was
properly allowed where the stop was not extended beyond the
time necessary to issue a warning ticket and to conduct
ordinary inquiries incident to the stop. 543 U.S. at 409.
However, the Court specifically stated that “[a] seizure
that is justified solely by the interest in issuing a
warning ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete
that mission.” Id. at 407.

The Commonwealth argues that the circuit court’s decision
was not supported by substantial evidence. It asserts that
the officers were justified in detaining Gilbert for an
additional length of time because they knew he was a
convicted felon, had been convicted of drug offenses, had
recently left a residence where suspicious activity had
been occurring, and had denied the request for a consent
search of his truck. In fact, the officers testified that
they called for a K-9 unit because of Gilbert’s prior
record and because they had just observed him leaving a
residence where drug activity was suspected. We disagree.

In Simpson v. Commonwealth, 834 S.W.2d 686 (Ky.App. 1992),
this court held that a person’s presence in a high crime
area is a relevant factor upon which an officer can
determine whether a person’s activities are suspicious. Id.
at 688. See also U.S. v. Sprinkle, 106 F.3d 613, 617 (4th
Cir. 1997). In Collier v. Commonwealth, 713 S.W.2d 827
(Ky.App. 1986), this court held that a suspect’s prior
record, standing alone, is not sufficient to justify a
stop. Id. at 828. However, we noted that if other
articulable factors are present, a suspect’s prior record is
a legitimate factor that may be considered in determining
whether a stop was justified. Id.

In this case, there is no evidence that Gilbert was in a
high crime area. Rather, he had been to a residence where
drug activity had been suspected but not confirmed.
Further, the fact of Gilbert’s prior record is not
supported by other articulable factors so as to allow it to
be considered a justification for Gilbert being further
detained. Thus, the court properly suppressed the evidence
pursuant to Caballes because the officers detained Gilbert
beyond the time reasonably required to issue him a traffic
citation or warning and release him. See Caballes, 543 U.S.
at 407.

Finally, we reject the Commonwealth’s reliance on U.S. v.
Orsolini, 300 F.3d 724 (6th Cir. 2002). In that case the
court held that, under the totality of the circumstances, a
period of approximately one hour and thirty-five minutes
waiting for a K-9 unit to arrive was not an unreasonable
length of time to detain the suspect following a traffic
stop. The facts in that case support that court’s ruling and
are quite different from those herein.

The order of the Todd Circuit Court is affirmed.

ALL CONCUR.

[fn3] The evidence was that it would have taken the
officers approximately five minutes to issue a citation or
warning to Gilbert for inoperable brake lights.