Commonwealth v. Bucalo

• Decision Date: 20 March 2014
• Docket Number: No. 2012–SC–000123–DG.,2012–SC–000123–DG.
• Citation: 422 S.W.3d 253
• Court: United States State Supreme Court — District of Kentucky
• Parties: COMMONWEALTH of Kentucky, Appellant. v. Asia BUCALO, Appellee.

422 S.W.3d 253

COMMONWEALTH of Kentucky, Appellant.

v.Asia BUCALO, Appellee.

No. 2012–SC–000123–DG.

Supreme Court of Kentucky.

Dec. 19, 2013.

Rehearing Denied March 20, 2014.

Jack Conway, Attorney General, Todd Dryden Ferguson, Assistant Attorney General, Counsel for Appellant.

Erin Hoffman, Yang Assistant Public Advocate, Counsel for Appellee.

Opinion of the Court by Justice, CUNNINGHAM.

On April 2, 2009, Appellant Asia Bucalo, along with her six-year-old son, checked into the Comfort Suites Hotel in Elizabethtown, Kentucky. Also, a man by the name of Nicholas Duke and another unidentified male accompanied Bucalo and her son to the hotel. Bucalo explained to hotel personnel that she was in need of a place to stay while pending the closing of her new home. The group of individuals stayed in one hotel room for fifteen days. During their stay, the group paid their bill each day in cash and declined maid service. Having become skeptical of the individuals, hotel personnel terminated their stay and notified law enforcement officials of their suspicious behavior.

In response, Detective Gregory and Detective Green of the Kentucky State Police arrived at the Comfort Suites Hotel on April 16, 2009, and began surveillance of the parking lot. Detective Green observed the parties loading their belongings into three separate vehicles. The vehicles were registered to local individuals, including Bucalo, all of whom had different last names. Neither Detective Gregory nor Detective Green noticed anything illegal being packed into any of the vehicles. Shortly after 12:15 p.m., a white Dodge truck driven by Duke pulled out of the hotel parking lot, followed by a green Honda Accord driven by Bucalo.

Detective Gregory then opted to inspect the hotel room the parties had occupied and ordered other law enforcement agents to follow the two vehicles. Ultimately, nothing illegal was found in the hotel room. Meanwhile, Sergeant Kelly and Officer Bracket of the Elizabethtown Police Department spotted the two vehicles. After both vehicles ran the same red light, Officer Bracket pursued and pulled over Duke, while Sergeant Kelly pursued and pulled over Bucalo. Both traffic stops occurred simultaneously and in close proximity to each other. The time was approximately 12:40 p.m.

At the inception of Bucalo's traffic stop, she told Sergeant Kelly that she was in a rush because her son needed to use the restroom. Bucalo also explained that she was moving from one hotel to another. Bucalo requested to take her son to the bathroom several times during the stop, which Sergeant Kelly denied. Approximately five to seven minutes after Bucalo's stop, Officer Young, also of the Elizabethtown Police Department, arrived on the scene.

About the same time, Officer Bracket radioed Sergeant Kelly and Detective Gregory and notified them that Duke had consented to a search of his truck, which revealed narcotic residue located in a pipe. In addition, Officer Bracket explained to Sergeant Kelly and Detective Gregory that the drug paraphernalia was related to Bucalo since Duke said he was moving her belongings to another hotel. Sergeant Kelly then requested consent from Bucalo to search her vehicle. She declined consent.

At some point shortly after 1:00 p.m., Detective Gregory arrived at the scene of Bucalo's stop. Detective Gregory testified that he called for a canine unit to sniff Bucalo's vehicle. This call was placed either while Detective Gregory was en route to Bucalo's stop, or as soon as he arrived at the scene. When Detective Gregory arrived, Sergeant Kelly left the scene, relying on Officer Young to write the traffic citation.

Trooper Payne of the Kentucky State Police K–9 Unit and his drug detecting dog Barry arrived at the scene shortly after 1:00 p.m. After adjusting to his new surroundings, Barry performed an exterior sniff of Bucalo's vehicle, which failed to result in an alert. Trooper Payne then proceeded to conduct a “detail out,” whereby he pointed to specific spots on the vehicle's exterior and ordered Barry to sniff. It was during a point to the driver's side door that Barry made an alert.

A search of Bucalo's vehicle was then conducted and ecstasy, marijuana, mushrooms, methamphetamine, and chemicals or equipment used in the manufacturing of methamphetamine were discovered. Bucalo was taken into custody at 2:25 p.m. From the beginning of the stop at 12:40 p.m. to its conclusion at 2:25 p.m., the traffic stop lasted approximately one hour and forty-five minutes.

On June 15, 2009, Bucalo moved to suppress the evidence obtained from the search of her vehicle. The trial court held a suppression hearing on August 18, 2009, during which Detective Gregory, Sergeant Kelly, and Trooper Payne testified. The trial court ruled that the dog sniff occurred within a reasonable time or extension of time needed to conduct the traffic stop. Furthermore, the court found that any prolonging of the stop was justified by a reasonable and articulable suspicion that criminal activity was afoot. Consequently, the trial court denied Bucalo's motion.

On November 6, 2009, Bucalo entered a conditional guilty plea in the Hardin Circuit Court to one count of manufacturing methamphetamine, one count of first-degree trafficking in a controlled substance, two counts of first-degree possession of a controlled substance, one count of possession of drug paraphernalia, and one count of possession of marijuana. Bucalo received a sentence of twelve years, with seven years to serve and five years probated, in addition to a $1,000 fine.

Within Bucalo's guilty plea, she reserved the right to appeal the Hardin Circuit Court's denial of her motion to suppress evidence seized during the investigatory stop. It is from this denial that Bucalo appealed to the Court of Appeals, which reversed the trial court's ruling.

The Court of Appeals found that Bucalo was detained for an unreasonably prolonged amount of time. Moreover, the Court of Appeals determined that the officers lacked reasonable suspicion to extend the duration of the stop beyond the time needed to complete a citation for a traffic violation. This Court granted discretionary review.

In reviewing a trial court's ruling on a motion to suppress, we employ a two-step process. E.g., Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). First, we examine whether the trial court's findings of fact are supported by substantial evidence. Id. (citing RCr 9.78). If the trial court's factual findings are not clearly erroneous, then we conduct a de novo review of its applicability of the law to the facts. Id.

Before we begin our analysis, it is incumbent upon us to underscore the difficulty we face in reviewing this case due to the limited record that has been provided. The chronology of events has especially been difficult to piece together. We encourage counsel and law enforcement agents to do better. Fortunately, the trial court made sufficient factual findings by its order dated August 27, 2009. We find that the trial court's findings are not clearly erroneous. Furthermore, neither party contests the trial court's findings of fact. Therefore, we turn to the trial court's application of the law to the facts.

Traffic Stop

The Fourth Amendment to the U.S. Constitution, made applicable to the states through the Fourteenth Amendment and Section 10 of the Kentucky Constitution, protects citizens from unreasonable searches and seizures. A traffic stop is considered a seizure of the driver “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Therefore, a traffic stop is “subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). It has long been considered reasonable for an officer to conduct a traffic stop if he or she has probable cause to believe that a traffic violation has occurred. Wilson v. Commonwealth, 37 S.W.3d 745 (Ky.2001).

Bucalo does not contend that the initial stop of her vehicle was unlawful. Indeed, there is no doubt that Sergeant Kelly had probable cause to warrant the stop of Bucalo's vehicle. He witnessed her commit a traffic violation. As long as an officer “has probable cause to believe a civil traffic violation has occurred, [he] may stop [the] vehicle regardless of his or her subjective motivation in doing so.” Wilson, 37 S.W.3d at 749.

Length of Detention

A lawful stop may nevertheless encroach on an individual's Fourth Amendment rights “if its manner of execution unreasonably infringes interests protected by the Constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). For these reasons, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Generally, if an officer unreasonably prolongs the investigatory stop in order to facilitate a dog sniff, any resulting seizure will be deemed unconstitutional. See Epps v. Commonwealth, 295 S.W.3d 807 (Ky.2009). We must also note that the Fourth Amendment is not implicated simply because a drug-detecting dog conducts a sniff of the exterior of a vehicle during a lawful traffic stop. Id. at 810. It is well-settled that a dog sniff is an acceptable investigative device which may be utilized during a lawful investigative stop. See Caballes, 543 U.S. at 409, 125 S.Ct. 834.

The trial court determined that the dog sniff occurred within a reasonable amount of time needed to effectuate the purpose of the traffic stop. In addition, the trial court believed any extension thereof was due to Bucalo's numerous requests to allow her child to use the restroom. With this conclusion, we ...