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Kentucky Supreme Court Tosses Evidence Holding Dog Sniff of Nervous Driver with Prior Drug Charges was Unreasonable

by Dale Chappell

The Supreme Court of Kentucky held that a drug-dog sniff based on the nervousness of the driver who had prior drug charges (but not convictions) was an unreasonable search under the Fourth Amendment, requiring suppression of the evidence found in the search.

“This opinion is not for Rakim Moberly,” the Court made clear. “We render this opinion for the untold numbers of innocent Kentucky citizens who have ‘criminal charges’ and may become nervous and sweaty and look around when confronted by police.”

Moberly, who was convicted of drug and gun possession after a 3 a.m. traffic stop, appealed the denial of his motion to suppress the evidence obtained after the police called in a drug dog based on Moberly’s nervous appearance and his prior drug charges. Moberly argued on appeal that the dog sniff was not reasonably connected to the legitimate traffic stop for not having a valid registration. The Commonwealth argued that his nervous behavior allowed the police to further detain Moberly and search his vehicle. Ultimately, the Kentucky Supreme Court agreed with Moberly and tossed the evidence.

In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the U.S. Supreme Court held that the Fourth Amendment tolerates certain investigation during a traffic stop that are unrelated to the stop, as long as they do not lengthen the detention. Police may, for example, delay a stop briefly to check for warrants or to ensure their safety—activities that are directly connected to the stop itself. But “any prolonging of the stop beyond its original purpose is unreasonable and unjustified,” the Rodriguez Court said.

Here, the dog sniff added about 45 minutes to the traffic stop and was started without delay. The question, though, was not whether the delay made the stop unreasonable, but whether the addition of the dog sniff to the routine stop was reasonable. “The question is whether the officer had a reasonable articulable suspicion of other ongoing illegal activity when he prolonged the stop” for the dog sniff, the Court instructed.

The Court found that Moberly’s nervous actions were not enough to support reasonable suspicion for a dog sniff search. Further, “mere charges do not constitute a ‘criminal history’ upon which one might reasonably suspect future criminal behavior,” the Court noted. “That Appellant had been previously charged with trafficking in marijuana and carrying a concealed deadly weapon, the officer had not reasonable suspicion to believe that Appellant was then and there engaged in criminal activity beyond the traffic offenses.”

Citizens “have the right to live their lives unfettered by police having no reasonable articulable suspicion to interfere,” the Court said, and that the Commonwealth’s position otherwise “is tantamount to a rule that says those citizens have no Fourth Amendment protection against searches and seizures. We reject that position.”

Accordingly, the Court reversed the Court of Appeals’ decision and remanded for further proceedings consistent with this opinion. See: Moberly v. Commonwealth, 551 S.W.3d 26 (Ky. 2018). 


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Moberly v. Commonwealth



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