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Kentucky Supreme Court: Traffic Stop Impermissibly Extended Where Officer Stopped Writing Citation to Aid Drug-Detection Dog’s Sniff of Vehicle’s Exterior

by Anthony W. Accurso

The Supreme Court of Kentucky held that a police officer impermissibly extended a traffic stop when he suspended the completion of writing a traffic citation to assist other officers conducting a vehicle sniff using a drug-detection dog.

Just before midnight on April 21, 2017, Officer Ryan Nichols of the Lexington Police Department saw a vehicle pull-over and engage with a pedestrian. The pedestrian walked off after noticing Nichols’ patrol car, and the vehicle drove off.

Nichols followed while running the vehicle’s plates. The inquiry indicated the owner’s license was suspended, so Nichols initiated a traffic stop. He obtained identification from Robert Spillman (the driver) and Ikia Clayborne (the passenger). Further investigation confirmed that Spillman’s driver’s license was suspended and also that both men had previously been charged with narcotics offenses. While writing a traffic citation for the former, he summoned a K-9 unit based on the latter.

Ten minutes later, Nichols had “only completed up to the narrative portion of Spillman’s citation,” yet he abandoned the citation to assist the arriving officers secure Spillman and Clayborne to perform the dog sniff around the exterior of the vehicle.

Two minutes into the search, the dog alerted, and the officers recovered a baggie containing cocaine on the ground outside of the front passenger door. Nichols cited and arrested Clayborne for the cocaine. He then completed Spillman’s citation and sent him on his way.

Clayborne was charged with first-degree possession of cocaine. He filed a motion to suppress the evidence on the ground that it was obtained during an unconstitutional extension of the traffic stop. During the hearing, Nichols failed to articulate any reason that justified extending the traffic stop. However, the trial court upheld the search because it reasoned that the initial traffic stop was valid. It made no other objective findings of fact besides noting that Nichols abandoned writing the citation to assist with the dog sniff.

Clayborne was convicted at trial and received a sentence of one years’ imprisonment and one year of probation. He then filed an appeal on the suppression issue, and in an unpublished opinion, the Court of Appeals reversed the trial court’s ruling on the suppression issue. The Commonwealth appealed.

The Kentucky Supreme Court noted that, “[p]olice officers may not extend or prolong traffic stops without reasonable, articulable suspicion to conduct further criminal investigation,” citing Rodriguez v. United States, 575 U.S. 348 (2015). Further, any time an officer “pursue[s] other purposes instead of those associated with the original mission of the stop for any amount of time unconstitutionally prolong[s] the stop.” See Illinois v. Caballes, 543 U.S. 405 (2005). Therefore, a traffic stop is unconstitutionally extended any time when police pursue any “purposes or tasks” that are not related to the traffic stop and that unrelated pursuit adds more time to the traffic stop, the Court stated. See Carlisle v. Commonwealth, 601 S.W.3d 168 (Ky. 2020). Finally, the Court added that there “is no de minimus or reasonableness exception”—any prolonging of the traffic stop, regardless of how short, “without reasonable, articulable suspicion violates the Fourth Amendment.” See: Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016); Florida v. Royer, 460 U.S. 491 (1983).

The Court stated that conducting a traffic stop and a criminal investigation “are two separate purposes,” explaining that checking a driver’s license is clearly related to the purpose of a traffic stop but that assisting with a dog sniff “is a criminal investigation unrelated to addressing a traffic violation.” See Rodriguez. Conducting or assisting in a dog sniff of a vehicle during a traffic stop instead of performing duties related to the traffic stop itself unconstitutionally extends the traffic stop, the Court stated.   

Turning to the present case, Nichols admitted that he stopped writing the citation—which was the original purpose of the traffic stop—in favor of securing Spillman and Clayborne so that the K-9 unit could conduct a sniff of the vehicle. However, this action was related to the search (criminal investigation), not the traffic citation, according to the Court.

Citing Rodriguez, the Court stated that “[s]teps taken in pursuit of securing the scene and ensuring officer safety must still relate back to the purpose of the stop or be pursued simultaneously with diligent work on its original purpose.” As such, Nichols’ helping to secure the occupants of the vehicle was not related to the purpose of the traffic stop but rather the unrelated criminal investigation, i.e., the dog sniff, the Court determined. Similarly, the dog sniff itself was not related to the original purpose of the traffic stop, according to the Court. 

The Court ruled that Nichols failed to diligently pursue the traffic citation, and those actions he took to further another purpose—such as the dog sniff—prolonged the traffic stop. The only remaining question was whether the stop was prolonged for a permissible purpose, the Court stated.

An officer may shift from a traffic citation to a criminal investigation if he has a “reasonable, articulable suspicion of a crime having been committed.” Moberly v. Commonwealth, 551 S.W.3d 26 (Ky. 2018). However, this must be “more than an unparticularized suspicion or hunch.” Id. And “mere charges do not constitute a ‘criminal history’ upon which one might reasonable suspect future criminal behavior.” Id.

In this case, Nichols testified that he did not believe Spillman’s roadside stop to be a drug transaction. When he summonsed the K-9 unit, his only suspicion was based on the fact that both occupants of the vehicle had previously been charged with narcotics offenses. Further, the men were fully compliant and evinced no behavior that could lead Nichols to believe a crime had been committed. Thus, the Court held that the facts present in the case do “not rise to the level of reasonable suspicion of current criminal activity when compared with our prior caselaw” and further held that the Commonwealth “failed to meet its burden to show reasonable, articulable suspicion at the suppression hearing.”

Accordingly, the Court affirmed the Court of Appeals’ decision. See: Commonwealth v. Clayborne, 635 S.W.3d 818 (Ky. 2021). 

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Related legal cases

Commonwealth v. Clayborne

Carlisle v. Commonwealth

Davis v. Commonwealth

Illinois v. Caballes

543 U.S. 405; 125 S.Ct. 834; 160 L.Ed.2d 842


No. 03-923

November 10, 2004, Argued

January 24, 2005, Decided

NOTICE: [*1] This preliminary LEXIS version is unedited and subject to revision.

The LEXIS pagination of this document is subject to change pending release of the final published version.


DISPOSITION: 207 Ill. 2d 504, 802 N. E. 2d 202, vacated and remanded.


After an Illinois state trooper stopped respondent for speeding and radioed in, a second trooper, overhearing the transmission, drove to the scene with his narcotics-detection dog and walked the dog around respondent's car while the first trooper wrote respondent a warning ticket. When the dog alerted at respondent's trunk, the officers searched the trunk, found marijuana, and arrested respondent. At respondent's drug trial, the court denied his motion to suppress the seized evidence, holding, inter alia, that the dog's alerting provided sufficient probable cause to conduct the search. Respondent was [*2] convicted, but the Illinois Supreme Court reversed, finding that because there were no specific and articulable facts to suggest drug activity, use of the dog unjustifiably enlarged a routine traffic stop into a drug investigation.

Held: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. Pp. 2-4.

207 Ill. 2d 504, 802 N. E. 2d 202, vacated and remanded.

JUDGES: STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, THOMAS, and BREYER, JJ., joined. SOUTER, J., filed a dissenting opinion. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined. REHNQUIST, C. J., took no part in the decision of the case.

OPINION: JUSTICE STEVENS delivered the opinion of the Court.

Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately [*3] headed for the scene with his narcotics-detection dog. When they arrived, respondent's car was on the shoulder of the road and respondent was in Gillette's vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent's car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.

Respondent was convicted of a narcotics offense and sentenced to 12 years' imprisonment and a $ 256,136 fine. The trial judge denied his motion to suppress the seized evidence and to quash his arrest. He held that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct the search. Although the Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the canine sniff was performed without any "'specific and articulable facts'" to suggest drug activity, the use of the dog "unjustifiably enlarged the scope of a routine traffic stop into a drug investigation." 207 Ill. 2d 504, 510, 802 N.E.2d 202, 205 (2003).

The question [*4] on which we granted certiorari, 541 U.S. 972 (2004), is narrow: "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Pet. for Cert. i. Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.

Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U.S. 109, 124 (1984). 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. In an earlier case involving a dog sniff that occurred during an unreasonably [*5] prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N.E.2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.

In the state-court proceedings, however, the judges carefully reviewed the details of Officer Gillette's conversations with respondent and the precise timing of his radio transmissions to the dispatcher to determine whether he had improperly extended the duration of the stop to enable the dog sniff to occur. We have not recounted those details because we accept the state court's conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.

Despite this conclusion, the Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent's stopped car. That is, the court characterized the dog sniff as the cause [*6] rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy. Our cases hold that it did not.

Official conduct that does not "compromise any legitimate interest in privacy" is not a search subject to the Fourth Amendment. Jacobsen, 466 U.S., at 123. We have held that any interest in possessing contraband cannot be deemed "legitimate," and thus, governmental conduct that only reveals the possession of contraband "compromises no legitimate privacy interest." Ibid. This is because the expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable. [*7] " Id., at 122 (punctuation omitted). In United States v. Place, 462 U.S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item." Id., at 707; see also Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Respondent likewise concedes that "drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband." Brief for Respondent 17. Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

Accordingly, the use of a well-trained narcotics-detection dog -- one that "does not [*8] expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707 -- during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity -- in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk [*9] of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

THE CHIEF JUSTICE took no part in the decision of this case.



I would hold that using the dog for the purposes of determining the presence of marijuana in the car's trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. I would accordingly affirm the judgment of the Supreme Court of Illinois, and I respectfully dissent.

In United States v. Place, 462 U.S. 696 (1983), we categorized the sniff of the narcotics-seeking dog as "sui generis" under the Fourth Amendment and held it was not a search. Id., at 707. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption [*10] that trained sniffing dogs do not err. What we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering Place's decision against treating the intentional use of a trained dog as a search. The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search. We should not wait for these developments to occur before rethinking Place's analysis, which invites such untoward consequences. n1

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n1 I also join JUSTICE GINSBURG's dissent, post, p. ___. Without directly reexamining the soundness of the Court's analysis of government dog sniffs in Place, she demonstrates that investigation into a matter beyond the subject of the traffic stop here offends the rule in Terry v. Ohio, 392 U.S. 1 (1968), the analysis I, too, adopt.

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At the heart both of Place and the Court's opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. n2 See ibid. ("The sniff discloses only the presence or absence of narcotics, a contraband item"); ante, at 3-4 (assuming "that a canine sniff by a well-trained narcotics dog will only reveal 'the presence or absence of narcotics, a contraband item'" (quoting Place, supra, at 707)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff "does not implicate legitimate privacy interests" and is not to be treated as a search. Ante, at 4.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 Another proffered justification for sui generis status is that a dog sniff is a particularly nonintrusive procedure. United States v. Place, 462 U.S. 696, 707 (1983). I agree with JUSTICE GINSBURG that the introduction of a dog to a traffic stop (let alone an encounter with someone walking down the street) can in fact be quite intrusive. Post, at 4-5 (dissenting opinion).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*12]

The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. See, e.g., United States v. Kennedy, 131 F.3d 1371, 1378 (CA10 1997) (describing a dog that had a 71% accuracy rate); United States v. Scarborough, 128 F.3d 1373, 1378, n. 3 (CA10 1997) (describing a dog that erroneously alerted 4 times out of 19 while working for the postal service and 8% of the time over its entire career); United States v. Limares, 269 F.3d 794, 797 (CA7 2001) (accepting as reliable a dog that gave false positives between 7 and 38% of the time); Laime v. State, 347 Ark. 142, 159, 60 S. W. 3d 464, 476 (2001) (speaking of a dog that made between 10 and 50 errors); United States v. $ 242,484.00, 351 F.3d 499, 511 (CA11 2003) [*13] (noting that because as much as 80% of all currency in circulation contains drug residue, a dog alert "is of little value"), vacated on other grounds by rehearing en banc, 357 F.3d 1225 (CA11 2004); United States v. Carr, 25 F.3d 1194, 1214-1217 (CA3 1994) (Becker, J., concurring in part and dissenting in part) ("[A] substantial portion of United States currency . . . is tainted with sufficient traces of controlled substances to cause a trained canine to alert to their presence"). Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are "generally reliable" shows that dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time, depending on the length of the search. See Reply Brief for Petitioner 13; K. Garner et al., Duty Cycle of the Detector Dog: A Baseline Study 12 (Apr. 2001) (prepared under Federal Aviation Administration grant by the Institute for Biological Detection Systems of Auburn University). In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.

Once the dog's fallibility is recognized, however, that ends [*14] the justification claimed in Place for treating the sniff as sui generis under the Fourth Amendment: the sniff alert does not necessarily signal hidden contraband, and opening the container or enclosed space whose emanations the dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not, of course, to deny that a dog's reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny. And when that aura of uniqueness disappears, there is no basis in Place's reasoning, and no good reas

Florida v. Royer



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