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Commonwealth v. Bucalo

Supreme Court of Kentucky

December 19, 2013

COMMONWEALTH OF KENTUCKY, APPELLANT
v.
ASIA BUCALO, APPELLEE

Released for Publication March 20, 2014.

Page 254

[Copyrighted Material Omitted]

Page 255

ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-000176-MR. HARDIN CIRCUIT COURT NO. 09-CR-00143.

COUNSEL FOR APPELLANT: Jack Conway, Attorney General, Todd Dryden Ferguson, Assistant Attorney General.

COUNSEL FOR APPELLEE: Erin Hoffman Yang, Assistant Public Advocate.

Abramson, Keller, Scott, and Venters, JJ., concur. Noble, J., dissents by separate opinion in which Minton, C.J., joins.

OPINION

Page 256

CUNNINGHAM, JUSTICE.

REVERSING

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

Page 257

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 ...


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