FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL,
JUDGE ACTION NO. 16-CR-00828
FOR APPELLANT: Karen Shuff Maurer Frankfort, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky James
P. Judge Assistant Attorney General Frankfort, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON  AND KRAMER, JUDGES.
CLAYTON, CHIEF JUDGE
Lynem appeals from a Fayette Circuit Court judgment after
pleading guilty to possession of a controlled substance in
the first degree, tampering with physical evidence and
fleeing/evading police in the second degree. Lynem entered
the plea conditioned on his right to appeal the circuit
court's denial of his motion to suppress evidence.
following evidence was elicited at the suppression hearing:
Officer Todd Hart and Recruit Officer Head were on patrol in
Lexington when they stopped at a Speedway to purchase fuel
and drinks. Lynem was also at the Speedway. Officer Hart
testified that he did not specifically remember seeing Lynem
at the service station and did not know if Officer Head saw
Lynem. He assumed they followed Lynem out of the Speedway
because his vehicle was in front of theirs when they left and
proceeded down New Circle Road.
following Lynem for a short distance, Officer Head checked
Lynem's license plate number in the Automated Vehicle
Information System (AVIS). According to Hart, part of the
training of recruit officers like Head consisted of teaching
them to check random license plates. In regard to Lynem's
plate, AVIS indicated "verify proof of insurance."
Hart testified that when a stop is made due to an AVIS alert,
he generally finds the vehicle is not insured. He
acknowledged that he had encountered false positives but that
the system has a 90 to 95 percent accuracy rate. The officers
followed Lynem briefly and then, when he turned onto Eastland
Parkway, activated their lights to initiate a traffic stop.
Lynem did not pull over immediately but proceeded at the
speed limit for another three to four blocks. He then turned
onto Martha Court, where he stopped, jumped out of his car
and ran away. The officers separated to pursue him. Officer
Head eventually caught Lynem, who told the officers he fled
because he did not have a license. The police did not find
any contraband in a search of his vehicle but when they
retraced his path, they found a rock of crack cocaine. Later,
they obtained video from a security camera on a nearby
building that showed Lynem throwing an object away as he ran
by. Lynem denied any knowledge of the cocaine.
was taken to the Fayette County Detention Center. Michael
McLaughlin, who was being booked at the same time for failure
to pay child support, testified he overheard Officers Hart
and Head talking and laughing with the deputy sheriff.
According to McLaughlin, Officer Hart stated he had seen
Lynem in the Speedway, did not like how he looked and knew he
would run if they followed him. Lynem has a distinctive
appearance: he is African-American with facial tattoos, gold
teeth and long cornrows that are dyed blond.
filed a motion to suppress the evidence recovered by the
police, arguing that they lacked reasonable suspicion to
justify the traffic stop.
the suppression hearing, which was continued for additional
briefing on issues raised by two unpublished opinions of this
Court, Willoughby v. Commonwealth,
2012-CA-000776-MR, 2014 WL 92253 (Ky. App. Jan. 10, 2014)
("Willoughby I") and Willoughby v.
Commonwealth, 2015-CA-000466-MR, 2017 WL 1290645 (Ky.
App. Apr. 7, 2017), disc. review denied (Ky. Oct.
25, 2017) ("Willoughby II"), the trial
court denied the motion to suppress. Lynem entered a
conditional guilty plea to amended charges. He received a
total sentence of two years and was placed on probation for
three years. This appeal followed.
standard when reviewing a suppression ruling is twofold:
"we first determine whether the trial court's
findings of fact are supported by substantial evidence. If
they are, then they are conclusive. Based on those findings
of fact, we must then conduct a de novo review of
the trial court's application of the law to those facts
to determine whether its decision is correct as a matter of
law." Commonwealth v. Neal, 84 S.W.3d 920, 923
(Ky. App. 2002) (footnotes omitted).
Fourth Amendment to the United States Constitution secures
our freedom from "unreasonable searches and
seizures." See also Ky. Const. § 10.
"A police officer may constitutionally conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot."
Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky.
2009) (citing Terry v. Ohio, 392 U.S. 1, 30, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Traffic stops are similar
to Terry stops and therefore must also be supported
by reasonable, articulable suspicion, which is defined as
"considerably less than proof of wrongdoing by
preponderance of the evidence." Chavies v.
Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011) (citations
argues that the traffic stop was pretextual based on
McLaughlin's testimony regarding the officers'
motives for pulling him over. He contends that the officers
sought a reason to stop him simply because they did not like
the way he looked. Relying on dicta in Willoughby
II, he contends that before officers are permitted to