Mulazim v. Commonwealth, No. 2007-CA-002427-MR (Ky. App. 12/5/2008)
| Decision Date | 05 December 2008 |
| Docket Number | No. 2007-CA-002427-MR,2007-CA-002427-MR |
| Parties | Dawan Q. MULAZIM Appellant, v. COMMONWEALTH of Kentucky Appellee. |
| Court | Kentucky Court of Appeals |
Matthew W. Boyd, Lexington, Kentucky, Brief for Appellant.
Lucas R. Braun, Lexington, Kentucky, Oral Argument for, Appellant.
Jack Conway, Attorney General, Henry Flores, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
David Abner, Frankfort, Kentucky, Oral Argument for Appellee.
Before: ACREE, CLAYTON, and KELLER, Judges.
NOT TO BE PUBLISHED
Dawan Q. Mulazim (Mulazim) appealed directly from the judgment of the Fayette Circuit Court convicting him of Possession of a Handgun by a Convicted Felon pursuant to Kentucky Revised Statutes (KRS) 527.040 and Persistent Felony Offender Second Degree (PFO II) pursuant to KRS 532.080(2). Mulazim was sentenced to five (5) years' imprisonment for the weapon charge which was enhanced to ten (10) years as a result of the PFO II conviction. Mulazim filed a motion to suppress the evidence gathered after police stopped him, based upon a tip from a known informant who received information from an anonymous informant. Thereafter, appellant filed a motion to amend or dismiss the indictment which was likewise denied. For the reasons set forth below, we affirm.
On October 17, 2006, Francis White (Francis), telephoned the Lexington Division of Police and Officer Hyer was dispatched to her home. Francis told Officer Hyer that Mulazim was driving in East Lexington, with a gun, searching for her son, Philip White (Philip), in order to harm him. She also alleged that Mulazim had stabbed Philip the night before. Francis gave Officer Hyer a description of Mulazim and of Mulazim's car, including a partial license plate number. When asked the basis of her knowledge, Francis said that she received the information from a third party who did not wish to be named or involved.1
After hearing a bulletin with the above information about Mulazim, Sergeant Webb spotted Mulazim's car and pulled him over to the side of the road. As Sergeant Webb got out of his cruiser, Mulazim likewise left his car and fled the scene. He was later arrested by other officers. Sergeant Webb ordered the other two occupants out of the car and opened the driver's side door exposing the butt of a firearm under the driver's seat. Sergeant Webb then searched the area to insure his safety; however, he did not secure the other passengers.
Following his arrest, Mulazim was charged with Possession of a Controlled Substance First Degree, Possession of a Handgun by a Convicted Felon, Carrying a Concealed Deadly Weapon, Possession of Drug Paraphernalia, Fleeing or Evading Police Second Degree, Violation of an Emergency Protective or Domestic Violence Order and Persistent Felony Offender Second Degree.
Mulazim moved to suppress the evidence seized by Sergeant Webb, arguing that Sergeant Webb had no basis to stop him. During the suppression hearing, the Commonwealth produced two witnesses, Officer Hyer and Sergeant Webb. The Commonwealth did not produce Francis, Philip, or the anonymous source. Following the suppression hearing, the circuit court entered findings of fact, conclusions of law, and an order denying the motion to suppress. Mulazim thereafter entered a conditional guilty plea, and this appeal followed. On appeal, Mulazim argues the trial court erred when it denied his motion to suppress and the Commonwealth improperly used the same prior conviction to obtain the possession and PFO II convictions.
The decision of the circuit court on a motion to suppress or admit evidence is subject to a two-part analysis: (1) the factual findings of the court are conclusive if they are not clearly erroneous and are supported by substantial evidence; and (2) the ultimate issue of the existence of reasonable suspicion or probable cause is a mixed question of law and fact subject to de novo review. Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky. App. 2003). "Substantial evidence is defined as evidence of substance and relative consequence having the fitness to induce conviction in the minds of reasonable [persons]." Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 579 (Ky. 2002). When reviewing the trial court's findings of fact "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01.
The second issue raised by Mulazim, application of the PFO II enhancement, primarily sounds in law; therefore, our review is also de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001), Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky. App. 1998). With the above factual background and the applicable standards of review ascribed, we will address the issues raised by Mulazim in the order set forth above.
The Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution protect citizens from unreasonable searches and seizures by police officers. Typically, there are three types of encounters between citizens and police officers that are covered by the preceding: consensual interactions, temporary detentions typically referred to as Terry stops, and arrests. At issue here is a Terry stop, which is a temporary detention of a citizen so that a police officer may conduct an investigation. During a Terry stop, a police officer may conduct a limited search in order to pursue the investigation. The purpose of such a search is not to discover evidence of a crime, but to ensure the officer's and the public's safety. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2003); Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003). Police officers must have a reasonable and articulable suspicion that a crime is occurring before they may perform a temporary investigative stop of a person who is on foot, or driving a car. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979).
The above legal principles defy concrete definition, thus leading to the case by case analysis currently employed by our courts:
Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are commonsense, nontechnical conceptions that deal with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" As such, the standards are "not readily, or even usefully, reduced to a neat set of legal rules." We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found. We have cautioned that these two legal principles are not "finely-tuned [sic] standards," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed.
Ornelas v. U.S., 517 U.S. 690, 695-96, 116 S.Ct. 1657, 166, 134 L.Ed.2d 911 (1996). (Internal citations omitted).
Herein, Mulazim argues that Sergeant Webb conducted the Terry stop of his car predicated on an anonymous tip. In doing so, Mulazim points out that the police knew the identity of the tipster, Francis; however, they did not know the identity of the source of the information. Mulazim argues that because the source of the information (the mother of Philip's son) was completely unknown to the officer at the time of the stop, the tip from Francis was the equivalent of an anonymous tip. As noted by Mulazim, "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," sufficient to justify a Terry stop. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In support of his contention, Mulazim cites to decisions from other jurisdictions referencing "crime stoppers" and other similar organizations for the principle that anonymous information does not become more reliable simply because it has been fed through an identified conduit.
The U.S. Supreme Court has clarified the process of reviewing whether an anonymous tip meets the "reasonable and articulable suspicion" standard. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), dealt with an anonymous tip in the probable-cause context. The Court therein abandoned the "two-pronged test" previously developed in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of a "totality of the circumstances" approach to determining whether an informant's tip establishes probable cause. The Gates court made clear, however, that those factors considered critical under Aguilar and Spinelli — an informant's "veracity," "reliability," and "basis of knowledge" — remain "highly relevant in determining the value of [an informant's] report." Gates, 462 U.S. at 230, 103 S.Ct. at 2328. One measure of an informant's credibility is whether she can be held accountable if the information proves to be inaccurate. See Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 1461 L.Ed.2d 254 (2000), and Commonwealth v. Kelly, 180 S.W.3d 474 (Ky. 2005).
We agree with Mulazim that Francis's tip contained only identifying information, described little predictive information as to Mulazim's behavior, and came primarily from an informant with an...
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