BLACK (MORDECAI) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 07-CR-00213
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
COMBS, CHIEF JUDGE: Following entry of a conditional guilty plea, Mordecai
Black (Black) was convicted of complicity to commit second-degree robbery. He
reserved the right to challenge the denial of his motion to suppress evidence by the
Campbell Circuit Court. He now appeals from that order. We affirm.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Just before 2:00 a.m. on April 6, 2007, Officer Travis Nunn of the
Bellevue Police Department was dispatched to the corner of 417 Center Street and
Washington Street in Bellevue. Police dispatch reported an armed robbery that had
been perpetrated by two black men several minutes earlier. The victim claimed
that one of the men had held a gun to his head.
Officer Nunn happened to be parked in an alley behind Bellevue High
School on Center Street a few blocks away from the crime scene. As he pulled out
of the alley, Officer Nunn saw two black men running toward him from Center
Street. He saw no one else in the area. As he pulled along side them, they slowed
to a walk. Nunn parked his car and began to approach them on foot. Black did not
initially respond to Nunn’s command to stop and to display his hands. Instead,
Black maneuvered between two parked vehicles and then stopped. Because the
men had been described as “armed,” Nunn drew his service weapon and ordered
Black to place his hands on the parked vehicle in front of him. Black was
handcuffed and immediately frisked for weapons; the second man was detained at
gunpoint by another officer who had also arrived at the scene. After the officers
secured the two men, they searched the nearby area and recovered a small caliber
semi-automatic handgun. The victim’s property was eventually recovered from
Black was charged with complicity to commit first-degree robbery.
On August 1, 2007, he filed a motion to suppress the evidence. Black argued that
Officer Nunn lacked adequate cause to detain him on the street and that his arrest
violated various provisions of the Kentucky Constitution as well as the Fourth,
Fifth, and Fourteenth Amendments of the United States Constitution.
Following an evidentiary hearing, the trial court rejected Black’s
contentions. The court concluded that based upon the totality of the circumstances,
Officer Nunn had developed a reasonable and articulable suspicion that Black was
engaged in criminal activity. That suspicion was sufficient to justify the stop, and
the arrest that followed was supported by probable cause. On August 13, 2007,
Black entered a conditional guilty plea preserving his right to challenge the trial
court’s ruling on his motion to suppress. He was sentenced to serve a seven-year
term of imprisonment. This appeal followed.
Black argues that the trial court erred by failing to grant his motion to
suppress the evidence because the seizure was illegal. He contends that Officer
Nunn’s initial stop amounted to an arrest that was not supported by probable cause.
In the alternative, he argues that the officer’s suspicion was based upon his race
coupled with an allegation made by an unreliable, anonymous tipster. He argues
that his race alone could not trigger reasonable suspicion under the standard set
forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He also
argues that the tip lacked the requisite predictive information that would justify the
existence of suspicion sufficient to justify an investigative stop. We disagree with
Black’s underlying premise and conclude that Officer Nunn conducted a proper
Terry stop after having developed a reasonable suspicion that Black was involved
with the crime that he was investigating.
Upon our review of the trial court’s decision on a motion to suppress,
the factual findings of the trial court are regarded as conclusive if they are
supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr)
We review de novo its application of the law to decide whether the trial
court correctly applied the law to the facts as it found them. Commonwealth v.
Neal, 84 S.W.3d 920 (Ky. 2002).
We agree with the trial court that Officer Nunn’s initial suspicion of
criminal activity was reasonable. Nunn was in the process of investigating an
armed robbery. Dispatch had advised officers that the suspects were two black
males and provided the location where the suspects had last been observed. Nunn
testified that he saw two black males running from the area where the robbery had
occurred and the suspects were last seen. It was 2:00 a.m., and the streets were
empty of pedestrian traffic. Black initially refused to comply with the command to
show his hands. Under the totality of the circumstances, Nunn reasonably
concluded that the situation warranted further investigation, and he properly
undertook to detain Black. As circumstances unequivocally gave rise to an
objectively reasonable and articulable suspicion, the investigatory stop was fully
In addition to the information from dispatch indicating that the
suspects had engaged in an armed robbery, Black’s demeanor and his refusal to
comply with Nunn’s order to show his hands provided a reasonable basis for Nunn
to believe that Black might be concealing a weapon. Consequently, Officer Nunn
was justified in conducting a pat-down search for his safety and the safety of
others. Id. Under the circumstances, Officer Nunn’s use of handcuffs to restrain
Black during the pat-down did not exceed the bounds of a Terry stop-and-frisk.
During the course of the detention, the officers recovered a handgun that they
suspected had been used in the robbery. Thus, the ensuing arrest was supported by
Since the investigatory stop and the subsequent arrest were
constitutionally valid, the order of the Campbell Circuit Court denying the motion
to suppress evidence was not erroneous. Consequently, we affirm that order.
BRIEF AND ORAL ARGUMENT
Linda Roberts Horsman
Assistant Public Advocate
Department of Public Advocacy
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
ORAL ARGUMENT FOR
Ken W. Riggs