MULAZIM (DAWAN QAADIR) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DAWAN Q. MULAZIM
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 06-CR-01686
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: ACREE, CLAYTON, AND KELLER, JUDGES.
KELLER, JUDGE: 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
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
We note that the third party was later identified as the mother of Philip’s son; however, it is
undisputed that this information was not disclosed until after Mulazim’s arrest.
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.
STANDARD OF REVIEW
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 unidentified source, who provided no
concrete basis for the information. However, we disagree with Mulazim that
Francis was unaccountable or that the source of the information was truly
When determining the close question before us, this Court deems its
previous decision in Tucker v. Commonwealth, 199 S.W.3d 754 (Ky. App. 2006),
and the Supreme Court’s decision in Kelly, supra, to be persuasive. In Tucker, the
officer who made the stop did not know the identity of the informant; however, the
informant had identified himself to the dispatcher. Therefore, the tip was not
anonymous. Rather, it was a tip or information provided by a person who
identified himself to the law enforcement agency. The fact the dispatcher did not
advise the officer of the identity of the informant did not mean the tip was an
anonymous one. Because the source of the information was known to the police
agency, the tip was entitled to a greater presumption of reliability than a tip from
an anonymous informant. See United States v. Pasquarille, 20 F.3d 682, 689 (6th
Cir. 1994). See also United States v. Swihart, 554 F.2d 264, 269 (6th Cir. 1977),
and United States v. Phillips, 727 F.2d 392, 397 (5th Cir. 1984). Id. 199 S.W.3d at
In Kelly, two unnamed employees of a restaurant called in a tip about
a drunk driver. The Supreme Court of Kentucky stated:
We find that the setting and circumstances of this case do
not support a conclusion that the tip was truly
“anonymous.” While the tipsters did not give their
names, they (1) identified themselves as employees of the
Waffle House restaurant; and (2) provided the location of
the particular restaurant where they worked. This
information alone raises a strong presumption that these
informants could likely be located in the event that their
tip was determined to be false or made for the purpose of
Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005).
As with the tipsters in Kelly, there is a strong presumption the ultimate
source of the information Francis gave to Officer Hyer could be discovered in the
event it turned out to be false. Francis gave the information in a face-to-face
interview with Officer Hyer. She knew the identity of the person from whom she
received the information. She could ultimately be held accountable for giving a
false report had the information proved to be false. This removes this case from
the typical “crime stoppers” report, where the tip can truly be characterized as
anonymous or unknown. The informant here was not unknown, she was merely
unnamed. Furthermore, the fact that Francis could be held accountable if the
information proved to be inaccurate lends credibility to the source.
Further, we believe it is significant that Francis alleged her son had
been stabbed on the previous night by Mulazim. When exigent circumstances are
present, such as the threat of imminent injury or the imminent destruction of
evidence, police are permitted to enter a home without a search warrant. See
Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky. 2003); Hughes v.
Commonwealth, 87 S.W.3d 850, 852 (Ky. 2002); Hallum v. Commonwealth, 219
S.W.3d 216, 222 (Ky. App. 2007). The United States Supreme Court held “that an
important factor to be considered when determining whether any exigency exists is
the gravity of the underlying offense for which the arrest is being made.” Welsh v.
Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099, 80 L. Ed. 2d 732 (1984).
This exigent circumstance, an impending second attempt on her son’s life, coupled
with the detailed identifying information and limited “anonymity” of the source of
the information, created a reasonable, articulable suspicion of criminal activity
sufficient to warrant further investigation via the limited detention and
inconvenience of a Terry stop.
Next, we turn our attention to Mulazim’s second issue, i.e., violation
of the double jeopardy clause by improper application of the PFO II conviction. At
the outset, we note the Commonwealth asserts Mulazim’s counsel conceded the
issue during a hearing on this matter. Our review of the record reveals Mulazim
filed a written motion on this issue and otherwise maintained his objection to the
application of the PFO II throughout the proceedings. Therefore, we hold the
Commonwealth’s argument is without merit.
The crux of Mulazim’s argument is that the felony used to create the
offense of Possession of a Handgun by a Convicted Felon was impermissibly used
to add punishment, or to enhance his sentence via the Persistent Felony Offender
statute. Mulazim was convicted of being a PFO II and sentenced pursuant to KRS
532.080(2) because he had been convicted of Assault in the Second Degree and
Tampering with Physical Evidence in 2002. These prior felonies were named in
the same indictment, and the sentences were served simultaneously. Mulazim
argues that, pursuant to KRS 523.080(4), those prior felonies merged and could not
be used to convict him for both offenses, possession of a handgun and PFO. KRS
523.080(4) provides that:
for the purpose of determining whether a person has two
(2) or more previous felony convictions, two (2) or more
convictions of crime for which that person served
concurrent or uninterrupted consecutive terms of
imprisonment shall be deemed to be only one (1)
conviction, unless one (1) of the convictions was for an
offense committed while that person was imprisoned.
KRS 527.040 provides that a person is guilty of Possession of a
Handgun by a Convicted Felon, if he:
possesses, manufactures, or transports a firearm when he
has been convicted of a felony, as defined by the laws of
the jurisdiction in which he was convicted, in any state or
federal court . . . .
The line of cases, beginning with Boulder v. Commonwealth, 610
S.W.2d 615 (Ky. 1980), through the most recent decision in Morrow v.
Commonwealth, 77 S.W.3d 558, 561 (Ky. 2002), muddied the waters of sentence
enhancement. Confusion arises with regard to the interaction of the merger
provision of the PFO statute and the Boulder court’s holding that
[a]lthough a person's status as a felon may be used to
punish him, as evidenced by statutes such as KRS
527.040, KRS 527.020(5), and KRS 532.080, it may not
be used to punish him again and again, over and over.
Specifically, this status may not be used to obtain a
primary conviction, then re-used to increase the
punishment for that conviction, and then re-used again to
enhance a sentence for another primary conviction.
Id. at 618. In Boulder, the defendant had a single prior felony conviction, was
convicted of assault, possession of a handgun by a convicted felon, and of being a
PFO. The Commonwealth used that single felony conviction as the basis for a
conviction of Possession of a Handgun by a Convicted Felon, and to enhance the
defendant’s sentences for the possession of the handgun and the assault. In other
words, the Commonwealth used the single prior felony conviction three (3)
In Eary v. Commonwealth, 659 S.W.2d 198, 199-200 (Ky. 1983), the
Court clarified that, in a case involving prosecution of a current felony with a
defendant with a single prior felony, that prior felony:
may not be used at that trial to prosecute the defendant
under KRS 532.080. We are unwilling to further extend
that holding. Where a defendant is convicted at his trial
for possession of a handgun by a convicted felon and has
been previously convicted of more than one prior felony,
those convictions in excess of that for a single felony may
be utilized for the purpose of persistent felony offender
sentencing pursuant to KRS 532.080 . . . .
In 2002, the Supreme Court in Morrow v. Commonwealth, 77 S.W.3d
558, 561 (Ky. 2002), ruled that “second or subsequent offense” enhancement under
KRS Chapter 218A and PFO were legitimate where the defendant had been
convicted of more than one previous felony. The Court reasoned that the General
Assembly had different aims or functions for each statutory scheme. It noted the
differences in the qualifications required for each to apply to a particular
defendant, e.g., “[t]he age limitations in KRS 532.080 reserve PFO enhancement
for more mature offenders who have failed previous attempts at rehabilitation.
While a defendant may be subject to KRS Chapter 218A penalty enhancement
regardless of when the prior offense was committed . . . .” Ultimately, the Court
determined, “[t]he broader range of cases in which penalty enhancement is
available under KRS Chapter 218A demonstrates the General Assembly's intent to
deal more harshly with repeat controlled substance offenders.” Id. at 562 citing
Had the defendant in Morrow previously been convicted of only one
felony, “statutory and constitutional protections against double jeopardy would
prevent the Commonwealth from using the one prior conviction for both Chapter
218A “second or subsequent offense” enhancement and for PFO enhancement.”
(See Commonwealth v. Grimes, 698 S.W.2d 836, 837 (Ky. 1985)). Because the
Defendant had been convicted of two prior felonies, and noting that KRS 218A
penalty enhancement precedes PFO enhancement chronologically, Morrow limits
the KRS 532.080(4) “merger” provision for PFO purposes only. Morrow v.
Commonwealth, 77 S.W.3d 558, 562 (Ky. 2002)
When applying the reasoning of Morrow to the facts of this appeal,
the Court is faced with a PFO sentencing enhancement and a separate criminal
offense of Possession of a Handgun by a Convicted Felon, both of which are
supported by more than one prior felony. Mulazim argues that Morrow stands for
the premise that the Kentucky Controlled Substances Act “trumps” the PFO
merger statute and the handgun charge does not permit severance of the felonies
citing Corman v. Commonwealth, 908 S.W.2d 122 (Ky. App. 1995), and O'Neil v.
Commonwealth, 114 S.W.3d 860, 864 (Ky. App. 2003).
However, O’Neil supports the circuit court’s ruling because of
Mulazim’s multiple preceding felonies,
[b]ased upon the record before us, appellant has only one
prior felony, which must necessarily be the basis for his
conviction of possession of a handgun by a convicted
felon. Therefore, this same prior felony cannot also be
used under the PFO statute to further enhance appellant's
sentence for that offense. Corman, 908 S.W.2d at 123.
However, the Commonwealth correctly points out that
the 1990 felony conviction may be used to enhance the
O'Neil v. Commonwealth, 114 S.W.3d 860, 864 (Ky. App. 2003), citing
Dale v. Commonwealth, 715 S.W.2d 227 (Ky. 1986).
Therefore, as in Morrow, the PFO merger doctrine applies only for
PFO purposes not for the purposes of convicting of an underlying crime. The
underlying offense committed by Mulazim, possession of a handgun by one who
has a prior felony, chronologically preceded any PFO enhancement of his
sentence; therefore, we hold that the trial court acted correctly when sentencing
Mulazim. His prior convictions were not merged for these purposes and could be
used separately, one for the underlying charge of possession of the handgun, and
the other for the conviction of the PFO II. This holding is in keeping with
precedent and the legislative intent to punish more severely those persons who
have multiple prior offenses in their background and further punish those felons
who continue to possess firearms despite their status as felons. We therefore
affirm the judgment of the Fayette Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew W. Boyd
ORAL ARGUMENT FOR
Assistant Attorney General
Lucas R. Braun
ORAL ARGUMENT FOR