BARNES (NATHANIEL TYRONE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NATHANIEL TYRONE BARNES
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 07-CR-00710
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
COMBS, CHIEF JUDGE: Nathaniel Tyrone Barnes appeals an order of the
Fayette Circuit Court of August 20, 2007, denying his motion to suppress
evidence. After our review, 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.
On the evening of March 24, 2007, Officer Thomas Perkins of the
Lexington Division of Police was dispatched to 1143 Centre Parkway, Apartment
19, to investigate trafficking in narcotics by individuals in that apartment. As the
first officer to respond to the scene, Perkins observed two young men seated in a
stairwell. One of them, Nathaniel Tyrone Barnes, stood to meet Perkins as he
approached. Perkins testified that he immediately recognized that Barnes was
Officer Perkins asked the men where they had been, and Barnes
responded that they had come from apartment 19. According to Perkins, Barnes
appeared extremely nervous and evasive. Perkins then asked the men to provide
him with some identification. As Officer Perkins examined the identification
cards, he noticed that Barnes kept taking his hands in and out of his pockets in a
furtive manner. Barnes continued to do so even after Perkins requested that he
keep his hands away from his trouser pockets. Perkins admitted that Barnes’s
demeanor had caused him to begin to feel concerned for his safety and for the
safety of others passing in and out of the nearby apartments. When Barnes moved
his hands behind his back, Perkins decided to frisk him for weapons.
During a pat-down search of Barnes, Perkins felt two bulges in his
front trouser pocket. Based upon his training and experience, Perkins knew that
the bulges were likely to be narcotics. Officer Perkins placed Barnes under arrest
and gave him his Miranda2 warnings. In conducting a search incident to the arrest,
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Perkins uncovered a digital scale covered with a white powder residue; one plastic
bag containing a white powder; one plastic bag containing a white, rocky
substance; one small bag containing what appeared to be marijuana; $350.00 in
small bills; and $32.00 in another pocket. Barnes was transported to a nearby
hospital where it was discovered that he had ingested a substantial amount of
cocaine. Barnes’s companion was not searched or questioned further.
On May 29, 2007, Barnes was indicted for trafficking in a controlled
substance in the first degree and possession of marijuana. He filed a motion to
suppress the evidence on August 14, 2007. Barnes argued that Officer Perkins’s
search exceeded the permissible scope of an investigatory stop, that it was not
supported by adequate cause, and that it otherwise violated his constitutional
Following an evidentiary hearing, the trial court concluded that
Officer Perkins had undertaken a prudent and lawful search and seizure as a result
of his reasonable investigation of the call. Barnes entered a conditional guilty plea
and preserved his right to challenge the trial court’s ruling on his motion to
suppress evidence seized by police during the investigatory stop. He was
sentenced to a five-year suspended term of imprisonment and to five-years’
probation. This appeal followed.
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)
9.78. The trial court’s application of the law to the facts is reviewed de novo.
Commonwealth v. Neal, 84 S.W.3d 920 (Ky. 2002).
On appeal, Barnes argues that the trial court erred by failing to grant
his motion to suppress the evidence because the search and seizure were illegal.
He contends that Officer Perkins’s initial stop was improper under the principles
established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). He claims that the
officer’s suspicion was based entirely on an allegation made by an anonymous
tipster and that the tip lacked the requisite predictive information to justify the
existence of any reasonable suspicion. As we disagree with Barnes’s underlying
premise, we conclude that Officer Perkins conducted a proper Terry search after he
had developed a reasonable suspicion.
Officer Perkins testified that he arrived at 1143 Centre Parkway in
response to a dispatch. He met Barnes and the other man as he approached
apartment 19 and asked them about their activities. There were no constitutional
implications inherent in this initial encounter. Baker v. Commonwealth, 5 S.W.3d
142 (Ky. 1999).
As the interchange among the men continued, Officer Perkins
perceived that Barnes was under the influence of an intoxicant and that he was
extremely edgy and evasive. In light of the totality of the circumstances, Perkins
determined that the situation warranted further investigation, and he decided to
detain Barnes. Barnes’s demeanor plainly gave rise to an objectively reasonable
and articulable suspicion. The investigatory stop was fully justified at this point.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
Later, when Perkins came to believe that Barnes was concealing a
weapon, the officer was justified in conducting a pat-down search for his safety
and the safety of others. Id. This search was narrowly circumscribed, and by
means of a “plain-feel” search, Perkins discovered the secreted narcotics. See
Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001).
The trial court did not err by concluding that the search and seizure
were wholly proper in this case. Consequently, we affirm the order of the Fayette
Circuit Court denying the motion to suppress.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Department of Public Advocacy
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General