State of Tennessee v. Thaddaeus Medford

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 21, 2003
• Docket: W2002-00226-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 4, 2003 Session

STATE OF TENNESSEE v. THADDAEUS MEDFORD

Direct Appeal from the Circuit Court for Lauderdale County No. 6962 Joseph H. Walker, III, Judge

No. W2002-00226-CCA-R3-CD1 - Filed October 21, 2003

Before us are the consolidated appeals of Thaddaeus Medford who, in his first trial, was convicted of Class E felony evading arrest. The jury in that trial deadlocked on the companion charges of cocaine possession with intent to deliver and drug paraphernalia possession. Upon retrial, the defendant was convicted of the two possession offenses. He appeals the legal sufficiency of his evading arrest and cocaine possession convictions, complains that testimony about the street value of cocaine and money found in his automobile was erroneously admitted, and argues that his constitutional right to be free from Aunreasonable searches and seizures@ was violated. Based on our review of the record, the briefs of the parties, and applicable law, we affirm the defendant’s evading arrest conviction. As to the cocaine possession conviction, we affirm the trial court’s evidentiary rulings and rejection of the defendant’s motion to suppress, but we, nevertheless, reverse the conviction because the evidence is legally insufficient.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed in Part and Affirmed in Part.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H. WELLES, JJ., joined.

J. Thomas Cadlwell, Ripley, Tennessee; and Charles S. Kelly Sr., Dyersburg, Tennessee, for the Appellant, Thaddaeus Medford.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee.

1 The cocaine and paraphernalia cases were originally docketed on appeal as case No. W2002-01861-CCA- R3-CD, but the consolidation order provides that all future references should be to case No. W2002-00226-CCA-R3- CD. OPINION

Around midnight on January 9, 2000, four members of the City of Ripley-

Lauderdale County Drug Task Force were patrolling the Halls area in an unmarked 1993

Chevrolet Suburban. Lauderdale County Sheriff's Department Investigator John Thompson was

driving the vehicle; Ripley Police Officer Jeff Tutor occupied the front passenger seat. Ripley

Police Officer Gregg Land was seated behind Thompson, and Officer Richard Mawyer sat

behind Officer Tutor.

While proceeding on Highway 209 toward Gates, Investigator Thompson spotted

a black Impala traveling in the same direction on Highway 209. Investigator Thompson

described the Impala as "weaving" or "drifting within its own lane," but it was not speeding.

Thompson's Task Force companions, however, variously described the vehicle as being all over

the roadway, over the center line, and weaving on the road. Investigator Thompson activated

blue lights and a siren, which were built into the unmarked Suburban, and signaled the other

vehicle to stop.

The vehicle did not immediately halt. It continued on Highway 209, turned onto

Beech Bluff Cemetery Road, and stopped after traveling a short distance. All four officers

exited the Suburban. Officer Tutor approached the driver's side of the car, and Officer Mawyer

went to the passenger's side. The driver, the defendant, complained, "Why are you all stopping

me? I haven't done anything." Officer Tutor instructed the defendant to turn off his car engine.

The defendant did not comply; instead, he drove off at a high rate of speed with the driver's side

door open, slinging dirt and mud. As the defendant sped off, Officers Mawyer and Tutor hurled their flashlights at the defendant's vehicle, breaking through the back window. The officers

raced back to the Suburban to pursue the defendant.

Officer Land did not reach the Suburban before the other officers drove off in

pursuit. The officers lost sight of the defendant after he topped a rise in the road. Approximately

one mile past the initial point of the stop, Beech Bluff Cemetery Road forms a AT@ intersection

with another road. When the officers reached the intersection, they discovered the defendant=s

vehicle off to the left in a ditch where the defendant had wrecked after attempting to turn at the

intersection and losing control. The defendant was standing in the roadway outside his vehicle.

Investigator Thompson and Officer Tutor forced the defendant down, placed him in handcuffs,

and stood him upright. The defendant did not appear inebriated or otherwise impaired, but he

was bleeding from an injury to his forehead.

The officers searched the defendant=s vehicle and retrieved their flashlights. They

discovered $278 in cash scattered in the floorboard of the car, along with a pager and cellular

telephone. Washing powder and children=s toys were inside the car trunk. No drugs were in the

defendant=s vehicle. Investigator Thompson searched the defendant after he was handcuffed and

confiscated a razor blade, containing a powder residue, from the defendant=s left front pants

pocket. The razor blade was not submitted for testing.

-3- After the defendant was in custody and after the accident scene was secured, the

officers began backtracking the path that the defendant had taken when he fled the initial stop.

Within approximately one hour, Investigator Thompson and Officer Tutor located a plastic bag,

the contents of which were later tested and determined to be 8.4 grams of cocaine. No

identifiable fingerprints were on the bag. The bag was found a short distance, approximately

200 yards, from the initial stop, in the grass on the shoulder of Beech Bluff Cemetery Road.

The defendant was charged with possession of .5 grams or more of a Schedule II

controlled substance with intent to deliver, Tenn. Code Ann. ' 39-17-417(a)(4), (c)(1) (Supp.

2002), possession of drug paraphernalia, id. ' 39-17-425 (1997), and Class E felony evading

arrest, id. ' 39-16-603(b)(1), (3) (1997). The defendant filed a pretrial motion to suppress the

razor blade seized from his person and the cocaine confiscated from the roadway. The trial court

denied the motion after an evidentiary hearing.

The defendant was tried by jury and found guilty of Class E felony evading arrest.

The jury, however, was unable to reach a verdict on the possession charges, and the trial court

declared a mistrial on those counts. On retrial, the defendant was convicted of the cocaine and

drug paraphernalia charges. The trial court imposed a community corrections sentence of

eighteen months for the evading arrest conviction. For the cocaine possession conviction, the

trial court sentenced the defendant to a term of nine years, and for the drug paraphernalia

conviction, the trial court imposed a sentence of eleven months and 29 days. The sentences for

-4- the drug convictions were ordered to be served on community corrections. The trial court

ordered concurrent sentencing for all the convictions, producing an effective sentence of nine

years.

For each conviction, the defendant timely filed a motion for new trial; those

motions were denied. He, likewise, timely filed notices of appeal. The defendant=s cases have

been consolidated for disposition by this court. On appeal, the defendant challenges the

sufficiency of the convicting evidence, renews his complaint that illegally seized evidence

should have been suppressed, and objects to the admissibility of opinion testimony about the

street value of crack cocaine and about the money found in the defendant=s vehicle.

I. Suppression Issues

Pretrial, the defendant filed a motion to suppress Aany and all@ evidence seized in

connection with his activities on January 9, 2000. As grounds, the defendant alleged: (1) the

law enforcement officers lacked probable cause to stop his vehicle; (2) the officers lacked

probable cause to search the defendant, his vehicle, or Athe area in which he was traveling@; (3)

no exigent circumstances justified the warrantless searches; and (4) the evidence seized was not

in plain view. The trial court conducted an evidentiary hearing and denied the motion. The trial

court ruled that the cocaine found on the side of Beech Bluff Cemetery Road had been

abandoned and, therefore, should not be suppressed. As for the razor blade, the trial court ruled

-5- that the defendant=s erratic driving justified the investigatory stop, that when the defendant fled

after stopping, the officers were justified in pursuing and arresting the defendant, and that the

razor blade in the defendant=s pants pocket was properly seized incident to his arrest.

We review the trial court=s findings and rulings pursuant to a familiar standard.

On appeal, Aa trial court=s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.@ State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996), quoted in

State v. Flake, 88 S.W.3d 540, 561 (Tenn. 2002) (Opinion Denying Petition for Rehearing).

Credibility questions, evaluations of the weight of the evidence, and evidentiary disagreements

fall within the trial court=s province as the trier of fact. See State v. England, 19 S.W.3d 762,

766 (Tenn. 2000); Odom, 928 S.W.2d at 23. The party prevailing in the trial court Ais entitled to

the strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence.@ Odom, 928 S.W.2d

at 23; see State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000). Moreover, the reviewing court is

not limited to what transpired at the suppression hearing; rather, it may consider the entire

record, including trial transcripts. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). We

hasten to add that the trial court=s conclusions of law, however, are reviewed de novo without a

presumption of correctness. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

A. Abandoned Narcotics

-6- There is no factual dispute in this case that the cocaine that formed the basis for

the charge of possession with intent to deliver was discovered and seized from the grassy

shoulder of Beech Bluff Cemetery Road, approximately 200 yards from the point where the

defendant initially stopped his vehicle. None of the officers saw the defendant divest himself of

the cocaine as/after he drove away at high speed, and the defendant never admitted that the

cocaine had been his.

Relying on State v. Holbrooks, 983 S.W.2d 697 (Tenn. Crim. App. 1998), State v.

Baker, 966 S.W.2d 429 (Tenn. Crim. App. 1997), and California v. Hodari D., 499 U.S. 621,

111 S. Ct. 1547 (1991), the trial court determined that at the time the defendant cast the cocaine

out of his car window, he was no longer Aseized@; therefore, the cocaine found on the roadside by

the officers could not be the product of any Aillegal seizure.@ The cocaine had been abandoned,

the trial court concluded, and was lawfully recovered by the police.

We review the constitutional and legal standards applied by the trial court purely

de novo. As we shall explain, that review persuades us that, although suppression is not

required, the trial court applied an erroneous legal standard. See State v. Daniel, 12 S.W.3d 420,

423-24 (Tenn. 2000) (trial court=s conclusion that seizure did not occur is conclusion of law and

de novo review applies).

-7- At least three interrelated concepts influence how this suppression issue is

analyzed and resolved. They are: (i) police/citizen encounters; (ii) the plain view doctrine; and

(iii) abandoned property

(i) Police/Citizen Encounters

The Fourth Amendment of the United States Constitution protects the Aright of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures@ and commands that Ano warrants shall issue but upon probable cause,

supported by oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.@ U.S. Const. amend. IV. The Tennessee Constitution similarly

provides, in relevant part, that Athe people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures.@ Tenn. Const. art. 1 ' 7. These

constitutional protections Aare implicated only when a police officer=s interaction with a citizen

impermissibly intrudes upon the privacy or personal security of the citizen.@ Daniel, 12 S.W.3d

at 424. Stated another way, these constitutional safeguards do not attach to law enforcement

activities unless the activities qualify as a Asearch@ or Aseizure@ within the meaning of the Fourth

Amendment and/or Article 1, Section 7 of the Tennessee Constitution. State v. Ross, 49 S.W.3d

833, 839 (Tenn. 2001); see also Daniel, 12 S.W.3d at 425 (A[C]ourts have repeatedly held that

even when police have no basis for suspecting that an individual has committed or is about to

-8- commit a crime, the officer may approach an individual in a public place and ask questions

without implicating constitutional protections.@).

In State v. Randolph, 74 S.W.3d 330 (Tenn. 2002),1 our supreme court, as a

matter of interpreting Article 1, Section 7 of the Tennessee Constitution, parted company with

the federal constitutional view expressed in Hodari D. that a Aseizure@ occurs only when an

officer applies physical force to detain an individual or when the individual yields to a show of

authority. Randolph, 74 S.W.3d at 337. In contrast to the Hodari D. Court=s definition of a

seizure, our supreme court ruled that an officer=s show of authority can constitute a Aseizure@

even though a suspect is not actually restrained or even if the suspect fails to submit to the

official show of authority. Randolph, 74 S.W.3d at 335-38.

The pertinent facts in Randolph were that 15 minutes after Officer

Harrington received notification of a possible burglary in progress

at Doc=s, he saw the defendant riding a small, chrome-silver BMX-

style bicycle in his direction approximately four blocks away from

Doc=s. Officer Harrington requested a description and was told

only that the suspect was a white male. Based merely on a hunch,

Officer Harrington decided

1 The opinion in Randolph was released May 3, 2002 , only a short time after the defendant filed his notices of appeal.

-9- to stop the defendant, activated his blue lights to identify himself

as an officer, and ordered the defendant to stop. When the

defendant ignored the order and kept going, Officer Harrington

turned his police car around and pursued the defendant for

approximately one and one-half blocks.

Id. at 337-38. The officer eventually caught up with Randolph, but before he was physically

apprehended, he tossed a shotgun and two boxes of ammunition into the grass and fled on foot.

Id. at 333. AWe hold,@ the supreme court wrote, Athat under the circumstances of this case the

defendant was seized when the officer activated the blue lights on his patrol car, ordered the

defendant to stop, and pursued him for several blocks.@ Id. at 338. The court concluded,

ABecause the officer lacked reasonable suspicion or probable cause to effect such a seizure, the

evidence seized from the defendant was properly suppressed by the trial court.@ Id.

Pursuant to Randolph, we can reach no conclusion other than the defendant in this

case was seized when the drug task force officers activated the blue lights on their Suburban,

ordered the defendant to turn off his car engine, and then pursued him when he refused to submit

and drove off instead. The constitutionality of that seizure, therefore, becomes an issue because

the cocaine represents the fruits of that seizure.

-10- One well-recognized exception to the warrant requirement exists when a police

officer makes an investigatory stop based upon reasonable suspicion, supported by specific and

articulable facts, that a criminal offense has been or is about to be committed. See Terry v. Ohio,

392 U.S. 1, 20-21, 88 S. Ct. 1868, 1880 (1968); State v. Bridges, 963 S.W.2d 487, 492 (Tenn.

1997); State v. Hord, 106 S.W.3d 68, 71 (Tenn. Crim. App. 2002), perm. app. denied (Tenn.

2003). Probable cause is not required for such an Ainvestigatory stop.@ Terry, 392 U.S. at 21, 88

S. Ct. at 1880. The leading case, Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401

(1979), established that generally the police are entitled to stop a car briefly for investigative

purposes if they have a reasonable suspicion, based upon specific and articulable facts, that an

offense is being or is about to be committed. A reviewing court then must take into account the

totality of circumstances when analyzing whether an officer's suspicion is Areasonable@ and

supported by specific and articulable facts. Yeargan, 958 S.W.2d at 632. Circumstances

relevant to that determination include, but are not limited to, the officer=s Apersonal objective

observations@ and Athe rational inferences and deductions that a trained officer may draw from

the facts and circumstances known to him -- inferences and deductions that might well elude an

untrained person.@ State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998).

Before us in these cases are transcripts of the suppression hearing and both trials.

Throughout the various proceedings, the officers testified consistently about their observations

of the defendant=s driving and what prompted the initiation of a traffic stop. Officer Mawyer

testified at the suppression hearing that the defendant Awas driving over the center line down the

-11- center of the road, basically weaving back and forth.@ At both trials, he said that he observed the

defendant driving over the center line. Officer Tutor, likewise, testified at the suppression

hearing that he observed the defendant=s vehicle weaving across the center of the road; that

testimony did not change at either trial. At the suppression hearing, Officer Land related that

when he first noticed the defendant=s car it was Asomewhat on the wrong side of the road,@ across

the center line. Officer Land was not a witness at either trial. Finally, Investigator Thompson

testified at the suppression hearing and both trials that when he first observed the defendant=s

vehicle, it was Aweaving@ and Adrifting within its own lane.@ None of the officers claimed that

the defendant was driving at an excessive speed. They initiated the stop to investigate the

defendant=s sobriety.

The defendant did not testify at the suppression hearing but did testify at both

trials. He claimed that he had not been drinking that night, that he had been visiting with a

friend, and that he was simply returning home to his wife and children. The defendant testified

that he noticed a vehicle traveling close behind him, but he flatly denied seeing any blue lights.

He said that he was Aforced@ to stop when the other vehicle tried to cut him off the road. The

defendant testified that he was frightened, that he did not know Awhat the heck was going on,@

that he did not know that the men in the other vehicle were law enforcement officers, and that he

drove off Ato get some place safe.@ In the process of speeding off, the defendant said that he

accelerated too fast while making a turn and Afishtailed and ended up hitting the ditch.@

-12- According to the defendant, when the police arrived, they threw him to the

ground, handcuffed him, and hit him on the side of the head. The defendant testified that one of

the officers took money out of the defendant=s pants pocket. He denied that he had been

drinking that night, denied having any kind of drugs with him, and denied throwing anything out

his vehicle. He variously denied or could not recall having a razor blade in his pants pocket.

In its written Order denying the defendant=s suppression motion, the trial court

accredited the officers= testimony that they observed the defendant weaving out of his lane and

over the center. Based on this erratic driving, the trial court concluded that the officers had

reasonable suspicion sufficient to justify an investigatory stop. The defendant argues on appeal

that the evidence preponderates against the trial court=s findings; however, he relies entirely on

Investigator Thompson=s testimony that the defendant was weaving in his own lane, which the

defendant insists did not justify the stop.

Investigator Thompson=s observations notwithstanding, we are not convinced that

the evidence preponderates against the lower court=s findings that the defendant was driving

erratically and was weaving and drifting out of his lane and over the center of the roadway. The

other officers so testified, and as the fact finder, the trial court was in the superior position to

evaluate the relative merits of the testimony presented. The observations and testimony

distinguish this case from those involving merely a momentary lapse in a motorist=s driving,

which does not support reasonable suspicion for an investigatory stop. Compare State v. Binette,

-13- 33 S.W.3d 215, 218 (Tenn. 2000) (defendant=s alleged weaving was entirely within his lane, was

not exaggerated, and touched center line only twice), and State v. Ann Elizabeth Martin, No.

E1999-01361-CCA-R3-CD, slip op. at 6-7 (Tenn. Crim. App., Knoxville, Sept. 8, 2000)

(reasonable suspicion did not support stop; not unusual for vehicle to enter turn lane and then

return to travel lane without making a turn), with State v. Joe Charles Degrafenreid, No. W2002-

00681-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Jackson, Apr. 23, 2003) (deputy=s

testimony described type of pronounced, erratic driving that may constitute reasonable suspicion

for traffic stop), State v. Gary S. Greve, No. E2002-00999-CCA-R3-CD, slip op. at 3-4 (Tenn.

Crim. App., Knoxville, Mar. 27, 2003) (investigatory stop upheld when defendant=s vehicle

observed weaving in and out of its lane of travel three times in a short time span), and State v.

Jerome D. Manning, No. M2001-03128-CCA-R3-CD (Tenn. Crim. App., Nashville, Dec. 20,

2002) (reasonable suspicion for stop when defendant=s vehicle crossed center line twice and onto

right gravel shoulder of road), perm. app. denied (Tenn. 2003).

Consequently, we are of the opinion that although the defendant was Aseized,@ in

the constitutional sense articulated in Randolph, the seizure was a permissible investigatory stop

and therefore was subject to the warrant requirement. Thus, it was not unreasonable or illegal.

There being no illegal seizure, there were no Afruits@ to be suppressed.

(ii) Plain View

-14- Perhaps the most straightforward route to admissibility of the cocaine is via the

plain view exception to the warrant requirement. The plain view exception is usually invoked in

conjunction with property in open view that is situated on private premises or inside automobiles

Ato which access is not otherwise available for the seizing officer.@ G.M. Leasing Corp. v.

United States, 429 U.S. 338, 354, 97 S. Ct. 619, 629 (1977). In those situations, the plain view

exception requires proof that (a) the officer did not violate constitutional mandates in arriving at

the location from which the evidence could plainly be seen; (b) the officer had a lawful right of

access to the evidence; and (c) the incriminating nature of the object was immediately apparent.

Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2136-37 (1993); Horton v.

California, 496 U.S. 128, 136-141, 110 S. Ct. 2301, 2308-2310 (1990). In the majority of cases,

the pivotal issue is whether the officer was lawfully in a position to view the object.

This case, however, presents the purest form of Aplain view.@ As recognized by

the Supreme Court in Payton v. New York, 445 U.S. 573, 586-87, 100 S. Ct. 1371, 1380-81

(1980),

[O]bjects such as weapons or contraband found in a public place

may be seized by the police without a warrant. The seizure of

property in plain view involves no invasion of privacy and is

presumptively reasonable, assuming that there is probable cause to

associate the property with criminal activity.

-15- In our opinion, it is obvious from the record in this case that Beech Bluff

Cemetery Road is a public place freely accessible to citizens and law enforcement officers alike

and that the cocaine in this case was found on the side of that public road. Cocaine is contraband

that generates probable cause to associate it with criminal activity. Seizing the cocaine in this

case, which was in plain view in a public place, violated no constitutional imperative.

In its order denying suppression, the trial court spoke of the bag of cocaine as

having been Aabandoned@ by the defendant, although there was no direct evidence that he had

discarded the cocaine later found on Beech Bluff Cemetery Road. The difference between

seizing contraband found in a public place and seizing evidence that a defendant has

Aabandoned@ can be constitutionally significant. For that reason, we now turn our attention to the

admissibility of the cocaine under the theory that it had been abandoned by the defendant.

The trial court ruled that the cocaine was admissible simply because the

defendant lost or relinquished any possessory or ownership interest in the bag when he threw it

out of the car window. This view, however, is incorrect. A defendant=s property interest does

not determine the reach of the constitutional protections against unreasonable searches and

seizures.

-16- The idea that property interests control the right of officials to search and seize

has been discredited. See Oliver v. United States, 466 U.S. 170, 183, 104 S. Ct. 1735, 1743

(1984); Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512 (1967). The Fourth

Amendment protects people and privacy, not places and property. See Katz, 389 U.S. at 351, 88

S. Ct. at 511. Consequently, Aabandonment,@ as understood in the constitutional context of

unreasonable searches and seizures, Ais not meant in the strict property-right sense, but rests

instead on whether the person so relinquished his interest in the property that he no longer

retained a reasonable expectation of privacy in it at the time of the search.@ United States v.

Veatch, 674 F.2d 1217, 1220-21 (9th Cir. 1981), quoted with approval in Ross, 49 S.W.3d at 842

n.8.

At first blush, it might seem frivolous to discuss a reasonable expectation of

privacy in a bag tossed out of a vehicle onto a public roadway. The discussion, however, is no

more frivolous than the lengthy analysis by the Supreme Court in California v. Greenwood, 486

U.S. 35, 108 S. Ct. 1625 (1988), when it considered whether the defendants had a reasonable

expectation of privacy in plastic garbage bags left at the curb outside their residence, or the

detailed examination by the court in State v. Bell, 832 S.W.2d 583 (Tenn. Crim. App. 1991),

whether the defendant had a reasonable expectation of privacy in a garbage dumpster located in

the parking lot of a business. The analysis derives from the now-classic principle: AWhat a

person knowingly exposes to the public, even in his own home or office, is not a subject of

-17- Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected.@ Katz, 389 U.S. at 351, 88 S. Ct. at

511 (emphasis added) (citation omitted); see State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987)

(Tennessee affords no greater protection than Katz=s principle of what a person knowingly

exposes to the public). Public accessibility, in other words, does not invariably defeat a

reasonable expectation of privacy. Compare Bolen v. State, 544 S.W.2d 918, 920 (Tenn. Crim.

App. 1976) (insufficient record to Ajustify treating the trash dumpster as the receptacle of

abandoned property then beyond the scope of any expectation of privacy@), with Bell, 832

S.W.2d at 591 (garbage dumpster located on parking lot of business; doors to dumpster were

open; many strangers visited establishment daily and had easy access to dumpster).

In State v. Brenda Hill, No. 274 (Tenn. Crim. App., Knoxville, Aug. 7, 1990), the

court identified the Acritical inquiry@ as being whether the person Ahad >voluntarily discarded, left

behind, or otherwise relinquished his interest in the property in question so that he could no

longer retain a reasonable expectation of privacy with regard to it at the time of the search.=@ Id.,

slip op. at 7 (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)). One aspect of

voluntariness pointed out in Hill relates to Athe conduct of the officers prior to the discarding.@

Id., slip op. at 4. That is, A[a] defendant=s abandonment of evidence must be truly voluntary and

not be the result of police misconduct.@ Id.

-18- Assuming, as the trial court did, that the defendant was the person who discarded

the bag along Beech Bluff Cemetery Road, the defendant=s intent to abandon the contraband is

obvious. Moreover, as we previously explained, the police actions were clearly proper, justified,

and constitutional. The officers had reasonable suspicion to initiate an investigatory stop. When

the defendant momentarily stopped but then failed to yield, the officers had probable cause to

pursue the fleeing vehicle and arrest the defendant for evading arrest, as ultimately occurred in

this case. When he voluntarily abandoned the cocaine by tossing it onto a public thoroughfare,

the defendant relinquished any legitimate expectation of privacy in the contents of the bag. For

this additional reason, the cocaine was properly admitted.

B. Search Incident to Arrest

The admissibility of the razor blade seized from the defendant=s pants pocket need

not detain us long. Neither the defendant nor the state makes specific mention of this item of

evidence. The trial court ruled that the razor blade was properly seized incident to the

defendant=s arrest. We agree.

One of the well-recognized exceptions to the warrant requirement is a search

incident to a lawful custodial arrest. See, e.g., State v. Walker, 12 S.W.3d 460, 467 (Tenn.

2000). The key is the lawfulness of the underlying arrest. Pursuant to the exception, when an

officer places a citizen under lawful custodial arrest, that officer is permitted to make a

-19- warrantless search incident to the custodial arrest. See United States v. Robinson, 414 U.S. 218,

235, 94 S. Ct. 467, 477 (1973); Walker, 12 S.W.3d at 467; State v. Crutcher, 989 S.W.2d 295,

300 (Tenn. 1999). If, however, an individual is unlawfully placed under custodial arrest, a

subsequent search is also unlawful, and evidence seized as a result of the unlawful search is

suppressed and not admissible in the prosecution's case-in-chief. See State v. Clark, 844 S.W.2d

597, 600 (Tenn. 1992).

As we have explained, based on the defendant=s erratic driving, the officers had

reasonable suspicion to initiate a traffic stop. Then, when the defendant momentarily stopped

but refused to turn off his car engine and fled, the officers had probable cause to arrest the

defendant for Class E felony evading arrest, which proscribes as unlawful Afor any person, while

operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee

or attempt to elude any law enforcement officer, after having received any signal from such

officer to bring the vehicle to a stop.@ Tenn. Code Ann. ' 39-16-603(b)(1), (3) (1997). When

the officers eventually apprehended the defendant, they took him into custody, handcuffed him,

and then searched his clothing. At that point, the razor blade was discovered in the defendant=s

pants pocket. In our opinion, this is a classic example of a permissible warrantless search

incident to arrest.

II. Opinion Testimony

-20- Next, the defendant complains about the trial court=s admission of testimony by

Officers Mawyer and Tutor and by Investigator Thompson concerning the street value of

cocaine, the amount of cocaine recovered, and the money in the defendant=s vehicle as indicative

of drug dealing.

The admissibility, relevancy, and competency of evidence are matters entrusted to

the sound discretion of the trial court. With that principle in mind, we review the trial court=s

evidentiary rulings for abuse of discretion. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997); State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997).

Testimony about the amount of cocaine seized and the amount of money found in

the defendant=s vehicle was Afactual@ in nature and clearly not objectionable. Testimony relative

to the Astreet value@ of illegal substances is commonplace in drug prosecutions. See, e.g., State v.

Blackmon, 78 S.W.3d 322, 328 n.2 (Tenn. Crim. App. 2001) (ATestimony established that the

street value of one kilo (2.2 pounds) of cocaine in the Nashville area in 1993 was between

$23,000 and $28,500 and >as high as $30,000,= depending upon availability.@); State v. Thomas,

818 S.W.2d 350, 354 (Tenn. Crim. App. 1991) (cocaine seized by officers had estimated street

value of between $100,000 and $120,000); State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim.

App. 1990) (small rocks of cocaine had an estimated street value of $20 each).

-21- Moreover, in State v. Matthews, 805 S.W.2d 776, 782 (Tenn. Crim. App. 1990),

the court held that the street value of cocaine is admissible to establish the intent of the accused.

See generally Tenn. Code Ann. ' 39-17-417 (a)(4) (Supp. 2002) (AIt is an offense for a defendant

to knowingly: . . . (4) Possess a controlled substance with intent to manufacture, deliver or sell

such controlled substance.@). Proof of monetary value is relevant to a defendant=s intent and

whether he possessed the controlled substance with intent to distribute it or with intent to use it

personally. Matthews, 805 S.W.2d at 782.

As for the significance of the amount of cocaine confiscated in this case and of

the money, in small denominations, found in the car, a jury in this state, by statute, may Ainfer[ ]

from the amount of a controlled substance or substances possessed by an offender, along with

other relevant facts surrounding the arrest, that the controlled substance or substances were

possessed with the purpose of selling or otherwise dispensing.@ Tenn. Code Ann. ' 39-17-419

(Supp. 2002) (emphasis added). Relevant facts have been found, for instance, to include money

in small denominations, beepers, loaded guns, the packaging of drugs in separate plastic bags,

and Crown Royal bags used to hide drugs. See State v. Timothy Tyrone Sanders, No. M2001-

02128-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Nashville, July 5, 2002), perm. app. denied

(Tenn. 2002); State v. Reginald T. Smith, No. 02-C-01-9204, slip op. at 3-4 (Tenn. Crim. App.,

Jackson, Feb. 17, 1993). The testimony of officers about differences between users and sellers,

based upon experiences in the field, also has been found appropriate. See State v. Timothy

Murrell, No. W2001-02279-CCA-R3-CD, slip op. at 5-9 (Tenn. Crim. App., Jackson, July 2,

-22- 2003) (collecting and discussing cases and articles upholding admissibility of police testimony

about the habits of drug dealers if witness is qualified through experience or other means).

The defendant, we hold, has not demonstrated that the trial court abused its

discretion in admitting the testimony.

III. Evidence Sufficiency

Last, the defendant contests the legal sufficiency of the evidence to support his

evading arrest and cocaine possession convictions.2

A jury=s determination of guilt beyond a reasonable doubt removes the

presumption of innocence with which a defendant is cloaked and replaces it with one of guilt

whereby, on appeal, a convicted defendant has the burden of demonstrating that the evidence is

legally insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In reviewing the

sufficiency of the evidence, we do not reweigh or reevaluate the evidence. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). Nor is it our duty to revisit witness credibility issues on

appeal; that task is properly assigned to the trier of fact. State v. Holder, 15 S.W.3d 905, 911

(Tenn. Crim. App. 1999). The bar that the defendant must clear on appeal is formidable. The

defendant must establish that the evidence introduced at trial was so deficient that no reasonable

2 He has not raised on ap peal evidentiary sufficiency for the paraphernalia possession co nviction .

-23- trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

Furthermore, as part of our review, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). These principles apply to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.

Matthews, 805 S.W.2d at 779.

A. Evading Arrest

Class E felony evading arrest is defined as follows:

(b)(1) It is unlawful for any person, while operating a

motor vehicle on any street, road, alley or highway in this state, to

intentionally flee or attempt to elude any law enforcement officer,

after having received any signal from such officer to bring the

vehicle to a stop.

(2) It is a defense to prosecution under this subsection

that the attempted arrest was unlawful.

-24- Tenn. Code Ann. ' 39-16-603(b)(1), (2) (1997).

The defendant=s sufficiency argument is not entirely clear to us, but he appears to

be claiming that he had not been arrested at the time he drove off and/or that he did not know

that the men pursuing him were law enforcement officers. He directs our attention to State v.

Holbrooks, 983 S.W.2d 697 (Tenn. Crim. App. 1998), as authority that his conviction cannot

stand. Holbrooks, however, is totally distinguishable on two grounds. First, the court relied on

Hodari D. to reach the conclusion that the foot chase of defendant Holbrooks was not a seizure,

and therefore, the plastic bag of rock cocaine found by the pursuing officer was not the fruit of

an illegal arrest or seizure. Holbrooks, 983 S.W.2d at 700. As we previously discussed,

Randolph controls the constitutional analysis pursuant to Article 1, Section 7 of the Tennessee

Constitution and compels a different conclusion. Randolph, 74 S.W.3d at 335-38.

Second, the defendant in Holbrooks was charged with and convicted of a mode of

evading arrest that is different from the defendant=s conviction in this case. In Holbrooks, the

defendant was charged with Class A misdemeanor evading arrest, defined in Code section 39-

16-603(a)(1) and which provides in pertinent part,

(a)(1) Except as provided in subsection (b), it is unlawful

for any person to intentionally flee by any means of locomotion

-25- from anyone the person knows to be a law enforcement officer if

the person:

(A) Knows the officer is attempting to arrest the person;

or

(B) Has been arrested.

Tenn. Code Ann. ' 39-16-603 (a)(1)(A), (B) (1997). The Holbrooks court ruled that

A[o]bviously, the defendant had not been arrested when he began running from Officer Huggins@;

nor, according to the court, was the officer attempting to arrest the defendant at the time.

Holbrooks, 983 S.W.2d at 702-03. On that basis, the court reversed defendant Holbrooks=

misdemeanor evading arrest conviction.

Pursuant to the mode of evading arrest for which the defendant in this case stands

convicted, an arrest or attempted arrest is not one of the elements of the offense. Code section

39-16-603(b)(1) speaks of a person intentionally fleeing Aafter having received any signal from

such [law enforcement] officer to bring the vehicle to a stop.@ Tenn. Code Ann. ' 39-16-

603(b)(1) (1997). The statutory language is straightforward and unambiguous. The defendant

testified in his own defense and claimed that he did not know that the men following him were

law enforcement officers, and he expressly denied that he saw any blue lights. The jury

-26- obviously did not find the defendant to be credible, as was its prerogative, and we do not second-

guess that credibility determination.

The evidence supporting the defendant=s evading arrest conviction, we hold, is

legally sufficient.

B. Controlled Substance Possession with Intent to Deliver

The theory of defense for the cocaine possession charge was that the defendant

did not possess the cocaine that was later found on the Beech Bluff Cemetery roadside. As part

of his testimony, the defendant denied having any drugs with him that night and denied throwing

anything out of his vehicle. The officers were unanimous in their testimony that they did not see

the defendant eject any item from his car. The defendant argues that the circumstantial evidence

is insufficient to support his conviction.

The defendant's appellate challenge to the sufficiency of the convicting evidence

calls into play the rules concerning the use of circumstantial evidence. Unquestionably, a

criminal offense may be established exclusively by circumstantial evidence. Duchac v. State,

505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995);

State v. Lequire, 634 S.W.2d 608 (Tenn. Crim. App. 1982). Before, however, an accused may

be convicted of a criminal offense based upon circumstantial evidence alone, the facts and

-27- circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis

save the guilt of the defendant.” State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610, 612

(1971); Jones, 901 S.W.2d at 396. In other words, “[a] web of guilt must be woven around the

defendant from which he cannot escape and from which facts and circumstances the jury could

draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.”

Crawford, 225 Tenn. at 484, 470 S.W.2d at 613.

To convict the defendant, the state was required to prove (1) knowing (2)

possession of cocaine (3) with intent to deliver. Tenn. Code Ann. § 39-17-417(a)(4) (Supp.

2002). Our review of the record leads us to the conclusion that the circumstantial evidence in

this case cannot withstand a legal sufficiency challenge.

The state directs our attention to circumstances, such as the defendant’s failure to

submit to the officers’ show of authority and escape before crashing his vehicle, his movements

inside the vehicle, the location of the cocaine approximately 200 yards from the point of the

initial stop, the outside of the bag being wet while the inside contents were dry, the money and

other items seized from the defendant’s vehicle, and the somewhat remote area where the

cocaine was discovered.

To be sure, “flight and attempt to evade arrest are relevant as circumstances from

which, when considered with the other facts and circumstances in evidence, a jury can properly

-28- drawn an inference of guilt.” Sotka v. State, 503 S.W.2d 212, 221 (Tenn. Crim. App. 1972).

This inference, however, avails the state little under the particular circumstances of this case.

Had cocaine been discovered in the defendant’s automobile, his earlier flight logically could be

indicative of a “knowing” possession of cocaine. Absent any direct evidence that the defendant

ever had the cocaine in his physical custody, however, his flight is no more indicative of cocaine

possession than, for example, possession of stolen goods, driving on a revoked license, or having

outstanding arrest warrants. See generally State v. Shepherd, 862 S.W.2d 557, 565 (Tenn. Crim.

App. 1992) (“The inference of guilt which may flow from flight, concealment of the body, and

false statements is a general one and does not provide weight to the degree of homicide which

may be involved.”); State v. Kyger, 787 S.W.2d 13, 29 (Tenn. Crim. App. 1989) (“‘Whether the

flight was by [these] defendants’ required a factual determination that the defendants were

actually the perpetrators before any inference could be drawn.”).

Regarding the location and condition of the cocaine recovered from the roadside,

the state introduced evidence that the cocaine was packaged in multiple clear plastic bags that

were grouped together inside a larger plastic bag. The larger bag was not sealed. Officer Tutor

testified that as the officers were backtracking along Beech Bluff Cemetery Road, toward the

spot where the defendant was initially stopped, they found the cocaine “on the right-hand side of

the road, probably 200 yards or so from where [they] initially stopped him.” The location,

Officer Tutor explained, was “pretty close to where [the officers] first lost sight of [the

defendant].” According to Officer Tutor, he “noticed that the outside of the bag was wet where

-29- it was -- it was misting rain at that point, but . . . the inside of the bag was not wet.” Investigator

Thompson verified that the contents of the discovered bag were dry, which indicated to him that

the bag had not been on the roadside long enough for the contents to become saturated.

The location of the cocaine in relation to the area where the defendant initially

stopped invokes the settled law that mere presence of a person in an area where drugs are

discovered is not, alone, sufficient to support a finding that the person possessed the drugs. See,

e.g., State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996); Dishman v. State, 460

S.W.2d 855, 858 (Tenn. Crim. App. 1970). In our estimation, this principle has particular force

in this case because the cocaine was discovered on a public roadway and not, for example, inside

a residence or automobile.

The testimony concerning the dampness of the outer bag as contrasted with the

dry packets of cocaine inside the bag is not helpful other than to describe the condition of the

cocaine when it was found. How long, if ever, the cocaine would have had to be exposed to the

rain before the inside packets became wet is unknown. The answer to that inquiry is outside the

realm of common experience. Certainly, the officers were not qualified to offer some kind of

“expert” opinion on that topic, and they conducted no experiments to be able to report to the jury

how long it would take, under similar or identical circumstances, before the inside packets

became wet. Cf. State v. Jeffery Wayne Robertson, No. M2001-02131-CCA-R3-CD, slip op. at

10-17 (Tenn. Crim. App., Nashville, April 17, 2003) (experiment evidence introduced using

-30- victim’s stove and pressure cooker to show that pot could withstand being on the highest setting

on the stove for at least seventeen hours).

As for the cellular telephone, pager, and $278 in currency found in the

defendant’s vehicle, we previously discussed the admissibility of such evidence as relevant to

the intent of the accused to show that the controlled substance was possessed with the purpose of

selling or otherwise distributing. Those pieces of evidence, without more, do not prove that a

defendant possessed illegal narcotics in the first instance; rather, their usefulness to the state is,

so to speak, “called into play” when the controverted issue becomes simple possession for

personal use versus an illegal product intended to be marketed.

We recognize that the defendant’s trial testimony may have raised some

credibility issues and that the jury may have believed that, if the defendant were untruthful about

issues such as, for instance, the origin of the razor blade found in his pocket, then he was likely

untruthful about discarding the bags of cocaine. Although a jury is free to reject a defendant’s

testimony, “disbelief of the defendant is not sufficient grounds upon which to base an inference

of . . . an essential element of the crime which the state must prove beyond a reasonable doubt.”

State v. William Earl Ramsey, No. 03C01-9203-CR-00070, slip op. at 6 (Tenn. Crim. App.,

Knoxville, May 13, 1993) (citing State v West, 844 S.W.2d 144, 148 (Tenn. 1992) (“Although

the jury is permitted to disbelieve the defendant’s testimony, it may not construct a theory based

on no evidence at all.”)); see United States v. Tyler, 758 F.2d 66, n.3 (2d Cir. 1985) (“When the

-31- testimony of a witness is not believed, the trier of fact may simply disregard it. Normally, the

discredited testimony is not considered a sufficient basis for drawing a contrary conclusion.”)

(quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 513, 104 S. Ct. 1949, 1966 (1984)).

Thus, we have not taken into account the improbability of the defendant’s testimony in analyzing

the sufficiency of the evidence that he possessed cocaine.

Having carefully reviewed the record, we believe that the state’s evidence in this

case, at best, proved that cocaine was discovered along a public roadside where the defendant

had recently driven. The evidence did not weave the requisite web of guilt around the defendant

so as to exclude every other reasonable hypothesis except guilt. Accordingly, the defendant’s

conviction for possession of cocaine with intent to deliver must be reversed.

IV. Conclusion

Based on the foregoing and the record as a whole, we affirm the conviction of

evading arrest, and we reverse the conviction of possession of cocaine and dismiss that charge.

_________________________________________

JAMES CURWOOD WITT, JR., JUDGE

-32- -33-