State v. Carl Allen

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1998 August 7, 1998

Cecil W. Crowson

STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CC-00272 )

Appe llant, )

)

) ROBERTSON COU NTY

VS. )

) HON. ROBERT W. WEDEMEYER CARL SEAWARD ALLEN, ) JUDGE )

Appellee. ) (Direct Appeal - Possession with ) Intent to Deliver a Controlled ) Substance)

FOR THE APPELLEE: FOR THE APPELLANT:

WIL LIAM R . GOO DMA N, III JOHN KNOX WALKUP Goodman & W alker Attorney General and Reporter 124 Sou th Court Squ are Springfield, TN 37172 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

JOHN CARNEY

District Attorney General

DEN T MO RRIS

Assistant District Attorney Main Street

Springfield, TN 37172

OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE

OPINION

Appellee Carl Seaward Allen was indicted by the Robertson County Grand Jury on September 8, 1997, for possession with intent to deliver a controlled substance, to wit: over ten pound s of marijuana. On March 7, 1997, Appellee filed a motion to suppress evidence seized during a search of his vehicle. The trial court held a hearing on this motion on April 7, 1997. On April 10, 1997, the court granted Appelle e's mo tion to sup press. The State presents the following issue for our consideration on this appe al: whethe r the trial c ourt er red in granting Appelle e's mo tion to suppress evidence seized during the se arch o f his vehicle.

After a review of the record , we reverse the jud gment of the trial court and reman d this cas e for trial.

I. FACTUAL BACKGROUND

Officer Mark Norrod of the Tennessee Highway Patrol testified that on the evening of May 9, 1996, he patrolled Interstate 65 in Robertson Coun ty. Sho rtly before midnight, Officer Norrod noticed a vehicle which appeared to have no license plate. A s he p ursue d the a utom obile, O fficer N orrod obse rved A ppelle e's white van change from the right to the left lane for no apparent reason. The van was traveling northbound on Interstate 65. Officer Norrod activated his video camera and re corde d the w hite Do dge va n mo ve bac k over in to the rig ht lane. Appellee then twice crossed over the white fog line on the righthand side of the road. Officer Norrod turned on his blue lights, and Appellee stopped his van at approximately 11:51 P.M.

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At the suppressio n hearing, Officer Norrod testified that he thought that Appellee was eith er drowsy or under the influence of an intoxicant. Officer Norrod aske d App ellee to produ ce his d river's license and his vehicle registration. When asked whether he had been drinking, Appellee replied that he had not. Appellee also informed the officer that he had no guns inside the van. Officer Norrod contin ued s peak ing with Appe llee to ascertain whether or not he was under the influence of an intoxicant. Norrod stated that although he could detect no odor of a lcohol on Appelle e's brea th, Appe llee appe ared tired and had red eyes. Appellee told O fficer Norrod that he was from Da llas, Texas and that he was traveling to M aryland to visit his sick father.

Howeve r, Officer Norrod noted that Appellee's driver's license reflected that he was from McAllen, Texas, a border town renowned for drug smuggling.

Moreover, Officer Norrod o bserved that A ppellee wore his work uniform while making h is cross-coun try trip. The dispatch ve rified Appe llee's d river's license and registration. After talking with Appellee for a few minutes, Officer Norrod testified that when he returned Appellee 's driver's license and registration, he concluded that Appellee was, in fact, not intoxicated.

Officer Norrod then asked Appellee whether he would mind if the officer searched his van. Officer Norrod testified that he believed Appellee responded, "No, I don't min d; go ah ead." Appe llee as ked N orrod wheth er he s hould turn off the ignition, and Norrod responded affirmatively. Officer Norrod also suggested that Appellee turn off his lights to avoid discharging the battery. The officer directed Appellee to step to the front of the van while he conducted the search. Officer Norrod stated tha t he beg an con ducting th e searc h at approxim ately 11:53 P.M. Norrod further testified that four and one-half minutes after stopping the van, he discovered about three pounds of marijuana in a duffle bag inside the

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van. Norrod testified that he was able to smell the marijuana after unzipping the duffle bag. After discovering the marijuana in the duffle bag, Officer Norrod arrested Appellee and administered the Miranda warnings to him . Other officers and a drug do g arrived to assist with the search. Officer Norrod asked Appellee whether any more contraband was concealed in the vehicle, and Appellee informed him marijuana was stored in the door panels. Upon removing the door panels, the officers discovered 48.2 pounds of marijuana.

II. CONSTITUTIONALITY OF THE STOP, SEARCH, AND SEIZURE OF APPELLEE'S VEHICLE Appellee asse rts that th e stop and s earch of his vehicle contravened the United States and Tennessee Constitutions.

A. CONSTITUTIONALITY OF THE INVESTIGATIVE STOP Appellee argues that he ha d violate d no s tatute o r ordina nce; th us, his conduct did not g ive rise to a reasonable suspicion, based upon specific and articula ble facts, that a crime either had been or was about to be committed. Therefore, Appellee reasons, the stop of his van was unlawful. We disagree.

The Fourth A mend ment g uarante es that pe ople ha ve the righ t "to be secure in their p erson s, hou ses, p apers , and e ffects, a gains t unrea sona ble searches and se izures. . . ." The Fourth Ame ndm ent furth er requ ires tha t all warran ts must issue based upon probable cause. U.S. Const. amend 4. Moreover, Article I, § 7 of the Tennessee Constitution similarly provides:

That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact com mitted, or to seize any person or persons not

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named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.

Tenn. Const. art. I, § 7.

"Stopping an automobile and detaining its occup ants cons titutes a `seizu re' within the meaning of the fede ral and sta te constitu tions." State v. Lawson, 929 S.W.2d 406, 407 (Tenn. Crim. App . 1996). As a general rule, an officer is entitled to stop an autom obile fo r investig ative pu rpose s whe re the o fficer ha s reas onab le suspicion, based on specific and articula ble fac ts, that a n offen se is being or is about to be comm itted. State v. Watkins, 827 S.W .2d 293, 294 (Tenn. 199 2); State v. Seaton, 914 S.W .2d 129 , 131 (Tenn. Crim. App. 1995). To determine whether an officer's reasonable suspicion was supported by specific and articula ble facts, this Court must consider the totality of the circumstances. Lawson, 929 S .W .2d 40 6, 408 . The c ircumstances include, but are not limited to:

objective observations, information obtained from other police officers or agencies, information obtained from citizens, and the pattern of operation of certain offenders.

* * * * * *

A court m ust also c onside r the rational inferences and deductions that a traine d police o fficer may draw from the facts and circumstances known to him.

State v. Scarlett, 880 S.W.2d 707, 709 (Tenn. Crim. App. 1993) (quoting State v. Moore, 775 S.W .2d 372, 377 (Tenn. Crim . App. 1989 )).

Additional factors which may determine the existence of reasonable suspicion include "the characteristics of the area, the behavior of the driver, and the aspec ts of the vehicle itself." Id. (citing Hugh es v. State , 588 S.W.2d 296, 305-06 (Tenn. 19 79)).

In the case sub judice, the significant factors are the objective observations of Officer Norrod, the driver's behavior, and the aspects of the vehicle. Officer

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Norrod testified at the suppression hearing that he was prompted to activa te his video camera because Appellee changed lanes. This Court has viewed the video tape of Appellee's driving. The tape revea ls that App ellee twice veered o ver to the extreme righthand side of the road across the white line. Officer Norrod explained that he feared tha t Appellee either w as intoxicated or tired. Additionally, he noticed tha t Appellee's wh ite Dodge va n bore Te xas license plates. Finally, it was almost 12:00 midnight when Officer Norrod noticed Appe llee's vehicle . We conclude that, given the time of night, crossing the fog line three times, and the distance from which the vehicle had com e, Officer Norrod had cause to stop Appellee's vehicle, if for no other reason than the public’s safety.

Officer Norrod testified that after stopping the van, he was suspicious of Appellee for the followin g reaso ns: First, Appellee appeared drowsy. His eyes were red. Second, though not on duty at the time, Appellee was traveling cross- country in his work uniform. Third, Appellee told Officer Norrod that he was from Dallas, Texas; however, his driver's license stated that he was from McAllen, Texas, a border town well-known in law enforcement circles for drug smuggling.

The trial court correctly concluded that the initial investigatory stop of Appellee's van was justified.

B. UNLAWFUL AND UNREASONABLE DETENTION Appellee next com plains tha t his detention was unlawful and unreasonable.

We disagree.

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In United States v. Sharpe, the United States S uprem e Cou rt held that "In assessing whether a de tention is too long in du ration to be justified as an investigative stop, we consider it appropr iate to examine whether the police diligen tly pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defend ant." 470 U.S. 675, 686, 105 S.Ct. 1568, 15 75, 84 L.Ed .2d 605 (198 5). See also State v. Simpson, 1998 WL 70389 (Tenn. 1998) (holding that it was neither unreasonable nor unlawful to detain the defendant for app roxim ately five minutes after the stop was initiated). Applying the Sharpe standard to the facts of the present case, it seems obvious that the detention was neither unreaso nable nor unlawful. Within less than five minutes after stopping Appe llee's van, Officer Norrod determined that Appellee was not intoxicated. After that, Appellee apparently could have gone on his way had he not consented to a search of his vehicle.

C. CONSENT EXCEPTION TO WARRANT REQUIREMENT

Appe llant's final contention is that the search of his van was unconstitutional because his consent was not voluntary. Appellee further claims that his con sent w as ren dered invalid because Officer Norrod failed to advise him that he wa s free to go an d con tinued conve rsing w ith him after re turning his driver's license and vehicle registration. We disagree.

This Court is obliged to uphold the trial court's findings of fact in a suppression hearing unless the evidence preponderates against th em. State v. Odom, 928 S.W .2d 18, 23 (Tenn . 1996); State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). "The existence of cons ent an d whe ther it wa s volun tarily given

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are question s of fact." State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983). In the present case, the trial court neglected to make any factual findings concerning the voluntariness or va lidity of Appellee's conse nt. The cou rt concluded only that Appellee's detention became unlawful after the officer ascertained that Appellee was neither intoxicated nor in violation of any laws. Therefore, due to the lack of factual findings concerning this issue, we must employ a de novo standard of revie w. State v. D oughe rty, 930 S.W.2d 85, 86 (Tenn. C rim. App. 199 6).

W e first add ress A ppelle e's co ntentio n that h is cons ent wa s involu ntarily given because Officer Norrod neglected to inform him that he was free to go after returning Appellee's vehicle registration and driver's license to him. The United States Supreme Court has held that the Fourth Amendment does not require that a lawfully seize d detaine e be ad vised that h e is "free to go" before his consent to search will be reco gnized as volunta ry. Ohio v. R obinette, 519 U.S. 33, 117 S.Ct. 417, 419 , 136 L.Ed.2d 347 (1996 ).

Voluntary consent to search is an exception to th e warran t requirem ent.

Schne ckloth v. Bustam onte, 412 U.S. 218, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973); State v. Bartram, 925 S.W.2d 227, 229 (T enn. 1996 ). The prosecution bears the burden of demonstrating that consent to search was given volunta rily and freely. McMahan, 650 S.W.2d 383, 386. In order to be voluntary, the consent must be unequivocal, specific, intelligently given, and uncontaminated by any du ress or co ercion. State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992) (citing Liming v. State, 417 S.W .2d 769, 770 (Tenn. 196 7)).

Less than five minutes after stopping Appellee's van, Officer Norrod requested permission to search the vehicle. Appellee consented, telling the officer to "Go ahead." After Officer Norrod located the marijuana in the duffle bag

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and administered the Miranda warnings to Appellee, he inquired whether Appellee had any more marijuana stored inside the van. Appellee volunteered that more was inside the van doors.

In light of the foregoing, we conclu de tha t Appe llee free ly and k nowin gly consented to a search of his van without any duress or coercion.

Because we co nclud e that th e trial court erron eous ly gran ted Ap pellee 's motion to suppress, we reverse the jud gme nt of the trial cou rt and re man d this case for trial.

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JERRY L. SMITH, JUDGE

CONCUR:

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GARY R. WADE, PRESIDING JUDGE

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DAVID G. HAYES, JUDGE