State v. Parker

525 S.W.2d 128, 1975 Tenn. LEXIS 650
CourtTennessee Supreme Court
DecidedMarch 24, 1975
StatusPublished
Cited by7 cases

This text of 525 S.W.2d 128 (State v. Parker) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 650 (Tenn. 1975).

Opinions

OPINION

FONES, Chief Justice.

Respondent, Willie Parker, hereinafter referred to as “defendant” was convicted, after a jury trial, for possession of marijuana. Punishment was set at eleven months and twenty-nine days in jail and a fine of $250.00. The Court of Criminal Appeals reversed the judgment and remanded for a new trial. The State petitioned for certio-rari, alleging that the Court of Criminal Appeals erred in ruling that the evidence obtained by the search of defendant’s car was inadmissible. We granted certiorari and have heard oral argument.

The facts surrounding the search were presented at a hearing out of the presence of the jury, on a motion to suppress evidence. The testimony of Sergeant Bobby J. Turner of the Union City Police Department was the only evidence adduced on said motion to suppress. The defendant did not testify at the hearing, or at the trial, and did not offer any proof. According to Turner, he received a call from an informant, who had information about some marijuana that could not be discussed on the phone and a meeting was arranged at Tiny’s Drive-In. The officer had received information from this informant on several prior occasions, and it had proved to be reliable.

Sergeant Turner and another officer went to Tiny’s Drive-In, where they met the informant. The informant told Turner that Willie Parker had some marijuana in his car. He said that one pack would be under the dashboard of the car and another pack would be in the bottom of a Prince Albert tobacco can under the regular tobacco. Turner was also told by the informant that the Prince Albert tobacco can was in the glove compartment, according to our interpretation of his testimony. While he did not include this fact when first relating what the informant told him at Tiny’s Drive-In, in describing the search of the vehicle, he said that, “. . .on the tip, we . looked in the glove compartment, got the Prince Albert tobacco can, emptied it out, got one pack of marijuana out of the can, reached under the dash and found the other package.”

A few moments later, the officers saw the defendant, Willie Parker, leaving Tiny’s Drive-In with three or four other men in the car with him. The officers turned around and began to follow the defendant’s car. The car began to weave along the highway, causing the officers to think the defendant was high off of something. The officers stopped the vehicle. They smelled the odor of alcohol coming from the car. They were of the opinion that the defendant was under the influence of alcohol, though he was not charged with that offense.

[130]*130The officers removed the occupants from the vehicle and searched it on the highway. Turner found two packs of marijuana exactly where the informant had told him it would be located. One pack was found under the dashboard; the other at the bottom of a Prince Albert tobacco can in the unlocked glove compartment. The defendant who was the owner and driver of the automobile then stated that he was just trying it out and that he would kill the S.O.B. that got it for him. The officer testified that he had not had time to obtain a search warrant.

The Court of Criminal Appeals reversed the conviction by relying on the case of Epps v. State, 185 Tenn. 226, 205 S.W.2d 4 (1947). Epps held that an arrest for illegal possession of untaxed liquor was vitiated by the failure of the informant to convey to the police any statement of fact that the amount possessed was over one gallon, and therefore, that a felony was being committed. Since the arrest was not justified upon a charge of committing a felony, it would not have been lawful, without an arrest warrant.

In the present case, the informant told the officers that the defendant would be possessing two packs of marijuana. Whether that statement constitutes reasonable grounds to suspect the commission of a felony is indeed doubtful, since the distinction between misdemeanor and felony possession of marijuana in Tennessee rests on whether the possessor intends to sell, distribute, etc. T.C.A. § 52 — 1432.

Even if the Court of Criminal Appeals is correct in holding that the arrest of the defendant was unlawful, and thus any search incident thereto was also tainted, on the basis of Epps, we do not think that determination is dispositive of the issue.

Both the Fourth Amendment to the United States Constitution and Article 1, Section 7 of our State Constitution prohibit unreasonable searches and seizures. Generally, to meet the test of reasonableness a search warrant is required. One important exception to the search warrant requirement is the search incident to a lawful arrest. Another exception, caused by the need for immediate action under the circumstances, was recognized by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

In Carroll, the Court set forth two essential conditions needed to establish the validity of a search of an automobile stopped on the highway, without a search warrant. Those conditions are (1) the officer must have reasonable or probable cause to believe the automobile contains items subject to seizure, and (2) the automobile must be movable in the sense that the officer reasonably believes that it may be moved out of the jurisdiction by someone free to do so, and thus the car’s contents may never be found again if a warrant must be obtained. See Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1934); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Chief Justice Taft in Carroll was careful to express the view that the exception to warrants that he was delineating was not dependent upon the earlier exception of a search incident to an arrest. He said:

“The right to search and the validity,, of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” 267 U.S. at 158, 159, 46 S.Ct. at 287, 69 L.Ed. at 554.

The question in the case at bar thus becomes, first, did the officer have reasonable or probable cause to believe the automobile contained items subject to seizure?

In determining this question of probable cause to make a warrantless search of an automobile based upon an informant’s tip, [131]*131we must look to the requirements outlined by the United States Supreme Court 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).

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529 S.W.2d 739 (Court of Criminal Appeals of Tennessee, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
525 S.W.2d 128, 1975 Tenn. LEXIS 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parker-tenn-1975.