State v. Putt

955 S.W.2d 640
CourtCourt of Criminal Appeals of Tennessee
DecidedJanuary 23, 1997
StatusPublished
Cited by4 cases

This text of 955 S.W.2d 640 (State v. Putt) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Putt, 955 S.W.2d 640 (Tenn. Ct. App. 1997).

Opinion

OPINION

PEAY, Judge.

The defendant was indicted by presentment on November 7, 1994, for introduction of contraband into a penal institution, possession of a controlled substance in a penal institution, and possession of a controlled substance for resale. She pled guilty to possession of a controlled substance in a penal institution, a Class C felony. She was sentenced as a Range I standard offender and received a three year sentence. All but forty-five days of the sentence was suspended with the remainder to be served under supervised probation. In addition, she received a two thousand dollar ($2000) fine. Prior to entering the plea, the defendant reserved the following certified questions of law for appellate review:

1) Whether the stop and search of defendant’s car violated defendant’s constitutional rights guaranteed by the Fourth [642]*642Amendment to the Constitution of the United States and Section 7 of Article 1 of the Constitution of Tennessee and the arrest, evidence and statements obtained therefrom be suppressed?
2) Whether the court should have refused to allow the motion to suppress to be heard?

After a review of the record and applicable law, we find that the defendant’s constitutional rights were not violated and that the trial court was correct in refusing to hear the second motion to suppress.

On August 21, .1994, the defendant went to Turney Center to visit her incarcerated husband. Upon arriving at the facility, her car was searched and marijuana and drug paraphernalia were found. After being indicted, she moved to suppress the evidence discovered by the search. An evidentiary hearing on her motion was held and the following relevant facts were developed.

On the day of the defendant’s visit to Turney Center, officers from the Twenty-First Judicial Drug Task Force were present and were searching all incoming vehicles. The task force was there at the request of Ricky Bell, the warden at that time. Bell testified at the suppression hearing that drugs, particularly marijuana, had become a problem in the facility causing stabbings and other general violence among the inmates. While all visitors must be frisked and must pass through a metal deteetor, drugs were nonetheless being brought into the facility. Because at least reasonable suspicion is needed before conducting body cavity searches, Bell and his staff did not often conduct these searches. Thus, Bell suspected that this was the manner used to smuggle drugs into the prison.

In an effort to prevent narcotics from entering the facility, the task force was asked to search all vehicles that entered the Turney Center grounds. Regulations governing the Tennessee Department of Correction (TDOC) did riot allow Bell and his staff to perform these vehicle searches. Department regulations provided that TDOC employees may not conduct any forcible searches and that any visitor who refuses to submit to any search shall be denied admittance to the facility and shall be asked to leave. Furthermore, the regulations stated that any visitor who refuses to submit to a search shall not be detained. Because these regulations prevented TDOC employees from actually confronting individuals or forcing searches, Bell asked the task force to conduct the searches. Task force officers have the power to arrest while TDOC employees do not.

Turney Center is located at the dead end of Highway 299. About one-quarter of a mile before reaching the facility a sign posted on the left side of the road states: “ALL PERSONS AND VEHICLES ARE SUBJECT TO SEARCH. FIREARMS, WEAPONS, DRUGS AND ALCOHOL PROHIBITED. VIOLATORS WILL BE PROSECUTED.” The defendant had visited her husband approximately fifty times between February 1994 and the day of the search.

On the day of the search, the defendant pulled into the parking area of Turney Center and stopped in the upper lot. An employee of Turney Center, who was directing cars to the lower lot to be searched, advised the defendant to remain in her car and drive to the search location. Upon realizing that vehicle searches were taking place, the defendant told the employee that she was sick and needed to leave. At this same time, Agent Joey Kimball, of the drug task force, came toward the defendant’s vehicle. As he approached the vehicle, he detected a strong odor of men’s cologne. At the suppression hearing, Kimball testified that cologne is often used to cover the smell of marijuana and prevent a drug dog from detecting the presence of the drug.

Kimball told the defendant that she must participate in the search and instructed her to drive her vehicle to the lower lot for inspection. The defendant did as instructed. A drag dog entered the vehicle but did not indicate the presence of marijuana. Kimball then entered the car and saw a workshop vise in plain view on the front floorboard. Upon further inspection, he found a cigar box wrapped in a plastic bag. The box contained five plastic bags with approximately one-quarter ounce of marijuana and four cylinder [643]*643shaped pellets that contained compressed marijuana. Kimball testified that the vise was the type commonly used to compress marijuana or other drugs into capsules that could be inserted into body cavities.

Later that day Agent Kimball took the defendant to the Hickman County jail where she was read her Miranda rights. After stating that she understood her rights, the defendant said that she had been using the vise to compress marijuana so that she could smuggle the drug into the prison by concealing it in her body cavities. She also explained that the piece of paper found in her purse was a list of inmates who owed her money for the marijuana.

The defendant did not testify at the suppression hearing nor did she offer any evidence to contradict the State’s witnesses. The trial court denied the motion to suppress and in its denial included findings of facts as well as conclusions of law. The findings of a trial judge on factual issues in a suppression hearing will be upheld unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 28 (Tenn.1996). We find no reason to disturb the factual findings of the trial judge.

In its conclusions of law, the trial court cited alternative reasons for denying the motion to suppress. In what appears to be an issue of first impression, the trial court determined that “there is an exception to the search warrant requirement of the Fourth Amendment as applied to the searching of prison visitor vehicles.” In the alternative, the court found that the defendant had not been “stopped” and that Agent Kimball had adequate reasonable suspicion to continue to observe the defendant. The court reasoned that Agent Kimball’s reasonable suspicion became probable cause when he detected the heavy cologne, and thus, the search was constitutionally valid. We agree with the trial court on the first alternative ground only.

We first turn to the question of whether there was in fact any stop or seizure of the defendant when she was told she must take part in the search activities. Apparently, the defendant pulled into the upper parking lot of the facility and stopped upon noticing that all vehicles were being searched. When she stopped, a TDOC officer approached her and advised her to remain in her car and drive to the lower lot where the searches were taking place.1

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Cite This Page — Counsel Stack

Bluebook (online)
955 S.W.2d 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-putt-tenncrimapp-1997.