IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 14, 2009 Session
STATE OF TENNESSEE v. ROBERT COOPER
Direct Appeal from the Criminal Court for Shelby County
No. 06-03933 James C. Beasley, Jr., Judge
No. W2008-01339-CCA-R3-CD - Filed September 29, 2010
The appellant, Robert Cooper, pled guilty to one count of possession of more than 300 grams
of cocaine with the intent to sell and one count of possession of more than 300 grams of
cocaine with the intent to deliver. The trial court imposed a total effective sentence of
eighteen years in the Tennessee Department of Correction. As a condition of his pleas, the
appellant reserved the following certified question of law:
Whether the stop of the [appellant] for a minor “cite and
release” traffic violation which provided for a fine only, the
detention of the [appellant], the placement of the [appellant] in
the secured area of the officer’s patrol car, the use of a drug dog
“run” around the [appellant’s] vehicle, and the subsequent
search of the [appellant’s] vehicle violated the rights of the
[appellant] under the federal and state constitutions and,
therefore, all evidence resulting from the seizure and search
should be suppressed.
Upon review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.
William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Robert
Cooper.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Chris Scruggs, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant’s convictions stem from the discovery of approximately eighty-five
pounds of cocaine in his vehicle during a traffic stop. Prior to trial, the appellant filed a
motion to suppress the evidence. At the suppression hearing, Memphis Police Officer Kevin
Perry, a member of the West Tennessee Violent Crime and Drug Task Force, testified that
on September 23, 2005, he was working drug interdiction on Interstate 40 with Officer Mike
Blair whom he was training. Officer Perry was sitting in his patrol car on the right shoulder
of eastbound Interstate 40, acting as backup for Officer Randolph who was finishing a traffic
stop. As Officer Perry watched traffic in his left mirror, he saw a burgundy-colored, two-
seat, Nissan 350Z Roadster sports car pass by in the right lane without moving into the left
lane. Officer Perry said the driver of the Nissan was violating the “move over law.” 1 He
explained that a motorist approaching a law enforcement officer engaged in a stop in the
emergency lane is required to move their vehicle into the next lane if there is no obstruction
or, if there is an obstruction, to reduce the speed of the vehicle. See Tenn. Code Ann. § 55-8-
132(b). Officer Perry stated that there was no obstruction which would have impeded the
car’s shift into the left lane. Officer Perry acknowledged that at the time of the offense, a
1
The statute in effect at the time of the offense specifically provided:
(b) Upon approaching a stationary authorized emergency vehicle, when
such vehicle is giving a signal by use of flashing lights, a person who drives
an approaching vehicle shall:
(1) Proceeding with due caution, yield the right-of-way by making a lane
change into a lane not adjacent to that of the authorized emergency vehicle,
if possible with due regard to safety and traffic conditions, if on a highway
having at least four (4) lanes with not less than two (2) lanes proceeding in
the same direction as the approaching vehicle; or
(2) Proceeding with due caution, reduce the speed of the vehicle,
maintaining a safe speed for road conditions, if changing lanes would be
impossible or unsafe.
See Tenn. Code Ann. § 55-8-132(b). The statute further provided that “[a]violation of this section is a Class
C misdemeanor punishable only by a fine of fifty dollars ($50.00).” Id. at (e).
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violation of the “move over law” was a Class C misdemeanor punishable by a fifty-dollar
fine. Tenn. Code Ann. § 55-8-132(e).
Officer Perry said the car passed him at sixty-five miles per hour, too fast for him to
see the race or gender of the driver. Officer Perry “pulled out” and followed the car
approximately two miles before the driver stopped. He did not see the driver commit any
additional violations during the pursuit. After a couple of miles, Officer Perry activated his
blue lights, stopped the vehicle, and parked behind it. Officer Perry explained that the video
camera in his police vehicle began recording the stop when he activated his blue lights.
Officer Perry approached the passenger side of the car and asked the driver, the
appellant, for his driver’s license and registration. Officer Perry saw three cellular
telephones in the front of the car, which he thought was “odd.” The appellant handed Officer
Perry his license and registration, which had been issued by the state of Maryland.
Officer Perry asked the appellant to step out and walk to the rear of the car so he could
explain the reason for the stop. The appellant complied, and Officer Perry told him that he
had violated the “move over law.” In response to questioning by Officer Perry, the appellant
stated that he had purchased the car approximately one month earlier. When Officer Perry
asked the appellant if his driver’s license was valid, the appellant responded that it was. He
stated that he had previously had “child support issues” but that those issues had been
resolved.
Officer Perry stated that during the conversation, the appellant “blatted his body,”
which he described as
turn[ing] in like in a sideways position, kind of almost like a
stance a police officer takes when they’re talking to a suspect,
you know, kind of with their body turned to the right. You’re
not exactly facing head on. You’re more facing at an angle.
....
It’s kind of unusual to see that on a normal person cause
usually that’s something you see on a police officer cause it’s
something we do for, you know, survival, you know, just for
officer safety. It’s a defensive stance.
He said that the appellant began “spinning his car keys in his hand” and that he “fidget[ed],”
putting his hand in and out of his pocket. Officer Perry said that because of the appellant’s
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nervousness, his stance, and his fidgeting, he believed the appellant was becoming defensive
about the conversation.
Officer Perry also questioned the appellant about his travel itinerary. The appellant
said he was returning to Baltimore, Maryland, from Dallas, Texas, where he had helped a
family from Louisiana relocate after Hurricane Katrina. Officer Perry said the appellant did
not know many details about the family or the relocation, which he found suspicious. Officer
Perry asked the appellant to sit in the back of his police sport utility vehicle (SUV), a Ford
Expedition, while he checked the appellant’s driver’s license and registration. Officer Perry
said that he put the appellant in the SUV “for safety” and that he was “trained to actually put
[offenders] in the car” while doing a license check. Officer Perry sat in the front seat of the
SUV; the appellant was placed in the middle seat; and Xena, Officer Perry’s drug dog, was
in a cage in the rear compartment. Officer Perry did not frisk the appellant before placing
him in the patrol vehicle. On cross-examination, Officer Perry acknowledged that the
appellant appeared to have “[a]ppropriate papers” and that he had no reason to believe
another crime was being committed. He said he “thought that [the appellant’s] travel
itinerary was a little suspicious but at that time it was just a suspicion.”
After the appellant got into the officer’s SUV, Officer Perry radioed Memphis Police
Department’s “Station B” to request a check of the appellant’s driver’s license and vehicle
information. Officer Perry said he was placed on “stand by,” meaning he was essentially “in
line” with other officers who were likewise requesting information.
While waiting for Station B to contact him, Officer Perry engaged the appellant in
conversation. Officer Perry said that the appellant “began to contradict himself about his
job.” Officer Perry explained, for example, that the appellant said he had a contractor’s
license from the city of Baltimore to do demolition and renovation but then stated that he did
not have certification. When Officer Perry asked the appellant if he had anything illegal in
his car, the appellant said no and began talking about his church and the guitar he played in
the church band.
Officer Perry said he became suspicious that the appellant might be involved in
criminal activity because of his defensive stance, nervousness, and fidgeting. Officer Perry
specifically found suspicious the appellant’s possession of three cellular telephones, his
unnecessarily lengthy answers to some questions, and his eagerness to talk about God and
charity work. Officer Perry opined that the appellant “seemed like he was going out of his
way to try to validate that he was a good guy.” Officer Perry also noted that the appellant
was evasive when answering questions about his travel to Texas, noting that it was a “source
state,” meaning that “a lot of illegal narcotics cross from Mexico into the State of Texas.”
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Officer Perry showed the appellant a consent to search form, explained the form to
him, and asked for permission to search the appellant’s car. The appellant responded that he
was in a hurry and did not agree to a search. Officer Perry then retrieved Xena from the back
of the SUV. When Officer Perry walked toward the appellant’s car with the dog, the
appellant said, “[N]o, you can go ahead and search it.” Officer Perry told the appellant “not
to worry about it.” On cross-examination, Officer Perry acknowledged that he was trained
to use the time while he waited for a license verification “to ferret out criminal indicators”
and possibly obtain permission to search. Officer Perry acknowledged that he was aware that
if the appellant did not grant consent to search, he could utilize the drug dog.
Officer Perry explained that Xena was a “passive alert dog. So we would go to the
back of the vehicle and I’d give her the command and she’d just start making laps, starts
making laps around the vehicle.” According to Officer Perry, the dog alerted near the
driver’s door and underneath the rear bumper. Specifically, Officer Perry said, “As she got
around the driver’s side of it she slowed down, her ears started to tilt back, her breathing
started to change and . . . she started taking an interest right around the back, back behind the
driver’s door near the rear tire.” Because of the alerts, Officer Perry asked the appellant if
anyone had been using drugs in or near the car. The appellant said “his cousins had
borrowed the vehicle and had been smoking marijuana.”
Officer Perry said he, Officer Blair, and Officer Randolph, who had joined the stop,
began searching the appellant’s car. Officer Perry explained that the car did not have a
backseat and that the car’s glove box was located behind the passenger seat. Officer Perry
said “the glove box had glue going all the way around it . . . [that] was seeping out from the
edges and stuff.” He stated that the glue did not “look professional” and was “not consistent
with factory.” Officer Perry pried open the tray and discovered a “green saran wrapped
package that had the shape and appearance of contraband.” He cut open the package and
found a white powder inside. The appellant was arrested, and the car was taken back to the
interdiction office for a more thorough search. The subsequent search revealed that the tray
in the glove box led to a secret compartment which had been installed beside the glove box
and behind the speakers. In total, police found thirty-three packages containing
approximately eighty-five pounds of cocaine in the car.
Officer Perry estimated the entire stop lasted approximately ten minutes. He
acknowledged that during the stop he did not make another call to Station B and that Station
B never contacted him about checking the appellant’s driver’s information. Officer Perry
also acknowledged that he normally contacted the Blue Lightning Operation Center (BLOC),
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a customs agency, in Gulfport, Mississippi, for that information.2 He further acknowledged
that he once had to wait forty-five minutes for a response from Station B. He said that he
would not have let the appellant leave until he received information from Station B
concerning the appellant’s license.
The motion to suppress is not included in the record. However, in the memorandum
supporting the appellant’s motion to suppress the appellant challenged the constitutionality
of the placement of the appellant in the police car without probable cause during the stop for
a “cite and release offense.” The appellant specifically relied upon State v. Berrios, 235
S.W.3d 99 (Tenn. 2007), in which our supreme court suppressed evidence discovered when
a defendant who had been stopped for a traffic offense gave consent to search after being
placed in the back of a police cruiser. The appellant contended that he was illegally detained
when Officer Perry placed him in the back of the police vehicle and that the illegal detention
tainted the canine sweep of his car. The State argued that Berrios was distinguishable in that
the instant search was not conducted pursuant to consent and that the dog sniff did not
constitute a search.
The trial court found that the appellant was in violation of the “move over law”;
therefore, the initial stop was valid. The court noted that although Officer Perry stated that
the appellant was nervous and defensive, the video of the stop did not depict the appellant
acting in a nervous and defensive manner. Indeed, the trial court noted “that most people are
nervous when they get stopped by police.” However, the trial court found that the appellant
“talked too much” and “answered questions . . . beyond the norm, expounding on things that
were not necessary, going into extremely greater detail than it would appear to be necessary.”
The court said the appellant’s manner of conversation would lead “a normal person to think
that there’s something amiss.” The court also noted that the appellant’s responses to the
officer’s questions about his driver’s license and child support issues raised a question
regarding the validity of the appellant’s license and justified further inquiry.
The court stated that initially the instant case appeared to be “pretty much all square
on Berrios.” However, after careful review the court concluded that Berrios was
distinguishable. The court stated that for Berrios to be applicable “there needs to be some
type of improper action by the police that caused . . . [the appellant] to give up his Fourth
Amendment right[s].” The court found that Officer Perry did not unreasonably delay the stop
and that the drug dog alerted on the car during the legitimate course of the stop, giving the
officer probable cause to search the car. The court concluded that even if the appellant
should not have been placed in the patrol vehicle, the placement “did [not] lead to the
2
Officer Perry was not asked to explain why he chose to contact Station B rather than BLOC.
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subsequent finding of the drugs.” Accordingly, the trial court denied the appellant’s motion
to suppress the evidence discovered during the search of his car.
After the trial court denied the motion to suppress, the appellant pled guilty to both
counts of possession of cocaine. As a condition of his guilty pleas, the appellant properly
reserved the following certified question of law, which the State, the appellant, and the trial
court agreed was dispositive of the case:
Whether the stop of the [appellant] for a minor “cite and
release” traffic violation which provided for a fine only, the
detention of the [appellant], the placement of the [appellant] in
the secured area of the officer’s patrol car, the use of a drug dog
“run” around the [appellant’s] vehicle, and the subsequent
search of the [appellant’s] vehicle violated the rights of the
[appellant] under the federal and state constitutions and,
therefore, all evidence resulting from the seizure and search
should be suppressed.
See Tenn. R. Crim. P. 37(b)(2)(i).
II. Analysis
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “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.
Initially, we note that both the Fourth Amendment to the United States Constitution
and article I, section 7 of the Tennessee Constitution provide protection for citizens against
“unreasonable searches and seizures.” Generally, a warrantless search is considered
presumptively unreasonable, thus violative of constitutional protections. See State v. Walker,
12 S.W.3d 460, 467 (Tenn. 2000); see also State v. Hicks, 55 S.W.3d 515, 527 (Tenn. 2001).
Under both constitutions, evidence discovered as a result of a warrantless search is “‘subject
to suppression unless the State demonstrates that the search or seizure was conducted
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pursuant to one of the narrowly defined exceptions to the warrant requirement.’” State v.
Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (quoting State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997)); see also Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971).
The United States Supreme Court announced one such exception to the warrant
requirement in Terry v. Ohio, 392 U.S. 1, 21 (1968), holding that a law enforcement officer
may conduct a brief investigatory stop of an individual if the officer has a reasonable
suspicion based upon specific and articulable facts that a criminal offense has been, is being,
or is about to be committed. See also State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). This
standard also applies to the investigatory stop of a vehicle. Delaware v. Prouse, 440 U.S.
648, 663 (1979); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). In other words, a law
enforcement officer may stop a vehicle if the officer possesses a reasonable suspicion
supported by specific and articulable facts that an offense has been, is being, or is about to
be committed. Watkins, 827 S.W.2d at 294.
The Supreme Court has observed that “[a]rticulating precisely what ‘reasonable
suspicion’ . . . mean[s] is not possible.” Ornelas v. United States, 517 U.S. 690, 695 (1996);
see also State v. Smith, 21 S.W.3d 251, 256 (Tenn. Crim. App. 1999). “Reasonable
suspicion is a particularized and objective basis for suspecting the subject of a stop of
criminal activity.” Binette, 33 S.W.3d at 218 (citing Ornelas, 517 U.S. at 696). “The specific
and articulable facts must be judged by an objective standard, not the subjective beliefs of
the officer making the stop.” State v. Norwood, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996)
(citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Accordingly, in evaluating
the validity of an investigatory stop, a court must consider the totality of the circumstances.
United States v. Sokolow, 490 U.S. 1, 8 (1989); Watkins, 827 S.W.2d at 294. These
circumstances include, but are not limited to, “[the officer’s] objective observations,
information obtained from other police officers or agencies, information obtained from
citizens, and the pattern of operation of certain offenders. A court must also consider the
rational inferences and deductions that a trained police officer may draw from the facts and
circumstances known to him.” Watkins, 827 S.W.2d at 294 (citation omitted).
In the instant case, the appellant does not challenge the validity of the initital stop and
the record is clear that Officer Perry had probable cause to justify the traffic stop because he
witnessed the appellant violate the “move over law.” See State v. Harris, 280 S.W.3d 832,
840 (Tenn. Crim. App. 2008). Additionally, we note that “[r]equests for driver’s licenses and
vehicle registration documents, inquiries concerning travel plans and vehicle ownership,
computer checks, and the issuance of citations are investigative methods or activities
consistent with the lawful scope of any traffic stop,” making Officer Perry’s questions in this
regard permissible. Id. (citation and internal quotations omitted).
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However, the appellant asserts that Officer Perry illegally detained him by placing him
in the police vehicle; therefore, the discovery of the drugs in his car was a result of the illegal
detention and should be suppressed. During an investigatory traffic stop, an officer’s actions
must reasonably relate to the circumstances prompting the stop. State v. Troxell, 78 S.W.3d
866, 871 (Tenn. 2002). Additionally, the detention must not last longer than needed to
effectuate the reason underlying the stop, with the officer “‘diligently pursu[ing] a means of
investigation that was likely to confirm or dispel their suspicions quickly.’” Id. (quoting
State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998)). Further detention will be justified if,
during a valid stop, law enforcement officers develop a reasonable suspicion that the
individual was engaged in other criminal activity. See United States v. Erwin, 155 F.3d 818,
822 (6th Cir. 1998).
The appellant argues that the instant case is controlled by State v. Berrios, 235 S.W.3d
99 (Tenn. 2007), while the State contends the instant case is more akin to State v. England,
19 S.W.3d 762, 766 (Tenn. 2000). As we stated earlier, Berrios concerned a search
conducted pursuant to consent given after a traffic offender was stopped, frisked, and placed
in a locked patrol car. Berrios, 235 S.W.3d at 107-10. In England, our supreme court held
that canine sweeps are not a “search” under the Fourth Amendment and are reasonable if
performed during the time necessary to effectuate the traffic stop. England, 19 S.W.3d at
766-68.
In making its ruling, the trial court observed it did not believe “that you’re any safer
sitting in the back of a squad car than you are standing off to the side of the road” but noted
that “courts have said . . . officers can do that for safety purposes.” The trial court stated:
Even if, at least in my mind, my analysis of the law, even
if that action was illegal in placing him in the back of that squad
car, I don’t see that [the appellant] did anything that caused the
officer to violate his rights to have his car searched. It would
appear that he refused to consent, the officer still in a timely
fashion, searched – didn’t search, but ran his dog around the car,
got an indication of drugs, and then subsequently searched.
I think the question would be more akin to Berrios if [the
appellant] had given a consent. . . .
You know, again, when I started this, I looked at this as
being pretty much all square on Berrios. But the more I dug into
Berrios and the more I looked at it, I can obviously see a
distinction there. And, to me, again, if this same activity had
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occurred without putting [the appellant] in the car, I think it
would have been legal. No question about it. The only
difference is, they put him in the back of a squad car for another
minute or two.
The evidence adduced at the suppression hearing revealed that the stop lasted
approximately ten minutes, with the appellant being “in the back of [the police vehicle] for
two minutes, two-and-a-half minutes before the officer’s dog alerted on the car.” Officer
Perry testified that he placed the appellant in the police vehicle because of safety concerns
and then waited on “standby” for Station B to respond to his request for information
regarding the appellant’s driver’s license and vehicle registration. During the wait, Officer
Perry ran his drug dog around the appellant’s vehicle, and the dog “alerted” on the vehicle.
We agree with the State that England is controlling in the instant case. Here, the dog sniff
occurred during a time reasonably required for the officer to complete the traffic stop. See
Illinois v. Caballes, 543 U.S. 405, 407-08 (2005). The dog’s alerts gave the officer probable
cause to search the appellant’s car. Therefore, we conclude that there is no basis on which
to suppress the drugs discovered during that search.
III. Conclusion
Based upon the foregoing, we affirm the judgments of the trial court.
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NORMA McGEE OGLE, JUDGE
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