IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1999 FILED
August 10, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9809-CC-00266
) Cecil Crowson, Jr.
Appellee, ) Appellate Court Clerk
)
) CARROLL COUNTY
VS. )
) HON. C. CREED McGINLEY
KEVIN BIRTRAN HALTER, ) JUDGE
)
Appe llant. ) (Certified Question-Search)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF CARROLL COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RAYMOND L. IVEY PAUL G. SUMMERS
P.O. Box 667 Attorney General and Reporter
Huntingdon, TN 38344
J. ROSS DYER
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
ROBERT RADFORD
District Attorney General
ELEANOR CA HILL
Assistant District Attorney General
P.O. Box 686
Huntingdon, TN 38344
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
On May 4, 1998, the Carroll County Grand Jury indicted the Defendant,
Kevin Birtran Halter, for possession of a Schedule II controlled substance with the
intent to manufacture, deliver or sell; possession of a Schedule VI controlled
substance with the intent to manufacture, deliver or sell; possession of unlawful
drug paraphernalia; and possession of burglary tools. The Defendant filed a
motion to suppr ess all evid ence s eized du ring the search of his vehicle, and
following a hearin g, the trial cou rt denied the motion. On July 21, 1998, the
Defendant pleaded guilty to all charges, reserving three certified questions of law.
The trial court sentenced him as a Range I standard offender to eight years for
the posse ssion of a Sched ule II controlled substance, to two years for the
possession of a Schedule IV controlled substance, and to eleven months and
twenty-nine days for the possession of drug paraphernalia and the possession
of burglary tools. The Defendant presents two issues for our r eview on ap peal:
(1) whether the arresting officer had sufficient reasonable suspicion based on
spec ific and articulable facts to detain the Defendant for investigation; and (2)
whether the warrantless search of the Defendant’s vehicle was pursu ant to va lid
conse nt.
At the hearing on the motion to suppress, Officer Clint Hilliard, an officer
with both the Tre zevant Police D epartmen t and the Ca rroll County She riff’s
Department at the time of the Defendant’s arrest, testified abo ut the eve nts
surrounding the arrest. He r eporte d that o n Mar ch 3, 1 998 a t appro ximate ly
midnig ht, he was patrolling downtown Trezevant and noticed the Defendant’s car
parked in front of a va cant store located n ext to a laun droma t. All of the
-2-
businesses were closed, with the exception of the laundromat. The engine of the
Defe ndan t’s vehicle was turned off, and the windows of the vehicle were fogged,
which ind icated to H illiard that som eone w as inside .
Hilliard reported that he de cided to che ck the vehicle “for the safety of the
comm unity and the safety of the peop le in the vehicle.” He stated, “I didn’t know
if somebody had been shot, killed, sta bbed, th ey was m aking ou t or what . . . . I
was just doing my job.” Don Newbill, Chief of Police in Trezevant, testified that
there had recently been numerous break-ins, some vandalism, three arson fires,
and one attempted arson fire in the immediate area where the Defendant’s car
was parked on the night of his arrest. Newbill emphasized that for these reasons
and because of the incidence of drunk drivers after the nearby bars closed, the
area was carefully patrolled. He state d that his o fficers were instructed to “patrol
the corpora te city limits o f Trez evant , paying particu lar atten tion to a ny and all
businesses, to anybody that comes in the area, to watch them and, at [the
officer’s] discretion, check on their welfare, their safety, whe re they’re going and
what the y’re doing .”
Hilliard pulled his patrol car behind the Defendant’s vehicle, turned on his
“take-down lights,” which he des cribed as a haloge n light, and approached the
vehicle. He stated that he knocked on the driver’s window three times be fore the
Defen dant, who wa s sitting in the driver’s sea t, acknow ledged him. On the third
knock, the Defendant cracked his window, and a strong odor of cologne
emanated from the car. Shortly thereafter, a female, later identified as Cheryl
McKinlay, cam e up from the floorboard of the car. Both the Defendant and the
-3-
fema le pass enge r had a ppare ntly bee n asle ep when Hilliard approached the
vehicle.
Hilliard reques ted to see the Defendant’s driver’s license and registration.
He then asked the Defend ant where he an d his companion had come from and
where they we re hea ded. T he De fenda nt first told him that they had come from
Mem phis and we re head ed to Mem phis and then cor rected h imself, stating that
they were going to Indiana. According to Hilliard, the Defendant reported that he
and his passenger had become tired while driving and had pulled over to take a
nap. While conversing with the Defe ndan t and h is pass enge r, Hilliard shon e his
flashlight into the car and saw a box of aluminum foil with half a sheet torn off, an
open box of baking powder, a mug containing some type of liquid between the
Defe ndan t’s feet on the floorboard, a map on the floorboard, an open cosmetics
bag containing personal hygiene items, a number of bags from fast food
restaura nts, and c lothes stre wn abo ut the bac k seat of th e car.
Hilliard testified that he asked the Defendant if the car belonged to him,
and th e Def enda nt resp onde d that it did. He next asked the Defendant if there
were any weapons or drugs in th e car, an d the De fendan t answe red no to both
questions. Hilliard stated that he then asked the Defendant whether he co uld
look inside the vehicle, and the Defendant replied, “What are you looking for?”
Hilliard stated tha t he answ ered, “T he abo ve items that I just asked you about.”
According to Hilliard, the Defendant responded, “No, go ahead. There’s nothing
in here.” 1
1
At the hearing on the motion to suppress, Officer Hilliard stated that he could not
remember his conversation with the Defendant verbatim but maintained that he was given
permission to search the vehicle. Although he could not remember the Defendant’s exact
-4-
Hilliard asked the Defendant and his companion to step out of the car, and
they exited the vehicle and stood to the rear of the car while Hilliard conducted
a search of the vehicle. Hilliard testified that he discovered a “glass beacon that
had what ap peared to be . . . the residue of either cocaine or
methamphetamines” between the front two seats. He also d iscove red a p lastic
bag containing forty-six grams of cocaine beneath the front seat along with a
“wad of money.” After discovering the cocaine, Hilliard placed both the
Defendant and McKinlay under arrest and called for backup. While waiting for
other officers to arrive, Hilliard discovered an aluminum foil package containing
5.4 grams of co caine in the leg of M cKinlay’s pants. A second police officer
arrived at the scene with a drug dog and conducted a thorough search of the
Defe ndan t’s vehicle. In ad dition to the drugs that had already been found, the
drug dog led officers to the discovery of 27.8 pounds of marijuana in the trunk of
the vehicle.
The Defendant testified that he and his companion had been traveling on
the night of his arrest and had stopped to take a nap and do laundry at the
Trezevant laundro mat. 2 He claimed that when Officer Hilliard asked whether he
could search his vehicle, he responded, “No, I don’t think so.” He reported that
imm ediate ly after he replied to the question, Hilliard opened the door to his car,
grabbed his arm, and demanded that he and his companion step out of the
vehicle. Accord ing to the Defe ndant, H illiard told him and his c ompa nion to put
words, he presented several possible versions of the Defendant’s response, including “No, go
ahead. There’s nothing in here.”; “Yes, sir. . . . There’s nothing in the car. You can look.”; “No,
that’s fine. There’s nothing in there.”; and “Yes, you can search the vehicle.”
2
Hilliard testified that on the night of his arrest, the Defendant made no mention of
stopping to wash laundry.
-5-
their hands on the trunk of the vehicle while he searched the car, and after
discovering the glass vial between the front seats, Hilliard handcuffed him before
completing his search of the vehicle.
Cheryl McKinlay, the Defendant’s traveling companion, also testified at the
hearing. Through her testimony, she presented essentially the same version of
events on the night of the arrest as did the D efenda nt. Like the Defen dant, she
claimed that when Officer Hilliard requested to search the car, the Defendant
responde d, “I don’t think so.”
I. REASONABLE SUSPICION
The Defendant first argues that Officer Hilliard did not have “sufficient
reaso nable suspicion based on specific and articulable facts in order to seize and
detain [the Defendant] for investigation.” We are thus called upon to determine
whether the Defendant’s detention amounted to a Fourth Amendment seizure.
If his detention was a seizure under the Fourth Amendment, we must then
determine whether the officer possessed an artic ulable reasonable suspicion for
an investigatory stop un der Terry v. Ohio, 392 U.S. 1 (1968). If the stop was a
seizure and if there was not sufficient cause to stop the Defendant, then the
evidence shou ld have be en sup presse d. Interactions between the police and the
public that are seizures but not arrests, are judged by their reasonableness,
rather tha n by a sh owing o f probab le cause . Terry, 392 U.S. at 20.
In Terry v. Ohio , the Sup reme C ourt stated that not eve ry encou nter
between a policeman and a citizen is a seizure. Terry, 392 S.W.2d at 19 n.16.
“Only when the o fficer, by means of phys ical forc e or sh ow of a uthority , has in
-6-
some way restrained the liberty of a citizen may we conclud e that a ‘seizure’ has
occurre d.” Id. In Unite d State s v. Me nden hall, the Sup reme C ourt set forth the
test to be applied in determining whether “a person has been ‘seized’ within the
meaning of the Fo urth Am endm ent”: An o fficer may be said to have seized an
individual “only if, in view of all of the circumstances surroun ding the in cident, a
reaso nable person would have believed that he was not free to leave.” United
States v. Men denh all, 446 U.S . 544, 554 (1980); State v. Moore , 776 S.W.2d
933, 937 (T enn. 1989 ).
Under Tennessee law, “a police officer may approach a car parked in a
public place and ask for driver identification and proof of vehicle registration,
without any reason able suspicion of illegal activity.” State v. Pulley, 863 S.W.2d
29, 30 (T enn. 19 93). Mor eover,
[n]umerous cases h old that officers do not seize an individual by
simp ly talking to him or her in a public place or while the individual
being questioned is sitting inside an already s topped vehicle. Other
courts have held that a request to search, standing alone, is not
conclusive evidence that a “seizure” has occurred.
A statement by an officer that the accused has become the
spec ific focus of an investigation is one circumstance which may be
considered in determining whether a seizure has occurred, but all of
the circumstances of the case must be examined. In most of the
cases holding that a seizure has occurred, something more than a
mere in quiry or req uest by p olice officers has be en sho wn.
Moore, 776 S.W .2d at 938 (citations om itted).
The Defendant points out that the officer used his “tak e-dow n lights ” while
approaching the car an d conte nds tha t the use o f a haloge n light is ana logous to
the use of blue lights, which gene rally indic ates th at the o fficer ha s clear ly
initiated a stop. See State v. Yeargan, 958 S.W .2d 626 , 630 (T enn. 19 97). W e
disagree. The use of a halogen light for the officer’s personal safety at night
-7-
when approaching a vehicle is not the same as the use of blue lights to indicate
to a driver that he or she must comply with the officer’s request to stop his or her
vehicle. In a situation like the one at hand, where an officer approaches a parked
vehicle at midnight on a dese rted stre et, it is certainly reasonable for the officer
to use a light while assessing the situation during his or her initial confrontation
with the driver of the vehicle.
In the present ca se, we conc lude that no “seizu re” within the meaning of
the Fourth Amendment occurred. Officer Hilliard approached the Defenda nt’s
already stopp ed veh icle in a p ublic parking area, aske d to view the De fenda nt’s
driver’s license and registration, and asked the Defendant and his companion
why they we re park ed at th at location at that time of night. This interaction,
without further evidence of some show of force, doe s not am ount to a seizure .
During his conversation with the Defendant, Hilliard noticed items in plain view
inside the vehicle which, to a trained police officer, indicated that the Defendant
might be involved in some type of illegal drug activity. This prom pted Hilliard to
ask for permission to search the vehicle, which brings us to the second issue
presen ted for ou r review, the validity of the D efenda nt’s cons ent.
II. CONSENT
The Defendant next argues that Officer Hilliard’s warrantless search of the
Defe ndan t’s vehicle was not pursuant to valid consent. Officer Hilliard testified
that when asked whether he would allow his car to be searched, the Defendant
responded, “No, go ahead. There’s nothing in here.” However, both the
Defendant and Mc Kinlay tes tified that the Defendant res ponde d, “I don’t think so.”
-8-
A trial judge’s factual findings on a motion to suppress have the weight of
a jury verdict and are conclusive on app eal unles s the e videnc e clea rly
preponderates against th em. State v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim.
App. 1990); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990).
Testimony by the Defendant and McKinlay indicating that the Defendant did not
consent to the s earch of his ca r prese nts a c lassic question of fact for resolution
by the trial judge . Having h eard all tes timony a t the hear ing on the motion to
suppre ss, the trial jud ge con cluded ,
[The Defendant’s] testimony is somewhat supportive of [McK inlay’s
testimon y]. But the Court finds it rather incredible when you stop to
think that his purpose of stopping at this laundromat at these very
late hours when he was in transit from either Texas or Mem phis to
Indiana was for the purpose of washing his c lothes at this late hour.
The Court finds [that the D efendant’s] testim ony is pretty
incredible. And, ob viously, both parties have an interest in the
outcome of this case. In judging the credibility of the witnesses, the
Court feels that consent was given. The Court might observe that
it would have been a better practice had some type of written
document been prepared so that questions like this don’t come up
subse quent, where it involves the Court making a determination of
credibility of the witnesses , that if there had been a signed consent
form there would be no question here.
Also, the Court observes that for consent to be valid that one
must be aware that they’ve got a constitutional right not to conse nt,
and they must freely and voluntarily give that right up. The
testimony in this ca se ind icates tha t the co nsen t was c onse nsua l,
that it was freely and voluntarily given.
The evidence clearly does not prepon derate against the findings of the trial judge.
W e there fore de cline to disturb the trial ju dge’s conc lusion on ap peal.
The jud gmen t of the trial cou rt is accord ingly affirme d.
____________________________________
DAVID H. WELLES, JUDGE
-9-
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
NORMA McGEE OGLE, JUDGE
-10-