IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1999 SESSION
May 4, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9712-CR-00582
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. ANN LACY JOHNS,
CHARLES R. MENCER, ) JUDGE
)
Appellant. ) (Suppression of Evidence)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN S. COLLEY, III JOHN KNOX WALKUP
P.O. Box 1476 Attorney General & Reporter
Columbia, TN 38402
DARYL J. BRAND
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
KYMBERLY HAAS
Asst. District Attorney General
Washington Square, Suite 500
222 Second Ave., North
Nashville, TN 37201
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged in the indictment with possession with intent
to sell or deliver ten to seventy pounds of marijuana. He filed a motion to suppress the
marijuana, which was denied. The defendant then entered a guilty plea, properly
preserving for appeal two certified questions that the parties and the trial court agreed
were dispositive of this case. He now presents one of those issues on appeal, that is,
whether a search warrant affidavit that relies upon positive “alerts” to drugs by two trained
drug dogs must include specific statements regarding the drug dogs’ training, past
performance, and experience in order to establish probable cause. We affirm the trial
court’s order denying his motion to suppress.
According to the evidence at the suppression hearing, Drug Enforcement
Agent (DEA) Mark Lockwood, who was on duty at the Nashville International Airport,
received a call from an agent at the Houston airport. Agent Lockwood testified the
Houston agent had told him that a drug detection dog had positively “alerted” for narcotics
in the suitcase of a passenger flying to Nashville. The tag on the suitcase reflected the
name “Ricky Miller,” who had flown from Nashville to Houston earlier that same day and
had been scheduled to return to Nashville on a 4:35 p.m. flight but had changed his flight
to 5:45 p.m.
Agent Lockwood testified he first saw the defendant arrive at the incoming
flight’s gate in Nashville at 7:40 p.m., while at the same time in the baggage tunnel, a
second drug detection dog indicated the presence of narcotics in the suspected suitcase.
Agent Lockwood testified he and other agents followed the defendant from the gate to
the baggage carousel, where the defendant retrieved the suspected suitcase. According
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to Agent Lockwood, he and the other agents approached the defendant, identified
themselves, and asked to see the defendant’s personal identification, which reflected the
last name “Mencer.” When asked whether the suitcase he was carrying was his, the
defendant looked puzzled, said “Well, maybe it isn’t,” and put down the bag. The names
on the luggage tag and the defendant’s identification were different, but the address on
the luggage tag and the address on the identification were the same.
Agent Lockwood testified he asked the defendant if he would consent to a
search of his suitcase and the defendant replied, “No. I’d like to speak to my attorney.”
The defendant agreed, however, to accompany the agents to the airport drug interdiction
office. On the way there, the defendant asked for his Miranda rights to be read to him,
and an agent complied. Once at the office, Agent Lockwood again asked the defendant
to consent to a search of his suitcase, and again the defendant declined, asking to speak
to his attorney. Within five minutes, the defendant was allowed to call his attorney. In
the meantime, however, a NCIC computer check revealed an outstanding arrest warrant
for the defendant issued by the Nashville Metro Police Department in an unrelated case.
The defendant was placed under arrest on this unrelated arrest warrant.
Agent Lockwood testified that because they were investigating whether the
defendant was transporting narcotics, they decided to delay transporting the defendant
for processing on the unrelated arrest warrant until they could execute a search warrant
to search the defendant’s suitcase. While the defendant waited at the airport drug
interdiction office, the agents prepared the search warrant. The affidavit in support of the
search warrant reads, in pertinent part, as follows:
ON JANUARY 11, 1996, OFFICER JAMES GOODMAN AND OTHER
MEMBERS OF THE DRUG INTERDICTION UNIT AT THE NASHVILLE,
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TN AIRPORT RECEIVED INFORMATION FROM OFFICER SUSAN
HUGHES OF THE HOUSTON HOBBY DRUG INTERDICTION UNIT. THE
INFORMATION WAS IN REGARD TO A PERSON FLYING FROM
HOUSTON HOBBY TO NASHVILLE, TN. ON SOUTHWEST AIRLINES
FLIGHT # 649. [sic] FLIGHT 649 WAS SCHEDULED TO ARRIVE IN
NASHVILLE, TN AT 7:30 PM, AND DID ARRIVE AT 7:40 P.M. OFFICER
HUGHES RELAYED TO NASHVILLE OFFICERS THAT THE SUBJECT
WAS FLYING UNDER THE NAME OF RICK MILLER, AND PROVIDED A
DESCRIPTION OF THE SUBJECT. OFFICER HUGHES FURTHER
ADVISED THAT THE MANNER IN WHICH THIS SUBJECT HAD
CONDUCTED HIMSELF AT THE HOUSTON AIRPORT WAS OF A
SUSPICIOUS NATURE IN THAT THE SUBJECT HAD FIRST BOOKED
THE FLIGHT SCHEDULED TO DEPART AT 4:30 PM, BUT HAD
CHANGED TO A LATER FLIGHT, EVEN THOUGH HE WAS AT THE
AIRPORT IN TIME TO MAKE THE EARLIER FLIGHT. OFFICER
HUGHES ALSO ADVISED THAT THE PERSON KNOWN AS MILLER AT
THIS TIME HAD CHECKED ONE PIECE OF LUGGAGE AND HUGHES
PROVIDED YOUR AFFIANT WITH A DESCRIPTION OF THE LUGGAGE.
BECAUSE OF THE SUSPICIOUS NATURE OF MILLER’S (LATER
IDENTIFIED AS MENCER) ACTIONS OFFICER HUGHES HAD A DRUG
DETECTING CANINE, “ROBBIE”, TO [sic] SNIFF THE LUGGAGE IN
QUESTION FOR THE PRESENCE OF NARCOTICS INSIDE THE
LUGGAGE. OFFICER HUGHES ADVISED YOUR AFFIANT THAT
TRAINED DRUG DOG, “ROBBIE”, DID INDICATE POSITIVE FOR THE
PRESENCE OF NARCOTICS. BASED ON THIS INFORMATION,
OFFICERS OF THE NASHVILLE AIRPORT DETAIL MET SOUTHWEST
FLIGHT 649 UPON ITS ARRIVAL IN NASHVILLE,TN. OFFICERS IN
NASHVILLE WERE ABLE TO LOCATE THE BAG IN QUESTION, AS IT
ARRIVED IN THE BAGGAGE AREA. CANINE OFFICER RICKY
WINFREY AND HIS TRAINED DRUG DOG STALLONE CONDUCTED A
SECOND SNIFF OF THE SUSPECT LUGGAGE THAT HAD BEEN
CHECKED BY MILLER(AKA MENCER) IN HOUSTON. THE TRAINED
DRUG DOG STALLONE INDICATED POSITIVE FOR THE PRESENCE
OF NARCOTIC ODOR COMING FROM THE LUGGAGE. BASED ON THE
ABOVE LISTED INFORMATION, THE AFFIANT BELIEVES PROBABLE
CAUSE DOES EXIST FOR THE ISSUANCE OF A SEARCH WARRANT.
At approximately 10:50 p.m., the signed search warrant was returned to the airport drug
interdiction office, where the defendant was waiting. The search of his suitcase revealed
two packages of marijuana wrapped in duct tape, each weighing approximately ten
pounds.
The defendant argues that the affidavit is insufficient because it fails to
establish the dogs’ reliability in detecting drugs. According to the defendant, the dogs’
reliability should have been established in the affidavit with information regarding the
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dogs’ training, breeding, past performance in detecting narcotics, experience,
certification, “pointing” techniques, and “other qualifications which would give rise to a
probable cause finding based on their actions/reactions.” The defendant contends that
because the affidavit did not contain such information, the portion of the affidavit
regarding the drug detecting dogs “hitting” or positively indicating that his suitcase
contained narcotics must be disregarded. Without this information in the affidavit, the
defendant concludes, the affidavit fails to show probable cause, and accordingly, the
marijuana found during the search must be suppressed.
This is a case of first impression in Tennessee. A panel of our Court has
previously held that the State had proven probable cause for a warrantless search by
introducing evidence that a trained narcotics detection dog certified by the United States
Police K-9 Association had “alerted” for the presence of narcotics in a vehicle lawfully
stopped for violation of a license plate lighting law. State v. Dennis R. England, No.
01C01-9702-CR-00064, Sumner County (Tenn. Crim. App. filed March 31, 1998, at
Nashville), (citing State v. James Smith, Jr., No. 38, Shelby County (Tenn. Crim. App.
filed December 14, 1988, at Jackson)(holding that an affidavit including information from
two anonymous callers and stating that a trained and “reliable drug dog” had detected
drugs in a vehicle provided probable cause to issue a search warrant)) rev. granted
(Tenn. January 19, 1999). No Tennessee appellate court, however, has previously
considered our issue here, i.e., whether a search warrant affidavit that characterizes
narcotics dogs as “trained drug dogs” sufficiently delineates the dogs’ training and
reliability in detecting drugs and thus establishes probable cause, even though the
affidavit does not delineate the particulars of the dogs’ training, experience, and past
performance.
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A magistrate’s decision to issue a search warrant requires the exercise of
judicial discretion, and his or her judgment is entitled to great deference. State v. Melson,
638 S.W.2d 342, 357 (Tenn. 1982); Hampton v. State, 148 Tenn. 155, 252 S.W. 1007
(1923). Even so, an appellate court may invalidate a search warrant when the content
of the underlying affidavit is insufficient as a matter of law to satisfy the constitutional
requirements of probable cause. State v. Longstreet, 619 S.W.2d 97, 98-99 (Tenn.
1981).
In reviewing a search warrant affidavit for probable cause, we must read the
language “in a commonsense and practical manner,” Melson, 638 S.W.2d at 357, and
the affiant’s words should be given their natural meaning and interpretation, State v.
Smith, 477 S.W.2d 6, 8 (Tenn. 1972); State v. William Dorris Bucy, II, No. 02C01-9709-
CC-00363, Henry County (Tenn. Crim. App. filed December 10, 1998, at Jackson). The
probability of criminal activity, not a prima facie showing of a crime, is the standard for
probable cause. Beck v. Ohio, 379 U.S. 89, 96 (1964).
Although the defendant urges us to follow cases of different jurisdictions
that require varying specifics regarding a drug dog’s training and certification, we are
persuaded by the holding in a United States Sixth Circuit case. In United States v. Berry,
90 F.3d 148, 150 (6th Cir. 1996), the defendant challenged a search warrant affidavit that
stated a “