IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY SESSION, 1998 August 7, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9707-CC-00272
)
Appe llant, )
)
) ROBERTSON COU NTY
VS. )
) HON. ROBERT W. WEDEMEYER
CARL SEAWARD ALLEN, ) JUDGE
)
Appellee. ) (Direct Appeal - Possession with
) Intent to Deliver a Controlled
) Substance)
FOR THE APPELLEE: FOR THE APPELLANT:
WIL LIAM R . GOO DMA N, III JOHN KNOX WALKUP
Goodman & W alker Attorney General and Reporter
124 Sou th Court Squ are
Springfield, TN 37172 LISA A. NAYLOR
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
JOHN CARNEY
District Attorney General
DEN T MO RRIS
Assistant District Attorney
Main Street
Springfield, TN 37172
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
Appellee Carl Seaward Allen was indicted by the Robertson County Grand
Jury on September 8, 1997, for possession with intent to deliver a controlled
substance, to wit: over ten pound s of marijuana. On March 7, 1997, Appellee
filed a motion to suppress evidence seized during a search of his vehicle. The
trial court held a hearing on this motion on April 7, 1997. On April 10, 1997, the
court granted Appelle e's mo tion to sup press. The State presents the following
issue for our consideration on this appe al: whethe r the trial c ourt er red in
granting Appelle e's mo tion to suppress evidence seized during the se arch o f his
vehicle.
After a review of the record , we reverse the jud gment of the trial court and
reman d this cas e for trial.
I. FACTUAL BACKGROUND
Officer Mark Norrod of the Tennessee Highway Patrol testified that on the
evening of May 9, 1996, he patrolled Interstate 65 in Robertson Coun ty. Sho rtly
before midnight, Officer Norrod noticed a vehicle which appeared to have no
license plate. A s he p ursue d the a utom obile, O fficer N orrod obse rved A ppelle e's
white van change from the right to the left lane for no apparent reason. The van
was traveling northbound on Interstate 65. Officer Norrod activated his video
camera and re corde d the w hite Do dge va n mo ve bac k over in to the rig ht lane.
Appellee then twice crossed over the white fog line on the righthand side of the
road. Officer Norrod turned on his blue lights, and Appellee stopped his van at
approximately 11:51 P.M.
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At the suppressio n hearing, Officer Norrod testified that he thought that
Appellee was eith er drowsy or under the influence of an intoxicant. Officer
Norrod aske d App ellee to produ ce his d river's license and his vehicle registration.
When asked whether he had been drinking, Appellee replied that he had not.
Appellee also informed the officer that he had no guns inside the van. Officer
Norrod contin ued s peak ing with Appe llee to ascertain whether or not he was
under the influence of an intoxicant. Norrod stated that although he could detect
no odor of a lcohol on Appelle e's brea th, Appe llee appe ared tired and had red
eyes. Appellee told O fficer Norrod that he was from Da llas, Texas and that he
was traveling to M aryland to visit his sick father.
Howeve r, Officer Norrod noted that Appellee's driver's license reflected that
he was from McAllen, Texas, a border town renowned for drug smuggling.
Moreover, Officer Norrod o bserved that A ppellee wore his work uniform
while making h is cross-coun try trip. The dispatch ve rified Appe llee's d river's
license and registration. After talking with Appellee for a few minutes, Officer
Norrod testified that when he returned Appellee 's driver's license and registration,
he concluded that Appellee was, in fact, not intoxicated.
Officer Norrod then asked Appellee whether he would mind if the officer
searched his van. Officer Norrod testified that he believed Appellee responded,
"No, I don't min d; go ah ead." Appe llee as ked N orrod wheth er he s hould turn off
the ignition, and Norrod responded affirmatively. Officer Norrod also suggested
that Appellee turn off his lights to avoid discharging the battery. The officer
directed Appellee to step to the front of the van while he conducted the search.
Officer Norrod stated tha t he beg an con ducting th e searc h at approxim ately
11:53 P.M. Norrod further testified that four and one-half minutes after stopping
the van, he discovered about three pounds of marijuana in a duffle bag inside the
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van. Norrod testified that he was able to smell the marijuana after unzipping the
duffle bag. After discovering the marijuana in the duffle bag, Officer Norrod
arrested Appellee and administered the Miranda warnings to him . Other officers
and a drug do g arrived to assist with the search. Officer Norrod asked Appellee
whether any more contraband was concealed in the vehicle, and Appellee
informed him marijuana was stored in the door panels. Upon removing the door
panels, the officers discovered 48.2 pounds of marijuana.
II. CONSTITUTIONALITY OF THE STOP, SEARCH, AND SEIZURE OF
APPELLEE'S VEHICLE
Appellee asse rts that th e stop and s earch of his vehicle contravened the
United States and Tennessee Constitutions.
A. CONSTITUTIONALITY OF THE INVESTIGATIVE STOP
Appellee argues that he ha d violate d no s tatute o r ordina nce; th us, his
conduct did not g ive rise to a reasonable suspicion, based upon specific and
articula ble facts, that a crime either had been or was about to be committed.
Therefore, Appellee reasons, the stop of his van was unlawful. We disagree.
The Fourth A mend ment g uarante es that pe ople ha ve the righ t "to be
secure in their p erson s, hou ses, p apers , and e ffects, a gains t unrea sona ble
searches and se izures. . . ." The Fourth Ame ndm ent furth er requ ires tha t all
warran ts must issue based upon probable cause. U.S. Const. amend 4.
Moreover, Article I, § 7 of the Tennessee Constitution similarly provides:
That the people shall be secure in their persons, houses,
papers and possessions, from unreasonable searches and
seizures; and that general warrants, whereby an officer may
be commanded to search suspected places, without evidence
of the fact com mitted, or to seize any person or persons not
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named, whose offenses are not particularly described and
supported by evidence, are dangerous to liberty and ought
not to be granted.
Tenn. Const. art. I, § 7.
"Stopping an automobile and detaining its occup ants cons titutes a `seizu re' within
the meaning of the fede ral and sta te constitu tions." State v. Lawson, 929 S.W.2d
406, 407 (Tenn. Crim. App . 1996). As a general rule, an officer is entitled to stop
an autom obile fo r investig ative pu rpose s whe re the o fficer ha s reas onab le
suspicion, based on specific and articula ble fac ts, that a n offen se is being or is
about to be comm itted. State v. Watkins, 827 S.W .2d 293, 294 (Tenn. 199 2);
State v. Seaton, 914 S.W .2d 129 , 131 (Tenn. Crim. App. 1995). To determine
whether an officer's reasonable suspicion was supported by specific and
articula ble facts, this Court must consider the totality of the circumstances.
Lawson, 929 S .W .2d 40 6, 408 . The c ircumstances include, but are not limited
to:
objective observations, information obtained from other police
officers or agencies, information obtained from citizens, and
the pattern of operation of certain offenders.
* * * * * *
A court m ust also c onside r the rational inferences and
deductions that a traine d police o fficer may draw from the
facts and circumstances known to him.
State v. Scarlett, 880 S.W.2d 707, 709 (Tenn. Crim. App. 1993) (quoting State
v. Moore, 775 S.W .2d 372, 377 (Tenn. Crim . App. 1989 )).
Additional factors which may determine the existence of reasonable suspicion
include "the characteristics of the area, the behavior of the driver, and the
aspec ts of the vehicle itself." Id. (citing Hugh es v. State , 588 S.W.2d 296, 305-06
(Tenn. 19 79)).
In the case sub judice, the significant factors are the objective observations
of Officer Norrod, the driver's behavior, and the aspects of the vehicle. Officer
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Norrod testified at the suppression hearing that he was prompted to activa te his
video camera because Appellee changed lanes. This Court has viewed the video
tape of Appellee's driving. The tape revea ls that App ellee twice veered o ver to
the extreme righthand side of the road across the white line. Officer Norrod
explained that he feared tha t Appellee either w as intoxicated or tired.
Additionally, he noticed tha t Appellee's wh ite Dodge va n bore Te xas license
plates. Finally, it was almost 12:00 midnight when Officer Norrod noticed
Appe llee's vehicle . We conclude that, given the time of night, crossing the fog
line three times, and the distance from which the vehicle had com e, Officer
Norrod had cause to stop Appellee's vehicle, if for no other reason than the
public’s safety.
Officer Norrod testified that after stopping the van, he was suspicious of
Appellee for the followin g reaso ns: First, Appellee appeared drowsy. His eyes
were red. Second, though not on duty at the time, Appellee was traveling cross-
country in his work uniform. Third, Appellee told Officer Norrod that he was from
Dallas, Texas; however, his driver's license stated that he was from McAllen,
Texas, a border town well-known in law enforcement circles for drug smuggling.
The trial court correctly concluded that the initial investigatory stop of
Appellee's van was justified.
B. UNLAWFUL AND UNREASONABLE DETENTION
Appellee next com plains tha t his detention was unlawful and unreasonable.
We disagree.
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In United States v. Sharpe, the United States S uprem e Cou rt held that "In
assessing whether a de tention is too long in du ration to be justified as an
investigative stop, we consider it appropr iate to examine whether the police
diligen tly pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to detain the
defend ant." 470 U.S. 675, 686, 105 S.Ct. 1568, 15 75, 84 L.Ed .2d 605 (198 5).
See also State v. Simpson, 1998 WL 70389 (Tenn. 1998) (holding that it was
neither unreasonable nor unlawful to detain the defendant for app roxim ately five
minutes after the stop was initiated). Applying the Sharpe standard to the facts
of the present case, it seems obvious that the detention was neither
unreaso nable nor unlawful. Within less than five minutes after stopping
Appe llee's van, Officer Norrod determined that Appellee was not intoxicated.
After that, Appellee apparently could have gone on his way had he not
consented to a search of his vehicle.
C. CONSENT EXCEPTION TO WARRANT
REQUIREMENT
Appe llant's final contention is that the search of his van was
unconstitutional because his consent was not voluntary. Appellee further claims
that his con sent w as ren dered invalid because Officer Norrod failed to advise him
that he wa s free to go an d con tinued conve rsing w ith him after re turning his
driver's license and vehicle registration. We disagree.
This Court is obliged to uphold the trial court's findings of fact in a
suppression hearing unless the evidence preponderates against th em. State v.
Odom, 928 S.W .2d 18, 23 (Tenn . 1996); State v. Stephenson, 878 S.W.2d 530,
544 (Tenn. 1994). "The existence of cons ent an d whe ther it wa s volun tarily given
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are question s of fact." State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim.
App. 1983). In the present case, the trial court neglected to make any factual
findings concerning the voluntariness or va lidity of Appellee's conse nt. The cou rt
concluded only that Appellee's detention became unlawful after the officer
ascertained that Appellee was neither intoxicated nor in violation of any laws.
Therefore, due to the lack of factual findings concerning this issue, we must
employ a de novo standard of revie w. State v. D oughe rty, 930 S.W.2d 85, 86
(Tenn. C rim. App. 199 6).
W e first add ress A ppelle e's co ntentio n that h is cons ent wa s involu ntarily
given because Officer Norrod neglected to inform him that he was free to go after
returning Appellee's vehicle registration and driver's license to him. The United
States Supreme Court has held that the Fourth Amendment does not require that
a lawfully seize d detaine e be ad vised that h e is "free to go" before his consent
to search will be reco gnized as volunta ry. Ohio v. R obinette, 519 U.S. 33, 117
S.Ct. 417, 419 , 136 L.Ed.2d 347 (1996 ).
Voluntary consent to search is an exception to th e warran t requirem ent.
Schne ckloth v. Bustam onte, 412 U.S. 218, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854
(1973); State v. Bartram, 925 S.W.2d 227, 229 (T enn. 1996 ). The prosecution
bears the burden of demonstrating that consent to search was given volunta rily
and freely. McMahan, 650 S.W.2d 383, 386. In order to be voluntary, the
consent must be unequivocal, specific, intelligently given, and uncontaminated
by any du ress or co ercion. State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992)
(citing Liming v. State, 417 S.W .2d 769, 770 (Tenn. 196 7)).
Less than five minutes after stopping Appellee's van, Officer Norrod
requested permission to search the vehicle. Appellee consented, telling the
officer to "Go ahead." After Officer Norrod located the marijuana in the duffle bag
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and administered the Miranda warnings to Appellee, he inquired whether
Appellee had any more marijuana stored inside the van. Appellee volunteered
that more was inside the van doors.
In light of the foregoing, we conclu de tha t Appe llee free ly and k nowin gly
consented to a search of his van without any duress or coercion.
Because we co nclud e that th e trial court erron eous ly gran ted Ap pellee 's
motion to suppress, we reverse the jud gme nt of the trial cou rt and re man d this
case for trial.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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