IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMB ER SESSION, 1998 March 15, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9804-CC-00181
)
Appe llant, )
)
) WILLIAMSON COUNTY
VS. )
) HON . DON ALD P . HARR IS
CHARLES SCOTT ASHWORTH,) JUDGE
)
Appellee. ) (Direct Appe al - Posses sion of
) Controlled Substance with Intent
) to Sell)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP ERIC L. DAV IS
Attorney General and Reporter 317 Main Street, Ste. 208
Franklin, TN 37064
LISA A. NAYLOR
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
JOE D. BAUGH, JR.
District Attorney General
LEE E. DRYER
Assistant District Attorney
P. O. Box 937
Franklin, TN 37064
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
On November 10, 1997, Appellee Charles Scott Ashworth was indicted by
the Williamson County Grand Jury for one count of possession of a controlled
substance with intent to sell. On December 2, 1997, Appelle e filed a m otion to
suppress the marijuana that was discovered during a search of his vehicle and
a subse quent w ritten statem ent that he gave to p olice. By orders dated March
16 and 19, 1998, the trial court gra nted Ap pellee’s m otion to su ppress . The S tate
challenges the trial court’s suppres sion of the eviden ce. After a review of the
record, we reverse the judgment of the trial court and remand this matter for
further findin gs of fact.
I. FACTS
Officer Collin Consiglio of the Brentwood, Tennessee Police Department
testified that on September 22, 1997, he saw Appellee driving his vehicle at a
speed of 52–53 miles per hour in a 45 mile per hour zone. Consiglio then asked
the police dispatch er to check on the validity of Appellee’s license plate and he
initiated a traffic stop. As Consiglio approached Appellee, the dispatcher
reported that the licen se plate d id not ma tch App ellee’s veh icle. Consiglio
believed that App ellee was agitated a nd very ne rvous at th is point.
Con siglio testified that when he asked Appellee for his driver’s license and
registration, Appellee pro vided a license, bu t said that he did no t have his
registration. Consiglio then asked Appellee to exit his vehicle and join him in
standing between the two parked vehicles so that he would not be hit by another
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car while standing n ext to Appellee’s vehicle. Consiglio then ran a check of the
driver’s license on his portable radio. When the dispatcher reported that the
driver’s license was valid, Cons iglio told Ap pellee tha t he wou ld let him g o with
a warning. Consiglio testified that he then asked Appellee whether he was
transporting any contraband and Appellee said no. Consiglio then asked for
conse nt to searc h the veh icle, and A ppellee a greed to the sear ch.
Con siglio testified that a fter Ap pellee cons ented to the s earch , Con siglio
patted him do wn for we apons , told him th at he wa s not und er arrest, and asked
him to sit in the patrol car so that Consiglio could search the vehicle without
worrying about w hat App ellee was doing. After Consiglio found three packages
of marijua na in the ve hicle, he a rrested A ppellee a nd took him to the po lice
station. At the station, Consiglio gave Appellee the Miranda warnings and
Appellee then s igned a written waiver of his rights. Appellee then prepared a
written statement in which he admitted that he had purchased the marijuana for
resale. Appelle e then a sked w hether h e could w ork for the d rug task fo rce.
Cons iglio told Ap pellee tha t it was up to him to de cide wh at to do.
Appellee testified that he had been watching his speedometer before he
was stopped and he had not driven faster than 45 miles per hour. When
Con siglio asked for his licens e and re gistration, A ppellee gave him the license
and stated that he did not have his registration with him. Appellee testified that
Con siglio then ordered him out of the vehicle, ordered him to place his hands on
the trunk of the veh icle, and th en patte d him d own for w eapon s.
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Appellee testified that he then h eard th e disp atche r repor t that his license
was valid. Consiglio then told Ap pellee that he would let him go with a warning,
but before he left, Consiglio asked whether he was transporting any contraband
such as drugs, guns, knives, or hand grenades. When Appellee said no,
Con siglio asked whether he could search the vehicle. Appellee testified that
when he as ked w hethe r he ha d to ag ree to th e sea rch, C onsig lio said he didn’t
have to agree, but if he didn’t, Consiglio would get a warrant and search the
vehicle anyway. Appellee then told Consiglio th at he c ould s earch his veh icle
and C onsiglio the n placed Appelle e in the ba ck of his loc ked pa trol car.
Appellee testified that after he was arrested and taken to the police station,
he asked C onsiglio if there was anything he could do to get himself out of trouble.
Con siglio and Sergeant Ricky Knight then told Appellee to write down a
statement that they could give to the drug task force. When Appellee wrote a
simp le state men t, Knigh t said th at it was not goo d enou gh and told App ellee to
tear it up. Consiglio and Knight then h elped App ellee prepare a nother written
statement in which he admitted purchasing the marijuana for resale. Appellee
testified that he signe d the w aiver of rights form after he gave the written
confession. Appelle e claime d that he d id not kno w that what he wrote in the
statement could be used a gainst him in court. Appellee also testified that he did
not understand the Miranda warning s.
Con siglio testified in reb uttal that he never told Appelle e that he would
obtain a warrant if Appellee did not consent to the search. Consiglio also testified
that he did no t perform a weapons frisk on Appellee until after Appellee had
conse nted to the search .
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II. ANALYS IS
The State contends that the trial cour t erred wh en it grante d the m otion to
suppress the marijuana that was discovered during the search of Appellee’s
vehicle and the written statement that Appellee subsequently made at the police
station.
A. Searc h of App ellee’s V ehicle
The Fourth A mend ment to the Unite d States Constitution provides, “The
right of the people to be secure in their persons, houses, papers, and effects,
against unreas onable search es and seizures , shall not be violated, and no
warran ts shall issue, but upon probable cause . . . .” U.S. Const. amend IV.
Similarly, Article I, Section 7 of the Tennessee Constitution guarantees, “That the
people shall be secure in their pers ons, house s, papers and possessions, from
unrea sona ble searches and seizure s . . . .” Ten n. Co nst. art. I, § 7. Unle ss it
falls within a spec ifically established and well-delineated exception, a search
conducted without a w arrant is pe r se unre asona ble. Schnec kloth v.
Bustam onte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973)
(citations omitted). “One of the specifically established exceptions to both a
warrant and proba ble cause is a s earch that is conducted pursuant to a
volunta rily given conse nt.” Id. 412 U.S. at 219, 93 S.Ct. at 2043–44 (citations
omitted); see also State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). The
burden of proof rests upon the State to show, by a preponderance of the
evidence, that the consent to a warrantless search was given freely and
voluntarily. Schne ckloth, 412 U.S. at 248–49, 93 S.C t. at 2059; Bum per v. No rth
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Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968 );
Bartram, 925 S.W .2d at 230. The q uestio n of wh ether a n acc used volunta rily
consented to the search is a question of fact which focuses upon the totality of
the circums tances . Schne ckloth, 412 U.S. at 248–49, 93 S.Ct. at 2059. “In order
to pass con stitutional muster, consent to search must be unequivocal, specific,
intellige ntly given, and unco ntaminated by duress or co ercion.” State v. Brown,
836 S.W .2d 530, 547 (Tenn. 199 2).
This Court is o bliged to u phold the trial court’s findin gs of fact in a
suppression hearing unless the evidence preponderates against them. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “The existence of consent and whether
it was voluntarily given are questions of fact.” State v. McMahan, 650 S.W.2d
383, 386 (Tenn. Crim. App. 1983). In this case, the trial court neglected to make
any factual findings concerning the voluntariness or validity of Appe llee’s consent.
The trial court also failed to mak e findings of fact sufficien t for this Cou rt to
determine wheth er Ap pellee volunta rily consented to the search. The trial court
apparently concluded that it was not necessary to make these findings in order
to resolve the issues in th is case. Ins tead, the tria l court ruled that the m otion to
suppress should be granted because once Consiglio told Appellee that he could
proceed with only a warning, Consiglio had no authority to continue to detain
Appellee for further questioning and thus, Co nsiglio’s actions were improper and
unreasonable under the Fourth Amendment and Article I, Section 7.1
1
The trial court failed to make any factual findings about whether Appellee was stopped because
he w as s pee ding o r, as h e claim s, m erely b eca use he loo ked sus piciou s. Th e trial c ourt c onc luded that it
was not necessary to make these findings in order to resolve this matter. However, the general rule is that
a police of ficer m ust have a reaso nable su spicion, s upporte d by spec ific and articu lable facts , that a
criminal offense has been or is about to be committed before the officer may make an investigatory stop
of a m otor vehic le. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citing Ter ry v. O hio, 392 U.S. 1,
21, 8 8 S.C t. 186 8, 18 80, 2 0 L.E d.2d 889, 906 ( 196 8)). T hus , unle ss C ons iglio ac tually h ad a r eas ona ble
articulable suspicion that Appellee had been speeding, the initial stop of Appellee was unlawful under the
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W e conclude that the trial court erred when it determined that Appellee was
subjected to continued detention simply because Consiglio asked him whether
he was transporting any con traband . In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2 d 889 (196 8), the United S tates Suprem e Court stated that not every
encounter between a policeman and a citizen is a seizure. 392 U.S. at 19 n.16,
88 S.Ct. at 1 878 n .16. “O nly whe n the o fficer, by mea ns of p hysica l force or
show of authority, has in some way restrained the liberty of a citizen may we
conclude that a ‘seizure’ has o ccurred.” Id. Further, the Supreme Court stated
in INS v. Delgado, 466 U.S. 21 0, 104 S.C t. 1758, 80 L.Ed .2d 247 (198 4):
W hat is apparent from [Florida v.] Royer, [460 U.S. 491, 103 S.Ct. 1319,
75 L.Ed.2d 229 (1983)] and Brown [v. Texas, 443 U.S. 47, 99 S.Ct. 2637,
61 L.Ed.2d 357 (19 79)] is that p olice que stioning, b y itself, is unlikely to
result in a Fo urth A men dme nt violatio n. W hile most citizens will respond
to a police request, the fact tha t peop le do s o, and do so withou t being told
they are free not to respond, hardly eliminates the consensual nature of
the respon se. Unle ss the circ umsta nces o f the enco unter are so
intimidating as to demonstrate that a reasonable person wo uld have
believed he was not free to leave if he had not responded, one cannot say
that the questioning resulted in a detention under the Fou rth Am endm ent.
466 U.S. at 216–17, 104 S.Ct. at 1762–63 (citations om itted). T hus, C onsig lio
did not continue to detain Appellee by merely asking him a question about
whether he was transp orting contraband. When a traffic stop ceases to be a
detention and th e drive r volun tarily consents to additional questioning, no further
seizure occurs. See United States v. Sullivan, 138 F.3d 126, 133 (4th Cir. 1998)
(holding that detention ended when police officer returned driver’s license and
registration and driver volunta rily consen ted to add itional que stioning); United
States v. Anderson, 114 F.3d 10 59, 1064 (10 th Cir. 1997) (holding th at traffic
stop ceases to become a detention and becomes a consensual encounter when
Fourth Amendment and Article I, Section 7.
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police officer re turns lic ense and re gistratio n unle ss drive r has “o bjective ly
reasonable” cause to believe that he or she is not free to leave). Rather than
concluding that Appellee was subjected to an illegal detention merely by being
asked a question, the trial cou rt should have made findings regarding wh ether a
reaso nable person in Appellee’s position would have felt free to leave without
responding to the question.2
Of course, even if A ppelle e was not illeg ally deta ined w hen C onsig lio
asked the question about contraband, the searc h of Ap pellee ’s vehic le was still
not valid unle ss Appellee had given voluntary consent that was untainted by
duress or coerc ion. Brown, 836 S.W .2d at 5 47. Th is dete rmina tion ca n only be
made by examining the “totality of the circumstances” surrounding the giving of
conse nt. Schne ckloth, 412 U.S. at 248–49, 93 S.Ct. at 2059. Although an
examination of the “totality of the circumstances” involves many factors, it is clear
that a determination of whether Appellee’s consent was voluntary simply cannot
be made without findings of fact as to whe ther or not Co nsiglio actua lly
threatened to obtain a war rant if App ellee did n ot conse nt to the se arch. See
United S tates v. W hite, 979 F.2 d 539, 5 42 (7th Cir. 1992 ) (“Base less threa ts to
obtain a search wa rrant may render cons ent involuntary.”). 3 Unfortunately, the
trial court neglected to make any factual findings about whether Consiglio made
the allege d threat.
2
We note that the trial court found that Consiglio improperly removed Appellee from his vehicle
and frisked him for weapons before asking for consent to search the vehicle. Although we disagree that
having A ppellee ex it his vehicle w as imp roper, see Ohio v. R obinette , 519 U.S . 33, , 117 S.Ct. 417, 421,
136 L.Ed.2d 347 (1996), we do agree that the weapons frisk was improper because there is no indication
that Con siglio had a reason able articu lable sus picion that A ppellee w as arm ed, see Terry, 392 U.S. at 27,
88 S.Ct. at 1883. Being subjected to an improper weapons frisk certainly could have an effect on a
reasonable person’s belief that he or she was free to leave, but this fact alone is not determinative.
3
There is nothing in the record that indicates that Consiglio had probable cause to believe that
Appellee’s vehicle actually contained contraband. Thus, it appears that any threat to obtain a warrant
would have been baseless.
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In short, be caus e the tria l court e rrone ously d eterm ined th at Co nsiglio
unlaw fully detained Appellee merely by asking him a question, this matter must
be rema nded for add itional fin dings of fact regarding the voluntariness of
Appellee’s consent to search his vehicle.
B. Appellee’s Written Statement
The Fifth Amendment to the United States Constitution provides in part that
“no perso n . . . sha ll be com pelled in any criminal case to be a witness against
himse lf.” U.S. Co nst. Amend. V. Similarly, Article I, Section 9 of the Tennessee
Constitution states that “in all criminal prosecutions, the accused . . . shall not be
compelled to give evidenc e again st himse lf.” Tenn. C onst. art. I, § 9. However,
an accu sed m ay waiv e this right against self-incrim ination. Miranda v. Arizona,
384 U.S. 436, 444, 86 S.Ct. 160 2, 1612, 16 L .Ed.2d 694 (1966). In Miranda, the
United States Supreme Court held that a suspect
must be warned prior to any questioning that he has th e right to rema in
silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorne y, and th at if he canno t afford
an attorne y one w ill be ap pointe d for him prior to any questioning if he so
desires.
384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a suspect may
know ingly and intelligently waive the right against self-incrimination only after
being apprised of his o r her Miranda rights. Id. Accordingly, a constitutional
waiver of the right against self-incrimination requires the accused to make an
intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id.
384 U.S. at 444, 86 S.Ct. at 1612.
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In this case, the trial court neglected to make any findings about whether
Appellee was given his Miranda warnings before or after he made the written
statem ent. The trial court also failed to make any findings about whether
Appellee voluntarily waived his Miranda rights o r wheth er his waiver was coerced
by the police. The trial court apparently concluded th at these findings w ere
unneces sary because the written statement was “fruit of the poisonous tree” that
shou ld be suppressed because it was obtained only because of the prior unlawful
search of Appellee’s vehicle. See Brow n v. Illinois , 422 U.S. 590, 602–04, 95
S.Ct. 2254, 2261–62, 45 L.Ed.2d 416 (1975); W ong Sun v. United States, 371
U.S. 471, 48 4–86, 8 3 S.Ct. 4 07, 415 –16, 9 L .Ed.2d 4 41 (196 3); see also State
v. Huddleston, 924 S.W .2d 666 , 674 (T enn. 19 96).
W e agree with the trial court that if the search of Appellee’s vehicle was
unlaw ful, the confe ssion would have to be suppressed because it is unlikely that
the confession resulted from “an intervening independent a ct of a fre e will”
sufficient to “purge the prim ary taint of the unlawful invas ion.” Wong Sun , 371
U.S. at 486, 83 S.C t. at 416–1 7; Brown, 422 U.S. at 603–04, 95 S.Ct. 2261–62.
Howeve r, if the trial court determ ines o n rem and th at the s earch of App ellee’s
vehicle was conducted pursuant to voluntary consent, the trial court must also
make findings of fact about whether Appellee was given his Miranda warnings
before he made his written statement, and if so, whether the waiver of those
rights was valid.
III. CONCLUSION
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Because we hold that the trial court based its decision to grant the motion
to suppress on erroneous grounds, and pretermitted making additional findings
of fact necessary for a determination as to the validity of the search and
interrogation of Appellant, we reverse the judgment of the trial court and we
remand this matter for further factual findings consistent with this opinion.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOHN H. PEAY, JUDGE
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