State v. David Volz

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1997 November 19, 1997

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CC-00171 ) Appe llant, ) ) WILLIAMSON COUNTY ) V. ) ) HON . COR NEL IA A. CLAR K, DAVID C. VOLZ, ) JUDGE ) Appellee. ) (RULE 9 AP PEAL B Y STATE )

FOR THE APPELLEE: FOR THE APPELLANT:

LEE O FMAN JOHN KNOX WALKUP 317 Main Street, Suite 203 Attorney General & Reporter Franklin, TN 37064 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

JOSEPH D. BAUGH, JR. District Attorney General

DEREK K. SMITH Assistant District Attorney General Williams on Coun ty Courthous e, Ste. G-6 P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE

OPINION

The State appeals as of right from the trial court’s order granting the Defe ndan t’s motion to suppr ess evide nce. In this felony possession of marijuana case, the action of the trial court had the substantive effect of dismissing the indictment against Defendant. The issue on appeal is whether or not the trial court erred by g ranting the Defen dant’s m otion to su ppress the evide nce. W e agree with the S tate and reverse th e trial court’s o rder gran ting the m otion to suppress and remand this case for further proceedings.

Following the evidentiary hearing in which only the primary arresting officer and the Defendant testified, the trial court took the matter under advisement and subsequently entered an order granting the motion to suppress, along w ith a detailed mem orandu m of findin gs of fact a nd con clusions of law.

In our analysis of this case, we are mindful of the standard of review in suppression cases recently set forth by our supreme court in State v. Odom, 928 S.W.2d 18 (Tenn. 1996) as follows:

The party prevailing in the trial court 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. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld. In other words, a trial court’s findings of fact in a suppression hearing will be uph eld unles s the evidence prepon derates otherwis e.

Id. at 23. A review of the evidentiary hearing and the trial court’s memorandum

shows the facts in this case are as follows. On July 26, 1995, Detective Allen

-2-Hale and Officer Don Zelaya of the Franklin Police Department stopped the Defendant and his co-defendant, David Vandewater, in their vehicle located at the Majik Market p arking lot off Hillsboro R oad in Frank lin. The officers were acting on information given to Hale by a co nfidential informan t within 48 hours prior to the stop. The informant advised Hale that two white m ales, both with the first name David, would be in a certain-described vehicle at a certain period of time in the area of the Majik Market for the purpose of meeting others regarding transactions to sell marijuana. The informant offered detailed physical descriptions of the two men, including their hair color and the fact that they both had ponytails. The in forma nt told H ale the mariju ana w as loca ted in th e vehic le and that he (info rman t) had s een th e individ uals w ith ma rijuana within the last 48 hours. The in forma nt also advise d Hale that the Defe ndan t’s vehicle would ha ve a Virginia lice nse plate .

Hale testified that at the time h e rece ived this information from the confidential informant, he believed the informant to be reliable and to have an adequate basis of knowledge concerning the Defendant. Hale had had conversations with the informant on several prior occasions wherein the informant had given Hale names of individuals dealing in drugs, and the officer had been able to independ ently corrobora te this information. On at least one prior occasion, the info rman t had to ld Hale abou t certain perso ns po sses sing d rugs in a particular location and this information was corroborated independently by Hale. Hale further specified that the informant had given him names of at least a dozen individuals involved in drug activity and that he had corroborated that information. Hale, who had been involved in the vice unit of the police department for a cons iderable p eriod of tim e, also tes tified that the parking lot

-3-area of this particular Majik Ma rket was well kno wn as an a rea for transactions of illegal drugs and/or for meetings to arrange transactions involving drugs.

Hale and his th en-partn er went to the area of the Majik Market parking lot on Hillsboro Road and parked in an unmarked vehicle at a landscaping busines s nearb y. Almost immediately they observed the described vehicle arrive at the Majik Market, occupied by two white males matching the descriptions given by th e confide ntial inform ant. The Defendant’s vehicle sat in a space at the Majik Market parking lot for approximately five (5) minutes. It was then driven into a larger parking area adjacent to wh ere it had been sitting, wh ere it sat for appro ximately tw o (2) to four (4) minutes before being driven back to the original location. Neither the Defendant nor his co-defendant had stepped out of their vehicle the entire time that it was located in the area of the Ma jik Marke t.

Shor tly thereafter, as the Defendant’s vehicle approached the public road, the officers pulled their car into the lot, requ iring the D efenda nt’s car to reverse and stop . The officers’ blue lights, located in the grill of the car, w ere turned on and both officers got out of their vehic le and ide ntified them selves to the two men as police officers. The service weapon of at least one officer was drawn immediately. The Defendant was then advised of his Miranda rights by Detective Hale p rior to an y ques tions b eing a sked . Wh ile stating th at the Defendant had not been arrested at that point, Hale did admit that the Defendant was no t free to go fro m the m omen t he was first approa ched.

Hale told the Defendant he believed that he was transporting marijuana. Hale then asked him if this was correct to which Defendant replied

-4-affirma tively and stated that it was in the “trunk” area of the vehicle. The vehicle was actually a h atchba ck. At this point, no marijuana had been seen by either officer. A search revealed that the marijuana was located in Defendant’s backpack, and a pipe o f the type com mon ly used to smoke marijuana was found in a comp artmen t on one of the veh icle’s door s. Both D efenda nts subs eque ntly gave statements to Detective Hale.

There was no mention by the confidential informant to Hale as to the amount of marijuana in the possession of the Defendant and co-defendant. Up until the time it was actually discovered after the stop and the sea rch, the officers had no know ledge as to th e am ount o f mariju ana in posse ssion of th e Defe ndant.

The trial court concluded that under the circumstances of the case, Defendant was under arrest from the very moment the officers first approached his vehicle. The trial court concluded that even though the officers had reaso nable suspicion to stop the Defendant’s vehicle and conduct further investigation, they did not yet have probable cause to make the arrest at the time it was made. Therefore, the trial court concluded that the Defe ndant’s m otion to suppre ss mu st be gra nted.

The trial court placed much emphasis upon the fact that the officers had no ide a as to the am ount o f mariju ana th at was supp osed ly locate d within the Defe ndan t’s vehicle. The importance of this factor was whether the possession of the marijuana would be a misd eme anor o ffense (less th an on e-half ounce), or

-5-a felony (possession of more th an one -half oun ce infers in tent to sell). See Tenn. Code Ann. §§ 39-17-4 17 - 419 ; State v. Holt, 691 S.W .2d 520 (Te nn. 1984).

The trial court determined that there was insufficient proof of an offense being com mitted in the pres ence of the officers to justify a warrantless arrest for a misdemeanor. Furthermore, the court concluded that since the amount of marijuana located in the vehicle could not be determined based upon information available to the officers at the time of the stop, then a warrantless arrest for a felony also was no t justified.

W e have reviewed the record and conclude that the more approp riate analysis o f the case is to determ ine whether or not there was proba ble cause to justify a warrantless search of the Defendant’s car based upon the auto mobile exception to the wa rrant requ iremen t.

The analysis of any warrantless search must begin with the proposition that such search es are p er se un reason able un der the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution. This principle against warrantless searches is subject only to a few specifically established and we ll-delineate d excep tions. Katz v. United States, 389 U.S. 347, 35 7 (1967 ); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980 ). Before the fruits of a wa rrantless search are adm issible as evidence, the state must establish by a preponderance of the evidence that the search falls into one of the narrowly drawn exceptions to the warrant requirem ent. State v. Shaw, 603 S.W.2d 741, 742 (Tenn. Crim. App. 1980). One such exception is the “auto mobile exception” which is allowed if an officer has

-6-proba ble cause to believe that the vehicle contains contraband and exigent circumstances require an imme diate sea rch. Carroll v. United States, 267 U.S. 132, 15 5-56 (19 25); State v. Leveye , 796 S.W .2d 948 (Tenn . 1990).

The question in the insta nt case turns o n whether o r not the officers had probable cause to stop the automobile and search it. In this case, the information that led to both the search and the subsequent arrest was supplied by a confidential informant. Thus, in order to prove probable cause, the State must establish (1) that the inform ant had a basis fo r his inform ation that a person was involved in criminal conduct and (2) that the informant is credible or h is information is reliable. See State v. Jacumin, 778 S.W.2d 430 (Ten n. 1989). This two-prong test was firs t develo ped in Aguilar v. Texas, 378 U.S. 108 (1964) and Spine lli v. United States, 393 U.S . 410 (19 69). W hen this te st is applied to warrantless searches, the trial court an d the ap pellate courts must examine the testimony of law enforcement officers concerning the information supplied by the informa nt. Thus, we must review the testimony of Detective Hale to determine whether the informatio n sup plied to him b y the info rman t estab lished proba ble cause. On several occasions, Ten ness ee co urts ha ve poin ted ou t that pro bable cause is not a technical calculation, but a factual and practical consideration of everyday life upon which “reasonable and prudent [people], not legal technicians, act.” State v. Melson, 638 S.W.2d 342, 351 (Tenn. 1982) (citations omitted). For the reasons discussed b elow, we con clude that the po lice officers did have probable cause to search the Defendant’s automobile.

In order to satisfy the first-prong of the Aguila r-Spin elli test, the informant must describe the manner in which he gathered the information or

-7-describe the criminal activity with great particu larity to de termin e the b asis fo r his information. State v. Vela , 645 S.W.2d 765 (Tenn. Crim. App. 1982). The informant in the instant case gave detailed physical descriptions of the two men, a specific description of the vehicle they would be in, including the license plate, and the time period in which the two men would be at a certain location. Detective Hale stated that he knew this location to be a common place for drug trafficking. He also testified that the informant based his information on personal observation. This in forma tion wa s certa inly “mo re sub stantia l than a casual rumor circulating in the unde rworld or an acc usation base d merely o n an individu al’s genera l reputation .” Jacumin, 778 S.W .2d at 432 , quoting Spine lli, 393 U.S. at 416. Furthermore, this Court has repeatedly found that an inform ant’s perso nal ob serva tion of the con traband in questio n is sufficien t to satisfy this prong . See State v. Moon, 841 S.W.2d 336, 339 (Tenn. Crim. App. 1992). Thus , clearly sufficie nt facts existed from which one could determine the basis of th e inform ation.

The second-prong may be satisfied by e stablis hing a n inform ant’s inherent credib ility or by e stablis hing th e reliab ility of the inform ation. Spine lli, 393 U.S. at 415-16 ; Aguilar, 378 U.S. at 114. This Court has found that an inform ant’s veracity may be shown by demonstrating that he has a previous history of providing accura te informa tion to law e nforcem ent officers . Moon, 841 S.W.2d at 339. In this case, Detective Hale testified that the informant had supplied him with reliable information in the past by providing detailed information about individuals who were dealing drugs. Hale said he had been able to indep ende ntly verify the inform ant’s inform ation in the past and that it had all proved to be a ccura te. From the tes timony at the suppression hearing, the

-8-inform ant’s veracity was sufficiently demonstrated and Detective Hale was justified in relying on the information supplied to him in this case.

If the police have probable cause to believe th at an automo bile contains contraband, they may either seize the car and then obtain a search warrant or they ma y search it immed iately. The Fourth Amendment authorizes either action. Chambers v. Maroney, 399 U.S . 42, 52 (19 70). In Cham bers, the Supreme Court saw “no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an imm ediate search without a warran t.” Id. The decision to search the Defendant’s car was reasonable under the circumstances and violated neither the Fourth Amendment to the United States Constitution or Article I, Sectio n 7 of the Tennessee Constitution. Because we have already found that probable ca use existed to believe that the vehicle contained contraband, we simply add that the mobility of the vehicle itself supplied the requisite exigent circ umsta nces to c onduc t a warran tless sea rch. Carroll, 267 U.S. at 153; Shaw, 603 S.W.2d at 744. The exigent circumstances that may justify a warr antles s sea rch will b e pres ume d whe n a veh icle is involved. Leveye, 796 S.W.2d at 952-53.

The police officers were also jus tified in unzip ping th e Def enda nt’s backpack located in the “trunk” area of the car. The automobile exception has been held to ap ply in the co ntext of a loc ked ca r trunk. United States v. Ross, 456 U.S. 798 (1982). If there was probable cause to search the entire vehicle, the officers’ authority also extends to the opening of closed containe rs. Id. at 821. “The sc ope of a warrantle ss searc h of an au tomob ile . . . is not defined by

-9-the nature of the container in which the contraband is secreted. Rather, it is defined by the ob ject of the se arch an d the plac es in whic h there is prob able cause to believe th at it may be found.” Id. at 824. Furthermore, it appears from the rec ord tha t the D efend ant told the officers that he had marijuana and th at it was located in the “trunk” area. Even if the Defendant did not give his consent for the se arch, th e office rs were still justified in sea rching the en tire veh icle, including the Defendant’s backpack.

Given the facts discussed above, we conclude that the police officers acted reasonably u nder th e circu msta nces and th at the s earch of Def enda nt’s car, including his backpack located in the “trunk” area, was supported by probab le cause and exig ent circum stance s.

In consideratio n of the foregoing and the record as a whole, we reverse the trial court’s order granting the motion to suppress and remand th is case for fu rther proc eeding s.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge

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