State v. Troxell , 2002 Tenn. LEXIS 264 ( 2002 )

78 S.W.3d 866 (2002)

STATE of Tennessee
v.
David Walter TROXELL.

Supreme Court of Tennessee, at Nashville.

May 28, 2002.

William B. (Jake) Lockert, III, District Public Defender, Twenty Third Judicial District, for the appellant, David Walter Troxell.

Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General; Marvin E. Clements, Jr., Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Kim G. Menke, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

E. RILEY ANDERSON, J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

The defendant, David Walter Troxell, was charged with possession with intent to sell and/or deliver a controlled substance after officers discovered approximately 300 grams of cocaine in the gas tank of his pickup truck. The trial court suppressed the evidence after finding that the search of the undercarriage and gas tank of the defendant's vehicle exceeded the scope of the defendant's consent to search. The Court of Criminal Appeals reversed the judgment of the trial court and remanded the case for further proceedings. After carefully considering the record and the relevant authorities, we conclude that the officer's search of the undercarriage and gas tank of the defendant's vehicle violated the Fourth Amendment to the United States Constitution and article I, § 7 of the Tennessee Constitution because it exceeded the scope of the defendant's consent and resulted in the prolonged and unreasonable detention of the defendant. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

Background

The evidence presented at the suppression hearing revealed that on November 11, 1999, the defendant, David Walter Troxell, was stopped for speeding on Interstate 40 by Trooper Mark Norrod of the Tennessee Highway Patrol.^[1] Troxell, who was traveling 78 to 80 miles per hour in a 70 miles per hour zone, admitted that he had accelerated to pass a tractor-trailer truck. Troxell produced his driver's license and said that he was driving a company truck registered in the name of his employer's wife.

Trooper Norrod issued a warning citation to the defendant and explained that it would not require a court appearance or a fine. Trooper Norrod then asked the defendant, "Do you have any weapons in the vehicle?" Troxell responded, "No, nothing." When Trooper Norrod asked if he could "take a look," Troxell answered, "Yeah, go ahead."^[2] Trooper Norrod conducted a pat down search of the defendant and then searched the interior compartment of the pickup truck and all of the luggage inside. During the search, Troxell was led to the side of the roadway by another officer who had arrived at the scene, Trooper Ferrell.

After completing an extensive search of the interior of the pickup truck and the luggage therein that lasted nearly 20 minutes, Trooper Norrod then examined the underside of the vehicle. He observed that the bolts and hoses to the gas tank appeared to have been recently removed, and when he tapped on the gas tank, in his opinion it did not "resonate" as it would if it held only fuel. After obtaining a mirror and a flashlight from his patrol car, Trooper Norrod again looked under the truck and observed silicone sealant on and around the gas tank, which he believed was "not normal." Based on these observations and his experience in interdiction, Trooper Norrod concluded that there was something inside the tank other than fuel and that "it could have been [weapons]." Trooper Norrod instructed the defendant to drive to a service station so the gas tank could be removed. After asking that the owners of the vehicle be notified as to what was occurring, the defendant drove to the service station where the gas tank was removed and 300 grams of cocaine were discovered inside.^[3]

Trooper Norrod admitted during the suppression hearing that although he asked the defendant specifically about weapons and not drugs, a K-9 unit arrived at the scene and a drug detection dog conducted a sweep of the vehicle, which was negative. He testified that "in his mind," the defendant's consent meant that he could search "anywhere" and that Troxell never objected to the search at any time. Trooper Norrod conceded, however, that "most people might reasonably think that would mean [he was] going to look inside the cab of their truck." Troxell testified during the suppression hearing that he believed the officer was going to search the interior cab of the pickup truck and that he did not object or attempt to limit the search because he had been led to the side of the road by Trooper Ferrell. Trooper Norrod testified that Troxell was moved out of the way so that the events could be videotaped and for safety and security reasons.

After considering the testimony and viewing the videotape of the encounter, the trial court found that the search exceeded the scope of the defendant's consent and suppressed the evidence. The trial court stated:

If the officer had asked for a consent to search for drugs in the vehicle, I think this would have been a valid consent, because that would be one of the places that could be searched for drugs. But for weapons, I tend to agree with ... the Defense.... One wouldn't normally think about weapons under the underside or secreted in some concealed fashion.

The Court of Criminal Appeals reversed, however, concluding that Trooper Norrod's belief that the defendant's consent to search "in the vehicle" encompassed the undercarriage and gas tank of the truck was "objectively reasonable." The appellate court remanded the case for trial.

We granted the defendant's application for permission to appeal.

Standard of Review

A trial court's findings of fact in a suppression hearing will be upheld on appeal unless the evidence preponderates against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). Where the issue involves an application of law to undisputed facts, a question of law is presented which will be subject to de novo review. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.2000); State v. Simpson, 968 S.W.2d 776, 779 (Tenn.1998). Because the material facts in this case are not in dispute, our review of the legal issues is de novo.

Search and Seizure

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." Article I, § 7 of the Tennessee Constitution similarly prohibits unreasonable searches and seizures and is identical in intent and purpose with the Fourth Amendment. State v. Downey, 945 S.W.2d 102, 106 (Tenn.1997). "``Consequently, under both the federal and state constitutions, a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.'" State v. Binette, 33 S.W.3d 215, 218 (Tenn.2000) (quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997)).

The federal and state constitutional prohibitions against unreasonable searches and seizures also apply to vehicles. See State v. Keith, 978 S.W.2d 861, 865 (Tenn.1998). A law enforcement officer's stop of a vehicle therefore requires that the officer have probable cause, or reasonable suspicion supported by specific and articulable facts, to believe that an offense has been or is about to be committed. State v. England, 19 S.W.3d 762, 765 (Tenn.2000).

Because a traffic stop is an investigative stop, the officer's actions must be "reasonably related in scope to the circumstances which justified the interference in the first place," Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968), and the detention "must be temporary and last no longer than necessary to effectuate the purpose of the stop," Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983); State v. England, 19 S.W.3d at 767-68. Moreover, the officer should employ the least intrusive means reasonably available to investigate his or her suspicions in a short period of time. Florida v. Royer 460 U.S. at 500, 103 S.Ct. at 1326. As this Court has said, "the proper inquiry is whether during the detention, the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly." State v. Simpson, 968 S.W.2d at 783 (citation omitted). Otherwise a reasonable traffic stop can become unreasonable and constitutionally invalid "if the time, manner or scope of the investigation exceeds the proper parameters." United States v. Childs, 256 F.3d 559, 564 (7th Cir.2001); see also State v. Morelock, 851 S.W.2d 838, 840 (Tenn.Crim.App.1992).

Consent

When evidence is seized as a result of a warrantless search of a vehicle, the State must establish that the search was conducted pursuant to one of the exceptions to the warrant requirement. State v. Keith, 978 S.W.2d at 865. One exception is a search conducted pursuant to an individual's consent. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). To satisfy the constitutional reasonableness standard, the consent must be "``unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.'" State v. Simpson, 968 S.W.2d at 784 (quoting State v. Brown, 836 S.W.2d 530, 547 (Tenn.1992)). Moreover, even if the consent is voluntary, evidence seized in the search will not be admissible if the search exceeds the scope of the consent given. See generally 3 Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed.1996).

In determining the scope of consent, the relevant considerations include any express or implied limitations regarding the time, duration, area, or intensity of police activity necessary to accomplish the stated purpose of the search, see id., as well as the expressed object of the search, Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297 (1991) ("A reasonable person may be expected to know that narcotics are generally carried in some form of a container.").^[4] The scope of consent is not based on the subjective intentions of the consenting party or the subjective interpretations of the searching officer. Instead the standard is "that of ``objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect." Florida v. Jimeno, 500 U.S. at 251, 111 S.Ct. at 1803-04.

Analysis Turning to the present case, the defendant argues that his consent to search for "weapons in the vehicle" was limited in scope to the interior compartment of the pickup truck and that the search of the undercarriage and gas tank of the vehicle exceeded the scope of the consent. The State argues that the defendant consented to the initial search, that the defendant did not object to or limit the search, and that Trooper Norrod's search of the undercarriage and gas tank of the vehicle did not exceed the scope of the consent.

In determining the scope of the consent to search, we first examine the verbal exchange between Trooper Norrod and the defendant. After issuing a warning citation for speeding, Trooper Norrod asked whether the defendant had "any weapons in the vehicle." When the defendant said "no, nothing," the officer said, "Okay if we take a look?" The verbal exchange therefore expressly indicated that the officer intended to search only for "weapons" that were "in the vehicle," and there was nothing to indicate that the search would encompass more than just the vehicle's interior. Indeed, Trooper Norrod admitted that "most people might reasonably think that would mean [he was] going to look inside the cab of their truck." Accordingly, applying a common sense interpretation to the verbal exchange, it was objectively reasonable to conclude that the consent to search included only the interior of the vehicle and any containers that may have contained weapons.

The dissent disputes this interpretation and instead concludes that "in the vehicle" not only meant "under the vehicle" but also "in the gas tank." We simply disagree that the word "in" may be so broadly stretched, particularly given that the burden of establishing that a warrantless search was lawful rests with the State, not the defendant. Moreover, of the cases cited by the dissent from other jurisdictions, only two involve searches of gas tanks; in each, the stated exchange regarding the scope of consent is easily distinguished from the present case. See United States v. Anderson, 114 F.3d 1059 (10th Cir.1997) (search including the undercarriage and the gas tank did not exceed the scope of consent where the defendant said officer could "scout around" and search the "carpet or whatever"); State v. Jones, 592 So. 2d 363 (Fla.Ct.App.1992) (holding that search of the undercarriage of a car and fuel tank did not exceed the scope of consent and distinguishing "search the vehicle" from a search of the "interior" of the vehicle).

It follows from our conclusion that it was not objectively reasonable to believe that the consent to search "in the vehicle" would permit Trooper Norrod to examine the undercarriage and gas tank of the vehicle while continuing and prolonging the detention of the defendant. It is worth emphasizing that at this stage of events, the defendant had been stopped only for speeding and that the officer completed his investigation into this traffic offense by issuing only a warning citation. After issuing the citation, however, Trooper Norrod requested the defendant's consent to search in the vehicle for weapons, then conducted an extensive, nearly 20 minute search of the interior of the vehicle and its contents and conducted a sweep of the vehicle by using a drug detection dog. Despite finding no evidence of weapons or drugs, Trooper Norrod nonetheless exceeded the scope of the defendant's consent and continued the detention of the defendant by then crawling under and examining the underside and gas tank of the vehicle.

We reject the dissent's arguments that Trooper Norrod's belief that the consent included any and all areas in or under the vehicle was objectively reasonable in light of the officer's experience and knowledge that weapons may be concealed in a vehicle's gas tank. While an officer's experience and subjective knowledge may be relevant to the analysis, it is no more dispositive of what is "objectively reasonable" than is the defendant's subjective expectation. Indeed, given that the burden of establishing the legality of a warrantless search rests with the State, it would be objectively reasonable to expect that an educated and experienced law enforcement officer has the verbal capacity to say "under the car" and "gas tank" when in fact those areas are within the parameters of the requested consent. See United States v. Coburn, 876 F.2d 372 (5th Cir.1989) (officer requesting consent specifically mentioned search of fuel tank). Such words would hardly amount to the imposition of an overly burdensome "high level of specificity" as feared by the dissent.

Finally, we reject the State's argument that the defendant's failure to object to or limit the continued search in and of itself supported the conclusion that Trooper Norrod's view of the scope of the consent was objectively reasonable or that the resulting prolonged period of detention was permissible. Troxell had been led to the side of the road by another officer for the purpose of getting him out of the way as the search progressed, which Troxell described as "irritating" and a "nuisance." Although a defendant's later expressed language, coupled with silence, may be evidence of an expansion of the scope of the consent, a defendant's silence alone cannot expand the scope of the initial consent or allow a prolonged and continued detention. Compare United States v. Anderson, 114 F.3d at 1065 (the defendant's responses broadened the initial scope of consent).

Conclusion

After carefully considering the record and the relevant authorities, we conclude that the officer's search of the undercarriage and gas tank of the defendant's vehicle violated the Fourth Amendment to the United States Constitution and article I, § 7 of the Tennessee Constitution because it exceeded the scope of the defendant's consent and resulted in the prolonged and unreasonable detention of the defendant. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. Costs of this appeal are taxed to the State.

FRANK F. DROWOTA, III, C.J., filed a dissenting opinion.

FRANK F. DROWOTA, III, C.J., dissenting.

I dissent from the majority's finding that the search at issue in this appeal violated the Fourth Amendment to the United States Constitution and Article I, § 7 of the Tennessee Constitution. At the outset, it is important to emphasize that this appeal involves a very narrow issue. The defendant has not challenged the legality of the initial stop, the legality of the officer's request for consent, the voluntariness of his consent, or the legality of the search of the fuel tank which occurred at the service station where approximately 300 grams of cocaine were discovered. Furthermore, the defendant has not asserted that the length of the detention rendered the search unreasonable and unconstitutional. The defendant's sole argument on appeal is that the search exceeded the scope of the consent given because Trooper Norrod looked underneath the truck. The basis for this assertion is the defendant's claim that Trooper Norrod's request for permission to search for "weapons in the vehicle"^[1] and the defendant's consent to that request limited the search to only the interior passenger compartment of the vehicle. This entire appeal, therefore, turns upon the meaning of the word "in." Did the officer's use of this word limit the search to the passenger compartment of the vehicle? In my view, the manifest answer to this question is no. Therefore, I disagree with the majority and would affirm the judgment of the Court of Criminal Appeals which held that the search did not exceed the scope of the defendant's consent.

Consent

As the majority accurately states, the facts are undisputed; therefore, the standard of review is de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.2000). The governing law is straightforward. A search conducted pursuant to consent is constitutionally valid, but the consent must be "unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.'" State v. Simpson, 968 S.W.2d 776, 784 (Tenn.1998) (quoting State v. Brown, 836 S.W.2d 530, 547 (Tenn.1992)). Even if consent is voluntary, the search must not exceed the scope of the consent, or evidence seized as a result of the search will not be admissible. See generally 3 Wayne R. LaFave, Search and Seizure, § 8.1(c) (3d ed.1996). In evaluating the validity of a consent search it is important to consider any express or implied limitations or qualifications which may establish the permissible scope of the search in terms of time, duration, area, or intensity of police activity. Id. The subjective intentions and interpretations of the consenting party and the searching officer are not relevant to this evaluation. Id. The governing standard is "that of ``objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect." Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297 (1991); State v. McCrary, 45 S.W.3d 36, 44 (Tenn.Crim.App.2000), perm. app. denied (Tenn.2001). The understanding of a "typical reasonable person" will generally depend upon the expressed object of the search. Id. Thus, in Jimeno, the United States Supreme Court concluded that, when the motorist consented to a search for narcotics, it was objectively reasonable and constitutionally permissible for the officer to search containers within the vehicle that could be used to hide drugs. Id. at 251, 111 S.Ct. at 1804. Similarly, the Court of Criminal Appeals held that when a motorist consented to a search of her vehicle for alcohol, narcotics and weapons, it was objectively reasonable and constitutionally permissible for the officer to search the "covered, but easily accessible, cargo area of the vehicle and any unlocked containers or luggage inside the vehicle" that could have contained those items. McCrary, 45 S.W.3d at 44. In other words, when an officer requests consent to search for certain items, the search may constitutionally extend to any and all areas that could contain the items being sought. See, e.g., People v. Najjar, 984 P.2d 592, 596 (Colo.1999); United States v. Martinez, 949 F.2d 1117 (11th Cir.1992); 3 Wayne R. LaFave, Search and Seizure at § 8.1(c) n. 75 (3d ed.1996) (citing cases). For example, "[o]fficers who receive consent to search for a stolen wide-screen television set, ... would act unreasonably by expanding their search to include small containers or drawers where such an item could not possibly be located." Najjar, 984 P.2d at 596.

As previously stated, the defendant in this appeal says that when he consented to Trooper Norrod's request to search for weapons "in the vehicle," he believed the search would be limited to the interior passenger compartment of the truck. The defendant urges that his understanding of the exchange is objectively reasonable and therefore asserts that the search of the undercarriage of his vehicle exceeded the scope of his consent. I do not agree.

While the defendant may have subjectively believed that the phrase "in the vehicle" referred only to the interior passenger compartment of the pickup truck, the defendant's belief was not objectively reasonable. At no time during the verbal exchange between the defendant and Trooper Norrod did the defendant place such a limitation on the search. Trooper Norrod requested and received consent to search for weapons "in the vehicle." Therefore, it was objectively reasonable for Trooper Norrod to conclude that the defendant's consent encompassed any and all areas "in the vehicle" which could contain or be used to hide weapons. The undercarriage of the vehicle and the gas tank are certainly "in the vehicle." In fact, without the gas tank, a vehicle is immobile. In addition, the uncontroverted proof in this record reveals that the gas tank is an area where weapons can be concealed. Indeed, Trooper Norrod testified without contradiction that, based upon his experience and training as a law enforcement officer involved in interdiction, weapons can be concealed in a vehicle's gas tank.^[2]

Moreover, my conclusion that this search was objectively reasonable and did not exceed the scope of the consent is consistent with and supported by the decisions of many other courts which have confronted similar circumstances. See, e.g., United States v. West, 219 F.3d 1171 (10th Cir.2000)(holding that a search of the trunk was within the scope of consent to "look in the vehicle"); United States v. Zapata, 180 F.3d 1237 (11th Cir.1999) (holding that a search behind an interior door panel of a vehicle did not exceed the scope of consent to search the vehicle for "drugs, guns, weapons, and large sums of money"); United States v. Anderson, 114 F.3d 1059 (10th Cir.1997) (holding that a full search of the automobile, including an examination of the undercarriage and the gas tank, did not exceed the scope of consent to "scout around" the vehicle); United States v. McRae, 81 F.3d 1528 (10th Cir.1996) (holding that consent to officer's request to "look in the car" included a search of the trunk during which officers lifted the carpet and otherwise dismantled areas of the trunk); United States v. Wacker, 72 F.3d 1453 (10th Cir.1995) (holding that consent to search a truck for guns or contraband was not limited in scope to the passenger compartment of the vehicle and encompassed the rear camper and truck bed); United States v. McSween, 53 F.3d 684 (5th Cir.1995) (holding that a search under the hood was within the scope of consent to "look in" the car and trunk); United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.1978) (holding that a search beneath the hood and inside the cargo portion of a truck did not exceed the scope of consent to "look inside the truck"); State v. Jones, 592 So. 2d 363 (Fla.Ct.App.1992) (holding that a search of the undercarriage of a car, which resulted in the discovery of a large amount of cocaine in the fuel tank, did not exceed the scope of consent to "search the vehicle"). Regardless of this contrary authority, the majority decision appears to impose a high level of specificity on officers requesting consent. Apparently, the majority's conclusion in this case would have been different had Trooper Norrod requested permission to search "the vehicle" for weapons rather than requesting permission to search for weapons "in the vehicle." Such specificity is neither required by nor appropriate to this constitutional analysis. The governing standard is objective reasonableness, not linguistic specificity.^[3]

Also supporting the conclusion that this search did not exceed the scope of the consent is the fact that the defendant failed to object to the breadth of the search or attempt to confine its scope in any way. As the Court of Criminal Appeals concluded, the videotape does not suggest or indicate that the officers prevented the defendant from objecting. In fact, the defendant testified that he did not feel "threatened" and was merely "irritated" by the police activity which he described as a "nuisance." Although a failure to object cannot expand a limited consent, a defendant's failure to object to the breadth of a search is an indication that the search was within the scope of the initial, contemplated consent. Anderson, 114 F.3d at 1065; McRae, 81 F.3d at 1538; Wacker, 72 F.3d at 1470; United States v. Flores, 63 F.3d 1342, 1362 (5th Cir.1995); McSween, 53 F.3d at 688; United States v. Torres, 32 F.3d 225, 231-32 (7th Cir.1994); Sierra-Hernandez, 581 F.2d at 764.

Conclusion

For these reasons, I dissent from the majority's decision holding the search unconstitutional. In my view, Trooper Norrod's actions in examining the undercarriage of the truck, tapping on the gas tank, and re-examining the gas tank with a flashlight and mirror were objectively reasonable and did not exceed the scope of the defendant's consent to search "in the vehicle" for weapons. Accordingly, I would affirm the judgment of the Court of Criminal Appeals.

NOTES

[1] The evidence considered by the trial court at the suppression hearing included the testimony of Trooper Norrod and the defendant, as well as a videotape of the encounter.

[2] Although Trooper Norrod testified that he requested consent prior to the issuance of the citation, the videotape of the encounter clearly reveals that he requested consent after the citation was issued.

[3] The fuel tank also contained gasoline. Apparently, a protective wrap was used to avoid contaminating the cocaine.

[4] See also People v. Najjar, 984 P.2d 592, 596 (Colo.1999) ("Officers who receive consent to search for a stolen wide-screen television set ... would act unreasonably by expanding their search to include small containers or drawers where such an item could not possibly be located."); State v. McCrary, 45 S.W.3d 36, 44 (Tenn.Crim.App.2000) (When a motorist consents to a search for alcohol, narcotics, and weapons, it is objectively reasonable for the officer to conclude that the search encompasses the "covered, but easily accessible, cargo area of the vehicle and any unlocked containers or luggage inside the vehicle" that may contain these items.).

[1] Trooper Norrod asked the defendant, "Do you have any weapons in the vehicle?" Troxell responded, "No, nothing." When Trooper Norrod asked if he could "take a look," Troxell answered, "Yeah, go ahead."

[2] I do not contend, as the majority opinion suggests, that the consent was itself sufficient to justify a search of the interior of the gas tank. Instead, I conclude, consistent with defense counsel's concession during oral argument, that the officer's observations of the exterior of the gas tank established probable cause supporting a search of the interior of the gas tank.

[3] According to the majority, an officer should have no problem specifying that he or she wishes to search "under the car" and the "gas tank." Again, the standard is objective reasonableness, and, consistent with this standard, previous court decisions have declined to require such linguistic specificity because a search is confined by the object of the search. McCrary, 45 S.W.3d at 44.