Vaughn v. State , 477 S.W.2d 260 ( 1971 )

OPINION

DWYER, Judge.

Roy Vaughn appeals from his conviction, with judgment pronounced thereon, of possessing a narcotic drug in violation of T. C.A. § 52-1303 with resulting confinement of not more than five years.

Gable Barnes appeals from a similar conviction and judgment with resulting punishment of confinement for not more than two years. The disparity in punishment is accounted for by the fact that Vaughn is a second offender.

At the trial level the two afore-related defendants submitted their cases at a joint trial in which they both, through retained counsel, waived a jury trial. They both submitted to the trial court their defenses, relying on the testimony and evidence presented and preserved in this record on a motion to suppress the evidence uncovered as a result of an illegal search. The defendant Vaughn was convicted of bribery at a jury trial and the evidence used at that trial was also stipulated by all parties as being the evidence upon which the trial judge imposed the judgments of not more than five years to Vaughn and not more than two years to Barnes for violating T. C.A. § 52-1303. The search question was also contested during the trial of Vaughn.

There is a two-pronged attack made by both defendants upon these judgments in their contentions that the judgments imposed are contrary to the law. The contentions of both in substance are that (1) the evidence is insufficient to sustain the verdict as a matter of law; and (2) the evidence used as a basis for this conviction was secured as a result of a search conducted contrary to constitutional standards. In order to evaluate these contentions we will relate the facts as found by us from our review of the record.

On the early morning hours of August 2, 1969, a Tennessee Highway trooper patrolling Interstate 65 in Marshall County noticed a car that was weaving slightly and smoking heavily from the exhaust. He turned on his authority lights and stopped the car. He found Barnes, who was driving, had no driver’s license and placed him under arrest. He then noticed with his flashlight a pistol butt on the back seat. The cylinder, fully loaded, was found when he searched the glove compartment. Vaughn was arrested when he acknowledged ownership of the weapon. The trooper advised he would have to take them to the county jail where they would have to post bond. There then ensued a discussion about bond and being allowed to post it with the trooper. The trooper related the mannerisms of Vaughn made him suspicious and he inquired if he could look in the trunk. The resulting search uncovered fourteen cases of Robitussin A/C. A pint bottle from one of the cases, according to the record, contained 14.6 grains of codeine phosphate per bottle. The record further reflects in a statement taken from Vaughn that he bought fifteen cases of Robitussin A/C in Cincinnati, Ohio, for $2,40Q, paying $2,000 down, owing $400. The statement further reveals that the Robitussin could be diluted and sold in two and four ounce quantities on a market that would bring anywhere from $5 to $8 for the two to four ounces and $10 to $30 for a full sixteen-ounce bottle.

Defendants contend that the State failed to prove the amount of codeine contained in each bottle and that prior to the September 1, 1969, amendment to T.C.A. § 52-1309(2) a person was permitted to purchase and possess a quantity of codeine without a prescription. The jury had before it the bottles (180) with labels, and, as the chemist related, contained 14.6 grains of codeine per bottle. As we view it, this raised a jury question which has been resolved adversely to the defendants. The statement of Vaughn reflects and is proof that the Robitussin was not purchased or possessed as a medicine but for traffic in an illicit market. The assignment is without merit. There is a sufficiency of the proof to sustain the verdict.

The pivotal question, as we view this record, is whether the search as conducted was legal. We are satisfied that the search of the trunk and the discovery of the fourteen cases of Robitussin was not connected in any manner with the offense which brought about the initial arrest. In fact, the only basis the officer had for making the search was his suspicion that was aroused by the mannerisms of Vaughn. This is not sufficient. In Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283-284, 69 L.Ed. 543, the following may be found:

“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” (emphasis added)

The trooper had no prior knowledge of any other offense having been committed by the defendants, because, as he related, he was looking for anything he could find. In short, he was conducting a condemned exploratory search.

The trial court found that the search was a consent search in permitting the evidence (Robitussin) to go to the jury and in overruling the motion to suppress. We are satisfied that a defendant may waive his rights relative to searches and seizures. See Thurman v. State, Tenn.Cr. App., 455 S.W.2d 177. We disagree with the trial court’s findings from our review of the record. We note that the trooper took the keys from the ignition and unlocked the glove compartment. His suspicions being aroused, he then inquired about looking in the trunk. This permission was denied by Vaughn. The trooper then related that he had to look in the car, that he could get a warrant. The defendant Vaughn then related he would let him look but he did not have the key, that Barnes had it. They then proceeded to Barnes when Vaughn then stated he would let him look and stated that he (the trooper) looked like a level-headed person he could do business with. Under the totality of the circumstances we do not believe that the State has met its heavy burden and shown that the defendant Vaughn intelligently consented to this search. The fact that the contraband was known by Vaughn to be in the trunk militates heavily against his validly consenting. See Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819, 820. The very fact that Vaughn refused the trooper’s request to search in the first instance is incongruous with validly consenting to the search. His hedging and delaying in producing the key conveys to us acquiescing to authority rather than clear positive words and actions denoting a valid consent. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797.

Under these circumstances, we are satisfied that Vaughn’s act of consenting was of necessity and not of his volition. We therefore hold that the search as conducted was contrary to constitutional guarantees. The evidence uncovered was used in bringing about these convictions. The judgments are therefore reversed. The record is remanded. Our disposition of the search assignment resolves the assignment of Vaughn’s pertaining to his statement.

RUSSELL, J., concurs.