State v. Tracy Pitts ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
March 10, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLANT, )
) No. 01-C-01-9611-CR-00487
)
) Davidson County
v. )
) Thomas H. Shriver, Judge
)
) (Interlocutory Appeal)
TRACY PITTS, )
)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
John Knox Walkup C. Edward Fowlkes
Attorney General & Reporter Attorney at Law
425 Fifth Avenue, North 172 Second Avenue, North, Suite 214
Nashville, TN 27243-0493 Nashville, TN 37201-1908
Lisa A. Naylor
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
John C. Zimmerman
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:_______________________________
REVERSED AND REMANDED FOR A NEW SUPPRESSION HEARING
Joe B. Jones, Presiding Judge
OPINION
This court granted the State of Tennessee’s (state) application for permission to
appeal to determine the propriety of the trial court’s suppression of cocaine discovered
during the search of a motor vehicle which was stopped for a traffic violation. The state
contends the stop and subsequent search pass constitutional muster because (a) the
officers had probable cause to believe Tracy Pitts (defendant) committed a traffic violation
and (b) the search of the vehicle was incident to an arrest. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issue presented for
review, it is the opinion of this court that the trial court failed to make appropriate findings
of fact relative to the stop of the vehicle. Thus, the judgment of the trial court is reversed,
and this case is remanded for a new suppression hearing.
I.
PROCEDURAL HISTORY
On September 18, 1995, the Davidson County Grand Jury returned a two-count
indictment charging the defendant with operating a motor vehicle without having his driver’s
license in his immediate possession, and possessing .5 grams or more of cocaine with the
intent to sell or deliver the substance. The defendant subsequently filed a motion to
suppress the cocaine seized from his motor vehicle. The trial court conducted an
evidentiary hearing on the merits of the motion on December 21, 1995. The court took the
motion under advisement.
On July 16, 1996, the trial court filed a “Memorandum Opinion and Order” granting
the defendant’s motion and suppressing the use of the seized cocaine as evidence. In
ruling, the trial court relied upon language from State v. James E. Sanders, No. 01-C-01-
9502-CC-00037, Marshall County (Tenn. Crim. App., Nashville, January 17, 1996), stating:
“Under these facts, it is clear that the conduct of the officers
was not reasonably related in scope to the circumstances
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which justified the stop in the first place, i.e., the alleged tag
violation. Despite having stopped the defendant for a traffic
offense, the officers immediately exceeded the purpose of the
stop by investigating the matter of drugs without a reasonable
suspicion of such behavior. Accordingly, we view the conduct
as improperly intrusive and unreasonable under the fourth
amendment to the United States Constitution and article I,
section 7 of the Tennessee Constitution.”
Based on Sanders, the trial court concluded:
Applying the analysis to the case at bar, this court concludes
that it is not necessary to determine whether the initial stop
was justified legally or factually. Under the circumstances here
there was no justification to search incident to the arrest, there
was no probable cause to search. The drugs were not in plain
view . . . the search was illegal and the evidence must be
suppressed.
The state moved for and was granted an interlocutory appeal pursuant to Rule 9,
Tennessee Rules of Appellate Procedure. Subsequently, this court granted the state’s
application to review the issue on its merits. Tenn. R. App. P. 9(a) and (b).
II.
THE SUPPRESSION HEARING
Officers James Stackhouse, William E. Dillon, and Thomas W. Rollins, Metropolitan
police officers, were assigned to detect drug trafficking in the Dickerson Road area.
Officers Stackhouse and Dillon were together in an unmarked police car. Officer Rollins
was alone in a marked police car.
The officers discussed the defendant and other suspected drug dealers shortly after
roll call at the East Sector Precinct. The defendant was a known seller of illicit narcotics
in the Dickerson Road area. Officer Stackhouse described the defendant as a “well-
known” trafficker in illicit narcotics. He had “received a lot of information” about the
defendant’s drug-related activities. Most of the information came from other police officers.
However, Officer Stackhouse had spoken with two prostitutes who had purchased illicit
narcotics from the defendant. The officer was also familiar with the defendant’s prior
convictions for illicit narcotic transactions.
Officers Stackhouse and Dillon obtained the defendant’s pager number. They
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called the number to arrange the purchase of cocaine. However, the officers could not
reach the defendant. They concluded they had the wrong number.
The defendant’s vehicle was seen at Jeff’s Tire Barn between 5:30 p.m. and 6:00
p.m. Officers Stackhouse and Dillon parked their vehicle in a parking lot where they could
observe the defendant’s vehicle. Shortly thereafter, the defendant left the business, drove
north on Dickerson Road, went to the next street, and made a left turn. The turn was made
immediately in front of the two officers. The officers testified the defendant failed to signal
before making the left turn. The defendant denied failing to signal.
The defendant drove a short distance and entered the parking lot of Mufflers,
Brakes and More, Inc. Officers Stackhouse and Dillon turned their vehicle around and
entered the parking lot. They advised the defendant he was being stopped because he
committed a traffic violation, namely, failing to signal before making a left turn. Officer
Stackhouse asked the defendant for his driver’s license. The defendant advised the officer
he did not have his license with him. The defendant was removed from his vehicle,
advised he was under arrest, and placed inside Officer Rollins’s marked police car.
Officers Stackhouse and Dillon searched the defendant’s motor vehicle a few
minutes after the defendant was arrested and secured in the police car. While officer
Dillon was searching the driver’s side of the vehicle, he found a small bag containing
several rocks of cocaine between the right side of the driver’s seat and the console
between the two front bucket seats.
The defendant denied he was the owner of the cocaine, and he denied knowing the
cocaine was in his vehicle. Later, the defendant told the officers he was on probation in
the “big court” and he would have to serve his sentence due to his arrest, which violated
his probation. The defendant asked the officers to arrange a “deal” so he would not have
to serve the sentence in the prior case; he agreed to help arrange sales of illicit narcotics
with other traffickers. The defendant stated there were “bigger fish out there” than him.
The defendant contacted a drug trafficker and made arrangements to purchase an
“eight ball” of cocaine. The drug trafficker told the defendant to meet him at an agreed
location in another part of Nashville. However, the officers did not want to leave their
sector to purchase the cocaine. The trafficker refused to come into the officers’ sector.
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Another police car was dispatched to the location where the sale was to occur, but the
trafficker’s vehicle could not be located.
III.
STANDARD OF APPELLATE REVIEW
When an accused is afforded an evidentiary hearing on the merits of a motion to
suppress, the findings of fact made by the trial court are binding upon the appellate court
unless the evidence contained in the record preponderates against these findings. State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Moore, 775 S.W.2d 372, 374 (Tenn.
Crim. App.), per. app. denied (Tenn. 1989). This standard of review developed because
the trial court, as the trier of fact, must assess the credibility of the witnesses, determine
the weight and value to be afforded the evidence adduced during the hearing, and resolve
any conflicts in the evidence. However, an appellate court is not bound by the trial court’s
conclusions of law.
This same standard of review is applicable to suppression issues which are raised
in a discretionary appeal pursuant to either Rule 9 or Rule 10, Tennessee Rules of
Appellate Procedure. Moore, 775 S.W.2d at 374. As this court said in Moore:
Issues raised by an interlocutory or extraordinary appeal, after
permission to appeal has been granted, are decided in the
same manner as if the issues had been raised in an appeal as
of right. Since the thrust of the State of Tennessee’s
interlocutory appeal challenges the ruling of the trial court in
granting the defendant’s motion to suppress evidence, the time
tested rules applicable to the findings of the trial court apply.
775 S.W.2d at 374.
In this case, the trial court did not make complete findings of fact. As previously
stated, the court stated it was “not necessary to determine whether the initial stop was
justified legally or factually.” When this occurs, the standard of review is de novo on the
record. See State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996).
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IV.
THE TRAFFIC STOP AND CUSTODIAL ARREST
The state argues the traffic violation, the defendant’s failure to signal he was making
a left turn, occurred in the presence of the officers, permitting the officers to stop the
defendant’s vehicle. The defendant denied the failure to signal his turn. A law
enforcement officer has the right to stop a vehicle when the person driving the vehicle has
committed a traffic offense in the sight and presence of an officer. Tenn. Code Ann. § 40-
7-103(a)(1). Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351 (1957) (speeding); State
v. Bryant, 678 S.W.2d 480 (Tenn. Crim. App. 1984), cert. denied, 469 U.S. 1192, 105 S.Ct.
967, 83 L.E.2d 971 (1985) (speeding). As a general rule, the officers would be limited to
issuing a citation to the driver of the vehicle, rather than arresting the driver.1 Tenn. Code
Ann. § 40-7-118(b)(1). When the defendant advised the officers he did not have his
driver’s license in his immediate possession, however, the officers had the right to
physically arrest the defendant. Tennessee Code Annotated § 55-50-351 states:
(a) Every licensee shall have such licensee’s operator’s or
chauffeur’s license in immediate possession at all times when
operating a motor vehicle and shall display the same, upon
demand . . . provided, that it is unlawful for any law
enforcement officer of this state, except a state patrol officer or
officer of the department, to demand the exhibition of such
licenses, unless the operator of the motor vehicle is then
engaged in, or immediately prior to such demand has been
engaged in, a violation of any municipal ordinance or statute
law of this state . . . [a law enforcement officer may] effect the
arrest of any person so found to be in violation of this section.
If the officers had not arrested the defendant, he would have continued driving his
vehicle without his license in his immediate possession. An officer may not simply issue
a citation to a person where “there is reasonable likelihood that the offense would
continue.” Tenn. Code Ann. § 40-7-118(c)(2).
The officers had the right to stop the defendant if he committed an offense in their
presence. If he committed the offense and then could not produce a driver’s license,
1
The officers did issue a citation to the defendant for the traffic offense of failing to
signal before turning his vehicle.
6
although he did have a valid license, the officers had the right to effectuate a physical
arrest to prevent the defendant from continuing to drive his vehicle without having his
driver’s license in his immediate possession if the initial stop was valid.
The next question this court must determine is whether the officers had a right to
search the defendant’s motor vehicle if the initial stop was valid.
V.
SEARCH OF THE VEHICLE
The officers searched the defendant’s vehicle without benefit of a search warrant.
Before the search could be deemed valid, the State of Tennessee was required to
establish the search was conducted pursuant to one of the narrowly defined exceptions to
the warrant requirement.
Warrantless searches are presumed to be unreasonable. Coolidge v. New
Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); State
v. Watkins, 827 S.W.2d 293, 295 (Tenn. 1992); Hughes v. State, 588 S.W.2d 296, 301
(Tenn. 1979); Fuqua v. Armour, 543 S.W.2d 64, 66 (Tenn. 1976); State v. Shaw, 603
S.W.2d 741, 742 (Tenn. Crim. App. 1980). When the constitutionality of a warrantless
search is challenged by the accused, the State of Tennessee has the burden of
establishing by a preponderance of the evidence the search and resulting seizure were
justified pursuant to one of the recognized exceptions to the warrant requirement.
Coolidge, 403 U.S. at 454-55, 91 S.Ct. at 2032, 29 L.Ed.2d at 576; Hughes, 544 S.W.2d
at 301; State v. McClanahan, 806 S.W.2d 219, 220 (Tenn. Crim. App. 1991); State v.
Burton, 751 S.W.2d 440, 445-46 (Tenn. Crim. App.), per. app. denied (Tenn. 1988).
A search incident to an arrest is a recognized exception to the warrant requirement
of the Fourth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution. See Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38
L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d
427 (1973); Watkins, 827 S.W.2d at 295-96; State v. Reed, 634 S.W.2d 665 (Tenn. Crim.
App.), per. app. denied (Tenn. 1982). When an officer effectuates a lawful custodial arrest
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of a motor vehicle driver, the officer has the right to search the defendant’s person incident
to the arrest, Robinson, supra; State v. Banner, 685 S.W.2d 298, 301 (Tenn. Crim. App.
1984); the officer also has full authority to search the interior of the motor vehicle incident
to the arrest. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1980);
Watkins, 827 S.W.2d at 295-96. The United States Supreme Court said in Belton: “[W]hen
a policeman has made a lawful custodial arrest of the occupant of an automobile, he may,
as a contemporaneous incident of that arrest, search the passenger compartment of that
automobile.” 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775 (footnotes omitted).
The fact the officers placed the defendant in the backseat of a patrol car before
searching his vehicle did not destroy the “contemporaneous” requirement of a search
incident to arrest. United States v. White, 871 F.2d 41, 44 (6th Cir. 1989); Watkins, 827
S.W.2d at 296; State v. Cabbage, 649 S.W.2d 589, 591-92 (Tenn. 1983); State v. Reed,
634 S.W.2d 665, 666 (Tenn. Crim. App.), per. app. denied (Tenn. 1982). See State v.
Moore, 775 S.W.2d at 378-79. In Reed, this court said a search after the person has been
“neutralized” does not invalidate the search made incident to arrest. 634 S.W.2d at 666.
If the officers made a valid custodial arrest of the defendant, they had the right to
search the defendant’s vehicle incident to the arrest. The fact the officers neutralized the
defendant before commencing the search did not invalidate the search.
This court must now determine whether the pretextual nature of the stop and
resulting seizure had the effect of invalidating the search and seizure of the cocaine.
VI.
PRETEXTUAL NATURE OF STOP
A pretextual stop is a stop that “occurs when the police use a legal justification to
make the stop in order to search a person or place in connection with an unrelated crime
as to which they lack reasonable suspicion.” United States v. Ferguson, 8 F.3d 385, 387
(6th Cir. 1993). Pretextual stops have long been condemned in Tennessee. Robertson
v. State, 184 Tenn. 277, 284, 198 S.W.2d 633, 634-35 (1947); Cox v. State, 181 Tenn.
344, 348, 181 S.W.2d 338, 340 (1944); State v. Sidney Williams, McMinn County No. 173,
8
1991 WL 6895 (Tenn. Crim. App., Knoxville, April 30, 1991).
Federal courts have established a broad standard for analyzing whether stops are
pretextual. In United States v. Ferguson, the Sixth Circuit held “so long as the officer has
probable cause to believe a traffic violation has occurred or was occurring, the resulting
stop is not unlawful and does not violate the Fourth Amendment.” 8 F.3d at 385. In United
States v. Whren, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States
Supreme Court held that traffic stops are reasonable under the Fourth Amendment when
the stop is based upon probable cause to believe a traffic offense was committed,
regardless of the subjective motivations of the officers, unless the stop is based upon
constitutionally impermissible reasons such as selective enforcement of the law based on
race.
In the case of State v. Vineyard, _____ S.W.2d _____ (Tenn. 1997), the Tennessee
Supreme Court resolved the question of whether the Tennessee Constitution provides
greater protection to a motorist against pretextual stops. The court held the protection
provided pursuant to Article I, § 7 of the Tennessee Constitution is “coextensive with the
protection afforded by the Fourth Amendment of the United States Constitution. . . . [A]
stop based upon probable cause is valid under the Tennessee Constitution without regard
to the actual subjective motivations of police officers.” Slip op. at 2-3.
In Vineyard, detectives conducting drug-trafficking surveillance observed the
defendants traveling 10 miles per hour over the speed limit and changing lanes without
using a turn signal. The detectives had received an anonymous tip that the vehicle would
be traveling through Bradley County towards Georgia on I-75 after the defendants had
obtained a large amount of marijuana. After the officers pulled the vehicle to the side of
the roadway, the defendants told the officers there were no weapons or drugs in the
vehicle. They gave the officers consent to search the vehicle. The detectives searched
the vehicle and seized more than 10 pounds of marijuana.
The supreme court affirmed the denial of the defendant’s motion to suppress on the
basis the officers had probable cause to believe the defendants committed a traffic
violation. The court held the search was legally justified regardless of the officers’
subjective motivations as long as the stop was not based upon a constitutionally
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impermissible basis such as race. In summary, the supreme court adopted the standard
enunciated in Whren.
CONCLUSION
In conclusion, the judgment of the trial court must be reversed and this cause
remanded to the trial court for a new suppression hearing. This court cannot resolve all
of the factual issues raised during the suppression hearing.
As previously stated, the trial court found it was “not necessary to determine whether
the initial stop was justified legally or factually.” The evidence adduced at the suppression
hearing conflicted as to whether the defendant made a lefthand turn without giving an
appropriate signal. Officers Stackhouse and Dillon testified the defendant failed to give an
appropriate signal. The defendant testified he gave a proper signal before making the left
turn. Only the trier of fact can resolve this conflict in the evidence.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
WILLIAM M. BARKER, JUDGE
______________________________________
JOE G. RILEY, JUDGE
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