State of Tennessee v. Mark Demcovitz ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 6, 2011 Session
STATE OF TENNESSEE v. MARK DEMCOVITZ
Appeal from the Criminal Court of Shelby County
No. 06-06817 Paula Skahan, Judge
No. W2010-02459-CCA-R3-CD - Filed April 20, 2012
Mark Demcovitz (“the Defendant”) pled guilty to unlawful possession of marijuana with
intent to sell and received an eight year sentence. The trial court entered a judgment
reserving two certified questions of law. On appeal, the Defendant asks that this Court
answer the following certified questions:
1. Whether the stop of the defendant for “following too close” violated the
defendant’s state and federal constitutional rights when the statute is
absent any objective criteria for the officer to base his determination on,
thereby granting the officer unbridled discretion in determining when
a violation occurs?
2. Whether the stop of a defendant for a minor “cite and release” traffic
violation which provided for a fine only, the detention of the defendant
exceeded the reasonable length and scope to effectuate the purposes of
the stop, placement of the defendant in the secured area of the officer’s
patrol car, the use of a drug dog “run” around the defendant’s vehicle,
and the subsequent search of defendant’s vehicle violated the rights of
the defendant under the federal and state constitutions and, therefore,
all evidence resulting from the seizure and search should be
suppressed?
After a thorough review of the record, we answer each question in the negative and hold that
the Defendant’s constitutional rights were not violated. Accordingly, we affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of
the Criminal Court Affirmed
J EFFREY S. B IVINS, delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.
Joseph A. McClusky and Massey McClusky, Memphis, Tennessee, for the appellant, Mark
Demcovitz.
Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Chris Scruggs, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
The Defendant and his co-defendant, Brian Lindsay, were indicted on one count of
unlawful possession of a controlled substance with intent to sell and one count of unlawful
possession of a controlled substance with intent to deliver. Prior to trial, the Defendant filed
a motion to suppress all evidence discovered as a result of the events leading to his arrest.
Memphis Police Officer Kevin Perry testified at the suppression hearing that, in May
of 2006, he was assigned to the West Tennessee Violent Crime and Drug Task Force, to
which he had been assigned for approximately four years. On May 16, 2006, he stopped the
Defendant and Lindsay for the violation of following too closely.1 According to Officer
Perry, the Defendant was driving a full-sized Chevrolet pickup truck pulling a 25-foot flatbed
trailer, and Lindsay was riding in the passenger seat. Officer Perry stated,
We were eastbound on I-40. I was in the far left-hand lane. Their vehicle was
in the far right-hand lane. . . . At that time [the Defendant] was driving the
vehicle, had switched from the right-hand lane to the next lane over. When he
1
The text of the statute in effect at the time of the May 16, 2006 offense provided:
(a) The driver of a motor vehicle shall not follow another vehicle more closely than is
reasonably prudent, having due regard for the speed of the vehicles and the traffic upon and
condition of the highway.
...
(e) A violation of this section is a Class C misdemeanor.
Tenn. Code Ann. § 55-8-124 (2004).
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did, he got in behind a white four-door [s]edan at less than about a car length
and was following it from there to almost Highway 64 close to a mile and at
that time he switched back from that lane back to the right-hand lane again.
Officer Perry explained that, from his vantage point, he could discern that the truck
followed too closely because “the white four-door [s]edan . . . basically disappeared in front
of their truck [be]cause they were so close to it you couldn’t even see [the sedan] any more.”
According to Officer Perry, “following too closely” means that “[y]ou’re following at a
distance less than reasonable and you would not be able to stop in time say if the vehicle in
front of you suddenly stopped.” He also explained that his estimation of following too
closely is based on the Tennessee Rules of the Road2 handbook which instructs drivers to
stay at least two seconds behind the preceding car. Officer Perry approximated that, at the
time that he witnessed the violation, his patrol vehicle was about eight car lengths or seventy
to eighty feet behind the Defendant’s vehicle. However, traffic was light, and there were no
vehicles between the officer and the Defendant. Officer Perry stated that he waited about
two miles to stop the vehicle because, based on traffic, the initial location was a dangerous
place to stop. Once Officer Perry stopped the vehicle, he approached the passenger side and
asked the Defendant for his driver’s license and proof of insurance. The Defendant produced
a Texas driver’s license and automobile insurance card, both of which appeared to be valid.
Then, Officer Perry asked the Defendant to exit the vehicle and walk to the rear of the truck,
and he informed the Defendant about his reason for the stop.
Officer Perry stated that he asked the Defendant about Lindsay, and the Defendant
told him that Lindsay also lived in Texas. At first the Defendant told Officer Perry that
Lindsay was helping him drive, but when asked about the validity of Lindsay’s driver’s
license, the Defendant then stated that he, in fact, was the only individual who had been
driving. When Officer Perry asked the Defendant to where they were driving, the Defendant
initially said Nashville and then “stopped and caught himself” and said that they were driving
to Knoxville. According to Officer Perry, the Defendant’s stated reason for the trip to
Knoxville was to pick up a “s**tkicker,” which is slang for a manure spreader. The
Defendant informed Officer Perry that the manure spreader had already been purchased and
paid for, and they were simply on their way to pick up the machine and possibly another
piece of machinery.
2
“Rules of the Road” is a subsection of the Tennessee Comprehensive Driver’s Manual posted on
the Tennessee Department of Safety and Homeland Security website. See Tennessee Comprehensive Driver
License Manual, Tennessee Department of Safety and Homeland Security (July 1, 2009),
http://www.tn.gov/safety/dlhandbook/DL_Manual2011.pdf.
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Officer Perry testified that he then returned to Lindsay and asked him essentially the
same questions. Lindsay stated that they were going to pick up a crop spreader, rather than
a manure spreader. Defendant’s counsel asked whether Officer Perry was certain that
Lindsay said “crop spreader” and not “crap spreader.” Officer Perry responded that he felt
fairly certain, particularly because Lindsay said it several times. Lindsay also stated that his
boss had not yet purchased the machine but instead was waiting for them to see the machine
in person. Like the Defendant, Lindsay began to tell Officer Perry that they were headed to
Nashville, but he stopped himself and said that Knoxville was their destination. Lindsay’s
driver’s license was an expired New Jersey license, and Lindsay told Officer Perry that,
although he was currently still residing in New Jersey, he was in the process of moving to
Texas.
Officer Perry testified that, after speaking with Lindsay, he went back to inform the
Defendant that he would go ahead and check the validity of their licenses with Blue
Lightening Operations Center (“BLOC”). He then noticed a knife holder on the Defendant’s
hip, and he asked the Defendant if the Defendant was carrying any weapons – “any knives,
guns, or anything like that” – to which the Defendant answered no. Officer Perry asked the
Defendant for permission for a pat-down search to be sure there were no weapons in the
Defendant’s possession, and the Defendant agreed. Upon execution of the pat-down, Officer
Perry felt a hard object in the Defendant’s front pocket, so Officer Perry inquired and
discovered that it was a Beretta .22 caliber handgun. Officer Perry acknowledged that this
interaction with the Defendant made him suspicious because the Defendant “was wearing a
knife holder but stated that he didn’t have any weapons on him.” The Defendant also showed
Officer Perry his valid Texas handgun carry permit. Officer Perry then asked the Defendant
if he would sit in the back of the squad vehicle until Officer Perry was able to run the checks
on the licenses. The Defendant agreed and sat in the back of the vehicle with the door
closed.
Officer Perry acknowledged that because the door to the back seat does not open from
the inside, the Defendant was secure in the vehicle and, thus, not free to leave. According
to Officer Perry, at the time that he placed the Defendant in the back of the patrol car, there
were already multiple discrepancies raising suspicion in the officer’s mind. He also
acknowledged that he is familiar with State v. Berrios, and because of that decision, his
practice now is to ask stopped individuals for consent to place them in the back of the patrol
car. Unless the individual consents, Officer Perry stated that he would not place that person
in the patrol car absent probable cause.
The State asked Officer Perry why he used BLOC to run the checks, and Officer Perry
stated that it is protocol to use BLOC in order to obtain information concerning the validity
of driver’s licenses, registration, and warrants. Additionally, BLOC can provide information
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regarding border crossings, which other similar agencies cannot. Officer Perry also stated
that, in a traffic stop with multiple occupants, it is customary to check each occupant’s
driver’s license.
Once the Defendant was secured in the patrol car, Officer Perry asked for permission
to search the Defendant’s truck, to which the Defendant agreed. Officer Perry then retrieved
his canine partner, Zena, a trained and certified narcotic detecting dog, to conduct a sweep
of the truck. Officer Perry explained that, based on the inconsistent stories from the
Defendant and Lindsay, he believed that there was some sort of criminal activity underway
and that Zena would assist him in learning whether that criminal activity involved narcotics.
Officer Perry stated that Zena is a Belgian Melawa, which is a breed recognized for
its acute sense of smell. Zena is trained and certified through the National Narcotic Detector
Dog Association. Additionally, Officer Perry stated that he had been certified in handling
narcotic detecting canines, and he and Zena had undergone training together. Officer Perry
had Zena from July 2005 through June 2007, at which time Zena went to work with a
different officer.
Officer Perry testified that when he and Zena reached the front of the trailer that was
attached to the truck, Zena sat and alerted the officer to the presence of narcotics. He stated
that Zena also tried to sit and alert him along the backside of the trailer, but she was unable
to do so because Officer Perry was standing so close to her. He noted that, during this
process, about ten minutes had passed from the time of the initial stop, and he had not heard
back from BLOC. On cross-examination, Officer Perry acknowledged that it had been
fourteen minutes since the initiation of the stop when he began the canine sweep. After
placing Zena back in the patrol vehicle, Officer Perry bent down to look under the front of
the trailer where Zena indicated the presence of narcotics, and he said, “I picked up a very
strong odor of raw marijuana coming from the bottom of it. And when I looked, I could see
wooden slates and I looked up in between the slates you could see like cellophane packaging
up inside there.” Further, he noticed that there were slates placed across the bottom of the
frame to secure packages and a board that was brown when looking from the ground up
underneath the trailer but appeared “black, almost like you were looking as [sic] asphalt”
from the top of the trailer. Upon finding this, Officer Perry went to Lindsay who was still
sitting in the truck, patted him down, and asked him to have a seat with the Defendant in the
back of the patrol car. In the pat-down of Lindsay, Officer Perry found a large amount of
cash that turned out to be $800 or $900. Additionally, Officer Perry stated that he found over
$6,000 inside the truck.
After securing Lindsay in the back of the patrol vehicle, Officer Perry retrieved the
packages of marijuana from the Defendant’s truck. He cut open the packaging– multiple
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layers of plastic wrap and aluminum foil– to visually observe the contents of one of the
packages. Officer Perry stated that samples from the packages were sent for testing to the
Tennessee Bureau of Investigation (“TBI”) and that, in total, the packages contained
approximately 591 pounds of marijuana. Around three or four minutes after placing Lindsay
in the patrol vehicle, Officer Perry received the call from BLOC regarding the checks
requested on the Defendant and Lindsay.
On cross-examination, Officer Perry acknowledged that, when he stops vehicles for
traffic violations, he looks for criminal indicators beyond the mere reason for the stop.
Further, he acknowledged that he is trained to ask questions unrelated to the purpose
underlying the stop. He also verified that he has been to extensive training in how to look
for such criminal indicators and that the procedure that he followed in this case stems from
this training.
The trial court denied the motion to suppress as to the evidence seized but granted the
motion to suppress as to the statements made by the Defendant and Lindsay post-arrest.
Specifically, the trial court held that Officer Perry had probable cause3 to stop the Defendant
based on the officer’s observations that the Defendant was following too closely in violation
of Tennessee Code Annotated section 55-8-124.
The trial court also determined that the Defendant consented to the frisk, to his
placement into the patrol car, and to the search of his vehicle. Additionally, the trial court
stated that the Defendant’s “unintentional concealment of the handgun provided the
necessary reasonable suspicion to place [the Defendant] securely in the rear compartment of
the patrol vehicle.” The trial court also held that there was probable cause to search the
Defendant’s trailer, based on sufficient facts to establish reliability of the canine sweep.
Finally, the trial court held that the statements made by the Defendant and Lindsay to
Officer Perry from the back of the patrol car fell under a custodial interrogation. Because
no Miranda warnings were provided and Officer Perry asked the co-defendants questions
before reaching the police station, all statements made during this time were in violation of
the co-defendants’ Miranda rights. Accordingly, the trial court suppressed all such
statements.
3
Although the trial court determined that Officer Perry had probable cause to stop the vehicle,
Officer Perry would have been permitted to stop the vehicle with merely reasonable suspicion “that the
occupants of the vehicle have committed, are committing, or are about to commit a criminal offense.” State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).
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The trial court also granted a motion to sever the Defendant and Lindsay as co-
defendants. On November 16, 2010, the Defendant pled guilty to possession of marijuana,
but he reserved two certified questions of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2)(a). The trial court sentenced the Defendant to eight years. The
Defendant timely appealed the judgment of the trial court, asking this Court to review the
following certified questions:
1. Whether the stop of the defendant for “following too close” violated the
defendant’s state and federal constitutional rights when the statute is absent
any objective criteria for the officer to base his determination on, thereby
granting the officer unbridled discretion in determining when a violation
occurs?
2. Whether the stop of a defendant for a minor “cite and release” traffic
violation which provided for a fine only, the detention of the defendant
exceeded the reasonable length and scope to effectuate the purposes of the
stop, placement of the defendant in the secured area of the officer’s patrol
car, the use of a drug dog “run” around the defendant’s vehicle, and the
subsequent search of defendant’s vehicle violated the rights of the defendant
under the federal and state constitutions and, therefore, all evidence
resulting from the seizure and search should be suppressed?
ANALYSIS
I. Constitutionality of Tennessee Code Annotated Section 55-8-124
The Defendant asks this Court to determine whether Tennessee Code Annotated
section 55-8-124 is unconstitutionally vague or overbroad. The text of Tennessee Code
Annotated section 55-8-124 provides, “The driver of a motor vehicle shall not follow another
vehicle more closely than is reasonable and prudent, having due regard for the speed of such
vehicles and the traffic upon and the condition of the highway.”
Under the United States Constitution, a criminal statute is considered vague on its face
“if it authorizes and encourages arbitrary and discriminatory enforcement.” State v. Harton,
108 S.W.3d 253, 259 (Tenn. Crim. App. 2002) (citing City of Chicago v. Morales, 527 U.S.
41, 56 (1999)). Our Supreme Court has determined that a statute is facially vague only when
it provides “no legally fixed standards, leaving to the personal predilections of an officer the
determination of the illegality of conduct.” Id. (citing State v. Burkhart, 58 S.W.3d 694, 699
(Tenn. 2001)). To challenge a statute as overbroad, the language of the statute must affect
“a substantial amount of conduct that is constitutionally protected.” Id. (citing Village of
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 (1982)).
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The U.S. Constitution requires that laws provide a reasonable opportunity to those of
ordinary intelligence to understand what conduct is prohibited. Grayned v. City of Rockford,
408 U.S. 104, 108 (1972); Harton, 108 S.W.3d at 259. However, a “fair warning” is not a
requirement for absolute precision. State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983)
superceded, on other grounds, by statute 1989 Tenn. Pub. Acts Ch. 591 (S.B. 1194), as
recognized in State v. Dominy, 6 S.W.3d 472 (Tenn. 1999). A statute may include language
of “general meaning” if the use of precise wording and guidelines proves complicated and
impractical. Harton, 108 S.W.3d at 259 (quoting State v. Lyons, 802 S.W.2d 590, 592 (Tenn.
1990)) (other citation omitted). Furthermore, this Court must presume that a statute is
constitutional and uphold the statute when possible. State v. Robinson, 29 S.W.3d 476, 479-
80 (Tenn. 2000).
This Court previously has ruled on the constitutionality of this very statute. Harton,
108 S.W.3d at 260. Harton held that the “following too closely” statute “provides fair
warning of prohibitive conduct and provides sufficient guidance to prevent arbitrary and
discriminatory enforcement.” Id. This Court must follow binding precedent found in prior
published decisions of this Court. See Tenn. Sup. Ct. R. 4(G)(2) (“Opinions reported in the
official reporter, however, shall be considered controlling authority for all purposes unless
and until such opinion is reversed or modified by a court of competent jurisdiction.”); see
also State v. Martha Patlan, No. M2011-01175-CCA-RM-CD, 2011 WL 2848395, at *10
(Tenn. Crim. App. July 18, 2011), no perm. app. filed (“Published precedent binds us . . . .”).
Additionally, other jurisdictions, including the Tenth Circuit, also have held that this precise
statutory language is not unconstitutionally vague. See United States v. Hunter, 663 F.3d
1136, 1142 (10th Cir. 2011); State v. Shapiro, 751 So. 2d 337, 342 (La. App. 4th Cir. 1999);
Logan City v. Carlsen, 585 P.2d 449, 450 (Ut. 1978). Therefore, we afford the Defendant
no relief on this issue.
II. Search and Seizure
The Defendant argues that the evidence obtained as a result of the stop, detention,
placement in the patrol car, canine sniff, and subsequent search was in violation of his rights
under the Tennessee and United States constitutions. Thus, the Defendant asserts that the
trial court should have suppressed all evidence resulting from activities transpiring from the
stop.
When conducting a review of the trial court’s determinations from a suppression
hearing, questions regarding the witnesses’ credibility, “the weight and value of the evidence,
and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, we will uphold the trial
court’s factual findings unless the preponderance of the evidence is otherwise. Id. However,
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where the trial court has applied the law to the facts, we will conduct a de novo review. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Because the State is the prevailing party,
it 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 the
evidence.” Odom, 928 S.W.2d at 23.
Both the Fourth Amendment to the United States Constitution, as well as article I,
section 7 of the Tennessee Constitution protect individuals from unreasonable searches and
seizures. State v. Ingram, 331 S.W.3d 746, 754 (Tenn. 2011) (citing Mapp v. Ohio, 367 U.S.
643, 655 (1961)).4 As the Tennessee Supreme Court has stated, it is a “fundamental principle
under our state and federal constitutions that a warrantless search is presumed invalid and
any evidence discovered as a result is subject to suppression.” Ingram, 331 S.W.3d at 754
(citing State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008); State v. Berrios, 235 S.W.3d 99, 104
(Tenn. 2007)). Thus, when a search or seizure is determined to be illegal, the evidence
obtained in that search or seizure is excluded from use by the prosecution. See Wong Sun
v. United States, 371 U.S. 471, 484-85 (1963); State v. Huddleston, 924 S.W.2d 666, 674
(Tenn. 1996). This exclusionary rule “was designed to protect Fourth Amendment
guarantees by deterring lawless searches, seizures, and arrests.” Huddleston, 924 S.W.2d at
674.
There are several recognized exceptions to the rule against warrantless searches.
Ingram, 331 S.W.3d at 755. Because a trial court must presume “that a warrantless search
or seizure is unreasonable,” it is the State’s burden to establish “that one of the exceptions
to the warrant requirement applied at the time of the search or seizure.” Giddens v. State,
No. M2006-01938-CCA-R3-PC, 2008 WL 271967, at *3 (Tenn. Crim. App. Jan. 29, 2008)
(citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). The most common of these
exceptions include: (1) a stop and frisk situation; (2) a search incident to a lawful arrest; (3)
consent to search; (4) probable cause to search with exigent circumstances; (5) hot pursuit;
and (6) plain view. State v. Day, 263 S.W.3d 891, 901 n.9 (Tenn. 2008) (citations omitted).
Courts are admonished to keep these recognized exceptions to the warrant rule “‘well-
delineated,’ ‘jealously and carefully drawn,’ and ‘narrowly’ defined.” Ingram, 331 S.W.3d
at 755 (citations omitted).
4
The Fourth Amendment is applicable to the States through the Fourteenth Amendment to the United
States Constitution. See Mapp, 367 U.S. at 655; Ingram, 331 S.W.3d at 754. The intent and purpose of
article I, section 7 of the Tennessee Constitution is identical with the Fourth Amendment; however, our
Supreme Court has noted previously that Tennessee’s search and seizure case law has developed
independently from, and extends greater protection than, federal law. See State v. Richards, 286 S.W.3d 873,
877-78 (Tenn. 2009).
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A. The Stop
The Defendant first asserts that Officer Perry unlawfully stopped and seized his
vehicle. Because we have already held above that the “following too closely” statute passes
constitutional muster, we now must determine whether the specific facts of this case establish
that Officer Perry was constitutionally permitted to stop the Defendant’s vehicle.
An officer may decide to stop a vehicle if that officer has “probable cause to believe
that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996).
Additionally, an officer is permitted to make an investigatory stop of a vehicle as long as that
officer has “a reasonable suspicion, supported by specific and articulable facts, that the
occupants of the vehicle have committed, are committing, or are about to commit a criminal
offense.” State v. England, 19 S.W.3d 762, 766 (Tenn. 2000) (citing United States v. Cortez,
449 U.S. 411, 417 (1981)) (other citations omitted).
The trial court credited Officer Perry’s testimony that the Defendant pulled behind
another vehicle with less than a car length between the two vehicles. Moreover, the trial
court determined that such an observation by Officer Perry sufficiently established probable
cause that the Defendant had violated Tennessee Code Annotated section 55-8-124. The
Defendant has not produced any facts that would preponderate against the findings of the
trial court that Officer Perry had probable cause to stop the Defendant based on his
observation that the Defendant had violated Tennessee Code Annotated section 55-8-124 by
following too closely. Thus, there was proper justification for the stop.
B. The Placement of the Defendant in Officer Perry’s Patrol Vehicle and
Consent to Search
Next, the Defendant asserts that Officer Perry unlawfully confined him in the back of
the patrol vehicle, violating his constitutional rights. He also contends that, because he was
improperly confined in the back of the patrol car, the consent he gave Officer Perry to search
his vehicle was invalid.
First, we recognize that our Supreme Court has held that the placement of an
individual into a patrol car following a frisk is more analogous to an arrest than a detention
customary to a routine traffic stop. See State v. Berrios, 235 S.W.3d 99, 107 (Tenn. 2007).
The Court further noted that such a practice has been considered permissible by other
jurisdictions if it “is the least intrusive means of avoiding a dangerous condition outside the
vehicle.” Id. (citing State v. Lozada, 92 Ohio St. 3d 74, 748 N.E.2d 520 (2001) (holding that
placement of a driver into the patrol vehicle is reasonable if it “prevents officers or the driver
from being subjected to a dangerous condition and placing the driver in the patrol car is the
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least intrusive means to avoid the dangerous condition”)). In Berrios, our Supreme Court
determined that there was no reasonable basis for the officer to place the defendant in the
back of the patrol vehicle, and, thus, the defendant’s consent to search given from the back
of the patrol car was invalid. Id. at 109.
In the present case, Officer Perry testified that, after observing a knife on the
Defendant’s hip, he asked the Defendant whether he had any weapons on his person,
specifically mentioning guns and knives. The Defendant denied having any weapon on his
person but consented to a pat-down search, which revealed not only the knife but also a
handgun. Thus, as of that time, Officer Perry was by himself with an individual who lied
about the possession of weapons. That situation clearly constituted a valid safety concern.
Thus, Officer Perry had a reasonable basis for asking the Defendant to sit in the back of his
patrol car. See id.; State of Tennessee v. Robert Cooper, No. W2008-01339-CCA-R3-CD,
2010 WL 3792775, at *7 (Tenn. Crim. App. Sept. 29, 2010). Accordingly, because the
placement of the Defendant into the patrol car was proper, the Defendant’s consent to search
was also valid. See Berrios, 235 S.W.3d at 109.
C. The Canine Sweep and Detention of the Defendant
The Defendant argues that Officer Perry should not have conducted the canine sweep
because the use of the canine sweep extended the duration of the stop beyond what is
constitutionally permissible. Further, the Defendant asserts that “[b]ecause the stop was
impermissibly expanded, any evidence obtained must be suppressed as fruit of the poisonous
tree.”
Even though the Defendant gave consent to search his vehicle, Officer Perry
conducted a canine sweep, which is not considered a search and, thus, does not require
reasonable suspicion or probable cause. See State v. England, 19 S.W.3d 762, 767 (Tenn.
2000); see also United States v. Place, 462 U.S. 696, 707 (1983). “[E]vidence will not be
considered as ‘fruit’ unless the illegality is the ‘but for’ cause of the discovery of the
evidence.” Segura v. United States, 468 U.S. 796, 815 (1984). Thus, even if the placement
in the back of the patrol car was improper, the evidence was discovered as a direct result of
the canine sweep and subsequent search, not the placement of the Defendant into the patrol
car.
The canine sweep still might be improper if it lengthened the detention of the
Defendant beyond what is permissible for such a stop. State v. England, 19 S.W.3d at 767;
see also State v. Harris, 280 S.W.3d 832, 841 (Tenn. Crim. App. 2008). In looking at the
length of the detention, we first recognize that, “[r]equests for driver’s licenses and vehicle
registration documents, inquiries concerning travel plans and vehicle ownership, computer
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checks, and the issuance of citations are investigative methods or activities consistent with
the lawful scope of any traffic stop.” Harris, 280 S.W.3d at 840. “Thus, either (1) the canine
sweep of the defendant’s vehicle must be properly accommodated within the duration and
scope of the legal traffic stop” or (2) the officer must have “some reasonable suspicion of
other criminal activity sufficient to warrant prolonging the stop.” Id. at 842; see also
England, 19 S.W.3d at 767 (holding that running a canine sweep while waiting for a response
on the driver’s license check did not delay the individual beyond that reasonably necessary
“to carry out the purpose of the traffic stop”); Robert Cooper, 2010 WL 3792775, at *7.
Reasonable suspicion has become known as a “common sense standard that permits
an officer” to detain a suspect within the context of an investigatory stop “when he or she
reasonably suspects that a specific person has engaged in, is engaging in, or is about to
engage in criminal activity.” State v. Day, 263 S.W.3d 891, 908 (Tenn. 2008). It requires
“more than an ‘inchoate and unparticularized suspicion or hunch.’” Id. at 907 (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968)). Courts must look to the totality of the circumstances when
determining whether reasonable suspicion existed in the particular case. Id. The State
carries the burden of providing facts sufficient to establish reasonable suspicion. Id. at 908.
“[I]nconsistencies in information given to an officer during a traffic stop may give rise to
reasonable suspicion of criminal activity.” State v. Garcia, 123 S.W.3d 335, 350 (Tenn.
2003) (quoting United States v. Smith, 263 F.3d 571, 592 (6th Cir. 2001)).
At the point that Officer Perry initiated the canine sweep, he had not yet received a
response from BLOC. In England, both the canine sweep and subsequent search were
completed before the officer received the report on the defendant’s driver’s license. 19
S.W.3d at 768. Similarly, Officer Perry testified that he did not receive a response from
BLOC until approximately three or four minutes after securing Lindsay in the back of his
patrol vehicle. At that point, Zena had already alerted Officer Perry to the presence of
narcotics, and Officer Perry had already smelled a strong odor of marijuana upon inspection
of the trailer. Thus, the canine sweep did not extend the duration of the stop beyond what
was reasonably permissible. See England, 19 S.W.3d at 768.
The Defendant counters that the wait time to receive a report from BLOC was
extended because Officer Perry requested that BLOC check the driver’s licenses of both the
Defendant and Lindsay. However, we need not determine whether the checks were
improper. When Officer Perry began the canine sweep, he had already spoken with the
Defendant and Lindsay. From this discussion, he noticed several discrepancies in their
stories pertaining to where Lindsay resided, whether Lindsay was assisting in the driving,
what type of equipment they were going to retrieve, and whether the equipment was already
purchased. Additionally, as mentioned previously, Officer Perry also stated that he noticed
a knife holder on the Defendant’s hip. When he questioned the Defendant, the Defendant
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stated that he had no weapons on his person. Upon receiving consent to conduct a pat-down
search, Officer Perry found a knife and handgun on the Defendant. Thus, Officer Perry
provided specific and articulable facts that objectively established a reasonable suspicion of
criminal activity by the time he completed the pat-down search and placed the Defendant in
the back of the patrol vehicle. Therefore, to the extent checking two driver’s licenses with
BLOC would extend the length of the stop because of the time it would take BLOC to
provide results from the two checks, there was already reasonable suspicion on a wholly
separate basis to justify the length of the detention. See Harris, 280 S.W.3d at 842.
Accordingly, the detention and canine sweep were proper under the United States and
Tennessee constitutions.
C. The Search of the Defendant’s Trailer
Lastly, the Defendant asserts that there was not sufficient reliability from the canine
sweep to establish probable cause to search the Defendant’s trailer. In order to establish
probable cause from a canine sweep, the canine must be shown to be reliable through a trial
court’s finding of fact. England, 19 S.W.3d at 768 (citations omitted). Factors that can
establish reliability are “the canine’s training and the canine’s ‘track record,’ with emphasis
on the amount of false negatives and false positives the dog has furnished” and “the officer’s
training and experience with this particular canine.” Id. (citations omitted).
The trial court found that Zena was a trained and certified narcotics detection dog that
had worked with Officer Perry for almost a year when the canine sweep in this case occurred.
The court further found that Zena’s breed has an especially heightened sense of smell. The
Defendant asserts that Zena made a false indication and, thus, should not have been
considered reliable. We note that Officer Perry testified that Zena tried to alert him about
the presence of narcotics at the back of the trailer and that he did not find drugs there.
However, the trial court stated that any evidence presented at the hearing as to a false alert
was insufficient to show that Zena was unreliable as a detection dog. Because the trial judge
is entrusted with weighing the evidence presented, and the trial court determined that the
evidence of the false alert was not substantial enough to weigh against Zena’s reliability, the
mere fact that Zena might have alerted falsely does not preponderate against the trial court’s
findings. Thus, the evidence establishing Zena’s reliability was sufficient to establish
probable cause to search the Defendant’s trailer.
CONCLUSION
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For the foregoing reasons, we affirm the judgment of the trial court.
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JEFFREY S. BIVINS, JUDGE
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