State of Tennessee v. Darryl Rene Morgan ( 2019 )

07/25/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 23, 2019 Session
STATE OF TENNESSEE v. DARRYL RENE MORGAN
Appeal from the Criminal Court for Knox County
No. 111397 G. Scott Green, Judge
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No. E2018-00916-CCA-R3-CD
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The State of Tennessee appeals the Knox County Criminal Court’s order granting the
Defendant’s motion to suppress, which resulted in the dismissal of the case. On appeal,
the State contends that the trial court erred because the warrantless search of the
Defendant was conducted pursuant to probable cause and exigent circumstances. We
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment if the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. JAMES CURWOOD WITT, JR., J., filed a dissenting opinion.
Mark Stephens, District Public Defender; Jonathan Harwell and Chloe Akers, Assistant
District Public Defenders, Knoxville, Tennessee, for the appellant, Darryl Rene Morgan.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme P. Allen, District Attorney General; Hector Sanchez and
Brittany Sims, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case relates to a December 10, 2015 traffic stop of a white Chevrolet
Avalanche truck, which the Defendant drove but did not own. The Defendant was
detained while a police dog and police officers searched the Avalanche. The Defendant
was initially frisked for weapons, but none were found. Later during the stop, the
Defendant was searched, and an officer retrieved marijuana from the Defendant’s pants
pocket. The Defendant was arrested, and heroin was discovered during a body cavity
search at the jail.
The Defendant was indicted for possession with the intent to sell fifteen grams or
less of heroin within 1000 feet of a childcare agency, possession with the intent to deliver
fifteen grams or less of heroin within 1000 feet of a childcare agency, introduction of
drugs into a penal institution, and misdemeanor possession of marijuana. See T.C.A. §§
39-17-417 (2014) (possession of fifteen grams or less of heroin with intent to sell and
deliver), 39-17-432 (2014) (drug-free school zone), 39-16-201 (2014) (introduction of
drugs into a penal institution), 39-17-418 (2014) (amended 2016, 2018) (misdemeanor
possession of marijuana). The Defendant filed a motion to suppress the marijuana,
arguing that the officer lacked probable cause and exigent circumstances to search the
Defendant during the traffic stop.
At the suppression hearing, Knoxville Police Investigator Phil Jinks testified that
he had investigated an overdose death about one month before the traffic stop.
Investigator Jinks stated that he reviewed a video recording from a convenience store
surveillance camera related to the overdose and that the recording showed the victim
speaking with someone who drove a white Avalanche. Investigator Jinks said that on the
same day he reviewed the recording, he saw a white Avalanche parked at an apartment
complex across the street from the store. He stated that he thought the Avalanche was the
one he saw in the recording and that he noted the license plate number. He said that he
conducted surveillance on the Avalanche for “quite some time” but never saw anyone
approach it.
Investigator Jinks testified that he saw the Avalanche parked at a motel on
December 10, 2015, and that he verified it was the same Avalanche he had seen at the
apartment complex about one month previously. Investigator Jinks stated that he
contacted other officers in the area and that he and the officers conducted surveillance on
the Avalanche for several hours. Investigator Jinks said that he ended the surveillance to
work on another matter and that the Avalanche was gone when he returned.
Investigator Jinks testified that after he returned, he resumed his surveillance and
parked nearby waiting for the Avalanche to return. Investigator Jinks said that he saw the
Avalanche park at a nearby convenience store. Investigator Jinks stated that he saw the
Defendant get out of the Avalanche, walk inside the store, leave the store, and return to
the Avalanche. Investigator Jinks said that the Avalanche drove past his patrol car and
that he noticed an object partially covered the license plate.
Investigator Jinks stated that he called Officer Marrero, a K-9 officer, and
instructed him to conduct a traffic stop. Investigator Jinks said that he did not conduct
the traffic stop because he was in plain clothes and driving an unmarked patrol car.
Investigator Jinks testified that he parked behind Officer Marrero’s patrol car and that he
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stayed for the duration of the stop. A video recording from Officer Marrero’s patrol car
was received as an exhibit.
In the recording, the Avalanche stopped on the right side of a one-way street at
15:03:32. The last digit of the license plate was obstructed from view. Officer Marrero
approached the driver’s window at 15:03:48 and stated that he stopped the Defendant
because the license plate was obstructed. The Defendant said he was unaware the license
plate was obstructed, and Officer Marrero responded, “Step back here and see what I’m
talking about.” The Defendant got out of the Avalanche, left the driver’s door open, and
walked to the rear of the truck with Officer Marrero at 15:04:11. Officer Marrero showed
the Defendant the license plate and asked for the Defendant’s driver’s license. Officer
Marrero asked the Defendant whether he owned the Avalanche, and the Defendant stated
that it belonged to a friend. Another officer, who was later identified as Investigator
Holmes, walked to the front of Officer Marrero’s patrol car.
Officer Marrero instructed the Defendant to walk to the rear right side of the truck,
and Investigator Jinks walked into the camera’s view. Investigator Jinks asked the
Defendant whether he possessed weapons, and the Defendant said he did not. The
Defendant spread his arms, and Investigator Jinks frisked the Defendant for weapons at
15:04:36. As Investigator Jinks frisked the Defendant, Officer Marrero handed the
Defendant’s driver’s license to Investigator Holmes. An unintelligible conversation
occurred between Investigator Jinks and the Defendant. Officer Marrero walked out of
the camera’s view and reappeared with a police dog. The police dog did not alert to or
interact with the Defendant. The frisk for weapons ended at 15:05:24.
Investigator Jinks instructed the Defendant to sit on the curb between the patrol
car and the Avalanche. Investigator Jinks briefly stood in front of the patrol car, and
Investigator Holmes and the Defendant walked out of the camera’s view. The Defendant
asked an unintelligible question, and one of the officers responded, “We’ll explain
everything in just a second, okay?” Officer Marrero approached the Avalanche with the
police dog at 15:05:27. The police dog briefly jumped and placed his paws on the
tailgate, while the dog’s hind legs remained on the ground. Officer Marrero and the
police dog walked to the open driver’s door. Investigator Jinks walked to the right of the
patrol car and out of the camera’s view. The police dog briefly stood in the opening of
the driver’s door, walked away, and circled back around to Officer Marrero. Officer
Marrero moved into the opening of the door, and the police dog stood in the opening.
Officer Marrero’s left hand entered the Avalanche, and the police dog jumped inside.
Investigator Holmes walked into the camera’s view and stood between the Avalanche and
the patrol car. The recording ended while the police dog was inside the Avalanche.
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Investigator Jinks testified that he smelled the odor of raw marijuana coming from
inside the Avalanche and that after the Defendant got out of the truck, he recognized the
Defendant from a previous investigation. Investigator Jinks stated that several months
before the incident, he executed a search warrant at a home and found heroin and a
firearm, that the Defendant was arrested, and that the Defendant had been released on
bond for this incident at the time of the traffic stop in the present case. Investigator Jinks
said that he smelled marijuana when he spoke to the Defendant and that he had probable
cause to search the Avalanche because he smelled marijuana coming from the truck.
Investigator Jinks said that he conducted a “pat down” on the Defendant but did not
conduct a search. Investigator Jinks stated that Investigator Holmes searched the
Defendant while Investigator Jinks searched the Avalanche. Investigator Jinks stated the
Defendant was arrested after marijuana was found in his pants pocket. Investigator Jinks
said that he did not find marijuana or any other controlled substance in the Avalanche.
Upon questioning from the trial court, Investigator Jinks testified that he did not
see the Defendant place the marijuana from his pants pocket on the hood of the patrol car
and that the search was described to him after the Defendant was arrested. Investigator
Jinks stated that the Defendant was the only person in the Avalanche and that he saw a
“piece of paper wad[d]ed up with marijuana in it.” Investigator Jinks said he and
Investigator Holmes discussed the Defendant’s smelling like marijuana before the search,
that they agreed the Defendant “probably” had some marijuana in his pants pocket, and
that Investigator Holmes searched the Defendant “or asked him to produce the items.”
Investigator Jinks said that heroin was found during the Defendant’s body cavity search
at the jail.
On cross-examination, Investigator Jinks testified that he thought the Avalanche
was connected with a heroin transaction which occurred before the traffic stop. When
Investigator Jinks was asked whether the stop was “essentially a pretext – you were not
actually investigating the license plate, you were investigating for some other purpose,
but you believed he had violated the laws of the road[,]” Investigator Jinks responded,
“That’s correct, yes.” Investigator Jinks said four or five officers, three marked patrol
cars, and one unmarked patrol car were at the scene.
Investigator Jinks testified that Officer Marrero walked his police dog to the
Avalanche and that the dog went inside. Investigator Jinks stated that he searched the
Avalanche and that the Defendant sat “on the side of the road.” Investigator Jinks said
that the Defendant was briefly detained and was not free to leave “based on the totality of
the circumstances with the smell of marijuana in the truck and on his person.”
Investigator Jinks did not recall what he said to the Defendant during the stop.
Investigator Jinks acknowledged that, at the preliminary hearing, he testified that he
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asked the Defendant whether the Defendant possessed marijuana and that the Defendant
denied possessing it.
Investigator Jinks testified that, after he searched the Avalanche, he saw the
Defendant’s possessions on the hood of a patrol car, including a piece of paper containing
marijuana. On redirect examination, Investigator Jinks testified that he smelled
marijuana in the Avalanche and coming from the Defendant before the police dog
signaled it detected drugs.
Knoxville Police Investigator John Holmes testified that Investigator Jinks had
investigated an overdose and that the investigation involved the Avalanche. Investigator
Holmes stated that Investigator Jinks saw the Avalanche parked at a motel on the day of
the traffic stop and that he helped Investigator Jinks conduct surveillance. Investigator
Holmes said that he and Investigator Jinks later saw the Avalanche parked at a
convenience store.
Investigator Holmes testified that he first encountered the Defendant after the
Defendant was escorted to the back of the Avalanche during the traffic stop and that he
smelled marijuana coming from the truck and the Defendant. Investigator Holmes stated
that he searched the Defendant because he smelled marijuana, that he asked the
Defendant if “he had anything on his person,” and that the Defendant started pulling
items from the Defendant’s pants pockets. Investigator Holmes said that the Defendant
pulled out a white piece of paper, and that the Defendant immediately pushed the paper
into his pocket, and that “at that point I went into his pocket and retrieved that piece of
paper[.]”
Upon questioning by the trial court, Investigator Holmes testified that he found a
few grams of marijuana, that the marijuana was contained in the piece of paper but was
not “rolled,” and that he did not recall if the marijuana was in the Defendant’s right or left
pants pocket. The following exchange took place between the court and Investigator
Holmes:
THE COURT: All right. What words, if any, did you say to him prior to
him – other than saying [“]do you have anything else on your person,[”] did
you say anything else to him or give him any other directive?
THE WITNESS: Not that I recall. No, sir.
THE COURT: And in response to the statement [“]do you have anything
else on your person[”], you’re saying that’s when he started pulling stuff
out of –
THE WITNESS: Yes.
THE COURT: – his pockets?
THE WITNESS: Yes, sir.
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THE COURT: Including the white piece of paper that he put back into his
pocket?
THE WITNESS: He pulled it out partially like it was an accidental
removal from the pocket. When he did so, he stuffed it back into his
pocket. And I said, “[H]ey, what’s that[?]” and went to retrieve it.
On cross-examination, Investigator Holmes testified that he found one or two
grams of raw marijuana. He stated that he smelled marijuana after walking toward the
Avalanche and did not recall if the windows of the Avalanche were down or if he walked
to the driver’s door. Investigator Holmes said that the driver’s door was open, that a
police dog indicated that it detected the presence of drugs, and that he smelled marijuana
“at some point” when the door was open. Investigator Holmes stated that he smelled
marijuana when he spoke with the Defendant and that he did not recall if the Defendant
was handcuffed during the conversation. Investigator Holmes said that, based on his
experience and training, a person would be able to smell about one gram of marijuana
wrapped in a sheet of paper in an individual’s pants pocket. Investigator Holmes stated
that he recognized the Defendant from a previous encounter. Investigator Holmes did not
recall the Defendant’s answer when he asked if the Defendant had “anything else” but
said that the Defendant removed items from his pants pockets.
Investigator Holmes testified that he, Investigator Jinks, Officer Marrero, and
Officer Park were present during the traffic stop. Investigator Holmes agreed that he kept
the Defendant in sight during the stop. When asked, “You weren’t concerned [the
Defendant] was able to get away,” Investigator Holmes responded, “I think at one point
[the Defendant] was sitting on the curb, but I don’t recall.” A video recording taken from
Officer Park’s patrol car was received as an exhibit and was played for the trial court
without audio due to an equipment malfunction.
In the recording, Officer Park’s patrol car parked behind Officer Marrero’s patrol
car at 15:07:43. The Defendant sat on the curb to the right of Officer Marrero’s patrol car
and appeared to be speaking with someone, although the person was not in the camera’s
view. The Avalanche was not initially visible in the recording. Officer Park got out of
his patrol car, walked by the left side of Officer Marrero’s patrol car, and walked out of
the camera’s view.
At 15:08:05, Investigator Jinks walked into the camera’s view and opened the
Avalanche’s front passenger door. At 15:08:13, Investigator Holmes walked into the
camera’s view and stood by the Defendant’s left side. The Defendant, who was not
handcuffed, stood and walked to the front of Officer Park’s patrol car at 15:08:16, and
Investigator Holmes and Officer Park followed. Before approaching the hood of Officer
Park’s patrol car, Investigator Holmes placed his right hand on the Defendant’s back, and
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the Defendant removed what appeared to be a wallet, a piece of white cloth, and an
unidentifiable item from the pocket of the Defendant’s hooded sweatshirt. The
Defendant placed the items on the hood of Officer Park’s patrol car at 15:08:25. The
Defendant placed his hands inside of his front pants pockets, removed cash and chap-
stick, and placed the items on the hood. The Defendant removed more cash from his
right front pants pocket and placed it on the hood. The Defendant placed his hands in his
back pants pockets and did not remove any items.
Officer Holmes lifted the Defendant’s black sweatshirt, which covered the top of
the Defendant’s jeans. The Defendant started to retrieve a white object from a smaller
front pants pocket at 15:08:41. The Defendant placed the white object back in his pocket,
retrieved cash from the same pocket, handed the cash to Investigator Holmes, and
Investigator Holmes placed the cash on the hood. The Defendant placed his hands in the
air at 15:08:51. When the Defendant had his hands in the air and his back to Investigator
Holmes, Investigator Holmes placed his right hand in the Defendant’s right front pocket
and retrieved a white piece of paper at 15:08:57. Investigator Holmes searched the
Defendant’s left front pocket and did not remove any items. Investigator Holmes placed
his hand in the Defendant’s right front pocket, retrieved a lighter, and placed the lighter
on the hood. The Defendant spread his legs, and Investigator Holmes used his hands to
search the remaining portions of the Defendant’s pants. Investigator Park stood beside
the Defendant for the duration of the search.
Investigator Holmes and the Defendant walked out of the camera’s view at
15:09:50, and Officer Park walked out of view at 15:09:55. Investigator Holmes and
Officer Park returned to the front of the patrol car and unfolded the piece of white paper
at 15:10:11.
Investigator Holmes narrated the recording. He said it appeared he asked the
Defendant to walk to Officer Park’s patrol car, but he did not recall. Investigator Holmes
said that the Defendant started to pull a piece of white paper from the Defendant’s front
pants pocket and that the Defendant pushed the paper back in his pocket. Investigator
Holmes stated that he searched the Defendant with his hands and that he retrieved the
paper from the Defendant’s front pants pocket. Investigator Holmes said that he placed
the Defendant in the back of the patrol car, that the doors automatically locked, and that
did not think he placed the Defendant in handcuffs. Investigator Holmes stated that he
returned to the hood of the patrol car, opened the paper, and found marijuana.
Investigator Holmes testified that he obtained the paper containing marijuana with
his hand after he saw the Defendant push the paper back in his pocket. Investigator
Holmes said that the search occurred after he smelled marijuana coming from the
Defendant.
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The trial court granted the Defendant’s motion to suppress the marijuana. The
court credited the testimony of Investigator Jinks and Investigator Holmes. The court
determined that Investigator Holmes smelled marijuana coming from the Defendant, that
a “pat down search” was conducted, and that Investigator Holmes found raw marijuana
during a subsequent search of the Defendant. The court found that heroin was discovered
after the Defendant was arrested for possession of marijuana and taken to the jail. The
court determined that probable cause to search the Defendant existed based upon the
smell of marijuana coming from the Defendant but that the State did not prove that
exigent circumstances supported the warrantless search of the Defendant. The court
noted that State v. Reginald Allan Gillespie, No. 03C01-9706-CR-00222, 1999 WL
391560 (Tenn. Crim. App. June 19, 1999), required the existence of probable cause and
exigent circumstances to support a warrantless search of a person after smelling
marijuana on the person. The court’s granting of the Defendant’s motion to suppress
resulted in an effective dismissal of the case and this appeal followed. See T.R.A.P. 3(c).
The State contends that the trial court erred by granting the Defendant’s motion to
suppress because the evidence preponderates against the court’s determining that the
State failed to prove exigent circumstances. The State argues that a search of the
Defendant was necessary to: (1) thwart escape because the Defendant was “standing on
the side of the road and was not handcuffed,” and (2) prevent the imminent destruction of
the marijuana because the Defendant could have disposed of it in the presence of the
officers and because he had attempted to hide it. The Defendant responds that the court
properly granted his motion to suppress because the State failed to prove that exigent
circumstances supported the warrantless search. We agree with the Defendant.
A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions
about the “credibility of the witnesses, 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.” Odom, 928 S.W.2d at 23. The prevailing party is entitled to the “strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). A trial court’s application of the law to its
factual findings is a question of law and is reviewed de novo on appeal. State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997). In reviewing a trial court’s ruling on a motion to
suppress, this court may consider the trial evidence as well as the evidence presented at
the suppression hearing. See State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998);
see also State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012).
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Our federal and Tennessee constitutions prohibit unreasonable searches and
seizures and provide generally that warrantless searches and seizures are presumed
unreasonable and that evidence recovered as a result of warrantless searches and seizures
is subject to suppression. See U.S. Const. amend IV; Tenn. Const. art. I, § 7; see also
Yeargan, 958 S.W.2d at 629. As a general principle, the police cannot conduct a search
without obtaining a warrant. R.D.S. v. State, 245 S.W.3d 356, 365 (Tenn. 2008) (citing
Payton v. New York, 445 U.S. 573, 586 (1980)). However, our courts have identified
narrow exceptions to the warrant requirement. State v. Bartram, 925 S.W.2d 227, 229-30
(Tenn. 1996) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)).
“These exceptions include searches and seizures conducted incident to a
lawful arrest, those yielding contraband in ‘plain view,’ those in the ‘hot
pursuit’ of a fleeing criminal, those limited to a ‘stop and frisk’ based on
reasonable suspicion of criminal activity, those based on probable cause in
the presence of exigent circumstances, and those based on consent.”
State v. Day, 263 S.W.3d 891, 909 n.9 (Tenn. 2008) (citing State v. Cox, 171 S.W.3d 174,
179 (Tenn. 2005); Bartram, 925 S.W.2d at 230 n.2; Coolidge, 403 U.S. at 454-55).
Our supreme court has also recognized the automobile exception to the warrant
requirement. The automobile exception “permits an officer to search an automobile if the
officer has probable cause to believe that the automobile contains contraband.” See State
v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009) (holding that the automobile exception
requires probable cause but does not require a separate finding of exigency). Unlike the
automobile exception, a warrantless search of a person is permissible if both probable
cause and exigent circumstances exist. See State v. Shrum, 643 S.W.2d 891, 893 (Tenn.
1982); State v. Blakely, 677 S.W.2d 12, 16 (Tenn. Crim. App. 1983). “Probable cause
generally requires reasonable grounds for suspicion, supported by circumstances
indicative of an illegal act.” State v. Williams, 193 S.W.3d 502, 507 (Tenn. 2006). This
court has concluded that the smell of marijuana coming from a defendant gives police
officers probable cause to conduct a search. See State v. Hughes, 544 S.W.2d 99, 101
(Tenn. 1976); Hicks v. State, 534 S.W.2d 872, 874 (Tenn. Crim. App. 1975); State v.
Frederic A. Crosby, No. W2013-02610-CCA-R3-CD, 2014 WL 4415924, at *8 (Tenn.
Crim. App. Sept. 9, 2014); State v. James C. Leveye, No. M2003-02543-CCA-R3-CD,
2005 WL 366892, at *3 (Tenn. Crim. App. Feb. 16, 2005); State v. Reginald Allan
Gillespie, No. 03C01-9706-CR-00222, 1999 WL 391560, at *3 (Tenn. Crim. App. June
16, 1999), (perm. app. denied) (Tenn. Nov. 22, 1999). “[N]o amount of probable cause
can justify a warrantless search or seizure [of a person], absent exigent circumstances,”
when none of the additional exceptions to the warrant requirement apply. Frederic A.
Crosby, 2014 WL 4415924, at *7 (internal citations omitted); see Reginald Allan
Gillespie, 1999 WL 391560, at *3; James C. Leveye, 2005 WL 366892, at *3. We note
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that this case does not involve a search incident to an arrest, plain view, hot pursuit, stop
and frisk, or consent. The only issue in this case is whether probable cause in the
presence of exigent circumstances supported the warrantless search of the Defendant.
See Day, 263 S.W.3d at 909 n.9; Cox, 171 S.W.3d at 179; see also Coolidge, 403 U.S. at
454-55).
Exigent circumstances dispense with the warrant requirement when “‘the
exigencies of the situation’ make the needs of law enforcement so compelling that the
warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v.
Arizona, 437 U.S. 385, 394 (1978) (quoting McDonald v. United States, 335 U.S. 451,
456 (1948)). Exigent circumstances arise “only where the State has shown that the
search is imperative.” Meeks, 262 S.W.3d at 723. Our supreme court has stated that “the
inquiry is whether the circumstances give rise to an objectively reasonable belief that
there was a compelling need to act and insufficient time to obtain a warrant.” Id. Mere
speculation, however, is insufficient to establish exigency. Id. at 723-24. The State
“must rely upon specific and articulable facts and the reasonable inferences drawn from
them.” Id. at 724. “The circumstances are viewed from an objective perspective,” and
the officer’s subjective intent is irrelevant. Id.
Although this list is not exhaustive, [our supreme court has] held that
exigent circumstances justifying a warrantless search may exist: (1) when
officers are in hot pursuit of a suspect, (2) when immediate police action is
needed to thwart the escape of a suspect, (3) when immediate police action
is necessary to prevent the destruction of evidence, (4) when the suspect
presents an immediate threat to police officers or others, and (5) to render
emergency aid to an injured person or to protect a person from imminent
injury.
State v. Hutchinson, 482 S.W.3d 893, 916 (Tenn. 2016). (internal citations omitted).
As a preliminary matter, both parties concede that probable cause supported a
search of the Defendant because the credited testimony of Investigators Jinks and Holmes
reflected that they smelled marijuana coming from the Defendant. See Frederic A.
Crosby, 2014 WL 4415924, at *8; see also Reginald Allan Gillespie, 1999 WL 391560,
at *3. Therefore, the only issue we must determine is whether the warrantless search of
the Defendant was also supported by exigent circumstances.
We conclude that the trial court did not err by granting the Defendant’s motion to
suppress because the State failed to prove the existence of exigent circumstances. The
record reflects that while the Defendant was frisked for weapons, Investigator Holmes,
Investigator Jinks, Officer Marrero, and a police dog stood near the Defendant. We note
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that the police dog did not signal that it detected drugs or interact with the Defendant.
After the initial frisk for weapons, the Defendant sat on the curb between the Avalanche
and Officer Marrero’s patrol car. Investigator Jinks and Holmes stood near the
Defendant when Officer Marrero approached the Avalanche with the police dog.
Investigator Holmes stood near the Defendant while Investigator Jinks searched the
Avalanche.
When Officer Park arrived at the scene, the Defendant was sitting on the curb in
front of Officer Marrero’s patrol car. Officer Park walked toward the Defendant and out
of the camera’s view. After a few seconds, the Defendant stood and walked toward
Officer Park’s patrol car. Investigator Holmes and Officer Park followed the Defendant,
and Investigator Holmes placed his hand on the Defendant’s back before approaching the
patrol car. Investigator Homes testified that it appeared he asked the Defendant to walk
to Officer Park’s patrol car. While the Defendant removed items from his pockets, both
Investigator Holmes and Officer Park stood beside the Defendant. The Defendant started
to remove a white piece of paper from his smaller right pants pocket, pushed the paper
back in the pocket, and removed cash instead. Investigator Holmes subsequently
searched the Defendant, and the Defendant stood with his hands in the air. After the
search ended and Investigator Holmes had removed the piece of paper containing
marijuana from the Defendant’s pants pocket, Investigator Holmes placed the Defendant
in the backseat of Officer Park’s locked patrol car.
The record reflects that the Defendant was the only person in the Avalanche when
the traffic stop occurred and that four police officers and one police dog were present.
When Investigator Holmes was asked, “You weren’t concerned [the Defendant] was able
to get away,” he responded, “I think at one point [the Defendant] was sitting on the curb,
but I don’t recall.” Neither Investigator Jinks nor Investigator Holmes testified that they
were concerned the Defendant might escape and nothing in the recordings reflect that the
Defendant might flee the scene.
Furthermore, no evidence shows that immediate police action was necessary to
prevent the destruction of evidence. See Hutchinson, 482 S.W.3d at 916. The Defendant
sat on the curb for most of the incident and was surrounded by one or two officers. When
the Defendant approached Officer Park’s patrol car, Investigator Holmes and Officer
Park followed the Defendant. The Defendant was placed in Officer Park’s locked patrol
car after the warrantless search of the Defendant. No evidence shows that the Defendant
attempted to place his hand in his pocket where the raw marijuana was found.
Investigator Jinks stated that he and Investigator Holmes agreed the Defendant
“probably” had some marijuana in his pants pocket, but no testimony reflects that the
Defendant attempted to destroy the evidence or that the officers thought the Defendant
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might destroy the evidence. The evidence does not preponderate against the the trial
court’s determination that exigent circumstances did not support the warrantless search.
In considering this issue, we have not overlooked the State’s reliance on Frederic
A. Crosby, 2014 WL 4415924, at *9, and Reginald Allan Gillespie, 1999 WL 391560, at
*3. In both cases, this court found that both probable cause and exigent circumstances
supported warrantless searches after officers smelled marijuana coming from the
defendants. However, both cases are distinguishable from this case.
In Frederic A. Crosby, two police officers responded to a domestic dispute
between the defendant and a woman in a parking lot. Frederic A. Crosby, 2014 WL
4415924, at *1. One officer spoke with the woman while the second officer, who spoke
with the defendant, smelled marijuana coming from the defendant. Id. The officer asked
the defendant if he possessed marijuana, and the defendant responded that he did not but
that he had been around others who had been smoking marijuana. Id. The officer
searched the defendant and found marijuana in the defendant’s pants and jacket pockets.
Id. This court determined that probable cause supported the search because the officer
smelled marijuana coming from the defendant. Id. at *8. This court also concluded that
exigent circumstances supported the warrantless search because the officer asked “about
the origins of the odor of marijuana, alerting [the defendant] to the issue of drug
detection.” Id. at *9. The court determined that the officer could not have left to obtain a
search warrant or requested another officer obtain warrant without risking the defendant’s
escaping or destroying evidence. Id.
In Reginald Allan Gillespie, a police officer drove his patrol car by the defendant
and two other men standing on a sidewalk. Reginald Allan Gillespie, 1999 WL 391560,
at *1. The patrol car’s windows were down, and the officer smelled marijuana. The
officer stopped the patrol car, walked toward the three men, and saw smoke around them.
Id. The officer asked them where the marijuana was located, and none of the men
responded. Id. The officer conducted a pat down search of the defendant, immediately
recognized a “lump” in the defendant’s left pants pocket, and removed a plastic bag
containing a lighter, cash, and crack cocaine. Id. A second officer arrived, conducted a
subsequent search of the Defendant, and found marijuana, a gun, and a loaded
ammunition clip. Id. The Defendant filed a motion to suppress arguing that the initial
pat down search of the Defendant was unconstitutional. Id. at *2. The court determined
that the officer had reasonable suspicion to support an investigatory detention and that
probable cause supported the search because the officer saw smoke and smelled
marijuana. Id. at *3. This court, likewise, concluded that the search was supported by
exigent circumstances because the Defendant could have escaped and had the ability to
dispose of the drugs, even in the presence of the officer. Id.
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Unlike Frederic A. Crosby and Reginald Allan Gillespie, the Defendant was the
only person at the scene other than the four police officers and the police dog who
responded to the traffic stop. For the majority of the incident, the Defendant sat on a curb
between the Avalanche and Officer Marrero’s patrol car, and at least one officer stood
near the Defendant while he sat on the curb. When the Defendant walked toward Officer
Park’s patrol car, Investigator Holmes and Officer Park escorted the Defendant, and both
officers stood near the Defendant when the Defendant removed items from his pockets.
Officer Park stood beside the Defendant while Investigator Holmes searched the
Defendant. After the search concluded, Investigator Holmes placed the Defendant in
Officer Park’s patrol car. The risk of the Defendant escaping or destroying evidence was
very low, if not non-existent, given the number of police officers present at the scene.
See State v. Boyce Turner, No. E2013-02304-CCA-R3-CD, 2014 WL 7427120, at *7
(Tenn. Crim. App. Dec. 30, 2014) (refusing to apply exigent circumstances exception in a
blood draw case when there were “at least five Johnson City police officers who
responded to the scene); see also State v. James Dean Wells, M2013-01145-CCA-R9-
CD, 2014 WL 4977356, at *5 (Tenn. Crim. App. Oct. 6, 2014) (upholding the trial
court’s finding that no exigency existed in a blood draw case when, among other things,
“five officers were simultaneously investigating the incident”). One of the officers could
have left the scene to obtain a search warrant without the Defendant’s escaping or
destroying evidence.
The State argued that the Defendant was notified to the issue of drug detection
when the drug dog indicated that it detected drugs during the search of the Avalanche and
that the warrantless search of the Defendant was necessary to prevent the destruction of
the marijuana. However, Investigator Jinks and Investigator Holmes testified that they
could not recall what they said to the Defendant during the incident other than that
Investigator Holmes asked the Defendant whether “he had anything on his person.”
Furthermore, the record reflects that the Defendant did not own the Avalanche and that
no drugs were found inside. The evidence does not show that the drug dog alerted to the
Defendant. Therefore, the evidence fails to show that the Defendant was “alerted to the
issue of drug detection” before the warrantless search of the Defendant. See Frederic A.
Crosby, 2014 WL 4415924, at *9.
In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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