State v. Winn

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION
February 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. No. 03C01-9702-CR-00081
*
Appellee, * HAMBLEN COUNTY
*
VS. * Hon. James E. Beckner, Judge
*
DWIGHT D. WINN, * (Certified question of law)
*
Appellant. *
For Appellant: For Appellee:
Paul G. Whetstone John Knox Walkup
502 North Jackson Street Attorney General and Reporter
Morristown, TN 37814
Michael J. Fahey, II
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, TN 37243
Victor Vaughn
Assistant District Attorney General
510 Allison Street
Morristown, TN 37814
OPINION FILED:__________________
REVERSED AND REMANDED
GARY R. WADE, JUDGE
OPINION
The defendant, Dwight D. Winn, pled guilty to simple possession of
marijuana, a Class A misdemeanor, reserving a certified question of law for appeal.
Tenn. R. Crim. P. 37(b)(2)(i). The trial court imposed a sentence of eleven months
and twenty-nine days and fined the defendant two hundred fifty dollars.
In this appeal, the defendant asserts that the trial court should have
sustained his motion to suppress. Initially, the defendant asserts that the law
enforcement officer had no basis to frisk him at the sobriety checkpoint. Secondly,
the defendant questions whether the officer had probable cause to remove the
contents of his rear pants pocket under the "plain feel" doctrine. We must reverse
the judgment of the trial court and remand the cause to the trial court.
On March 23, 1996, Officer Phil Hurst, who by then had worked for the
DUI enforcement unit of the Morristown Police Department almost five years, began
a random DUI checkpoint on Highway 25-E at approximately 10 p.m. Later, when
the defendant stopped at the checkpoint and provided his driver's license, Officer
Hurst noticed he had “watery or glassy type eyes" and "seemed a little confused."
When asked his destination, the defendant replied “Mississippi Alabama.” Officer
Hurst suspected the defendant might be under the influence and directed him to
stop his vehicle for further investigation.
Officer Hurst, who described the defendant as cooperative and able to
operate his vehicle without difficulty, conducted a frisk as soon as the defendant
stepped outside his car. When he "ran across a bundle" in the defendant's left rear
pocket, the officer concluded the bundle was like marijuana he "had felt before in
the past ...." The officer then removed the substance from the defendant's pocket,
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arrested him and inventoried his vehicle. Later, while at the police department, the
defendant performed sobriety tests satisfactorily. There were no charges for driving
under the influence.
While Officer Hurst testified that the basis for his suspicions was the
defendant’s "impaired driving," he acknowledged that he had not seen the
defendant drive in an unusual manner. He conceded that he had not obtained
consent for the frisk.
The officer denied that race was the basis for his further investigation
of the defendant, who is African-American. He recalled on the same evening,
asking a Caucasian female, whom he did not frisk, to pull her vehicle to the side for
further investigation. Although he admitted that he did not frisk everyone before
conducting sobriety tests, Officer Hurst thought that the better practice was to do so
in each instance.
At the time of the hearing, the defendant, a thirty-four-year-old
Morristown resident, had been an employee of Lear Seating for fourteen years. He
testified that as he approached the checkpoint, an officer directed him to the side of
the roadway, requested his driver's license, and asked if he had been drinking or
had any empty containers in the car. The defendant replied in the negative and told
the officer that he had just awoken and was traveling to his aunt's funeral in
"Alabama Mississippi." He claimed that when Officer Hurst asked for clarification,
he answered "Alabama via Mississippi" so that he could pick up his cousin along the
way. The defendant recalled consenting to a search of his vehicle and stepping out
of his car. Officer Hurst, without any prior indication of his intentions, searched his
front pockets. The defendant explained that he pushed the officer's hands away
3
because he did not think the officer had any reason to search. He acquiesced only
when the officer became more forceful. The officer removed several items, such as
business cards and chapstick, from his front pockets then searched a rear pocket,
where he found the marijuana.
The trial court ruled as follows on the motion to suppress:
When the defendant exited the automobile to
perform the field sobriety tests, the officer conducted a
pat-down. Terry allows a person [] detain[ed] under
articulable, reasonable suspicion of criminal activity to be
patted down .... The pat-down would have to be before
the field sobriety tests were given because that's the
point at which danger would be to the officer. If an officer
w[ere] negligent enough to intend to conduct a pat-down
subsequent to a field sobriety check ... this defendant
wasn't, but if he was one of those that had a weapon in
his pocket, the officer would probably be dead by the
time field sobriety tests were over with. So the only
sensible time to make a Terry pat-down is when the
defendant would first leave the vehicle....
The next question is, in his search for weapons,
when he felt this thing in the defendant's pocket that felt,
under his training ... and experience ... like a package of
marijuana ... and you certainly have exigent
circumstances then, and the search is appropriate....
So from all those facts and circumstances, I
believe the state can sustain its position in making the
detention and the subsequent pat-down and search.
And the motion to suppress must be overruled.
Our scope of review is limited. A trial court's findings of fact are
conclusive on appeal unless the evidence preponderates otherwise. State v. Odom,
928 S.W.2d 18 (Tenn. 1996); State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App.
1981); Graves v. State, 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973); see Tenn. R.
Crim. P. 12(e). Yet, this court must conduct a de novo review of the trial court's
application of law to fact. State v. Ray Anthony Bridges, ___ S.W.2d ___, No.
02S01-9606-CC-00053, slip op. at 4 (Tenn., at Jackson, Dec. 31, 1997); State v.
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Wayne Lee Yeargan, ___ S.W.2d ___, No. 01S01-9604-CC-00080, slip op. at 5
(Tenn., at Nashville, Nov. 24, 1997).
Initially, both the state and federal constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, §
7. An automobile stop constitutes a "seizure." See Michigan Dep't of State Police v.
Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 2485 (1990); State v. Pully, 863 S.W.2d
29, 30 (Tenn. 1993). Sobriety checkpoints have been upheld as constitutional
intrusions if operated under previously determined guidelines that limit the law
enforcement officer's discretion and also limit intrusions into areas protected by the
Fourth Amendment. State v. Downey, 945 S.W.2d 102, 104 (Tenn. 1997); see Sitz,
496 U.S. at 455, 110 S. Ct. at 2488. In Terry, the United States Supreme Court
ruled as follows:
We merely hold today that where a police officer ...
reasonably [ ] conclude[s] ... that criminal activity may be
afoot and that the persons with whom he is dealing may
be armed and presently dangerous ... and where nothing
in the initial stages of the encounter serves to dispel his
reasonable fear for ... safety, he is entitled for [ ]
protection ... to conduct a carefully limited search ... to
discover weapons....
392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968). The Fourth Amendment permits a
protective frisk where a law enforcement officer has reasonable suspicion that the
suspect is armed. Id. at 27, 88 S. Ct. at 1883; Hughes v. State, 588 S.W.2d 296,
304 (Tenn. 1979). Reasonable suspicion is suspicion which is supported by specific
and articulable facts. United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690,
695 (1981). These facts may stem from information provided by other law
enforcement personnel, agencies or citizens; it may be derived from known patterns
of criminal behavior or gleaned from the officer's experience. Bridges, slip op. at 10.
5
The defendant argues that Officer Hurst was not justified in the frisk
because a suspicion for driving under the influence would not allow the officer to
infer use of a weapon. In Hughes v. State, 588 S.W.2d 296, 304, 309 (Tenn. 1979),
overruled on other grounds by State v. Leveye, 796 S.W.2d 948 (Tenn. 1990), our
supreme court, in ruling that the frisk was not warranted, placed importance on both
the nature of the suspected offense and the reasonableness of the belief that the
suspect was armed:
In Terry, the suspected criminal activity was preparation
for an armed robbery; here it was a mere possessory
offense. In Terry, the pat-down was validated on the
basis of a founded fear of the possession of weapons;
here, again, it was a possessory offense with no
suspicion that [the] defendant was going armed.
A frisk has been upheld as reasonable when the suspected crime might typically
involve the use of a weapon; for example, a suspicion of robbery, burglary, rape,
assault with a weapon, homicide, and large scale narcotics trafficking might allow an
officer to reasonably infer that a weapon might be in the possession of the suspect.1
When, however, the likely crime does not involve a weapon, "other circumstances"
must be present to justify a Terry frisk. Sibron v. New York, 392 U.S. 40, 74, 88 S.
Ct. 1889, 1907 (1968) (Harlan, J., concurring)). 2 Because a suspected driver under
the influence would not likely fall into the category of those who would be expected
to be armed, this court must consider examples of "other circumstances":
[A] characteristic bulge in the suspect's clothing;
observation of an object in the pocket which might be a
weapon; an otherwise inexplicable sudden movement
toward a pocket or other place where a weapon could be
concealed; an otherwise inexplicable failure to remove a
1
See e.g., Unite d Sta tes e x rel. R icha rdso n v. R und le, 461 F.2d 860 (3d Cir. 1972)
(robber y); People v. Myles, 50 Cal. Ap p. 3d 423 , 123 Ca l. Rptr. 348 ( 1975) (b urglary); People v.
Shackelford , 546 P.2d 964 (C olo. 1976 ) (rape); United States v. Kikumura , 918 F.2d 1084 (3d Cir.
1990) (a ssault with a weap on); State v. Gilchrist, 299 N.W .2d 913 ( Minn. 19 80) (hom icide); United
State s v. S inclair , 983 F.2d 598 (4th Cir. 1993) (drug trafficking).
2
See, e.g., State v. Thomas , 542 A.2d 912 (N .J. 1988) (posse ssion of mariju ana); W hitten v.
United States, 396 A.2d 208 (D .C. App . 1978) (s hoplifting); State v. Fales, 540 A.2d 1120 (Me. 1988)
(driving under the influence).
6
hand from a pocket; backing away by the suspect under
circumstances suggesting he was moving back to give
himself time and space to draw a weapon; awareness
that the suspect had previously been engaged in serious
criminal conduct; awareness that the suspect had
previously been armed; [and] discovery of a weapon in
the suspect's possession....
LaFave, Search and Seizure, § 9.5(a) (3d ed. 1996 & Supp. 1997) (footnotes and
citations omitted); accord State v. Sanders, 435 S.E.2d 842 (N.C. App. 1993) (Terry
frisk of driver stopped at roadblock was justified when driver provided no license or
registration, admitted he was not owner of car, and had a bulge in front pocket the
size of two fists); State v. Tilton, 561 N.W.2d 660 (S.D. 1997) (Terry frisk justified for
vehicle passenger stopped at sobriety checkpoint who was hostile and
uncooperative, had suspicious bulge in his pocket, and refused to remove his hands
from his pockets).
The state's position is that law enforcement officers are justified in
conducting a protective frisk of a suspect because vehicle stops subject officers to
heightened danger. The state argues that the officer acted upon a reasonable,
articulable suspicion in conducting the frisk based on the following facts: (1) that the
defendant had glassy eyes; (2) that his response to a question about his destination
was a "little confused"; and (3) that he attempted to push away the officer's initial
attempt to search. In support of its position, the state argues that Michigan v. Long,
463 U.S. 1032, 103 S. Ct. 3469 (1983), controls. In that case, the United States
Supreme Court made the following observation:
[I]nvestigative detentions involving suspects in vehicles
are especially fraught with danger to police.... In
Pennsylvania v. Mimms we held that police may order
persons out of an automobile during a stop for a traffic
violation, and may frisk those persons for weapons if
there is a reasonable belief that they are armed and
dangerous....
Id. at 1047-48, 103 S. Ct. at 3480 (citations omitted)(emphasis added).
7
In our view, Long is distinguishable from these circumstances. Initially,
the issue in Long was whether the officers could expand the Terry frisk to the
vehicle, not whether the frisk of his person was justified. Id. at 1037, 103 S. Ct. at
3474. Secondly, the behavior of the suspect and the presence of a weapon in the
vehicle were determinative. Id. at 1051, 103 S. Ct. at 3482. Prior to the stop, the
officers had observed the car travel erratically and in excess of the speed limit
before swerving into a ditch. When Long stepped out of his vehicle, he left the door
ajar. He then failed to respond to requests by officers for license and registration
information and he appeared to be under the influence. It was only when Long
turned toward the vehicle and the officers who followed observed a hunting knife in
the floorboard of the front seat that the frisk took place. Id. at 1035-37, 103 S. Ct. at
3473-74.
Here, the trial court concluded that the frisk was reasonable because
there was a basis to suspect criminal activity; it did not, however, articulate a factual
basis for any inference that the defendant might be armed and dangerous. Unlike
the officers in Long, Officer Hurst offered no proof that he had observed a weapon
or even suspected the defendant of possessing a weapon. He observed no
suspicious bulges and acknowledged that the defendant did not act defensively until
he attempted to search his pockets. Officer Hurst had no prior knowledge of this
defendant and no basis for any suspicion of prior violence or any history of going
armed. The crime of driving under the influence does not necessarily imply the use
of a weapon. Although the hour was late, the proof offered by the state was that the
defendant was cooperative; that he provided a valid driver's license; and that he had
offered plausible explanations for the appearance of his eyes and destination. The
defendant carried luggage which was plainly visible in the back seat of his car.
These factors tend to negate suspicion of the defendant rather than enhance it.
8
Although a detention for sobriety tests may have been warranted, Officer Hurst had
no articulate basis to frisk the defendant for weapons. His suspicion that the
defendant was under the influence turned out to be unfounded.
Where the search of a defendant was unlawful and invalid, the
exclusionary rule generally requires suppression of its fruits. Weeks v. United
States, 232 U.S. 383, 34 S. Ct. 341 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct.
1684 (1961); Hughes v. State, 238 S.W. 588 (Tenn. 1922); State v. Patton, 898
S.W.2d 732 (Tenn. Crim. App. 1994); Tenn. R. Crim. P. 41(f). The dual purposes of
the exclusionary rule are to protect fundamental individual liberties and to deter
improper police conduct. Patton, 898 S.W.2d at 734. Because the frisk of the
defendant was an unconstitutional intrusion, we must hold that the marijuana was
unlawfully seized and should have been suppressed.
In his second issue, the defendant argues that the "bulge" in his rear
pocket was an insufficient basis for the officer to conclude that it was an illegal
substance. The state contends that the officer's search and seizure of marijuana
from the defendant is justified under the "plain feel" doctrine because the content of
the lump was immediately apparent to the officer based on his experience and
training.
In Bridges, our supreme court articulated the three requirements for
seizure of evidence under the "plain feel" doctrine:
1) a prior valid reason exists for the intrusion, i.e., the
patdown must be permissible under Terry;
2) the contraband is detected while the Terry search for
weapons legitimately is still in progress; and,
3) the incriminating nature of the object perceived by the
officer's sense of touch is immediately apparent giving
the officer probable cause to believe the object is
contraband prior to its seizure.
9
Slip op. at 15 (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993)).
In Bridges, the officer felt a pill bottle in the defendant's jacket pocket while
conducting a Terry frisk. The officer testified that he immediately recognized the
bottle and "knew it was the kind that a lot of other dealers will use to keep their crack
in." Id., slip op. at 17. The court held that the officer lacked probable cause to
remove and open the container. Id., slip op. at 19. It ruled that the officer could not
have discerned the contents of the bottle from merely touching the container:
Courts should not surrender their common sense
assessment of the sensory capacities of human touch to
an officer's assertion that he or she "immediately knew"
the nature of the object touched. The officer's subjective
belief that the object is contraband is not sufficient unless
it is objectively reasonable in light of all the
circumstances known at the time of the search.
Id., slip op. at 16.
In resolving the first issue, we determined that the frisk was unjustified.
Thus, the first requirement for seizure of evidence under "plain feel," that the frisk is
permissible under Terry, has not been satisfied. In our view, the state has also
failed to satisfy the requirement that the officer have probable cause to believe the
object is contraband. Here, as in Bridges, the officer provided no objective facts
upon which to base his determination that the bundle in the defendant's rear pocket
was contraband. The bare assertion of his subjective belief that the contents of the
bundle were "like [he] had felt before in the past that turned out to be marijuana"
was inadequate. There are also policy reasons that tend to limit the authority of the
officer in circumstances such as these. First, sobriety checkpoints are lawful but
must be conducted in such a way that minimizes discretion of officers and limits
intrusions into areas protected by the Fourth Amendment. Downey, 945 S.W.2d at
104. Second, the plain feel doctrine must be applied with "exacting limitations."
Bridges, slip op. at 18-19.
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Accordingly, the judgment of the trial court is reversed and the
evidence is ordered to be suppressed. The cause is remanded to the trial court.
__________________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
David H. Welles, Judge
_______________________________
Jerry L. Smith, Judge
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