                        IN THE SUPREME COURT OF TENNESSEE
                                   AT NASHVILLE
                                February 5, 2002 Session

             STATE OF TENNESSEE v. DAVID WALTER TROXELL

                  Appeal by permission from the Criminal of Criminal Appeals
                             No. CR-4933 Robert Burch, Judge


                        No. M2002-01100-SC-R11-CD - Filed May 28, 2002




FRANK F. DROWOTA , III, C.J., dissenting.


        I dissent from the majority’s finding that the search at issue in this appeal violated the Fourth
Amendment to the United States Constitution and Article I, § 7 of the Tennessee Constitution. At
the outset, it is important to emphasize that this appeal involves a very narrow issue. The defendant
has not challenged the legality of the initial stop, the legality of the officer’s request for consent, the
voluntariness of his consent, or the legality of the search of the fuel tank which occurred at the
service station where approximately 300 grams of cocaine were discovered. Furthermore, the
defendant has not asserted that the length of the detention rendered the search unreasonable and
unconstitutional. The defendant’s sole argument on appeal is that the search exceeded the scope of
the consent given because Trooper Norrod looked underneath the truck. The basis for this assertion
is the defendant’s claim that Trooper Norrod’s request for permission to search for “weapons in the
vehicle”1 and the defendant’s consent to that request limited the search to only the interior passenger
compartment of the vehicle. This entire appeal, therefore, turns upon the meaning of the word “in.”
Did the officer’s use of this word limit the search to the passenger compartment of the vehicle? In
my view, the manifest answer to this question is no. Therefore, I disagree with the majority and
would affirm the judgment of the Court of Criminal Appeals which held that the search did not
exceed the scope of the defendant’s consent.

                                               Consent
        As the majority accurately states, the facts are undisputed; therefore, the standard of review
is de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The governing law is
straightforward. A search conducted pursuant to consent is constitutionally valid, but the consent
must be “unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.’”


        1
          Trooper Norrod asked the defendant, “Do you have any w eapons in the vehicle?” T roxell responded, “No,
nothing.” When Trooper Norrod asked if he could “take a look,” Troxell answered, “Yeah, go ahead.”
State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998) (quoting State v. Brown, 836 S.W.2d 530, 547
(Tenn.1992)). Even if consent is voluntary, the search must not exceed the scope of the consent, or
evidence seized as a result of the search will not be admissible. See generally 3 Wayne R. LaFave,
Search and Seizure, § 8.1(c) (3d ed. 1996). In evaluating the validity of a consent search it is
important to consider any express or implied limitations or qualifications which may establish the
permissible scope of the search in terms of time, duration, area, or intensity of police activity. Id.
The subjective intentions and interpretations of the consenting party and the searching officer are not
relevant to this evaluation. Id. The governing standard is “that of ‘objective’ reasonableness – what
would the typical reasonable person have understood by the exchange between the officer and the
suspect.” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed.2d 297 (1991);
State v. McCrary, 45 S.W.3d 36, 44 (Tenn. Crim. App. 2000), perm. app. denied (Tenn. 2001). The
understanding of a “typical reasonable person” will generally depend upon the expressed object of
the search. Id. Thus, in Jimeno, the United States Supreme Court concluded that, when the motorist
consented to a search for narcotics, it was objectively reasonable and constitutionally permissible
for the officer to search containers within the vehicle that could be used to hide drugs. Id. at 251,
111 S. Ct. at 1804. Similarly, the Court of Criminal Appeals held that when a motorist consented
to a search of her vehicle for alcohol, narcotics and weapons, it was objectively reasonable and
constitutionally permissible for the officer to search the “covered, but easily accessible, cargo area
of the vehicle and any unlocked containers or luggage inside the vehicle” that could have contained
those items. McCrary, 45 S.W.3d at 44. In other words, when an officer requests consent to search
for certain items, the search may constitutionally extend to any and all areas that could contain the
items being sought. See, e.g., People v. Najjar, 984 P.2d 592, 596 (Colo. 1999); United State v.
Martinez, 949 F.2d 1117 (11th Cir. 1992); 3 Wayne R. LaFave, Search and Seizure at § 8.1(c) n.75
(3d ed. 1996) (citing cases). For example, “[o]fficers who receive consent to search for a stolen
wide-screen television set, . . . would act unreasonably by expanding their search to include small
containers or drawers where such an item could not possibly be located.” Najjar, 984 P.2d at 596.

        As previously stated, the defendant in this appeal says that when he consented to Trooper
Norrod’s request to search for weapons “in the vehicle,” he believed the search would be limited to
the interior passenger compartment of the truck. The defendant urges that his understanding of the
exchange is objectively reasonable and therefore asserts that the search of the undercarriage of his
vehicle exceeded the scope of his consent. I do not agree.

        While the defendant may have subjectively believed that the phrase “in the vehicle” referred
only to the interior passenger compartment of the pickup truck, the defendant’s belief was not
objectively reasonable. At no time during the verbal exchange between the defendant and Trooper
Norrod did the defendant place such a limitation on the search. Trooper Norrod requested and
received consent to search for weapons “in the vehicle.” Therefore, it was objectively reasonable
for Trooper Norrod to conclude that the defendant’s consent encompassed any and all areas “in the
vehicle” which could contain or be used to hide weapons. The undercarriage of the vehicle and the
gas tank are certainly “in the vehicle.” In fact, without the gas tank, a vehicle is immobile. In
addition, the uncontroverted proof in this record reveals that the gas tank is an area where weapons
can be concealed. Indeed, Trooper Norrod testified without contradiction that, based upon his


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experience and training as a law enforcement officer involved in interdiction, weapons can be
concealed in a vehicle’s gas tank.2

        Moreover, my conclusion that this search was objectively reasonable and did not exceed the
scope of the consent is consistent with and supported by the decisions of many other courts which
have confronted similar circumstances. See, e.g., United States v. West, 219 F.3d 1171 (10th Cir.
2000)(holding that a search of the trunk was within the scope of consent to “look in the vehicle”);
United States v. Zapata, 180 F.3d 1237 (11th Cir. 1999) (holding that a search behind an interior
door panel of a vehicle did not exceed the scope of consent to search the vehicle for “drugs, guns,
weapons, and large sums of money”); United States v. Anderson, 114 F.3d 1059 (10th Cir. 1997)
(holding that a full search of the automobile, including an examination of the undercarriage and the
gas tank, did not exceed the scope of consent to “scout around” the vehicle); United States v. Mcrae,
81 F.3d 1528 (10th Cir. 1996) (holding that consent to officer’s request to “look in the car” included
a search of the trunk during which officers lifted the carpet and otherwise dismantled areas of the
trunk); United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995) (holding that consent to search a
truck for guns or contraband was not limited in scope to the passenger compartment of the vehicle
and encompassed the rear camper and truck bed); United States v. McSween, 53 F.3d 684 (5th Cir.
1995) (holding that a search under the hood was within the scope of consent to “look in” the car and
trunk); United States v. Sierra -Hernandez, 581 F.2d 760 (9th Cir. 1978) (holding that a search
beneath the hood and inside the cargo portion of a truck did not exceed the scope of consent to “look
inside the truck”); State v. Jones, 592 So.2d 363 (Fla. Ct. App. 1992) (holding that a search of the
undercarriage of a car, which resulted in the discovery of a large amount of cocaine in the fuel tank,
did not exceed the scope of consent to “search the vehicle”). Regardless of this contrary authority,
the majority decision appears to impose a high level of specificity on officers requesting consent.
Apparently, the majority’s conclusion in this case would have been different had Trooper Norrod
requested permission to search “the vehicle” for weapons rather than requesting permission to search
for weapons “in the vehicle.” Such specificity is neither required by nor appropriate to this
constitutional analysis. The governing standard is objective reasonableness, not linguistic
specificity.3

        Also supporting the conclusion that this search did not exceed the scope of the consent is the
fact that the defendant failed to object to the breadth of the search or attempt to confine its scope in
any way. As the Court of Criminal Appeals concluded, the videotape does not suggest or indicate
that the officers prevented the defendant from objecting. In fact, the defendant testified that he did


         2
           I do not contend, as the majority opinio n sugge sts, that the co nsent was itself sufficient to justify a search of
the interior o f the gas tan k. Instead , I conclude, consistent with defense counsel’s concession during oral argument, that
the officer’s observations of the exterior of the gas tank established probable cause supporting a search of the interior
of the gas tank.

         3
           According to the majority, an officer should have no problem spec ifying that he or she wishes to search “under
the car” and the “gas tank.” Again, the standard is objective reasonableness, and, consistent with this standard, previous
court decisions have declined to require such linguistic specificity because a search is confined by the object of the
search. McC rary, 45 S .W .3d at 44.

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not feel “threatened” and was merely “irritated” by the police activity which he described as a
“nuisance.” Although a failure to object cannot expand a limited consent, a defendant’s failure to
object to the breadth of a search is an indication that the search was within the scope of the initial,
contemplated consent. Anderson, 114 F.3d at 1065; Mcrae, 81 F.3d at 1538; Wacker, 72 F.3d at
1470; United States v. Flores, 63 F.3d 1342, 1362 (5th Cir. 1995); McSween, 53 F.3d at 688; United
States v. Torres, 32 F.3d 225, 231-32 (7th Cir. 1994); Sierra-Hernandez, 581 F.2d at 764.

                                              Conclusion
        For these reasons, I dissent from the majority’s decision holding the search unconstitutional.
In my view, Trooper Norrod’s actions in examining the undercarriage of the truck, tapping on the
gas tank, and re-examining the gas tank with a flashlight and mirror were objectively reasonable and
did not exceed the scope of the defendant’s consent to search “in the vehicle” for weapons.
Accordingly, I would affirm the judgment of the Court of Criminal Appeals.




                                               _____
                                               FRANK F. DROWOTA, III, CHIEF JUSTICE




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