             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1997 SESSION
                                                      FILED
                                                        August 25, 1997

STATE OF TENNESSEE,            )                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
                               )
             Appellee,         )    No. 02C01-9610-CC-00356
                               )
                               )    Weakley County
v.                             )
                               )    Honorable William B. Acree, Judge
                               )
DAVID PRICE,                   )     (Certified question of law)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

Joseph P. Atnip                     Charles W. Burson
District Public Defender            Attorney General of Tennessee
       and                                 and
James David Kendall                 Marvin E. Clements, Jr.
Assistant Public Defender           Assistant Attorney General of Tennessee P.O.
111 Main Street                     450 James Robertson Parkway
Box 734                             Nashville, TN 37243-0493
Dresden, TN 38225
(AT TRIAL)                          Thomas A. Thomas
                                    District Attorney General
James H. Bradberry                          and
P.O. Box 789                        Jim Cannon
Dresden, TN 38225                   Assistant District Attorney General
(AT TRIAL AND ON APPEAL)            P.O. Box 218
                                    Union City, TN 38261




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



             The defendant, David Price, was convicted upon his guilty plea in the

Circuit Court of Weakley County for possession with the intent to sell marijuana, a

Class E felony. He received a sentence of one year in the custody of the Department

of Correction as a Range I, standard offender to be served in the county jail and a fine

of two thousand dollars. The defendant appeals as of right a certified question of

search and seizure law that is dispositive of this case: whether the stop and subsequent

search of the defendant’s vehicle violated his Fourth Amendment rights under the

United States Constitution and Article I, Section 7 of the Tennessee Constitution. See

T.R.A.P. 3(b); Tenn. R. Crim. P. 37(b). We affirm the trial court.



             At the suppression hearing, Officer Ron Powers of the Martin Police

Department testified that he saw the informant sitting in a car near a bar in Martin. He

said that upon approaching the informant’s car, he smelled marijuana and discovered a

small amount of marijuana in the car. Officer Powers stated that the informant told him

that he could turn in someone much bigger. He said that he did not arrest the

informant, but instead, he and the informant met with the Drug Task Force. Officer

Powers testified that the informant told the officers that he knew the defendant, that he

had made several trips to Martin to purchase drugs from the defendant, and that he

could arrange a purchase of a quarter of a pound of marijuana from the defendant.



              Officer Powers testified that although he was not present when the call

was made, the informant told him that he had called the defendant, that the defendant

agreed to meet with the informant between 3:00 and 5:30 the next day at either the

informant’s workplace or at the informant’s house after work, and that the cost of the

drugs was two hundred and forty-five dollars. Officer Powers stated that the informant

said that the defendant would be driving a blue, Mazda kingcab truck with a black



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toolbox in the back and Gibson County tags, but he did not describe the defendant’s

appearance. Officer Powers conceded that the informant had never been used in the

past and that he did not know the informant.                   .



              Officer Powers testified that the next day, he and Officer Tack Simmons of

the Drug Task Force drove to a truck stop in Gibson County near the Weakley County

line. He said that Officer Osborne and TBI Agent Champine went to another truck stop

to conduct surveillance. He stated that after waiting a couple of hours, he saw a blue,

Mazda kingcab truck with Gibson County tags traveling in the direction of the

informant’s house and workplace. Officer Powers testified that he and Agent Champine

began following the defendant in separate vehicles. According to Officer Powers, Agent

Champine radioed that the defendant was driving sixty-two miles per hour, and the

defendant was stopped at approximately 5:30 p.m. He stated that when he informed

the defendant that he was speeding, the defendant said that he remembered Officer

Powers from an earlier stop when the defendant possessed marijuana. Officer Powers

said that he told the defendant that he was going to give him a warning for the speeding

and then asked for permission to search the defendant’s truck, but the defendant

refused. He testified that he told the defendant that a drug dog was with them and that

they were going to take the dog around the truck. Officer Powers stated that Officer

Simmons took the dog around the truck, and when the dog alerted that drugs were in

the truck, the defendant stated, “It’s in the toolbox.”



              On cross-examination, Officer Powers admitted that he did not know

anything about the informant’s prior criminal history and that the informant had not

previously given any information as an informant. According to Officer Powers, the

informant placed the call to the defendant approximately one hour after he caught the

informant with marijuana. He conceded that the prosecutor made a deal with the

informant after the informant called the defendant and stated that the deal was that the



                                              3
charges for possession of marijuana would be dropped if the informant assisted them in

turning in someone for a bigger possession of marijuana case. Officer Powers

acknowledged that he had spoken to the prosecutor about obtaining a warrant but

stated that a warrant was not obtained because he did not believe that the informant

was reliable because he had never been used in the past. He testified that he believed

the informant to be credible after he made the drug deal with the defendant. Officer

Powers also conceded that he did not personally observe the defendant speeding and

admitted that the officers planned on stopping the defendant based upon the

informant’s information regardless of the traffic violation. He stated that he routinely

gave a warning rather than a traffic citation followed by a request for permission to

search the vehicle. Officer Powers testified that the officers did not wait to stop the

defendant until the defendant arrived at the informant’s house for safety reasons and to

protect the identity of the informant.



              Officer Bryan Osborne of the Obion County Sheriff’s Department testified

that he was present when the informant called from the Drug Task Force’s cellular

telephone to arrange the drug deal with the defendant. He stated that he watched the

informant punch in the phone number and said that the informant knew the defendant’s

phone number. Officer Osborne testified that he could hear the informant, but not the

defendant, and that he heard the informant say that he needed to buy a “quarter” from

the defendant and that he would see the defendant either at work or at home after 3:00

the next day. He said that what he heard from the conversation made him believe that

the informant knew the defendant and that the informant had purchased drugs from the

defendant on earlier occasions. Officer Osborne also testified that he was with Agent

Champine when the defendant was being followed and when Agent Champine stopped

the defendant for speeding. He stated that Agent Champine paced the defendant to

determine whether the defendant was speeding, although Officer Osborne did not




                                             4
personally observe the defendant speeding. He admitted that he did not know anything

about the informant’s background.



              Officer Tack Simmons, a member of the Drug Task Force with the Union

City Police Department, testified that he took the drug dog around the defendant’s truck

and that the dog scratched on the toolbox, indicating that drugs were inside. He

admitted that he did not know anything about the informant’s background and that he

did not know the defendant other than that he was a white male.



              Officer Scott Robbins testified that as the shift commander, he was

advised at the beginning of the shift to be looking for a blue, Mazda truck with Gibson

County tags and a toolbox because the Drug Task Force was looking for the defendant.

He said that he had no information about the informant’s call to the defendant or any

other information about a drug delivery by the defendant.



              The trial court overruled the defendant’s motion to suppress, concluding

that the officers had probable cause to stop and search the defendant’s vehicle. The

trial court also found that the defendant voluntarily informed the officers of the location

of the drugs after the dog alerted that drugs were contained in the toolbox.



              The defendant contends that the trial court erred by overruling his motion

to suppress. He maintains that the stop and search of his vehicle violated his Fourth

Amendment rights because the state failed to establish that the informant was reliable

and that the deficiency had not been overcome by proof of independent police

corroboration. In support of his argument, the defendant relies upon State v. Coleman,

791 S.W.2d 504 (Tenn. Crim. App. 1989). The state responds that the trial court

properly overruled the defendant’s motion to suppress because the officers had

probable cause to stop the defendant for a traffic violation. The state also asserts that



                                             5
the officers had reasonable suspicion to stop the defendant based upon the informant’s

information that was also corroborated by the officers.



              Both the state and federal constitutions protect individuals from

unreasonable searches and seizures. An automobile stop constitutes a “seizure” within

the meaning of both the Fourth Amendment of the United States Constitution and

Article I, Section 7 of the Tennessee Constitution. 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); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994).

Generally, we note that the police are entitled to stop a car for investigative purposes if

they have reasonable suspicion, based upon specific and articulable facts, that an

offense is being or is about to be committed. See State v. Watkins, 827 S.W.2d 293,

295 (Tenn. 1992).



              When a stop is based on the tip of an informant, the factors set forth in

State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), are useful in considering the

reliability of the tip. Pully, 863 S.W.2d at 31. Our supreme court adopted the two-prong

test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and Spinelli v. United

States, 393 U.S. 410, 89 S. Ct. 584 (1960). Id. at 436. In Aguilar, the United States

Supreme Court concluded that there must be a “basis of knowledge” when an officer

relies on an informant’s tip. The “veracity” prong of the Aguilar-Spinelli test requires a

showing that the informant is credible or the information is reliable. The Jacumin court

held that:

              while independent police corroboration could make up
              deficiencies in either prong, each prong represents an
              independently important consideration that “must be separately
              considered and satisfied in some way.”

778 S.W.2d at 436 (quoting Commonwealth v. Upton, 476 N.E.2d 548, 557 (Mass.

1985)); see Pully, 863 S.W.2d at 31. An investigatory stop based upon reasonable




                                             6
suspicion requires “‘a lower quantum of proof than probable cause.’” Pully, 863 S.W.2d

at 31.

                “Reasonable suspicion is a less demanding standard than
                probable cause not only in the sense that reasonable suspicion
                can be established with information that is different in quantity
                or content than that required to establish probable cause, but
                also in the sense that reasonable suspicion can arise from
                information that is less reliable than that required to show
                probable cause.”

Id. at 32 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)).

The question of reasonable suspicion is answered by considering the totality of the

circumstances, including looking at the gravity of the public concern at stake, the

degree the police intrusion advances that concern and the severity of the intrusion.

See Pully, 863 S.W.2d at 30; Watkins, 827 S.W.2d at 294.



                On appeal, the trial court’s findings of fact and conclusions of law at the

conclusion of a suppression hearing will be upheld unless the evidence preponderates

otherwise. State v. Odom, 928 S.W.2d 18, 22-23 (Tenn. 1996). The defendant bears

the burden of demonstrating that the evidence preponderated against the trial court’s

findings. Id.



                The state acknowledges on appeal that it conceded at the suppression

hearing that the stop of the defendant was a pretextual stop in that the stop was not

based upon the speeding violation, but upon the drug information. However, it relies

upon Whren v. United States, 517 U.S. ___, 116 S. Ct. 1769 (1996), and State v.

Davey Joe Vineyard and Jimmy Lee Cockburn, Nos. 03C01-9502-CR-00052 & 03C01-

9502-CR-00053, Bradley County (Tenn. Crim. App. July 18, 1996), app. granted (Tenn.

Dec. 12, 1996), to argue that the trial court properly ruled that the stop was reasonable

because the officers had validly stopped the defendant for a traffic violation, regardless

of their motive to investigate for drugs during the stop. In Whren, the United States

Supreme Court held that a traffic stop is reasonable under the Fourth Amendment



                                               7
when the police have probable cause to believe that a traffic violation has occurred

regardless of the actual motivations of the officers involved, unless the stop is for a

constitutionally impermissible reason, such as selective enforcement of the law based

upon considerations such as race. 517 U.S. at ___, 116 S. Ct. at 1774. Thus, the stop

in the present case was reasonable under our federal constitution.



              Also, this court followed Whren in Vineyard, a case that is presently

before the Tennessee Supreme Court, for consideration of the traffic stop issue under

Tennessee law. We need not determine in this case, though, whether the Tennessee

Constitution provides greater protection than the Fourth Amendment, because we

conclude that the officers had the right to stop the defendant based upon the

informant’s information as corroborated by the officer’s observations.



              The officers were sufficiently apprised of the informant’s basis of

knowledge through the informant’s telephone call to the defendant arranging a drug

sale. The informant told Officer Powers that the defendant agreed to sell to him a

quarter of a pound of marijuana the next day. Officer Osborne overheard the informant

making the phone call. Moreover, the informant said that he had purchased drugs from

the defendant on earlier occasions. These facts establish the informant’s basis of

knowledge.



              Regarding the veracity prong, the evidence reflects that Officer Powers

did not know the informant before he saw him smoking marijuana in his car outside a

bar. Also, the officers knew nothing about the informant’s background, including any

prior criminal history, and the informant had never given the officers information in the

past. However, the informant told Officer Powers that he could turn in someone much

bigger. The informant then made a deal for the defendant to sell a quarter of a pound




                                             8
of marijuana the next day. Officer Osborne overheard the informant making the

arrangement.



              The informant disclosed to the officers that the defendant said that he

would meet him at work or at his home between 3:00 and 5:30, and he described the

defendant’s vehicle as a blue, Mazda kingcab truck with a black toolbox and Gibson

County tags. The officers began surveillance at a truck stop near the county line and

saw a truck matching the description given by the informant and traveling in the

direction of the informant’s workplace and home at approximately 5:30 p.m.



               We believe that the facts of this case are distinguishable from those in

Coleman where an anonymous informant called the police claiming that the defendant

was driving an older model black Monte Carlo along a specified highway and that the

vehicle contained marijuana. Though the informant’s statements were not sufficient by

themselves to establish probable cause to stop the defendant, we hold that the facts

sufficiently demonstrate that, given the statements and the corroboration, the officers

had, at least, reasonable suspicion supported by specific and articulable facts that a

crime was being or was about to be committed by the defendant.



               We must also determine whether the detention of the defendant was

reasonable. Upon stopping a motor vehicle based on “reasonable suspicion, supported

by specific and articulable facts, that a criminal offense has been or is about to be

committed,” an officer may briefly detain the occupants of the vehicle for questioning.

See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Watkins, 827 S.W.2d at

294. Here, after stopping the defendant, the officers asked the defendant for

permission to search the truck, and the defendant refused. The officers then took a

drug dog that was with them at the scene around the defendant’s truck. A sweep of the

outside of a vehicle does not constitute a search, but rather is a legitimate investigative



                                             9
technique. See United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 2644-45

(1983); Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995); see also State v.

James Smith, Jr., No. 38, Shelby County, slip op. at 4 (Tenn. Crim. App. Dec. 14,

1988). Weighing the public concern for the illegal possession and distribution of drugs,

the degree to which the seizure advanced that concern and the minimal intrusion that

took place, we conclude that the investigatory stop in this case was reasonable.



              When the dog was taken around the defendant’s truck, it alerted that

drugs were inside the toolbox. At that time, the defendant admitted to the officers that

drugs were in the toolbox. These facts sufficiently elevated the officers’ reasonable

suspicion to probable cause, justifying the search of the defendant’s truck.



              Under these circumstances, we conclude that the stop was justified and

that the seizure of the marijuana was based upon probable cause. In consideration of

the foregoing and the record as a whole, we affirm the defendant’s judgment of

conviction.



                                                ______________________________
                                                Joseph M. Tipton, Judge

CONCUR:


____________________________
David G. Hayes, Judge



____________________________
William M. Barker, Judge




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