        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              MAY SESSION, 1998           August 7, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9707-CC-00272
                                )
      Appe llant,               )
                                )
                                )    ROBERTSON COU NTY
VS.                             )
                                )    HON. ROBERT W. WEDEMEYER
CARL SEAWARD ALLEN,             )    JUDGE
                                )
      Appellee.                 )    (Direct Appeal - Possession with
                                )    Intent to Deliver a Controlled
                                )    Substance)




FOR THE APPELLEE:                    FOR THE APPELLANT:

WIL LIAM R . GOO DMA N, III          JOHN KNOX WALKUP
Goodman & W alker                    Attorney General and Reporter
124 Sou th Court Squ are
Springfield, TN 37172                LISA A. NAYLOR
                                     Assistant Attorney General
                                     425 Fifth Avenu e North
                                     Nashville, TN 37243-0493

                                     JOHN CARNEY
                                     District Attorney General

                                     DEN T MO RRIS
                                     Assistant District Attorney
                                     Main Street
                                     Springfield, TN 37172



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                     OPINION

       Appellee Carl Seaward Allen was indicted by the Robertson County Grand

Jury on September 8, 1997, for possession with intent to deliver a controlled

substance, to wit: over ten pound s of marijuana. On March 7, 1997, Appellee

filed a motion to suppress evidence seized during a search of his vehicle. The

trial court held a hearing on this motion on April 7, 1997. On April 10, 1997, the

court granted Appelle e's mo tion to sup press. The State presents the following

issue for our consideration on this appe al:        whethe r the trial c ourt er red in

granting Appelle e's mo tion to suppress evidence seized during the se arch o f his

vehicle.

       After a review of the record , we reverse the jud gment of the trial court and

reman d this cas e for trial.



                           I. FACTUAL BACKGROUND

       Officer Mark Norrod of the Tennessee Highway Patrol testified that on the

evening of May 9, 1996, he patrolled Interstate 65 in Robertson Coun ty. Sho rtly

before midnight, Officer Norrod noticed a vehicle which appeared to have no

license plate. A s he p ursue d the a utom obile, O fficer N orrod obse rved A ppelle e's

white van change from the right to the left lane for no apparent reason. The van

was traveling northbound on Interstate 65. Officer Norrod activated his video

camera and re corde d the w hite Do dge va n mo ve bac k over in to the rig ht lane.

Appellee then twice crossed over the white fog line on the righthand side of the

road. Officer Norrod turned on his blue lights, and Appellee stopped his van at

approximately 11:51 P.M.




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      At the suppressio n hearing, Officer Norrod testified that he thought that

Appellee was eith er drowsy or under the influence of an intoxicant. Officer

Norrod aske d App ellee to produ ce his d river's license and his vehicle registration.

When asked whether he had been drinking, Appellee replied that he had not.

Appellee also informed the officer that he had no guns inside the van. Officer

Norrod contin ued s peak ing with Appe llee to ascertain whether or not he was

under the influence of an intoxicant. Norrod stated that although he could detect

no odor of a lcohol on Appelle e's brea th, Appe llee appe ared tired and had red

eyes. Appellee told O fficer Norrod that he was from Da llas, Texas and that he

was traveling to M aryland to visit his sick father.

      Howeve r, Officer Norrod noted that Appellee's driver's license reflected that

he was from McAllen, Texas, a border town renowned for drug smuggling.

      Moreover, Officer Norrod o bserved that A ppellee wore his work uniform

while making h is cross-coun try trip. The dispatch ve rified Appe llee's d river's

license and registration. After talking with Appellee for a few minutes, Officer

Norrod testified that when he returned Appellee 's driver's license and registration,

he concluded that Appellee was, in fact, not intoxicated.

      Officer Norrod then asked Appellee whether he would mind if the officer

searched his van. Officer Norrod testified that he believed Appellee responded,

"No, I don't min d; go ah ead." Appe llee as ked N orrod wheth er he s hould turn off

the ignition, and Norrod responded affirmatively. Officer Norrod also suggested

that Appellee turn off his lights to avoid discharging the battery. The officer

directed Appellee to step to the front of the van while he conducted the search.

Officer Norrod stated tha t he beg an con ducting th e searc h at approxim ately

11:53 P.M. Norrod further testified that four and one-half minutes after stopping

the van, he discovered about three pounds of marijuana in a duffle bag inside the

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van. Norrod testified that he was able to smell the marijuana after unzipping the

duffle bag. After discovering the marijuana in the duffle bag, Officer Norrod

arrested Appellee and administered the Miranda warnings to him . Other officers

and a drug do g arrived to assist with the search. Officer Norrod asked Appellee

whether any more contraband was concealed in the vehicle, and Appellee

informed him marijuana was stored in the door panels. Upon removing the door

panels, the officers discovered 48.2 pounds of marijuana.



  II. CONSTITUTIONALITY OF THE STOP, SEARCH, AND SEIZURE OF

APPELLEE'S VEHICLE

      Appellee asse rts that th e stop and s earch of his vehicle contravened the

United States and Tennessee Constitutions.



         A. CONSTITUTIONALITY OF THE INVESTIGATIVE STOP

      Appellee argues that he ha d violate d no s tatute o r ordina nce; th us, his

conduct did not g ive rise to a reasonable suspicion, based upon specific and

articula ble facts, that a crime either had been or was about to be committed.

Therefore, Appellee reasons, the stop of his van was unlawful. We disagree.

      The Fourth A mend ment g uarante es that pe ople ha ve the righ t "to be

secure in their p erson s, hou ses, p apers , and e ffects, a gains t unrea sona ble

searches and se izures. . . ." The Fourth Ame ndm ent furth er requ ires tha t all

warran ts must issue based upon probable cause.            U.S. Const. amend 4.

Moreover, Article I, § 7 of the Tennessee Constitution similarly provides:

             That the people shall be secure in their persons, houses,
             papers and possessions, from unreasonable searches and
             seizures; and that general warrants, whereby an officer may
             be commanded to search suspected places, without evidence
             of the fact com mitted, or to seize any person or persons not

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           named, whose offenses are not particularly described and
           supported by evidence, are dangerous to liberty and ought
           not to be granted.
Tenn. Const. art. I, § 7.

"Stopping an automobile and detaining its occup ants cons titutes a `seizu re' within

the meaning of the fede ral and sta te constitu tions." State v. Lawson, 929 S.W.2d

406, 407 (Tenn. Crim. App . 1996). As a general rule, an officer is entitled to stop

an autom obile fo r investig ative pu rpose s whe re the o fficer ha s reas onab le

suspicion, based on specific and articula ble fac ts, that a n offen se is being or is

about to be comm itted. State v. Watkins, 827 S.W .2d 293, 294 (Tenn. 199 2);

State v. Seaton, 914 S.W .2d 129 , 131 (Tenn. Crim. App. 1995). To determine

whether an officer's reasonable suspicion was supported by specific and

articula ble facts, this Court must consider the totality of the circumstances.

Lawson, 929 S .W .2d 40 6, 408 . The c ircumstances include, but are not limited

to:

             objective observations, information obtained from other police
             officers or agencies, information obtained from citizens, and
             the pattern of operation of certain offenders.

             *        *        *       *          *    *

             A court m ust also c onside r the rational inferences and
             deductions that a traine d police o fficer may draw from the
             facts and circumstances known to him.
State v. Scarlett, 880 S.W.2d 707, 709 (Tenn. Crim. App. 1993) (quoting State
v. Moore, 775 S.W .2d 372, 377 (Tenn. Crim . App. 1989 )).

Additional factors which may determine the existence of reasonable suspicion

include "the characteristics of the area, the behavior of the driver, and the

aspec ts of the vehicle itself." Id. (citing Hugh es v. State , 588 S.W.2d 296, 305-06

(Tenn. 19 79)).

      In the case sub judice, the significant factors are the objective observations

of Officer Norrod, the driver's behavior, and the aspects of the vehicle. Officer



                                           -5 -
Norrod testified at the suppression hearing that he was prompted to activa te his

video camera because Appellee changed lanes. This Court has viewed the video

tape of Appellee's driving. The tape revea ls that App ellee twice veered o ver to

the extreme righthand side of the road across the white line. Officer Norrod

explained that he feared tha t Appellee either w as intoxicated or tired.

Additionally, he noticed tha t Appellee's wh ite Dodge va n bore Te xas license

plates.   Finally, it was almost 12:00 midnight when Officer Norrod noticed

Appe llee's vehicle . We conclude that, given the time of night, crossing the fog

line three times, and the distance from which the vehicle had com e, Officer

Norrod had cause to stop Appellee's vehicle, if for no other reason than the

public’s safety.

      Officer Norrod testified that after stopping the van, he was suspicious of

Appellee for the followin g reaso ns: First, Appellee appeared drowsy. His eyes

were red. Second, though not on duty at the time, Appellee was traveling cross-

country in his work uniform. Third, Appellee told Officer Norrod that he was from

Dallas, Texas; however, his driver's license stated that he was from McAllen,

Texas, a border town well-known in law enforcement circles for drug smuggling.



      The trial court correctly concluded that the initial investigatory stop of

Appellee's van was justified.




            B. UNLAWFUL AND UNREASONABLE DETENTION

      Appellee next com plains tha t his detention was unlawful and unreasonable.

We disagree.




                                        -6 -
      In United States v. Sharpe, the United States S uprem e Cou rt held that "In

assessing whether a de tention is too long in du ration to be justified as an

investigative stop, we consider it appropr iate to examine whether the police

diligen tly pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to detain the

defend ant." 470 U.S. 675, 686, 105 S.Ct. 1568, 15 75, 84 L.Ed .2d 605 (198 5).

See also State v. Simpson, 1998 WL 70389 (Tenn. 1998) (holding that it was

neither unreasonable nor unlawful to detain the defendant for app roxim ately five

minutes after the stop was initiated). Applying the Sharpe standard to the facts

of the present case, it seems obvious that the detention was neither

unreaso nable nor unlawful.      Within less than five minutes after stopping

Appe llee's van, Officer Norrod determined that Appellee was not intoxicated.

After that, Appellee    apparently could have gone on his way had he not

consented to a search of his vehicle.



                  C. CONSENT EXCEPTION TO WARRANT

                                 REQUIREMENT

      Appe llant's final contention is that the search of his van was

unconstitutional because his consent was not voluntary. Appellee further claims

that his con sent w as ren dered invalid because Officer Norrod failed to advise him

that he wa s free to go an d con tinued conve rsing w ith him after re turning his

driver's license and vehicle registration. We disagree.

      This Court is obliged to uphold the trial court's findings of fact in a

suppression hearing unless the evidence preponderates against th em. State v.

Odom, 928 S.W .2d 18, 23 (Tenn . 1996); State v. Stephenson, 878 S.W.2d 530,

544 (Tenn. 1994). "The existence of cons ent an d whe ther it wa s volun tarily given

                                         -7 -
are question s of fact." State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim.

App. 1983). In the present case, the trial court neglected to make any factual

findings concerning the voluntariness or va lidity of Appellee's conse nt. The cou rt

concluded only that Appellee's detention became unlawful after the officer

ascertained that Appellee was neither intoxicated nor in violation of any laws.

Therefore, due to the lack of factual findings concerning this issue, we must

employ a de novo standard of revie w. State v. D oughe rty, 930 S.W.2d 85, 86

(Tenn. C rim. App. 199 6).

      W e first add ress A ppelle e's co ntentio n that h is cons ent wa s involu ntarily

given because Officer Norrod neglected to inform him that he was free to go after

returning Appellee's vehicle registration and driver's license to him. The United

States Supreme Court has held that the Fourth Amendment does not require that

a lawfully seize d detaine e be ad vised that h e is "free to go" before his consent

to search will be reco gnized as volunta ry. Ohio v. R obinette, 519 U.S. 33, 117

S.Ct. 417, 419 , 136 L.Ed.2d 347 (1996 ).

      Voluntary consent to search is an exception to th e warran t requirem ent.

Schne ckloth v. Bustam onte, 412 U.S. 218, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854

(1973); State v. Bartram, 925 S.W.2d 227, 229 (T enn. 1996 ). The prosecution

bears the burden of demonstrating that consent to search was given volunta rily

and freely. McMahan, 650 S.W.2d 383, 386. In order to be voluntary, the

consent must be unequivocal, specific, intelligently given, and uncontaminated

by any du ress or co ercion. State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992)

(citing Liming v. State, 417 S.W .2d 769, 770 (Tenn. 196 7)).

      Less than five minutes after stopping Appellee's van, Officer Norrod

requested permission to search the vehicle. Appellee consented, telling the

officer to "Go ahead." After Officer Norrod located the marijuana in the duffle bag

                                          -8 -
and administered the Miranda warnings to Appellee, he inquired whether

Appellee had any more marijuana stored inside the van. Appellee volunteered

that more was inside the van doors.

       In light of the foregoing, we conclu de tha t Appe llee free ly and k nowin gly

consented to a search of his van without any duress or coercion.

       Because we co nclud e that th e trial court erron eous ly gran ted Ap pellee 's

motion to suppress, we reverse the jud gme nt of the trial cou rt and re man d this

case for trial.




                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
DAVID G. HAYES, JUDGE




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