        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              September 14, 2011 Session

         STATE OF TENNESSEE v. CHARLES EDWARD DURHAM

            Direct Appeal from the Criminal Court for Davidson County
                  No. 2009-B-1387    Cheryl A. Blackburn, Judge


                  No. M2010-02400-CCA-R3-CD - Filed May 9, 2012


The appellant, Charles Edward Durham, was convicted in the Davidson County Criminal
Court of possession of not less than one-half ounce but not more than ten pounds of
marijuana in a school zone with the intent to sell and of being a felon in possession of a
firearm. The trial court imposed a total effective sentence of three years in the Tennessee
Department of Correction. On appeal, the appellant challenges the trial court’s denial of his
motion to suppress evidence that he alleges was discovered after he was illegally detained
and the sufficiency of the evidence supporting his drug conviction. Upon review, we affirm
the judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J ERRY L. S MITH, J., not participating.

L. Braxton Felts, Jr., Nashville, Tennessee, for the appellant, Charles Edward Durham.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       The State’s proof at trial revealed that in October 2008, the North Crime Suppression
Unit (CSU) of the Nashville Metropolitan Police Department (Metro) received an anonymous
complaint regarding the sale of drugs in a specific apartment complex off W.H. Davis Drive
in North Nashville. Because CSU was responsible for investigating “street level crimes,”
which included the sale of narcotics, the unit arranged to go to the area on the night of
October 8, 2008, to investigate the complaint. The apartment complex in question was
located within one thousand feet of Creative Academy, a child care center.

        Officers Yannick Deslauriers,1 Jean McCormack, and Matthew Valiquett, members
of the surveillance team, positioned themselves around the apartment complex, with Officer
Deslauriers parked in front of the building. Officer Dale BeCraft, who was working
undercover, went to the area in an unmarked vehicle. He was accompanied by a confidential
informant (CI), who was wired with a radio transmitter so the officers could monitor any
transaction.

      During the investigation, a man named Tory Alexander parked beside Officer
Deslauriers and went into the apartment at 1250 W.H. Davis Drive. Shortly thereafter,
another man came from the direction of the apartment. Officer BeCraft told the CI to ask the
man for drugs.

       As the man was getting into his vehicle, the CI approached and asked for “a thirty,”
which was “street lingo” for thirty dollars’ worth of crack cocaine. After that conversation,
the CI went to 1250 W.H. Davis Drive. The CI knocked on the door, and the appellant
answered. The CI asked the appellant for “a thirty.” The appellant responded, “[O]kay, wait
a minute,” then closed the door. The officers believed the appellant was going to procure the
drugs; however, no one ever came back to the door. The CI eventually returned to the car.

       Within moments, Officer Deslauriers saw Alexander sneak from behind the apartment
complex, having exited from the apartment’s back door. Alexander “crouched down as if
he was trying to hide[,] . . . stopped at the corner of the building[,] . . . looked around in the
direction of the confidential informant[,] . . . ducked down low[,] and got into his vehicle.”
Alexander left and drove around for a few minutes before returning to the apartment
complex. Upon Alexander’s return, the appellant came out the back door of the apartment,
got into the car, and the two men left.

       Officer McCormack and other officers followed Alexander. He drove “in circles” for
a few minutes then parked at a dormitory next to the apartment complex. Officer
McCormack alerted the other officers that she planned to approach the vehicle. Officer
McCormack pulled her unmarked vehicle in front of Alexander’s car and activated her
vehicle’s blue lights. As she did so, the appellant got out of the vehicle and started backing


        1
            At the time of the incident, Officer Deslauriers was a member of the CSU; however, at the time
of trial, he was an agent with the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives.

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up.

        When Officer McCormack got out of her car, she was wearing a vest that clearly
identified her as a police officer. Alexander, who was still in the car, raised his hands.
Officer McCormack told the appellant to stop, but he began running. Officer McCormack
alerted the other officers that she was pursuing the appellant on foot, and Officer Deslauriers
joined the chase. They yelled at the appellant, “[P]olice, stop running.” Ultimately, Officer
Deslauriers apprehended the appellant in a field across the street.

       Officer Deslauriers noticed that the appellant smelled like marijuana. Officer
Deslauriers searched the appellant and found what he believed to be marijuana, $641 in cash,
and keys to a Lexus that was parked in front of 1250 W.H. Davis Drive. After he was
arrested, the appellant told Officer Deslauriers that he was not employed and that he lived
with his girlfriend. However, when Officer Deslauriers spoke with the appellant’s girlfriend,
she stated that the appellant lived in the apartment complex. Tennessee Bureau of
Investigation special agent forensic scientist Jennifer Sullivan testified at trial that she tested
the substance found by Officer Deslauriers and that it was 11.3 grams of marijuana.
Lieutenant William Mackall, an expert in narcotics investigations, testified that the marijuana
had a “street value” of approximately $110 to $120.

       When Alexander was apprehended, he was searched by Officer Valiquett. Officer
Valiquett found a small baggie containing a substance he believed to be marijuana. Agent
Sullivan tested the substance and determined that it was 2.4 grams of marijuana. Lieutenant
Mackall said the marijuana had an approximate “street value” of $25. Alexander also had
a white pill that Agent Sullivan confirmed was not a controlled substance.

        While police were waiting for a search warrant, two people stopped at the apartment
and attempted to buy marijuana. After the warrant was obtained, Officers Deslauriers,
McCormack, and Valiquett searched the apartment. In the kitchen, Officer Deslauriers found
three sets of digital scales. Lieutenant Mackall explained that drug users typically do not use
digital scales but that drug dealers commonly use digital scales to weigh drugs for sale.
Officer Deslauriers found a marijuana cigarette on a table and a large bag containing 52.8
grams of marijuana on an entertainment center in the kitchen. Lieutenant Mackall believed
that the bag of marijuana contained an amount larger than a typical user would have and that
the marijuana had an approximate “street value” of $160 to $400. Officer McCormack found
marijuana residue and nine “7.62 rounds” in a vase. Officer Valiquett found a box of .44
caliber rounds, a box of 20 gauge shotgun shells, and a black pistol holster. Further, the
officers collectively found $920 in cash in the residence. Combined with the money
collected from the appellant, the police found a total of $1601, consisting of two $100 bills,
two $50 bills, fifty-one $20 bills, twenty-five $10 bills, six $5 bills, and one $1 bill.

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Lieutenant Mackall explained that drug dealers usually carried large sums of cash, often in
smaller denominations.

        In a grill outside the back door of the apartment, Officer McCormack found an RG
.22 caliber revolver that fit inside the holster found by Officer Valiquett. In a lot adjacent
to the area outside the back door, Officer Deslauriers found a plastic bag containing
approximately twenty plastic sandwich baggies with the bottom corners torn off and saw a
substance that appeared to be marijuana residue inside. He opined that the bags could have
been thrown from the back door of the apartment. Lieutenant Mackall noted that drug
dealers often tear or cut the bottom corners of plastic sandwich baggies and package drugs
for sale in the torn corners.

        During a search of the Lexus, Officer Deslauriers found an SKS assault rifle in the
trunk. The rounds found in the apartment fit inside the rifle. Additionally, Officer
Deslauriers found paperwork in the Lexus, including an insurance statement and various
receipts, that indicated the appellant owned the Lexus and that his address was 1250 W.H.
Davis Drive. During the search of the appellant, Alexander, the apartment, and the Lexus,
police did not find any items, other than the single marijuana cigarette, that were typically
for the use of marijuana.

       James Oliphant testified on behalf of the appellant. Oliphant said that on October 8,
2008, he lived at 1246 W.H. Davis Drive and that there was only one apartment located
between his residence and 1250 W.H. Davis Drive. Oliphant said that “Mike” and “a taller
guy” lived at 1250 W.H. Davis Drive but that the appellant did not. However, he stated that
the appellant sometimes came by to check the apartment for Mike, who was incarcerated.
Oliphant never noticed heavy traffic coming in or out of the apartment. On cross-
examination, Oliphant acknowledged that in 2009 he was convicted of giving a false name
to police.

        Based upon the foregoing, the jury found the appellant guilty of possession of not less
than one-half ounce but not more than ten pounds of marijuana in a school zone with the
intent to sell. Prior to trial, the appellant pled guilty to being a felon in possession of a
firearm. The trial court imposed a total effective sentence of three years in the Tennessee
Department of Correction. On appeal, the appellant challenges the trial court’s denial of his
motion to suppress evidence that he alleges was discovered after he was illegally detained
by police. He also challenges the sufficiency of the evidence supporting his drug conviction.

                                        II. Analysis

                                A. Suppression of Evidence

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        In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, “in evaluating the
correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts may
consider the proof adduced both at the suppression hearing and at trial.” State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998).

       In the appellant’s motion to suppress, he contended that police did not have reasonable
suspicion to stop the vehicle in which he was a passenger, and, therefore, the seizure and
search of his person and the subsequent search of the apartment violated his rights under the
Fourth Amendment to the United States Constitution and article I, section seven of the
Tennessee Constitution.

       The proof at the suppression hearing was similar to the proof at trial. During an
investigation into an anonymous complaint of drug activity, CSU officers went to an
apartment building in North Nashville. After their arrival, officers saw Alexander go into
the apartment at 1250 W.H. Davis Drive, and a black male exited that apartment. As the man
started getting into his car, the CI asked him for “a thirty.” The man pointed toward the
apartment and said, “[T]hat’s the spot.” The CI returned to Officer BeCraft and told him
“[T]hat might be a good stop, that [man’s] car smells like marijuana.”

        The CI knocked on the door of the apartment recommended by the man. The
appellant answered, and the CI asked him for a “thirty.” Officer Deslauriers, who was
listening to the transaction, testfied that the appellant responded either “yeah, wait a minute”
or “okay, wait a minute” and closed the door. The officers believed the CI was going to
make a purchase of crack cocaine from the residence. While the CI waited, Alexander came
from behind the apartments, “looked around the corner towards where the confidential
informant and the front door of the apartment were[,] . . . kind of crouched down[,] and went
to his car.” Alexander left, drove around for a few minutes, then returned to pick up the
appellant who had also snuck out the back of the apartment.

      The officers followed Alexander and the appellant as they “looped” around the
neighborhood, which Officer McCormack believed was an indication that the appellant and

                                              -5-
Alexander thought they were being followed by police and were attempting to hide
something. After Alexander backed into a parking space, Officer McCormack parked in
front of him, leaving space for Alexander to “squeeze” his car out, and she activated her car’s
blue lights to detain him and the appellant. The appellant got out of the car. Officer
McCormack identified herself as a police officer and told the appellant to stop, but he began
running. Eventually, Officer Deslauriers apprehended the appellant.

       Following the hearing, the trial court denied the motion to suppress, finding that,
based on the totality of the circumstances, the police had reasonable suspicion to stop the
appellant. On appeal, the appellant contends that the police did not have any “specific and
articulable facts which would give rise to a reasonable suspicion that [the appellant] or
anyone in Mr. Alexander’s vehicle was committing or soon [would] commit a felony.” The
State maintains that the trial court correctly found that police had reasonable suspicion to
stop the appellant. We agree with the State.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, a warrantless search or seizure is considered
presumptively unreasonable, thus violative of constitutional protections. See State v. Walker,
12 S.W.3d 460, 467 (Tenn. 2000); see also State v. Hicks, 55 S.W.3d 515, 527 (Tenn. 2001).
“Because stopping an automobile without a warrant and detaining its occupants
unquestionably constitutes a seizure, the State . . . carrie[s] the burden of demonstrating the
applicability of an exception to the warrant requirement.” State v. Harris, 280 S.W.3d 832,
839 (Tenn. Crim. App. 2008).

       The United States Supreme Court announced one such exception to the warrant
requirement in Terry v. Ohio, 392 U.S. 1, 21 (1968), holding that a law enforcement officer
may conduct a brief investigatory stop of an individual if the officer has a reasonable
suspicion, based upon specific and articulable facts, that a criminal offense has been, is
being, or is about to be committed. See also State v. Keith, 978 S.W.2d 861, 865 (Tenn.
1998). This standard also applies to the investigatory stop of a vehicle. Delaware v. Prouse,
440 U.S. 648, 663 (1979); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). In other
words, a law enforcement officer may stop a vehicle if the officer possesses a reasonable
suspicion supported by specific and articulable facts that an offense has been, is being, or is
about to be committed. Watkins, 827 S.W.2d at 294.

       The Supreme Court has observed that “[a]rticulating precisely what ‘reasonable
suspicion’ . . . mean[s] is not possible.” Ornelas v. United States, 517 U.S. 690, 695 (1996);
see also State v. Smith, 21 S.W.3d 251, 256 (Tenn. Crim. App. 1999). “Reasonable
suspicion is a particularized and objective basis for suspecting the subject of a stop of

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criminal activity.” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (citing Ornelas, 517
U.S. at 696). “The specific and articulable facts must be judged by an objective standard, not
the subjective beliefs of the officer making the stop.” State v. Norwood, 938 S.W.2d 23, 25
(Tenn. Crim. App. 1996) (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
Accordingly, in evaluating the validity of an investigatory stop, a court must consider the
totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989); Watkins, 827
S.W.2d at 294. These circumstances include, but are not limited to, “[the officer’s] objective
observations, information obtained from other police officers or agencies, information
obtained from citizens, and the pattern of operation of certain offenders. A court must also
consider the rational inferences and deductions that a trained police officer may draw from
the facts and circumstances known to him.” Watkins, 827 S.W.2d at 294 (citation omitted).

       We agree with the appellant and the State that the appellant was seized when Officer
McCormack pulled in front of Alexander’s vehicle and activated her vehicle’s blue lights.
See Binette, 33 S.W.3d at 218. Therefore, the police needed to have developed reasonable
suspicion by that point.

      The trial court summarized the totality of the circumstances supporting a finding of
reasonable suspicion as follows:

              (1) the police received a complaint about drug activity occurring
              at an apartment complex however no specific apartment number
              [was] provided; (2) the police went to the complex to conduct an
              investigation, bringing a CI equipped with a wire to attempt
              undercover buys; (3) upon arrival at the complex an unknown
              male [was] observed departing a specific apartment and the CI
              ask[ed] this individual in street language to buy $30 of crack
              cocaine to which the unknown male respond[ed] by pointing out
              a specific apartment while stating, “that’s the spot”; (4) the CI
              approach[ed] the apartment unit pointed to by the unknown male
              and ask[ed] the man who answer[ed] the door (the [appellant])
              “for a 30” (street language for $30 of crack cocaine); (5) instead
              of declining or responding like he d[id] not understand, the
              uncontroverted testimony before the Court is that the [appellant]
              t[old] the CI “okay” and t[old] him to wait a minute; (6) while
              the CI remain[ed] on the doorstep, officers observe[d] another
              male (later identified as Mr. Alexander) exit the back of the
              apartment complex, look around suspiciously and drive off,
              returning shortly thereafter to pick up [the appellant]. Officer
              McCormack testified that in her experience conducting narcotics

                                             -7-
              investigation, random driving and looping behavior is indicative
              of someone who believes he may be followed by the police and
              is trying to hide something.

        The appellant challenges the trial court’s findings, arguing that “[t]he drug complaints
as well as the tip to the CI were made by unknown persons of unknown credibility,” that the
appellant could have responded “wait a minute” because he was suspicious of a stranger
coming to his door to request drugs, and that leaving the apartment via the back door and
driving around was “consistent with the actions of two people who had just been approached
by a highly suspicious, unexpected visitor at their door.” Further, the appellant maintains
that the police did not observe the appellant engage in any illegal behavior prior to the stop.

       Our supreme court has explained that

              “[r]easonable 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.”

State v. Pulley, 863 S.W.2d 29, 32 (Tenn. 1993) (quoting Alabama v. White, 496 U.S. 325,
330 (1990)). In other words, reasonable suspicion is “‘something more than an inchoate and
unparticularized suspicion or hunch . . . [but] considerably less than proof of wrongdoing by
a preponderance of the evidence.’” State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997)
(quoting Sokolow, 490 U.S. at 7-8). Given this standard, we agree with the trial court that
the police had reasonable suspicion to believe the appellant was engaged in drug activity at
the time he was seized.

                                 B. Sufficiency of Evidence

       Finally, we will address the appellant’s challenge to the sufficiency of the evidence
supporting his drug conviction. On appeal, a jury conviction removes the presumption of the
appellant’s innocence and replaces it with one of guilt, so that the appellant carries the
burden of demonstrating to this court why the evidence will not support the jury’s findings.
See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that
no reasonable trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P.
13(e).



                                              -8-
       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

        In order to sustain the appellant’s conviction, the State was required to prove that the
appellant knowingly possessed not less than one-half ounce but not more than ten pounds of
marijuana with the intent to sell.2 Tenn. Code Ann. §§ 39-17-417(a)(4), (g)(1). The
appellant maintains that the only evidence found on his person was $681 in cash and 11.3
grams of marijuana. He notes that a gram of marijuana contains 28.3 grams. He
acknowledges that 52.8 grams of marijuana, drug paraphernalia, weapons, and $920 in cash
were found in the apartment. However, he asserts that the State failed to prove that he lived
in the apartment, that he possessed the marijuana found in the apartment, or that he had the
intent to sell it. However, the record belies this contention.

       While police were investigating a tip regarding drug activity at a certain apartment
complex, the CI knocked on the door of 1250 W.H. Davis Drive. The appellant opened the
door of the apartment. The CI, using street lingo, asked for crack cocaine. The appellant
responded, “[O]kay, wait a minute.” After the appellant was arrested, Officer Deslauriers
found documents in the appellant’s car that reflected the appellant had, on multiple
occasions, provided 1250 W.H. Davis Drive as his address. Although the appellant said that
he lived with his girlfriend, she told police that the appellant lived at the apartment complex.
Accordingly, we conclude the proof sufficiently linked the appellant to the apartment.

       Further, as the appellant concedes, he had $681 in cash and 11.3 grams of marijuana
on his person. In and around the apartment were three sets of digital scales, torn plastic
baggies, a gun, and ammunition; items police said were commonly possessed by drug dealers.
Inside the residence, police found $920 in mostly small bills. Lieutenant Mackall said drug
dealers typically kept large amounts of currency in small bills to make change during their
transactions. The amount of marijuana found in the apartment, 52.8 grams of marijuana, was
much larger than the amount usually kept for personal use. See Tenn. Code Ann. §
39-17-419 (“It may be inferred from the amount of a controlled substance . . . , along with
other relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.”). We conclude the evidence,
was sufficient to support the appellant’s conviction of possessing not less than one-half
ounce but not more than ten pounds of marijuana with the intent to sell.

       2
           The appellant concedes that “[t]he proximity of the child care agency is not in question.”

                                                    -9-
                                    III. Conclusion

      In sum, we conclude that the trial court correctly denied the appellant’s motion to
suppress and that the evidence was sufficient to sustain the appellant’s drug conviction.
Accordingly, we affirm the judgments of the trial court.


                                                 _________________________________
                                                 NORMA McGEE OGLE, JUDGE




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