         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    March 12, 2002 Session

      STATE OF TENNESSEE v. DAMOND LAVONZELL MACON and
                     KENNETH RAY WOODS

                      Appeal from the Circuit Court for Madison County
                             No. 00-380 Donald H. Allen, Judge


                      No. W2001-02706-CCA-R3-CD - Filed May 3, 2002


The defendants, Damond Lavonzell Macon and Kenneth Ray Woods, entered pleas of guilt to
possession of marijuana and possession of drug paraphernalia. Pursuant to a plea agreement, the
defendant Macon received concurrent sentences of 11 months and 29 days on each count, suspended
after six months; the defendant Woods received concurrent sentences of 11 months and 29 days, all
of which was to be served on unsupervised probation. The charge against Woods for disobeying a
stop sign was dismissed as part of the plea agreement. The defendants reserved for appeal the
question of whether the stop was based upon a reasonable suspicion supported by specific and
articulable facts. See Tenn. R. Crim. P. 37. The judgments are affirmed.

                  Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN, JJ., joined.

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellant, Damond Lavonzell Macon.

C. Mark Donahoe, Jackson, Tennessee, for the appellant, Kenneth Ray Woods.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and
Shaun A. Brown, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On December 4, 1999, between 9:00 and 10:00 P.M., Officer Jeff Shepherd, a narcotics
investigator with the Jackson Police Department, observed the defendants' car enter Riverside Drive
in Jackson from a residential driveway. It was dark and there were no other vehicles on the roadway.
Officer Shepherd, who was following the vehicle "at a safe distance," was driving approximately 45
miles per hour. The officer detected the smell of burning marijuana emanating from the car and,
when the defendant Woods drove through a stop sign, the officer initiated a stop. As he approached
the driver's side of the vehicle, the officer noticed Woods trying to conceal a pack of rolling papers
between the door and the driver's seat. The defendant Macon, who was in the passenger's seat,
attempted to conceal a burning, hand-rolled cigar between the two front seats. Officer Shepherd
detected a strong odor of marijuana on Macon’s person and, while conducting a search for weapons,
found two marijuana cigarettes and part of another hidden in his crotch area. The cigar seized from
between the seats contained marijuana. The officer found rolling papers in the defendant Woods's
hand and, during a pat down search, found an additional pack of rolling papers in his jacket pocket.

       At the suppression hearing, Officer Shepherd testified that he believed the defendants’ car
windows were partially open. He acknowledged, however, that he had decided to stop the
defendants' car as soon as he smelled the marijuana, shortly before Woods failed to observe the stop
sign.

       The defendant Woods testified that neither he nor the defendant Macon had been smoking
marijuana on the night of their arrests. Gaye Scarborough testified that a drug test given to Macon
two days after the arrest was negative. She acknowledged that, because the result was negative, the
sample was not sent to the laboratory for screening.

        The trial court overruled the motion to suppress, concluding that the officer had a reasonable
suspicion that a criminal offense had been committed. It ruled that the failure to stop at the stop sign,
coupled with the officer’s having previously smelled marijuana, justified the stop of the vehicle. The
trial court concluded that once the vehicle was stopped and the officer observed the defendants'
attempts to conceal items in the car, a more extensive search of the defendants was warranted.

        Both the state and federal constitutions protect individuals from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any
evidence discovered subject to suppression. U.S. Const. amend. IV; Tenn. Const. art. I, § 7;
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490
(Tenn. 1997). 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.
Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990); Delaware v. Prouse, 440 U.S. 648,
653 (1979); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994); State v. Westbrooks,
594 S.W.2d 741, 743 (Tenn. Crim. App. 1979). The fact that the detention may be brief and limited
in scope does not alter that fact. Prouse, 440 U.S. at 653; State v. Pulley, 863 S.W.2d 29, 30 (Tenn.
1993); Binion, 900 S.W.2d at 705; Westbrooks, 594 S.W.2d at 743. The basic question, as
indicated, is whether the seizure was "reasonable." Binion, 900 S.W.2d at 705 (citing Sitz, 496 U.S.
at 444). The state always carries the burden of establishing the reasonableness of any detention. See
State v. Matthew Manuel, No. 87-96-III (Tenn. Crim. App., at Nashville, Nov. 23, 1988).

        Among the narrowly defined exceptions to the warrant requirement is an investigatory stop.
 See Terry v. Ohio, 392 U.S. 1, 27-28 (1968). An investigatory stop is deemed less intrusive than
an arrest. See id. In Pulley, our supreme court ruled that "the reasonableness of seizures less
intrusive than a full-scale arrest is judged by weighing the gravity of the public concern, the degree



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to which the seizure advances that concern, and the severity of the intrusion into individual privacy."
863 S.W.2d at 30.

         The defendants argue that the testimony of Officer Shepherd was not credible. They submit
that it is highly unlikely that the officer, while traveling 45 miles an hour, could smell burning
marijuana under these circumstances. The defendants point out that Officer Shepherd acknowledged
that he intended to stop their vehicle regardless of any stop sign violation. The defendants, who
claimed they were on their way to meet police regarding the defendant Macon's disabled vehicle,
argue that "it is against all logic" for them to have been smoking marijuana at that time. In summary,
the defendants argue that the evidence preponderates against the trial court's findings of fact.

          In Whren v. United States, the United States Supreme Court ruled that if an officer has
probable cause to believe a violation of the traffic code has occurred, any seizure will be upheld even
if it is a complete pretext for the officer's subjective motivations in making the stop. 517 U.S. 806,
813-17 (1996); see also State v. Vineyard, 958 S.W.2d 730, 734-35 (Tenn. 1997). In Vineyard, our
supreme court cited Whren with approval, rejecting the proposition "that the constitutional
reasonableness of the traffic stops depends on the actual motivations of the individual officers
involved." Vineyard, 958 S.W.2d at 734-35 (citing Whren, 517 U.S. at 810). Our supreme court
observed that "there are no linguistic differences which, in this context, justify distinct interpretations
of the state and federal constitutional provisions.” Id. at 736. The court concluded that the
subjective motivation of the police officer was irrelevant when there was a basis for a traffic stop
under Article I, Section 7 of the Tennessee Constitution.

        Although the defendant makes a persuasive argument in this case that the evidence
preponderates against the trial court's conclusion that Officer Shepherd smelled marijuana while
driving "a safe distance" behind another vehicle traveling 45 miles per hour, the evidence does
establish that the defendant Woods failed to properly stop at a stop sign. Subjective motivation is
not the focus of the inquiry. A violation of the traffic law is a sufficient basis to warrant the stop.
In our view, the trial court properly determined that the ensuing search was warranted by the officer’s
observations of the defendants as he approached their vehicle.

        Accordingly, the judgments are affirmed.



                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




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