         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     June 13, 2001 Session

                 TIMOTHY RATHERS v. STATE OF TENNESSEE

                Appeal as of Right from the Criminal Court for Shelby County
                       No. P-21632     Carolyn Wade Blackett, Judge



                    No. W2000-02177-CCA-R3-PC - Filed January 18, 2002


The petitioner, Timothy Rathers, was convicted by a jury in the Shelby County Criminal Court of
one count of possessing less than ten pounds of marijuana with intent to deliver and one count of
possessing over .5 gram of cocaine with intent to deliver. The trial court sentenced the petitioner
to an effective sentence of ten years incarceration in the Tennessee Department of Correction.
Subsequently, the petitioner filed a petition for post-conviction relief alleging that he received
ineffective assistance of counsel at trial. The post-conviction court denied the petition, finding that
the petitioner had not met his burden of demonstrating counsel’s ineffectiveness. The petitioner
appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOE G. RILEY, J., and
CORNELIA CLARK , SP.J., joined.

Robert Little and John Finklea, Memphis, Tennessee, for the appellant, Timothy Rathers.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background
               On direct appeal, this court summarized the facts underlying the petitioner’s
convictions as follows:
               The testimony at trial revealed that on July 19, 1996, Sergeant Ernest
               Long of the Shelby County Sheriff's Department received information
               from a confidential informant that the defendant was conducting drug
               sales from his vehicle. The informant described the defendant's
               vehicle and gave a specific street on which the car would be found.
             Upon traveling to the specified location, Sergeant Long observed a
             car matching the description of the defendant's vehicle. A license
             plate check confirmed that it belonged to the defendant. A passenger,
             later identified as Irish Banks, was also in the vehicle. Long saw a
             male subject he believed to be the defendant walking across the street
             to a pay telephone.

             Once Sergeant Long had positioned himself for continued
             surveillance of the defendant, he radioed for assistance and requested
             that a narcotics dog be brought to the scene. When the other officers
             arrived, they approached the defendant at the telephone booth,
             identified themselves and asked permission to search his vehicle.
             When the defendant refused to consent to such a search, he was
             detained for approximately ten minutes to await the arrival of the
             narcotics dog.

             When the narcotics dog was brought to the defendant's vehicle, it
             alerted on the trunk of the vehicle. The officers obtained the keys
             from the defendant and opened the trunk where the dog alerted on a
             gym bag. Upon opening the gym bag, Detectives Tarwater and
             Beasley discovered a bag containing what was later confirmed to be
             456 grams of marijuana and two bags containing what was later
             confirmed to be 52.62 grams of crack cocaine. A set of postal scales
             was also discovered in the trunk of the defendant's vehicle. Sergeant
             Long testified that a .1 to .2 gram rock of cocaine would sell for $20
             and the street value of the marijuana would have been $900 to $1300.

             The defendant was arrested and taken to the police department where
             he was interviewed by Scott Campbell of the Shelby County Sheriff's
             Department. In his statement, captured on video, the defendant
             admitted that the “narcotics that were found belonged to me.”
             However, he insisted that he had been set up because he did not have
             to take the drugs and deliver them. According to the defendant's
             statement, someone called him and asked that these specific amounts
             of narcotics be delivered to him.

               Irish Banks, the defendant's girlfriend, testified on behalf of the
               defendant. Banks testified that she was a passenger in the defendant's
               vehicle on the day of the drug search. Ms. Banks said that she had
               not seen the defendant open the trunk that day. Further, she testified
               that the defendant's brother had driven the car on occasion.
State v. Timothy Rathers, No. 02C01-9710-CR-00392, 1998 WL 605095, at *1 (Tenn. Crim. App.
at Jackson, September 14, 1998).


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                Again, the petitioner was convicted of one count of possessing marijuana with intent
to deliver and one count of possessing cocaine with intent to deliver and received a total effective
sentence of ten years. Subsequently, the petitioner filed a petition for post-conviction relief alleging
the ineffective assistance of his trial counsel. At the post-conviction hearing, the only proof
presented was the transcript of the petitioner’s trial and the testimony of the petitioner. The State
presented no proof, notably failing to call the petitioner’s trial counsel. After the hearing, the post-
conviction court found that the petitioner had not demonstrated the ineffective assistance of counsel.
The petitioner now appeals.

                                            I. Analysis
                The petitioner must prove all factual allegations contained in his post-conviction
petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). This court has
observed that “[e]vidence is clear and convincing when there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998). Generally, witness credibility and the weight and value to be accorded
a witness’ testimony must be determined by the post-conviction court. Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Accordingly, the factual findings made by the post-conviction
court at a hearing after observing witnesses testify and considering conflicting testimony will be
given the weight of a jury verdict. Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971).

               In analyzing claims of ineffective assistance of counsel, this court will review the
post-conviction court’s findings of fact de novo with a presumption of correctness. Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001). In other words, we will defer to the post-conviction court’s
factual findings unless the evidence preponderates otherwise. Id. Regardless, we will review the
court’s conclusions of law purely de novo. Id.

                 In order to obtain relief because of ineffective assistance of counsel, the petitioner
must prove that “counsel’s performance was deficient” and “the deficiency prejudiced the defense.”
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984)). The performance of counsel is deficient if such performance
falls outside the range of competence required of an attorney in a criminal case. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Moreover, we note that to demonstrate prejudice due to the
deficiency, the petitioner must prove “‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Campbell v. State,
904 S.W.2d 594, 597 (Tenn. 1995) (quoting Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994)). A
reasonable probability is one that is “sufficient to undermine confidence in the outcome” of the
proceeding. Campbell, 904 S.W.2d at 597. The petitioner bears the burden of satisfying both prongs
of the test of ineffective assistance; thus, if the petitioner has failed to prove prejudice, this court
need not address whether the attorney’s performance has been deficient. See State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

               As noted earlier, the only evidence presented at the post-conviction hearing was the
testimony of the petitioner and the transcript of the petitioner’s trial. The petitioner testified that he
met with counsel “[o]nce maybe twice at the most,” and, during those meetings, he related the

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circumstances surrounding his arrest. At the hearing, the following colloquy occurred during the
direct examination of the petitioner:
              Q: Okay. Did you discuss your trial strategy?

                  A: Just a little bit.

                  Q: All right. Did you discuss a motion to suppress?

               A: No.
The petitioner conceded that his trial strategy was that the police “had the wrong guy.”

                The petitioner first claims that his trial counsel was ineffective in failing to file a
motion to suppress the evidence discovered by the police during a warrantless search of his vehicle.
Initially, we note that the State did not call the petitioner’s trial counsel to testify at the post-
conviction hearing regarding the reasons for this failure. “We have observed on many occasions that
original counsel, when available,[1] should always testify in a post-conviction proceeding when there
is an allegation that he was ineffective.” State v. Hopson, 589 S.W.2d 952, 954 (Tenn. Crim. App.
1979); see also State v. Craven, 656 S.W.2d 872, 873 (Tenn. Crim. App. 1982) (stating “[w]hen
counsel is challenged as ineffective and a post-conviction hearing is held, the state should present
the attacked counsel to show what occurred”). This court again recently recognized that “when
counsel is challenged as ineffective, then the State should call the attacked counsel as a witness at
the post-conviction hearing.” A. D. Barker v. State, No. 03C01-9604-CC-00177, 1999 WL 118640,
at *3 (Tenn. Crim. App. at Knoxville, March 9, 1999) (citing Garrett v. State, 530 S.W.2d 98, 99
(Tenn. Crim. App. 1975)).

                 Based on the record before us, we can only speculate as to why counsel failed to file
a motion to suppress. The petitioner admitted that his trial strategy was to show that the drugs
belonged to his brother. After reviewing the trial transcript and the evidence presented at the post-
conviction hearing, we are unable to conclude that counsel was deficient. In any event, we conclude
that the petitioner has failed to prove that he was prejudiced by counsel’s failure to file a motion to
suppress.

                 The root of the petitioner’s argument is that the police lacked reasonable suspicion
as a result of the informant’s tip to justify the search of his vehicle. Therefore, because there was
no justification for the search, his trial counsel was ineffective for failing to file a motion to suppress
the evidence, namely the drugs and the scales, which was discovered pursuant to the search. In its
findings of fact, the post-conviction court stated:
                 Police found approximately 456 grams of marijuana and 52.62 grams
                 of crack cocaine . . . in the trunk of Petitioner’s vehicle. Arguably,
                 these were not the fruits of an illegal search. The cocaine and


         1
           There is no ind ication in the record w hether petitioner’s trial counsel wa s available to testify at the post-
conviction hearing.

                                                           -4-
               marijuana were seized incident to the narcotics dog’s alerting on the
               trunk of the vehicle and the officers’ subsequent discovery and
               seizure of the drugs did not constitute an illegal search and seizure.
               Arguably, this can be considered a warrantless search and the seizure
               was justified by the need to preserve evidence. Contrary to the
               Petitioner’s assertion . . . the narrowly defined “exigent
               circumstances” exception to the warrant requirement does apply in
               the present case because the Petitioner could have driven his vehicle
               away or disposed of the drugs.

                Initially, we note that “[a] warrantless [stop] is presumed unreasonable and thus
violates the Fourth Amendment to the United States Constitution and Article I, Section 7 of the
Tennessee Constitution.” State v. Walker, 12 S.W.3d 460, 467 (Tenn. 2000); see also State v. Hicks,
55 S.W.3d 515, 527 (Tenn. 2001). There is no dispute that the stop in the instant case was made
without a warrant; therefore, the stop is presumptively unreasonable. See State v. Simpson, 968
S.W.2d 776, 780 (Tenn. 1998). However, “an investigatory stop is constitutionally permissible if
the officer has a reasonable suspicion, supported by specific and articulable facts, that a criminal
offense has been or is about to be committed.” Id. (discussing Terry v. Ohio, 392 U.S. 1, 21, 88 S.
Ct. 1868, 1880 (1968)).

                The facts forming the basis for an officer’s reasonable suspicion need not rest upon
the personal knowledge or observation of the officer. Simpson, 968 S.W.2d at 780. In Adams v.
Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924 (1972), the Supreme Court upheld the
constitutionality of an investigatory stop and seizure, concluding that although the unverified tip may
have been insufficient to support an arrest or search warrant, the information carried sufficient
“indicia of reliability” to justify an investigative stop. Additionally, our supreme court has upheld
the constitutionality of an investigative stop where reasonable suspicion supporting the stop was
based on information from an anonymous tip. State v. Pulley, 863 S.W.2d 29, 34 (Tenn. 1993).

               The court has also concluded that, in evaluating the reliability of an informant’s tip,
the factors set forth in State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), are helpful in
determining reasonable suspicion as well as probable cause. In Jacumin, id., our supreme court
adopted the two-pronged Aguilar-Spinelli test “as the standard by which probable cause will be
measured to see if the issuance of a search warrant is proper under Article I, Section 7 of the
Tennessee Constitution.” See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar
v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964). In order to satisfy the Aguilar-Spinelli test, there
must be information to establish the informant’s veracity as well as the basis of the informant’s
knowledge. Jacumin, 778 S.W.2d at 432. “While independent police corroboration can make up
deficiencies, ‘each prong represents an independently important consideration that must be
separately considered and satisfied in some way.’” Simpson, 968 S.W.2d at 781 (quoting Pulley, 863
S.W.2d at 31). Moreover, this court has previously observed that
               an investigative stop requires only a showing of reasonable suspicion
               that does not rise to the level of probable cause. For showings of
               probable cause based on an informant’s tip, our supreme court has

                                                 -5-
                followed the former federal two-pronged test that requires proof of
                the informant’s basis of knowledge and credibility. The Aguilar-
                Spinelli/Jacumin test has been used as a guide in assessing the
                reliability of an informant’s tip supporting an investigative stop of an
                automobile. . . [even though] [r]easonable suspicion requires a lower
                level of proof, allowing for tips that are less reliable.
State v. Kelly, 948 S.W.2d 757, 761 (Tenn. Crim. App. 1996) (citations omitted). However, “the
two-pronged test of reliability need not be as strictly applied if the informant’s tip is being used to
establish reasonable suspicion rather than probable cause.” Simpson, 968 S.W.2d at 782; see also
State v. Jose Roberto Ortiz, No. M1998-00483-CCA-R3-CD, 1999 WL 1295988, at *13 (Tenn.
Crim. App. at Nashville, December 30, 1999), perm. to appeal denied, (Tenn. 2000), cert. denied,
__ U.S. __, 121 S. Ct. 1096 (2001).

              The only evidence before this court describing the content of the informant’s tip is
Officer Long’s testimony at the petitioner’s trial.2 The following testimony occurred on direct
examination:
              Officer Long: On that date we received information that [the
              petitioner] was conducting drug sales from his vehicle. And received
              information about the vehicle he was driving. . . . That he was in a
              silver-colored Ford Mustang with a black convertible top.

                    State: Did you get his tag number as well?

                    Officer Long: Yes, sir. I did.
                    ...
                    State: Were you able to confirm any of that information that you
                    received in your tip regarding him parked, or the car, or the tag, or
                    anything like that?

                    Officer Long: Yes, sir, I was. Some of the information I had prior to
                    that day. . . . Well, the information that I had gotten was that he was
                    going to be in the area of Whitehaven, in the area of Millbranch and
                    Shelby Drive.

                    State: Did you find him there?

                    Officer Long: Yes, sir, I did. . . . I found [the petitioner], and found
                    his vehicle. . . . He walked across the street, was on a pay phone.
                    And I drove around the parking lot, checked the tags on the car, and



          2
             During trial, the court held a jury-out hearing regarding the identity of the confidential informant. The
transcript indicates that this testimony was ordered sealed by th e trial court an d w as no t includ ed in the rec ord on appe al.

                                                               -6-
               as I said, I had seen the car on a few occasions during the past couple
               of months.

               State: Did the car check out to be [the petitioner’s] car?

               Officer Long: Yes.

               On cross-examination, Officer Long revealed that he had, earlier on the day in
question, twice received information concerning the petitioner. Officer Long admitted that his
informant did not specifically reveal if he had personally observed the petitioner’s activities.
Additionally, Officer Charles E. Tarwater testified that the police had the house of the petitioner’s
brother under surveillance and had information “all day” that the transaction was going to take place.

                Our supreme court has observed that “[p]olice corroboration of several details of the
informant’s report may also satisfy unknowns about the informant’s credibility.” Simpson, 968
S.W.2d at 782. In the instant case, the police confirmed that the petitioner was at the location
specified in the tip and that he was driving the vehicle described in the tip. Id. Thus, “[a] showing
that the informant’s data is reliable may satisfy the credibility prong.” Id. The ability of police to
corroborate the information regarding the petitioner’s vehicle and the location where the petitioner
would be found also indicates that there may have been a sufficient basis of knowledge on the part
of the informant. See Simpson, 968 S.W.2d at 782-783; Kelly, 948 S.W.2d at 762. As a whole, the
information given was sufficient, considering the totality of the circumstances, to give the police
reasonable suspicion to detain the petitioner long enough to allow the drug dog to sniff the
petitioner’s car. See State v. David Price, No. 02C01-9610-CC-00356, 1997 WL 503073, at *4
(Tenn. Crim. App. at Jackson, August 25, 1997).

                Furthermore, this court has recently found that
                assuming reasonable suspicion, the appellant’s brief detention and the
                officers’ use of the drug detection dog were entirely consistent with
                the circumstances justifying the initial intrusion. . . . We have
                previously held that “[a] sweep of the outside of a vehicle by a trained
                drug detection dog does not constitute a search for Fourth
                Amendment purposes, but is a legitimate investigative technique.”
                Moreover, the positive indication by the dog . . . would provide the
                necessary probable cause to search the interior of the vehicle pursuant
                to the automobile exception to the warrant requirement.
Ortiz, No. M1998-00483-CCA-R3-CD, 1999 WL 1295988, at *8 (citations omitted). Additionally,
the petitioner has adduced no evidence casting doubt on the reliability of the drug detection dog. See
State v. England, 19 S.W.3d 762, 768 (Tenn. 2000).

               In the instant case, once reasonable suspicion was established, the petitioner was
detained only five or ten minutes while the drug detection dog was en route. Upon arrival, the dog
immediately indicated on the petitioner’s trunk and further indicated on a duffel bag inside the trunk,
thereby giving the police probable cause to open the trunk and the bag, respectively. Id. After the

                                                 -7-
contraband was discovered, the police then formally arrested the petitioner. Based upon this
information, we conclude that the petitioner did not prove by clear and convincing evidence that, had
the petitioner’s trial counsel filed a motion to suppress, the motion would have been successful.
Additionally, subsequent to his arrest, the petitioner gave a statement admitting his ownership of the
drugs. The petitioner does not argue that the confession was not voluntary nor does he argue that
the statement was the fruit of any prior illegality; he simply avers that he gave the statement in order
to obtain the release of his companion, Irish Banks. Therefore, the petitioner has failed to prove that
he was prejudiced by counsel’s failure to file the motion.

                 The petitioner also argues that his counsel was ineffective by failing to object to
improper direct examination of Officer Long. Specifically, the petitioner contends that the failure
to object to the question, “Detective Long, when you confirmed the information you had in your tip,
what, if anything, did you do at that point?” constituted ineffective assistance of counsel because “it
relieves the State of its burden of proving that [the petitioner] possessed drugs with the intent to sell
or deliver.” However, the petitioner has failed to make any argument, cite to any authority, or cite
to the record in support of this contention. Therefore, we conclude that the petitioner has waived
this issue. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); State v. Hawk, 688 S.W.2d
467, 473 (Tenn. Crim. App. 1985). Regardless, because petitioner’s trial counsel later questioned
the officer regarding what information was confirmed in the tip, we conclude that counsel was
neither deficient in failing to object to the question nor did the petitioner suffer prejudice due to
counsel’s failure to object. This issue is without merit.

                                         III. Conclusion
                Finding no reversible error, we affirm the judgment of the post-conviction court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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