             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                                MAY 1999 SESSION
                                                        FILED
                                                          June 18, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    C.C.A. NO. 02C01-9807-CC-00218
             Appellee,               )
                                     )     DYER COUNTY
VS.                                  )
                                     )     HON. J. STEPHEN STAFFORD,
LARRY D. JOHNSON,                    )     JUDGE
                                     )
             Appellant.              )     (Possession of Cocaine
                                           with Intent to Sell or Deliver)



FOR THE APPELLANT:                        FOR THE APPELLEE:


C. MICHAEL ROBBINS                        PAUL G. SUMMERS
46 North Third St., Suite 719             Attorney General & Reporter
Memphis, TN 38103
      (On Appeal)                         J. ROSS DYER
                                          Asst. Attorney General
G. STEPHEN DAVIS                          John Sevier Bldg.
District Public Defender                  425 Fifth Ave., North
P.O. Box 742                              Nashville, TN 37243-0493
Dyersburg, TN 38024
        (At Trial)                         C. PHILLIP BIVENS
                                           District Attorney General

                                           JAMES E. LANIER
                                           Asst. District Attorney General
                                           P.O. Drawer E
                                           Dyersburg, TN 38024




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was charged with possession of over one-half ounce of

marijuana with intent to sell or deliver and possession of over one-half gram of cocaine

with intent to sell or deliver. He pled guilty to the marijuana charge in exchange for a one-

year sentence and a two thousand dollar ($2000) fine. He waived his right to a jury trial

on the cocaine charge and, following a bench trial, was found guilty on the cocaine

charge and sentenced to eight years in the Department of Correction. He now appeals,

arguing that the cocaine conviction should be vacated because his arrest was invalid. He

also argues that the trial court erred in denying alternative sentencing. Finding no error,

we affirm.



              On June 2, 1997, Officer Frederick Tates was on routine patrol in Dyersburg

when he observed two women arguing with a man, later identified as the defendant, at

the residence of 607 Peabody. Officer Tates knew the two women and that they lived at

607 Peabody, but he did not know the defendant. Suspecting a domestic disturbance in

progress, he stopped his patrol car, at which point the defendant fled the scene. Officer

Tates briefly talked with the women, who confirmed that the defendant had caused a

disturbance there. Officer Tates then left the scene to search for the defendant and

found him approximately one block away. After telling the defendant he was detaining

him in order to conduct a domestic violence investigation, Officer Tates handcuffed the

defendant, placed him in the back of his patrol car, and transported him back to 607

Peabody. Upon their return, he removed the handcuffs and left him with a back-up officer

while he interviewed the two women.



              While interviewing the women, Officer Tates observed the defendant

walking in circles with his hands in his pockets, which he testified officers generally do not

allow for safety reasons.      Officer Tates interrupted his interview, approached the

defendant, briefly questioned him, and asked him to face the patrol car while he


                                              2
conducted a pat-down search. During the pat-down search, Officer Tates felt a large

bulge in the defendant’s front pocket. He asked the defendant what was in his front

pocket. Rather than speaking, the defendant removed several plastic bags of marijuana

from his pocket. Officer Tates then placed the defendant under arrest, Mirandized him,

and handcuffed him. During a search incident to arrest, Officer Tates found several rocks

of crack cocaine in the small watch pocket of the defendant’s jeans. No paraphernalia

was found. Later, a police investigator asked the defendant if he smoked crack or

marijuana, and the defendant replied no.



              The defendant now argues that the defendant was in custody when he was

transported back to 607 Peabody. According to the defendant, by asking him what was

in his pocket, Officer Tates engaged in conduct he should have known was reasonably

likely to elicit an incriminating response. Although he made no verbal response, the

defendant argues, his conduct was communicative in nature. The defendant contends,

therefore, that because he was not read his Miranda rights at the time Officer Tates

engaged in conduct he should have known was likely to elicit an incriminating response,

his initial arrest was invalid, thus tainting the search that uncovered the contraband

cocaine.



              The defendant asserts that even though he seemingly waived this argument

under T.R.A.P. 3(e) by not including it in his motion for a new trial, he is entitled to relief

on appeal because the resulting error constitutes plain error. The defendant’s assertion

is misplaced. Because the remedy the defendant seeks is dismissal of the case rather

than a new trial, this issue need not have been raised in a motion for new trial in order to

preserve it for appellate review. State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App.

1994)(waiver under T.R.A.P. 3(e) is inapplicable when the issue, if found to be

meritorious, would result in dismissal of prosecution).



              Even so, we find no error. The test for determining whether a suspect is in


                                              3
custody is “whether, under the totality of the circumstances, a reasonable person in the

suspect’s position would consider himself or herself deprived of freedom of movement

to a degree associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855

(Tenn. 1996). Here, the record reflects that when Officer Tates initially approached the

defendant, he told him he was detaining him and transporting him back to 607 Peabody

in order to conduct a domestic disturbance investigation. Although the defendant was

handcuffed and placed in the back of a police patrol car, the return ride to 607 Peabody

was only approximately one block in length and the defendant was released from the

handcuffs and the patrol car when a back-up officer arrived at the scene.



              The record reflects that Officer Tates properly conducted an investigatory

stop and detention of the defendant. Officer Tates testified that while he was on routine

patrol, he happened upon circumstances that led him to believe a domestic disturbance

was in progress. He testified that when he stopped his patrol car, the defendant fled the

scene and the women confirmed that the defendant was causing a disturbance. This

evidence establishes that Officer Tates had a reasonable suspicion, supported by specific

and articulable facts, that a criminal offense had been or was about to be committed, thus

justifying the investigatory stop and detention. See State v. Bridges, 963 S.W.2d 487,

492 (Tenn. 1997).



              Further, once the defendant was detained, Officer Tates observed him

digging his hands into his front pockets. Officer Tates testified, “As a rule of thumb, for

officer’s safety, we generally don’t allow people to put their hands in their pockets.”

Having a reasonable suspicion that the defendant might be armed, then, Officer Tates

was justified in patting down the defendant’s outer clothing so that he could continue “to




pursue his investigation without fear of violence.” Bridges, 963 S.W.2d at 493 (quoting

Adams v. Williams, 407 U.S. 143, 146 (1972)). Under the “plain feel” doctrine, an officer


                                            4
may seize contraband when the officer’s tactile perception gives him or her probable

cause to believe, prior to seizure, that the object felt is contraband. Id. at 494. Here, the

record does not indicate that Officer Tates had probable cause, based only on his sense

of touch, to believe that the bulge he felt in the defendant’s pocket was contraband. In

other words, there is no evidence that feeling the bulge in the defendant’s pocket made

it immediately apparent to Officer Tates that the bulge was contraband. Still, Officer

Tates did not violate the “plain feel” doctrine because he did not seize the bags of

marijuana from the defendant’s pocket. Rather, he simply asked the defendant what he

had in his pockets, at which point the defendant voluntarily produced the bags of

marijuana. Once the defendant handed the contraband over to Officer Tates, Officer

Tates had probable cause to arrest the defendant for marijuana possession. Thus,

contrary to the defendant’s argument, the defendant’s arrest (and subsequent search

incident to arrest, which uncovered the cocaine) was valid.1



                  The defendant also argues that the trial court erred in denying alternative

sentencing on his cocaine charge. At the conclusion of the sentencing hearing, the trial

court found the defendant to be a Range I standard offender subject to a sentence of

eight to twelve years. See T.C.A. § 40-35-112(a)(2). The trial court found the following

three enhancement factors: (1) that the defendant has a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate range; (8) that the defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community; and (13)

that the felony was committed while the defendant was on probation. See T.C.A. § 40-



35-114(1), (8), (13)(C). The trial court also found one mitigating factor “arguably” applied,

that is, that the defendant’s criminal conduct neither caused nor threatened serious bodily

injury. See T.C.A. § 40-35-113(1). Determining that the defendant’s history of criminal

         1
          The State argu es th at by p leadin g guilt y to the ma rijuan a cha rge, th e def end ant va lidate d his
arrest an d thus the search incident to th e arrest w as also v alid. No au thoritative citation s are off ered to
support this argument. We decline to consider the State’s argument or adopt its position in this case,
given that th e defen dant’s arr est was clearly valid.

                                                          5
convictions made a community corrections sentence inappropriate, the trial court

sentenced the defendant to eight years in the Department of Correction.



                 When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness.             T.C.A. § 40-35-401(d).      This

presumption, however, “is conditioned upon the affirmative showing in the record that the

trial court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the

sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing

Commission Comments.



                 Here, the defendant argues that enhancement factor (8) is inapplicable in

this case because the only proof of an unwillingness to comply with the terms of

community-based release is that he committed the instant offense while on probation for

a prior case.      See State v. Hayes, 899 S.W.2d 175, 185-86 (Tenn. Crim. App.

1995)(factor (8) does not apply unless a previous history of unwillingness is shown; where

probation was violated by the offense underlying the current conviction, enhancement

factor (13), not (8), is appropriate). Although the record suggests that the defendant may

have previously violated the terms of release in the community well before he committed

the instant offense, we are reluctant to so conclude because the record is rather unclear

on this point.



                 Nevertheless, even assuming that the defendant’s contention is correct, the

record amply supports the application of enhancement factors (1) and (13). Because

possession of over one-half gram of cocaine with the intent to sell or deliver is a Class



B felony, see T.C.A. § 39-17-417(c)(1)(Supp. 1998), the defendant is not presumed a

favorable candidate for alternative sentencing. T.C.A. § 40-35-102(6). Moreover, as the

defendant admits in his appellate brief, measures less restrictive than confinement have


                                              6
recently been applied unsuccessfully to the defendant. See T.C.A. § 40-35-103(1)(C).

This, in conjunction with the defendant’s previous history of criminal convictions and

criminal behavior, indicates that the defendant’s potential for rehabilitation is poor. See

T.C.A. § 40-35-103(5). Given these circumstances, denial of alternative sentencing

seems appropriate.2



                  Finding no merit to the defendant’s contentions, we affirm his conviction and

sentence.



                                                               _______________________________
                                                               JOHN H. PEAY, Judge



CONCUR:



______________________________
JOE G. RILEY, Judge



______________________________
THOMAS T. W OODALL, Judge




         2
          The State relies upon State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990), for the
con tentio n tha t it nee d not dem ons trate a nee d for dete rren ce be cau se th e sale or us e of n arco tics is
“deterrable per se,” and deterrence supports denial of alternative sentencing. We point out that after the
Dykes opinion, the Tennessee Supreme Court authored State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991), a drug case, in which the court specifically stated, “The finding of deterrence cannot be
conclus ory only but m ust be s upporte d by proof .”

                                                         7
