                                                                                           01/24/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  June 5, 2019 Session

               STATE OF TENNESSEE v. JERRY LEE JOYNER

                    Appeal from the Circuit Court for Dyer County
                     No. 17-CR-284      R. Lee Moore, Jr., Judge
                      ___________________________________

                           No. W2019-00106-CCA-R3-CD
                       ___________________________________


Defendant, Jerry Joyner, was indicted by the Dyer County Grand Jury on the following
counts: (1) possession with intent to sell or deliver a controlled substance, schedule II, to
wit, methamphetamine, in an amount in excess of 0.5 grams; (2) possession with intent to
sell or deliver a controlled substance, schedule II, to wit, cocaine, in an amount in excess
of 0.5 grams; (3) possession with intent to sell or deliver a controlled substance, schedule
II, to wit, morphine; (4) possession with intent to sell or deliver a controlled substance,
schedule II, to wit, hydrocodone; and (5) possession with intent to sell or deliver a
controlled substance, schedule IV, to wit, alprazolam. Following an evidentiary hearing
on Defendant’s motion to suppress the evidence retrieved from a search of his person, the
trial court granted his motion and dismissed, in separate judgments, all five counts of the
indictment against Defendant. The State appeals the granting of Defendant’s motion to
suppress on grounds that the search at issue was constitutional. After review, we reverse
the judgments of the trial court, reinstate the charges in the indictment, and remand for
further proceedings.

                      Tenn. R. App. P. 3 Appeal as of Right;
               Judgments of the Circuit Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; C. Phillip Bivens, District Attorney General; and Lance Webb,
Assistant District Attorney General, for the appellant, State of Tennessee.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellee, Jerry Lee Joyner.
                                         OPINION

                               Motion to Suppress Hearing

       This case arises from the search of Defendant’s person during a traffic stop on
February 20, 2017. Defendant filed a pretrial motion to suppress the seized evidence,
alleging that the search of his person was unconstitutional. The hearing on the motion to
suppress presented the following evidence.

       Officer Kevan Ward with the Dyersburg Police Department testified that on
February 20, 2017, he responded to a complaint from the manager of the apartment
complex where Defendant lived, regarding two vehicles in the parking lot. The
apartment manager told law enforcement that she was having a problem with drugs on
the premises and wanted the vehicles to leave the parking lot. After arriving at the
apartment complex, Officer Ward observed that one vehicle had left the premises, but the
other, a white Ford F250 truck, was still present. Officer Ward stated that he knew that
Defendant lived at the complex prior to the complaint from the manager because he had
investigated a previous complaint regarding Defendant “selling pills[.]”

       Officer Ward testified that he approached the white Ford F250 in the parking lot
and asked the driver of the vehicle, Mr. Michael Hale, why he was at the apartment
complex. Mr. Hale told Officer Ward that he had speakers in the back of his truck and
that he and Defendant were going to “go riding or something.” Officer Ward stated that
he then asked Mr. Hale to leave the parking lot and that Mr. Hale agreed to do so. After
Officer Ward left the premises, he noticed Mr. Hale’s vehicle heading back in the
direction of the apartment complex. Officer Ward turned his vehicle around and
proceeded back toward the apartment complex as well. He testified that he parked across
the street and observed Mr. Hale exit his truck and walk into Defendant’s apartment.
Officer Ward stated that Mr. Hale was inside Defendant’s apartment for approximately
five minutes before returning to his vehicle. Office Ward did not notice anyone else with
Mr. Hale at that time.

       Officer Ward testified that he followed behind Mr. Hale’s vehicle once Mr. Hale
had left the parking lot again and noticed that Mr. Hale’s vehicle tags were expired.
Officer Ward “went to make a traffic stop” and turned on his blue lights. Mr. Hale drove
through a red light before pulling over for the stop. At the time of the initial stop, Officer
Ward was the only officer present. He testified that he approached the driver’s side of
Mr. Hale’s vehicle and noticed that Defendant was sitting in the passenger seat. Officer
Ward testified that he asked Mr. Hale to exit the vehicle and “come to the back” to talk.
Defendant remained in the vehicle at this time. In about five minutes, Officer Mason
Hammond arrived at the scene. Officer Ward stated that a canine officer was also in
                                            -2-
route to the scene and that he saw Officer Hammond remove Defendant from the vehicle.
Officer Ward stated that he was close enough to hear the conversation between Officer
Hammond and Defendant. Officer Ward heard Officer Hammond ask Defendant if he
could search his person. Officer Ward heard Defendant say “yes, sir” in response to
Officer Hammond’s question.

        Additionally, Officer Ward testified that he asked Mr. Hale if he could search his
person and that Mr. Hale also agreed. Officer Ward stated that he was searching Mr.
Hale at the same time that Officer Hammond was searching Defendant. Officer Ward
stated that he did not find any contraband on Mr. Hale’s person. He further testified that
he did not see the search of Defendant’s person and could only “see the top of their
heads” because of his location at the back of the truck. He stated that at some point,
Officer Hammond indicated to him that he had found something “in the way of
contraband” during the search of Defendant. Officer Ward testified that Defendant was
subsequently handcuffed. Additionally, Officer Ward testified that the canine officer
arrived at the scene and conducted a search of Mr. Hale’s truck. The canine “indicated”
on the truck, and a subsequent search of the vehicle followed. Officer Ward testified that
two handguns were found in the glove compartment; however, Defendant was not
implicated in any charges related to the handguns.

       On cross-examination, Officer Ward explained that he asked Mr. Hale to leave the
apartment complex initially “to keep conflict down between [Mr. Hale] and [the
apartment complex manager].” He stated that he did not call to check on Mr. Hale’s
license tag when he saw the white Ford F250 sitting in the parking lot of the apartment
complex because he does not generally look at a vehicle’s license tag when the
individuals are sitting in the car. Officer Ward explained he would have checked Mr.
Hale’s tag if he was not sitting in the vehicle and if he was trying to identify the owner of
the vehicle. Regarding Mr. Hale’s return to the parking lot of the apartment complex,
Officer Ward explained that he “thought it was weird that [Mr. Hale] would tell [him] he
would stay away, but that [Mr. Hale] would go right back.” Officer Ward then
reaffirmed that he did not know Defendant was in the vehicle until he had stopped Mr.
Hale.

       Officer Ward testified that the sticker on Mr. Hale’s vehicle was an expired 2016
tag. After stopping the vehicle, Officer Ward stated that he called dispatch to verify the
owner. He testified that he did not know that Mr. Hale had purchased an updated tag nor
did Mr. Hale show him the 2017 sticker. Further, Officer Ward stated that he did not
give Mr. Hale a ticket but instead issued him a warning. Officer Ward did not believe
Mr. Hale was traveling at an excessive speed during the time of the traffic offense and
restated that Mr. Hale ran through a red light before pulling over. When asked why he
wanted Mr. Hale to exit the vehicle immediately after stopping, Officer Ward explained
                                            -3-
that he had noticed Defendant in the passenger seat of the vehicle and wanted to talk to
Mr. Hale privately. When questioning Mr. Hale at the scene, Officer Ward wanted to
know why Defendant was in the vehicle when Mr. Hale had reported to him previously in
the parking lot that Defendant was not home at his apartment. Officer Ward testified that
he was interested as to why Mr. Hale was at Defendant’s apartment because Officer
Ward had previously heard about Defendant selling drugs. Further, he testified that he
asked Mr. Hale to step out of the vehicle because individuals should be separated when
questioned because “you don’t ask them in front of each other.”

        Officer Ward admitted he did not have anything but a cite and release violation.
Officer Ward stated that he did not talk to Officer Hammond prior to the stop. He
explained that he called dispatch once he stopped Mr. Hale and that he had only spoken
to the canine officer. Officer Ward was unsure how Officer Hammond knew about the
situation, but he stated that Officer Hammond knew the canine officer was coming to the
scene. He testified that “any time we run a canine[,] you pull everyone out of the
vehicle.” Officer Ward reaffirmed that Mr. Hale consented to a search of his person and
that Defendant had been searched by Officer Hammond. He testified that a pipe was
found on Defendant’s person and that he believed more contraband was retrieved
following the initial recovery. Officer Ward restated that he knew of Defendant before
the encounter on February 20, 2017. Furthermore, Officer Ward stated that he heard
Defendant consent to a search by Officer Hammond and he explained that Officer
Hammond conducted a Terry patdown search. See Terry v. Ohio, 392 U.S. 1 (1968).
Officer Ward stated that this search did not turn up any weapons on Defendant’s person
but that after Officer Hammond “pulled out the needle” and “the baggies,” Defendant
mentioned a bigger bag located inside of his pants. Officer Ward testified that Officer
Hammond asked Defendant if he could “search” him but did not indicate specifically if it
was an interior search or a patdown search.

        Regarding his search of Mr. Hale, Officer Ward explained that he conducted a
Terry search first because even if consent is given, he is unaware of what is in an
individual’s pockets. He stated that he does not “want to stick [his] hand in and grab a
needle or anything.” Officer Ward confirmed that he searched inside Mr. Hale’s pockets
after the patdown search but denied finding anything in his pockets. Further, Officer
Ward explained that the canine unit was on standby until he and Officer Hammond were
finished searching both Mr. Hale and Defendant’s persons. Officer Ward also testified
that the canine did not find any more drugs within the vehicle. On redirect examination,
Officer Ward confirmed that he stopped Mr. Hale both for the expired tag and because he
ran through a red traffic light.

      Officer Hammond of the Dyersburg Police Department testified that he had
worked for the police department for approximately two and half years prior to the
                                          -4-
incident with Defendant and that he had previously worked as a jailor with the Dyer
County Sherriff’s Office. Officer Hammond confirmed that he responded to the scene of
a traffic stop on February 20, 2017, between four and five minutes after the stop. He saw
Officer Ward talking to the driver, and Officer Hammond made contact with the
passenger in the vehicle. Officer Hammond testified that he asked Defendant to step out
of the vehicle because the canine unit was in route to do a free air sniff. He testified that
it is policy for everyone to step out of the vehicle for both the dog’s safety and the
handler’s safety. Officer Hammond stated that he asked Defendant if he could search
him and that Defendant consented to the search by verbally saying “yes.” Officer
Hammond explained that before he does an in depth search, he likes “to pat down for
weapons to make sure they are not armed.” He stated that there are concerns with putting
his hands in an individual’s pockets because “you could run your hand into a knife or a
needle.”

       Officer Hammond explained that he conducted a patdown search of Defendant and
felt what he believed to be a glass pipe used to smoke crack cocaine. Officer Hammond
asked Defendant what the object was, and Defendant said it was a glass “crack pipe.”
Officer Hammond handcuffed Defendant and retrieved the pipe from Defendant’s pocket.
Defendant was under arrest at this point. Following the arrest, Officer Hammond then
conducted a more thorough search of Defendant’s person. Officer Hammond found a
large gallon baggie full of smaller bags and pill containers located inside the front of
Defendant’s pants. Officer Hammond testified that there were at least three different pill
containers, a bag of marijuana, a bag of what he believed to be methamphetamine, a bag
of what he believed to be crack rock, and a bag of powder cocaine. He stated that the
methamphetamine and cocaine were field tested and both tested positive as
methamphetamine and cocaine respectively. Additionally, he found two more pipes and
a syringe in the gallon bag. No other contraband was found on Defendant’s person other
than a small bag of rock cocaine which fell out of Defendant’s pocket when the pipe was
retrieved. Officer Hammond confirmed that a handgun was retrieved from the vehicle,
but he did not believe Defendant was charged with anything related to the handgun.

       On cross-examination, Officer Hammond testified that he did not know why
Officer Ward had initially pulled over Mr. Hale’s vehicle prior to arriving on the scene.
He stated that he did not speak to Officer Ward when he got to the scene because Officer
Ward was talking to Mr. Hale. He explained that he heard on “radio traffic” that Officer
Ward had called for a canine, and Officer Hammond knew to pull the passenger out of
the other side of the vehicle. He stated that he went straight to the passenger side of the
vehicle and asked Defendant to step out. He testified that he asked Defendant if he could
search his person and by “search” he meant the interior of Defendant’s pockets and
Defendant’s person. Officer Hammond testified that because Defendant had consented to
the search, he could search the interior of Defendant’s pockets.
                                            -5-
       Officer Hammond denied having any knowledge of Defendant prior to the events
on February 20, 2017. He testified that he had not heard of Defendant dealing drugs nor
had he heard that Defendant’s brother was a detective at the police department. He stated
that he did not believe Defendant was high “or screwed up in any manner” at the time of
his arrest. Officer Hammond was unsure why Defendant would give him consent
knowing he had contraband in his pockets. He further stated that he arrived at the traffic
stop on his own free will, but he acknowledged that Officer Ward had called for the
canine unit.

       Officer Ward was recalled to the stand to testify to the time it took for Officer
Hammond to arrive on the scene. He stated that no more than five minutes had passed
from the time he stopped Mr. Hale until the time Officer Hammond arrived.
Additionally, Officer Ward estimated that he was on the scene for approximately fifteen
to twenty minutes for the entire encounter.

        Defendant testified that he was fifty-nine years old, and he confirmed that he lived
at the apartment complex where Officer Ward first had contact with Mr. Hale. He stated
that the parking lot was for both visitors and residents of the complex. He testified that
there were no signs in the parking lot that restricted drifters. Defendant stated that on
February 20, 2017, Mr. Hale was a visitor at his apartment complex. He confirmed that
Mr. Hale drove a Ford F250 truck. He stated that he left the premises with Mr. Hale in
the vehicle and “during [his] short trip[,]” he saw the reflection of blue lights. He stated
that Mr. Hale pulled the vehicle over and that Officer Ward approached the driver’s side.
He recalled that Officer Ward asked Mr. Hale to exit the vehicle and that the two of them
approached the back of the truck. Defendant stated that he was inside the vehicle for
about five to seven minutes before Officer Hammond approached him. He testified that
Officer Hammond asked him to get out of the vehicle. He stated that Officer Hammond
did not ask whether or not he could search his person but “immediately grabbed hold of
[him]” and “turned [him] around this way and started patting [him] down.” Defendant
stated that Officer Hammond found something in his pocket and pulled out the glass pipe.
He explained that nothing was in the glass pipe nor had anything ever been in the pipe.
Defendant then stated that Officer Hammond proceeded to go back into his pants pockets
several times.

        Defendant admitted to having “all kinds of stuff” in his pockets, including
methamphetamine, cocaine, marijuana, morphine, hydrocodone, oxycodone, Percocet,
Xanax, and Valium. Defendant testified that he had been arrested before but not for
selling drugs. He stated that he had “dealt with the police quite a bit.” However, he
testified that this was his first arrest for drug possession. Defendant also acknowledged
that his brother was a detective for the police department. Regarding the search,
                                           -6-
Defendant reiterated that he did not give Officer Hammond permission to search his
person and that he would not have given consent if Officer Hammond had asked for it.
Defendant understood that Mr. Hale’s vehicle had been stopped by Officer Ward because
of an expired tag; however, Defendant stated that Mr. Hale had the updated tag in his
vehicle and that Mr. Hale had shown the correct tag to the officer.

        On cross-examination, Defendant denied being a drug dealer. Defendant admitted
that he was a drug addict. He denied being high at the time of his arrest. He explained
that he had “just [come] from eye surgery at the hospital over there and [he] didn’t use
any drugs other than what they gave [him].” Defendant denied being able to hear the
conversation between Officer Ward and Mr. Hale because they were too far away from
him. Additionally, he denied being able to hear them once he was out of the truck with
Officer Hammond. Defendant recalled that when Officer Hammond felt the pipe in his
pocket, “he just reached in [his] pocket and got it and pulled it out.” He testified that “it
was like [Officer Hammond] was excited that he found it.” Defendant stated that he did
not count the amount of drugs that were stuffed in the front of his pants, but he agreed
that there were 22 60mg morphine pills, 12 100mg morphine pills, 5 200mg morphine
pills, 12 1mg Benzodiazepine, 5 7.5mg hydrocodone, 1 10mg hydrocodone, 6 40mg Liz
dexamphetamine pills, 2 4mg hydromorphones, 37 1mg alprazolam, and 7 1/2mg
alprazolam.

       Following the conclusion of proof, the trial court took the matter under advisement
and later granted Defendant’s motion to suppress. In its order granting relief, the trial
court made the following pertinent findings of fact:

       The Court finds that [Defendant] gave permission to Officer Hammond to
       search him. He did a [Terry] patdown search and discovered a glass crack
       pipe. The Court finds that [Defendant] confirmed that it was a glass crack
       pipe. At this time, Officer Hammond placed [Defendant] under arrest and
       did a more thorough search finding a huge number of illegal drugs stuffed
       down [Defendant’s] pants. There is some conflicting testimony between the
       two officers and [Defendant]. The Court finds, however, that the credibility
       of the officers far outweigh[s] the credibility of [Defendant]. The Court
       accepts the facts as set out in the testimony of both the officers as being
       true in this case. (Emphasis added).

       The Court finds that the initial stop for the lack of registration and running
       the red light was a constitutionally permissible stop. Although it is clear to
       the Court that the stop was permissible, it appears to be a routine traffic
       stop. It appears to be pre-textual stop although constitutionally permissible.
       The Court, however, has difficulty with removing [D]efendant from the
                                            -7-
       truck when he is not responsible for the traffic offense for which the stop
       was made. Although he gave permission to search his person, the Court
       has a difficult time in understanding how any search under the cite and
       release statute would be proper for [D]efendant in this case. It is true that
       [Officer] Hammond found a glass pipe on his [Terry] patdown at which
       time a thorough search would be permissible because the defendant would
       have been under arrest. However, there is no testimony in the record that
       this Court can recall that either officer had any reasonable suspicion that
       [D]efendant or Mr. Hale was armed and dangerous. Although the cite and
       release statute in Tennessee does not preclude a [Terry] patdown, it does
       not appear that there is any provision of this statute that would allow a
       [Terry] patdown without reasonable suspicion that the defendant was armed
       and dangerous. The Court cannot find from the evidence that this issue was
       established or that the officers had any reason to believe that [D]efendant
       was armed and dangerous. Consequently, although the initial stop was
       proper, there was no basis for removing the [D]efendant from the vehicle
       and performing any type of search based upon traffic offenses that were
       committed by Mr. Hale.

       Following the order, the State filed a Motion to Reconsider. The State’s motion
challenged the trial court’s ruling that “although the initial stop was proper, there was no
basis for removing [Defendant] from the vehicle and performing any type of search based
upon traffic offenses that were committed by Mr. Hale.” The State further pointed out
that the trial court, in its ruling, specifically made factual findings that the officers’
testimony was credible, the stop of the vehicle was constitutionally permissible, and that
Defendant gave Officer Hammond consent to search Defendant’s person. The State
relied upon State v. Donaldson, 380 S.W.3d 86 (Tenn. 2012). In Donaldson the supreme
court held that a driver of a vehicle lawfully stopped for a traffic offense can be required
to step out of the vehicle without that being a constitutional violation. Donaldson, 380
S.W.3d at 88, (relying on Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)). The
Court further held in Donaldson that the Fourth Amendment of the United States
Constitution and article 1, section 7 of the Constitution of Tennessee apply coextensively
in such circumstances. Id. at 96. Applying these rulings, the State argued that in
Tennessee, it is also constitutionally permissible for officers, after making a traffic stop,
to also require passengers to get out of the vehicle, in light of the holding in Maryland v.
Wilson, 519 U.S. 408, 415 (1997) (“[A]n officer making a traffic stop may order
passengers to get out of the car pending completion of the stop.”).

      The trial court denied the State’s motion to reconsider its order granting the
motion to suppress. The trial court noted the State’s reliance on Wilson wherein the

                                            -8-
Supreme Court held “that ‘an officer making a traffic stop may order passengers to get
out of the car pending completion of the stop.’”

        While admitting that it may have “inartfully drafted” the order granting the motion
to suppress, the trial court clarified its basis for granting the suppression motion, stating
as follows.

        The basis for granting the Motion to Suppress is that the Court did not
        hear any evidence which would indicate that either the driver or the
        guest passenger created any reasonable suspicion that they were armed
        and dangerous. Consequently, although the initial stop was proper, the
        Court feels that there was no basis for removing and searching
        [Defendant] with there being no testimony that [Defendant] created any
        reasonable suspicion that he was armed and dangerous.

                                        ANALYSIS

       In its appeal, the State presents its issue that the trial court erred because Officer
Hammond’s request for Defendant to exit the truck was not a violation of Defendant’s
constitutional rights and because Defendant consented to Officer Hammond’s search of
Defendant’s person. Defendant argues on appeal that Defendant’s removal from the
truck by request of Officer Hammond and the subsequent search of Defendant violated
Defendant’s constitutional rights. We agree with the State, reverse the order granting the
motion to suppress, reverse the judgments dismissing each count of the indictment,
reinstate each count of the indictment, and remand to the trial court for further
proceedings.

        When reviewing a trial court’s ruling on a motion to suppress, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolutions 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). Accordingly, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Appellate courts conduct a de novo review of questions of law and the trial court’s
application of law to facts. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). 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.

       The trial court’s findings of fact are extremely well set forth in its order granting
the motion to suppress and in its order denying the State’s motion for reconsideration.
The findings of fact establish that the following sequence of events occurred. Mr. Hale’s
                                             -9-
vehicle displayed an expired registration tag. Officer Ward initiated a stop of the truck,
during which Mr. Hale ran a red light. Mr. Hale got out of the truck at Officer Ward’s
request. Five to seven minutes later, Officer Hammond arrived on the scene and asked
Defendant to exit the truck. Defendant consented to be searched by Officer Hammond.
Performing a Terry patdown, Officer Hammond discovered a glass crack cocaine pipe.
Defendant confirmed it was in fact a glass crack cocaine pipe. At that point, Officer
Hammond arrested Defendant and did a more thorough search of Defendant, finding a
large number of illegal drugs stuffed down Defendant’s pants.

       Significantly, the trial court elaborated on its finding of facts by specifically
stating it found “that the credibility of the officers far outweigh[s] the credibility of
[Defendant]. The Court accepts the facts as set out in the testimony of both the officers
as being true in this case.”

       We agree that the findings of fact made by the trial court are clearly supported by
the evidence, even when the evidence adduced at the suppression hearing is viewed in its
strongest legitimate view with reasonable and legitimate inferences, in deference to
Defendant, the prevailing party on appeal. See Odom, 928 S.W.2d at 23. However,
reviewing de novo the trial court’s application of the law to the facts as found by the trial
court, we conclude the trial court erred.

       In its order granting the motion to suppress the trial court ruled that the officers
had no right to remove Defendant from the truck because Defendant was not responsible
for the traffic offense which led to the stop. The trial court also ruled, however, that the
stop initiated by Officer Ward was constitutionally permissible. The trial court
concluded in its ruling that despite Defendant’s giving consent for his person to be
searched, the court had “a difficult time in understanding how any search under the cite
and release statute would be proper for [Defendant] in this case.” The trial court also
concluded that since there was no testimony by either officer that there was a reasonable
suspicion that Defendant was armed or dangerous, Officer Hammond’s Terry patdown
during which the glass crack cocaine pipe was discovered was not constitutionally
permissible. The trial court concluded its application of the law to the facts in its order
granting the suppression motion by stating, “Consequently, although the initial stop was
proper, there was no basis for removing [Defendant] from the vehicle and performing any
type of search based upon traffic offenses that were committed by Mr. Hale.”

       As noted above, following the State’s motion to reconsider, the trial court
acknowledged it may have “inartfully drafted” the order granting the motion to suppress.
The trial court then explicitly stated its legal conclusions upon which its decision was
based, which is quoted above. Summarized, the trial court granted the motion because, at
the time of the constitutionally permissible stop of Mr. Hale’s truck, there was no
                                           - 10 -
indication that either Mr. Hale or Defendant was armed or dangerous, and the removal of
Defendant from the truck and the search of the Defendant’s person violated Defendant’s
constitutional rights.

        By explicitly stating its legal basis for its ruling in this case, the trial court
implicitly rejected all other theories for relief asserted by Defendant on appeal and in his
motion to suppress evidence. Defendant’s argument that he did not consent to the search
because he would never have consented to a search knowing all the drugs in his
possession was rejected by the trial court’s findings of fact and credibility determinations.
The trial court basically addressed Defendant’s argument that he should not have been
required to exit from Mr. Hale’s truck because Mr. Hale was stopped only for a citation
and release offense pursuant to T.C.A. § 40-7-118(c). We reject the trial court’s legal
conclusions, including this assertion by Defendant. Defendant also argues on appeal that
Mr. Hale should have just been given a citation and allowed to leave. He argues that the
detention of Mr. Hale’s truck was unconstitutionally extended in order to conduct a
canine drug search, citing Rodriguez v. U.S., _____ U.S. _____, 135 S. Ct. 1609 (2015).
The trial court made no findings of fact to support Defendant’s argument. However, the
trial court specifically determined that “the facts as set out in the testimony of both
officers as being true in this case.” Thus, it is conclusive that Defendant was asked by
Officer Hammond to step from the truck and Defendant gave his consent to be searched
in approximately five to seven minutes after Mr. Hale’s truck was stopped. Waiting for
arrival of the drug-sniffing dog was not a factor. Five to seven minutes is well within the
reasonable time period for an officer to address two traffic violations with the driver, here
an expired registration tag and running a red light after the officer initiated the stop by
turning on his blue lights. See Rodriguez, 135 S. Ct. at 1615. As we explain below, the
constitutionality of Officer Hammond’s request for Defendant to step out of the truck and
Defendant’s immediate consent to be searched, is not dependent upon the propriety of the
request by Officer Ward for the presence of a drug-sniffing dog.

       We conclude that Maryland v. Wilson, 519 U.S. 408 (1997) is controlling
authority in the case sub judice, considered in conjunction with State v. Donaldson, 380
S.W.3d 86 (Tenn. 2012). In Wilson, the first paragraph of the opinion identifies the
Court’s holding. The Supreme Court said,

             In this case we consider whether the rule of Pennsylvania v.
        Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977)(per
        curiam), that a police officer may as a matter of course order the driver
        of a lawfully stopped car to exit his vehicle, extends to passengers as
        well. We hold that it does.

Wilson, 519 U.S. at 410 (emphasis added).
                                           - 11 -
       In Wilson, the vehicle was stopped because it was violating the speed limit by
going 64 miles per hour where the speed limit was 55 miles per hour, and the vehicle had
no regular registration tag. The officer observed a torn piece of paper “dangling in the
rear of the vehicle.” Id. The paper had “Enterprise Rent-A-Car” written on it. The
officer activated his blue lights and siren, but the vehicle continued driving for about 1.5
miles before it pulled over and stopped. The officer observed two passengers during the
drive repeatedly turn to look at him, duck down below the line-of-sight, and then
reappear. Id.

       After the vehicle stopped, the driver got out and approached the officer. The
driver was trembling and appeared very nervous. He produced a valid driver’s license.
The officer instructed the driver to return to the car and produce the car rental documents.
The driver complied. While waiting on the driver, the officer observed that the front seat
passenger, the defendant in the case, was sweating and appeared nervous. Id.

        While the driver was in his seat looking for the documents, the officer ordered the
defendant to get out of the car. When he got out of the car, “a quantity of cocaine fell to
the ground.” Id. at 411. The defendant was arrested and charged with possession of
cocaine with intent to distribute. He filed a motion to suppress the evidence based upon
his argument that being ordered out of the vehicle by the officer was an unconstitutional
seizure under the Fourth Amendment. The trial court agreed and suppressed the
evidence. This was affirmed by an intermediate state appellate court which concluded
the ruling in Mimms does not apply to passengers of a vehicle. The state’s highest court
denied the State’s writ for certiorari. Id. The Supreme Court weighed the strong public
interest for the protection of officers during a traffic stop against the minimal intrusion
upon a passenger being removed from the vehicle. Id. at 413-14. Since the passenger is
already stopped from being inside the vehicle, the only change is that the passenger is
outside rather than inside the vehicle. The Court reasoned that danger of harm to a police
officer from the use of a weapon inside the vehicle is as great from a passenger as it is
from the driver. Id. at 414. The court concluded that,

                In summary, danger to an officer from a traffic stop is likely to be
        greater when there are passengers in addition to the driver in the stopped
        car. While there is not the same basis for ordering the passengers out of
        the car as there is for ordering the driver out, the additional intrusion on
        the passenger is minimal. We therefore hold that an officer making a
        traffic stop may order passengers to get out of the car pending
        completion of the stop.

Id. at 414-15.
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        The State argued in the trial court that while it appears that our supreme court has
not specifically ruled on the application of Mimms’ holding to passengers, in State v.
Donaldson, 380 S.W.3d 86, 92 (Tenn. 2012), the court held “in the context of traffic
stops, the protections afforded by article I, section 7 of the Tennessee Constitution [are]
coextensive with the protections afforded by the Fourth Amendment.” The Donaldson
court went on to adopt the Mimms rationale and held the officer in that case, who had
stopped the defendant’s vehicle because the defendant had driven past the white stop line
before stopping at an intersection and turned right without giving a turn signal, id. at 88,
“was entitled, as a matter of course, to remove the Defendant from the vehicle for a short
period of time after making the stop.” Id. at 93.

        The holdings in Mimms, Wilson, and Donaldson apply to situations involving
minor traffic offenses. In Mimms, the defendant was stopped because his vehicle had an
expired license plate. Mimms, 434 U.S. at 107. In Wilson, the defendant was stopped
because he was driving nine miles per hour over the speed limit and had no valid
registration plate. Wilson, 519 U.S. at 410. In Davidson, the defendant was stopped
because he drove past the stop line before bringing his vehicle to a stop, and he failed to
use his turn signal as he turned right. Donaldson, 380 S.W.3d at 88. Under our de novo
review, we conclude the trial court erred when it ruled that Officer Hammond
unconstitutionally had Defendant step out of the vehicle.

        As to the search of Defendant’s person, upon de novo review, we also conclude
that this did not violate any constitutional right of Defendant, pursuant to the trial court’s
detailed findings of facts. Also, the trial court specifically stated that “The Court accepts
the facts as set out in the testimony of both the officers as being true in this case.”

       The trial court erroneously applied the limited search warrant exception found in
Terry v. Ohio. The testimony of Officer Hammond, accepted as true by the trial court,
was that as Defendant got out of the vehicle, Officer Hammond asked Defendant if he
could search Defendant. Defendant responded “yes.” Officer Hammond, in accordance
with his usual preference when doing “an in depth search” patted down Defendant for
weapons to make sure Defendant was not armed. Furthermore, Officer Hammond
wanted to make sure no needle or open knife was in a pocket that could cause injury to
his hand. During the patdown, Officer Hammond felt what he thought was a glass crack
cocaine pipe. He asked Defendant what the object was, and Defendant stated it was a
glass crack cocaine pipe. Defendant was placed under arrest for possession of the drug
paraphernalia and handcuffed.

      It is clear from the testimony that Officer Hammond knew he had been given
consent by Defendant to do “an in depth search.” However, he patted down the exterior
                                            - 13 -
of Defendant’s clothing for his own safety, not as an authorization for only a limited
Terry search. On cross-examination Officer Hammond reiterated multiple times that he
had consent to search Defendant’s person, including his pockets, and the patdown was
not his legal justification for any search but only for his own safety.

       As noted by the State, voluntary consent is one of the exceptions to the
requirement of a search warrant. State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996).
The requirements for a lawful Terry patdown are irrelevant based upon the factual
findings and credibility determinations made by the trial court. Officer Hammond had
valid consent from Defendant to do a complete search of Defendant’s person.

       The State is entitled to relief in this appeal.

                                       CONCLUSION

       Accordingly, the trial court’s order granting the motion to suppress is reversed, the
judgments dismissing each of the five counts in the indictment are reversed, and all the
charges in the indictment are reinstated. The case is remanded to the trial court for
further proceedings. Costs are taxed to Defendant.

                                     ____________________________________________
                                     THOMAS T. WOODALL, JUDGE




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