         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs July 26, 2005

                 STATE OF TENNESSEE v. MICHAEL N. SMITH

                   Direct Appeal from the Circuit Court for Coffee County
                          No. 33,410F Gerald L. Ewell, Sr., Judge



                  No. M2005-00173-CCA-R3-CD - Filed September 23, 2005


The trial court found the defendant, Michael N. Smith, guilty of possession of a controlled substance
with intent to sell or deliver and possession of drug paraphernalia. On appeal, the defendant argues
that the trial court erred in denying his motion to suppress evidence seized as a result of an
investigatory stop. Following our review, we affirm the decision of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which GARY R. WADE , P.J., and DAVID H.
WELLES, J., joined.

Cynthia M. Fort (on appeal), and Glen R. Funk (at trial), Nashville, Tennessee, for the appellant,
Michael N. Smith.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; C.
Michael Layne, District Attorney General; and Kenneth J. Shelton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                I. Facts and Procedural History

        At the suppression hearing, Highway Patrol Officer Rhett Campbell, testified that he was
patrolling the westbound lane of Interstate 24 in Coffee County when he observed the defendant’s
vehicle also heading westbound. As Officer Campbell pulled up beside the defendant’s vehicle and
passed it, he noticed that the window tint on the driver’s-side windows appeared darker than allowed
by statute. Officer Campbell also perceived that the window tint on the front windshield was
excessive because it extended beyond the manufacturer’s factory installed shade band. After
observing the window tinting, Officer Campbell stopped the defendant’s vehicle because he suspected
the window tint violated Tennessee Code Annotated section 55-9-107(a)(1).1

        Officer Campbell testified that upon approaching the vehicle, he told the defendant that he
pulled him over because he thought his “window tint was too dark.” After checking the defendant’s
driver’s license and registration, Officer Campbell noticed a prescription pill bottle in the ashtray and
inquired whether it belonged to the defendant. The conversation quickly turned to drugs; whereupon,
the defendant admitted that he had used marijuana a few hours earlier and had drug paraphernalia in
his possession. According to Officer Campbell, the defendant consented to a search of his vehicle
when Officer Campbell told the defendant that he would be lenient if the paraphernalia was all the
defendant had in his possession. At this time, the defendant acted strangely by shaking his head and
saying, “No. I’m not going home.” The defendant’s response made Officer Campbell extremely
nervous so he took the defendant’s keys and placed them on the roof of the vehicle for his safety, then
asked the defendant to be truthful with him. In response, the defendant admitted that he had
approximately ten pounds of marijuana in the toolbox and bed of his vehicle. Hearing this, Officer
Campbell advised the defendant of his Miranda rights, placed the defendant under arrest, and then
searched the vehicle. In searching the defendant’s vehicle, Officer Campbell uncovered what turned
out to be over nineteen pounds of marijuana.

        On cross-examination, Officer Campbell admitted that he did not have his “tint card” with him
on the day he stopped the defendant. Officer Campbell stated that he did not realize his tint card was
missing until after he had stopped the defendant. Officer Campbell reiterated that after he approached
the vehicle the topic of conversation quickly went from window tint to drugs.

         The defendant testified that Officer Campbell told him the reason his vehicle was stopped was
because the window tint appeared too dark but that was the extent of the conversation. The defendant
stated that the tint on his vehicle was installed by a reputable business; therefore, he did not believe
that his window tint was illegal. According to the defendant, when Officer Campbell questioned him
about the prescription bottle, he told the officer it was a prescription for penicillin. Further, the
defendant acknowledged that he told Officer Campbell that he had recently smoked marijuana and
produced drug paraphernalia when asked if he had “any other drugs in the vehicle.” The defendant
denied dropping his head and making the statement “I’m not going home.”

        The defendant stated that Officer Campbell told him “he had the right to search the vehicle
after that point.” Although the defendant recalled that Officer Campbell told him to be honest and
asked whether he had any other controlled substances in the car, the defendant stated that he did not
remember Officer Campbell ever saying, “If this is all that is in here, you are going home.” The
defendant admitted that before he was placed under arrest, he told Officer Campbell that he had about
ten pounds of marijuana in his truck, but he was just taking it to be delivered somewhere.

         1

Tennessee Code Annotated § 55-9-107(a)(1) states that windows of vehicles operated on public roads in Tennessee must
have a visible light transmittance of at least thirty-five percent, and with the exception of the manufacturer’s standard
installed shade band, the windshield must have a light transmittance of at least seventy percent.

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        Timothy Turner, the owner of Extreme Auto Trim, testified that he installed the window tint
on the defendant’s truck. Turner recalled that he installed a “medium tint,” darkened at thirty-five
percent on the side windows of the defendant’s truck. Turner could not recall if he installed tint on
the front windshield of the defendant’s truck. Turner also testified that he had been in the window
tinting business for twenty-two years and was very familiar with Tennessee laws regarding window
tint. As Turner explained, tint film comes in designated percentages and every vehicle that leaves his
shop is always below the legal limit. Turner acknowledged that weather conditions and the size of
the windshield could give the appearance that the tint is too dark or too low.

        Following the suppression hearing, the trial court found that Officer Campbell had probable
cause to stop the defendant’s vehicle to determine whether the tint exceeded the lawful level of
intensity on the side windows or the lawful width at the top of the windshield. Subsequently, the
defendant was convicted of possession of a controlled substance with intent to sell or deliver and
possession of drug paraphernalia and was ordered to serve a total effective sentence of two years.

                                             II. Analysis

        On appeal, the defendant challenges the trial court’s denial of his motion to suppress evidence
of marijuana and drug paraphernalia found in his vehicle after he was stopped because of his window
tint. Specifically, the defendant asserts that the investigatory stop was unreasonable because Officer
Campbell did not have probable cause or reasonable suspicion to stop his vehicle for having illegally
tinted windows. The defendant contends that the stop was pretextual because Officer Campbell could
not have reasonably believed a tint offense occurred and never attempted to investigate this offense
once he stopped the vehicle.

         When reviewing the trial court’s decision on a motion to suppress, this Court conducts a de
novo review of the trial court’s conclusions of law and application of law to facts. See State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001). However, the trial court’s findings of fact are presumed
correct unless the evidence contained in the record preponderates against them. See State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000). “Questions 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. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). Moreover, the prevailing party is entitled to the strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001) (quoting State v. Keith, 978 S.W.2d 861,
864 (Tenn. 1998).

       Both the state and federal constitutions protect individuals from unreasonable searches and
seizures. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. Therefore, a search or seizure
conducted without a warrant is presumed unreasonable and any evidence discovered subject to
suppression. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963
S.W.2d 487, 490 (Tenn. 1997). However, the evidence will not be suppressed if the State proves that



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the warrantless search or seizure was conducted pursuant to one of the narrowly defined exceptions
to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

         One of these narrow exceptions occurs when a law enforcement officer stops an automobile
based on probable cause to believe that a traffic violation has occurred. Whren v. United States, 517
U.S. 806, 810 (1996); State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997). If the officer has
probable cause to believe that a traffic violation has occurred, any seizure will be upheld even if the
stop is a pretext for the officer’s subjective motivations in making the stop. See Whren, 517 U.S. at
813-15; Vineyard, 958 S.W.2d at 734-35. Another such exception occurs when a law enforcement
officer initiates an investigatory stop based upon specific and articulable facts that the defendant has
either committed a criminal offense or is about to commit a criminal offense. Terry v. Ohio, 392 U.S.
1, 21 (1968); Binette, 33 S.W.3d at 218. This narrow exception has been extended to the
investigatory stop of vehicles. See United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975); State
v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). In evaluating whether the law enforcement officer
had reasonable suspicion to justify an investigatory stop, this Court must consider the totality of the
circumstances, which includes the personal observations and rational inferences and deductions of
the trained law enforcement officer making the stop. See Terry, 392 U.S. at 21; Watkins, 827 S.W.2d
at 294. Objective standards apply, rather than the subjective beliefs of the officer making the stop.
State v. Norword, 938 S .W.2d 23, 25 (Tenn. Crim. App. 1996).

       Our review of the record indicates that Officer Campbell possessed reasonable suspicion to
suspect that the defendant was engaged in criminal activity. Tennessee Code Annotated section
55-9-107(a)(1) states:

               It is unlawful for any person to operate, upon a public highway, street
               or road, any motor vehicle registered in this state, in which any
               window . . . has been altered, treated or replaced by the affixing,
               application or installation of any material which:

               (A) Has a visible light transmittance of less than thirty-five percent
               (35%); or

               (B) With the exception of the manufacturer’s standard installed shade
               band, reduces the visible light transmittance in the windshield below
               seventy percent (70%).

The statute expressly authorizes a “police officer of this state to detain a motor vehicle being operated
on the public roads, streets or highways of this state when such officer has a reasonable belief that the
motor vehicle is in violation of subdivision (a)(1), for the purpose of conducting a field comparison
test.” Tenn. Code Ann. § 55-9-107(c). Here, Officer Campbell’s testimony indicates that he stopped
the defendant’s vehicle based upon his observations that the darkly tinted windows of the defendant’s
vehicle violated a Tennessee statute. Although Officer Campbell did not realize that he did not have
his “tint card” with him until he stopped the defendant, he issued the defendant a verbal warning
about his tinted windows. In addition, Timothy Turner testified that he installed a thirty-five percent

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tint on the side windows of the defendant’s vehicle, which is the darkest tint allowed by law.
According to Turner, certain weather conditions may cause the tint to appear darker than it actually
is, and, depending on windshield size, a band of tint may appear to extend past the permissible factory
installed band. Therefore, based upon the totality of the circumstances, it is our view that the officer’s
stop was not pretextual but based on reasonable suspicion that the defendant violated legal window
tint limits.

         Although not directly addressed in the defendant’s brief, we also note that Officer Campbell’s
investigatory stop did not exceed its scope. A police officer’s actions after conducting an
investigatory stop must reasonably relate to the circumstances which justified the stop in the first
place. See Terry, 392 U.S. at 20. The detention “must be temporary and last no longer than is
necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983).
Moreover, the officer should employ the least intrusive means reasonably available to investigate his
or her suspicions in a short period of time. Id. In determining the reasonableness of the detention,
the proper inquiry is whether during the detention, the officer diligently pursued a means of
investigation that was likely to confirm or dispel his or her suspicions quickly. United States v.
Sharpe, 470 U.S. 675, 686 (1985). “If the time, manner or scope of the investigation exceeds the
proper parameters,” a constitutionally permissible stop may be transformed into impermissible stop.
State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002). However, if the officer develops a reasonable
suspicion that the occupant is engaged in other criminal activity during a valid stop, further detention
is justified. State v. Branden Haney and Lawrence Davis, No. E2002-00559-CCA-R3-CD, 2003 WL
22169708, at *5 (Tenn. Crim. App., at Knoxville, Sept. 19, 2003).

         Again, the record reflects that after initiating a stop in order to determine if the window tint
on the defendant’s vehicle was illegal, Officer Campbell noticed a prescription pill bottle in plain
view, which led him to ask the defendant questions regarding drugs. During the conversation, the
defendant admitted that he had recently smoked marijuana and voluntarily produced drug
paraphernalia he was carrying. The officer was then justified in detaining the driver for the time
reasonably necessary to determine whether the defendant had “any other drugs in the vehicle.” As
the conversation continued, the defendant admitted he had approximately ten pounds of marijuana
in his truck, which gave the officer probable cause to search the defendant’s truck. Where an officer
has probable cause to believe a vehicle contains contraband and the mobility of the vehicle is an
exigent circumstance, the vehicle may be searched or seized without a warrant. See Carroll v. United
States, 267 U.S. 132, 153-56 (1925); State v. Leveye, 796 S.W.2d 948, 950 (Tenn. 1990).

        In addition, Officer Campbell’s testimony established that the defendant consented to a search
of his vehicle. The trial court’s finding that a search is consensual will not be overturned unless the
evidence preponderates against the ruling. Brady v. State, 584 S.W.2d 245, 252 (Tenn. Crim. App.
1979). The trial judge accredited Officer Campbell’s testimony by overruling the defendant’s motion
to suppress, and no facts are present that indicate the defendant’s consent was not voluntary. The
defendant’s consent further supports our decision that Officer Campbell’s continued detention of the
defendant and search of his vehicle was lawful.

                                            III. Conclusion

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       For these reasons, we conclude that the trial court did not err in denying the motion to
suppress. We therefore affirm the decision of the trial court, denying the defendant’s motion to
suppress.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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