        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   November 13, 2013

                  STATE OF TENNESSEE V. RICKY J. JONES
                    and SHANE EUGENE McCLANAHAN

                  Appeal from the Criminal Court for Smith County
            Nos. 2012-CR-150, 2012-CR-193,     David E. Durham, Judge
                 2012-CR-147, 2012-CR-268


                No. M2013-01174-CCA-R3-CD- Filed March 11, 2014




J OHN E VERETT W ILLIAMS, J., concurring in results.

       I write separately because my review and interpretation of the record leads me to a
different conclusion that those reached by my colleagues in their reasoned and well-written
opinions. While I do concur with the results reached by Judge McMullen, I do so based upon
different reasoning as herein expressed. Because I do agree with her conclusion, Judge
McMullen writes as the majority.

       With regard to the search of Defendant McLanahan, I conclude that the trial court’s
finding of reasonable suspicion was not supported by the evidence. Rather, I conclude that
Deputy Agree did not have reasonable suspicion, based upon the smell of marijuana around
Defendant McLanahan in the store, to conduct the seizure in his automobile.

        Absent the testimony of Deputy Agree, which the trial court accredited, that he
smelled the odor of marijuana emanating from the defendant, there exists no other evidence
or testimony which provides a basis for reasonable suspicion. Because the trial court’s
determination with regard to whether Deputy Agee actually smelled the odor of marijuana
emanating from the Defendant McLanahan is so equivocal, I do not believe that it can
provide the basis for establishing reasonable suspicion. More specifically, the trial court
stated that it had a problem with how Deputy Agee smelled drugs on Defendant McLanahan.
The trial court also questioned whether the officer in fact smelled drugs on Defendant
McLanahan, the clerk, or on other people that were in this public grocery store. This fact
alone is the cause of my greatest concern when reviewing this record. A trial court must base
its finding on credible evidence. Because the trial court directly questions on the record
whether the odor of marijuana came from Defendant McLanahan or from another, I cannot
conclude that reasonable suspicion exists. Therefore, I would suppress all the evidence
found as a result of the stop on reasonable suspicion grounds rather than upon unreasonable
police action in not taking immediate action as does the majority.

        Regarding the search of Defendant Jones, I acknowledge that Judge Woodall raises
very reasonable and well-reasoned points of law. However, the State failed, on appeal, to
raise any of the issues which are so ably addressed by Judge Woodall. I would find those
issues to be waived.




                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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