         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs August 6, 2002

                STATE OF TENNESSEE v. CALVIN T. BARHAM

                  Direct Appeal from the Circuit Court for Chester County
                            No. 99-027    Roger A. Page, Judge



                  No. W2002-00246-CCA-R3-CD - Filed November 19, 2002


Defendant pled guilty to possession of cocaine with intent to sell, a Class C felony. Defendant’s
motion to suppress evidence was denied by the trial court. Defendant claimed that evidence found
on him was the result of an illegal search and should have been suppressed. The suppression issue
was certified for review. We affirm the trial court and hold the evidence was properly admissible.

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

JOHN EVERETT WILLIAMS , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODA LL, JJ., joined.

George Morton Googe, District Public Defender, and Vanessa D. King, Assistant Public Defender,
for the appellant, Calvin T. Barham.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                               Facts

      A Henderson police officer made a night traffic stop of a car in which defendant, Calvin T.
Barham, was a passenger. The stop was made due to a defective tail light. After being pulled over,
the driver of the car exited and walked to the officer’s patrol car, where the driver was issued a
verbal warning for the defective light. After noticing some “nervous” movements by the passengers
in the car, the officer asked the driver for his consent to search the car. The driver consented. The
officer then conducted a pat-down of the remaining passengers as they exited the car. At this time,
no contraband was found on the passengers or in the car. As the passengers returned to the car, the
officer noticed defendant’s shoe was untied, which led the officer to believe defendant could have
contraband in his shoe. The officer asked defendant if he had anything in his shoe, and defendant
stated he did not. The officer then asked defendant, “Well, do you want to take your shoe off?”, and
defendant immediately kicked off his shoes, revealing two small packages containing marijuana and
two small bags containing cocaine. The officer then placed defendant under arrest.

        Defendant was indicted for felonious possession of cocaine, Tenn. Code Ann. § 39-17-
417(a)(4). His motion to suppress the evidence found on him as the result of an illegal search was
denied. He subsequently entered a best-interest1 guilty plea, certifying a question of law as to the
denial of his motion to suppress. This Court dismissed his appeal for failure to properly certify the
question, and our supreme court denied his application to appeal. See State v. Barham, No. W2000-
00871-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 368, (May 15, 2001, at Jackson), perm. to
appeal denied (Tenn. Oct. 29, 2001). Defendant then filed for post-conviction relief, which was
granted by the trial court, as the trial court concluded his guilty plea had not been made knowingly,
willfully or voluntarily. Defendant then re-entered his guilty plea and made a proper certification
of the following question for this appeal:
        [W]hether law enforcement seized the defendant in violation of his constitutional
        rights without having a reasonable suspicion supported by specific and articulable
        facts to stop the defendant, whether the frisk complied with Terry v. Ohio, 392 U.S.
        1 (1968), and whether the consent search was voluntary...

                                          Motion to Suppress Hearing

        The arresting officer testified at the original suppression hearing that he stopped the car in
question due to a defective brake light. He indicated the driver appeared nervous as he walked from
the car towards the officer. Seeing movement in the car, the officer asked and was given consent
from the driver to search the car. Subsequently, the passengers exited the car and were frisked by
the officer. The officer indicated he found no contraband during the frisks of the passengers nor did
he find any contraband in the car. He indicated that after the search, as the passengers were
preparing to leave, he noticed defendant’s shoe was untied. With the movement in the car, this drew
his attention as he perceived it as unusual. He testified that, from his training and experience, a shoe
was a common hiding place for contraband. He stated that he then asked if defendant had anything
in his shoe, and defendant answered that he did not. The officer then said to defendant, “Well, do
you want to take your shoe off?”, at which time he said defendant kicked off both his shoes, and
drugs fell from the shoes onto the street. The officer testified he found two small brown “paper-
towel”- like bags and two smaller cellophane bags, which lab tests later confirmed to be marijuana
and cocaine. He said he then arrested defendant. The officer further stated there were three other
officers at the scene and that at least one of them witnessed the drug recovery.



         1
            A best interest guilty plea, otherwise known as an “Alford Plea,” North Carolina v. Alford, 400 U.S. 25, 91
S. Ct. 16 0, 27 L. Ed . 2d 1 62 (197 0), allows a defendant to plead guilty while m aintaining innocence if he deems the
evidence is such that a guilty plea may be the best option. Such pleas are specifically acce pted in Te nnesse e, Dortch v.
State, 705 S.W .2d 687, 688 (Tenn. Crim. App. 198 5).

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        On cross-examination, the arresting officer admitted he initiated the traffic stop due to the
defective tail light and that the presence of the other officers at the scene was a safety precaution. He
had not specifically called them. He stated he had received consent from the driver to search the
vehicle, but he had not received consent from the passengers for the searches upon them. He
admitted to finding nothing during the original pat-down of the passengers. The officer stated that
defendant voluntarily removed his shoes in response to the statement, “Well, do you want to take
your shoe off?”

         In sum, defendant argues that the evidence found as a result of the removal of his shoes was
the result of an involuntary search. He contends the removal of the shoe was coerced, based on the
totality of the circumstances as they existed the night of the traffic stop.

        The trial court found there had been articulable facts given, rising to a reasonable suspicion,
to allow the initial stop. It determined the question to be whether defendant’s removal of his shoes
was voluntary. Based on the testimony heard at the suppression hearing, accompanied with weighing
the credibility of the witnesses, the trial court found defendant voluntarily removed his shoes and,
therefore, denied the motion to suppress.

                                         Standard of Review

        Unless the evidence contained in the record preponderates against them, the findings of fact
made by the trial court at the hearing on a motion to suppress are binding upon this Court. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court
is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.
1998). The application of the law to the facts found by the trial court is a question of law that this
Court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). Defendant has the
burden of establishing that the evidence contained in the record preponderates against the findings
of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

        A warrantless search is presumed unreasonable under both the federal and Tennessee
constitutions, and evidence seized from the warrantless search is subject to suppression unless the
State demonstrates by a preponderance of the evidence that the search was “conducted pursuant to
one of the narrowly defined exceptions to the warrant requirement.” Simpson, 968 S.W.2d at 780,
(Tenn. 1998); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032, 29 L.
Ed.2d 564, 576 (1971). Consent to a search is a well founded exception to the need for a warrant.
See infra p. 7.

       A policeman may make an investigatory stop when the officer has a reasonable suspicion,
supported by articulable and specific facts, that a criminal offense has been, or is about to be,
committed. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); see
also United States v. Arvizu, 534 U.S. 266, 272, 122 S. Ct. 744, 750, 151 L. E. 2d 740, 749 (2002);


                                                  -3-
Simpson, 968 S.W.2d at 780. For a court to determine whether a policeman’s reasonable suspicion
is supported by articulable and specific facts, the court must consider the totality of the
circumstances. Arvizu, 534 U.S. at 272, 122 S. Ct. at 750; Simpson, 968 S.W.2d at 783. This
inquiry includes such factors as objective observations, information obtained from other officers or
agencies, information obtained from citizens, and certain offenders’ patterns of operation. Simpson,
968 S.W.2d at 783; State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996).

        Hence, in determining whether the motion to suppress should have been granted, we will
examine the totality of the factors concerning the arresting officer’s actions during and at the time
of the arrest, will check to see if his actions were supported by articulable facts, and will then make
a determination whether we conclude that the totality of the circumstances compels us to disturb the
finding of the trial court.

                                                Analysis

        It is clear the officer had a legitimate reason to make the initial traffic stop. A police officer
may make a traffic stop if he has probable cause or reasonable suspicion to believe a traffic violation
has occurred. State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997), citing Whren v. United States,
517 U.S. 806, 809-10, 11 S. Ct. 1769, 35 L. Ed. 2d 89 (1996). The officer noticed a defective brake
light, which is a traffic violation, and he gave articulable and specific facts to support his decision
to make the initial stop. Based on this particular officer’s experience, we can find no fault in his
decision to initiate the stop. Nonetheless, even if the traffic stop is legitimate, it is considered a
seizure and triggers constitutional protections. Vineyard, 958 S.W.2d at 734. As such, in order for
a warrantless search to be considered valid, it must be subject to an exception to the warrant
requirement.

        Subsequent to the initial traffic stop, the driver of the car voluntarily exited the car and, upon
being asked by the officer if he could search the car, consented to the search. Consent is a clear
exception to the need for a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 220, 93 S. Ct. 2041,
2043-44, 36 L. Ed. 2d 854, 858 (1973). Defendant presents no evidence nor has any standing to
protest the driver’s consent of a search of his own car. Unlike defendant, the driver of the car never
raised the issue that his consent was coerced, and defendant lacks standing to object to the search
of the driver’s car.

       After receiving consent to search the car, the police officer conducted a frisk of the remaining
passengers as they exited the car. No evidence was obtained as a result of these frisks. Absent any
evidence being obtained, there is simply no issue here regarding the legitimacy of the frisks. We need
not address it further.

       After the frisks, as the passengers were preparing to re-enter the car, the police officer noticed
defendant’s shoe was untied. He asked defendant if he was hiding anything in his shoe, to which
defendant answered he was not. The officer than asked defendant, “Well, do you want to take your
shoe off?” Defendant responded by immediately “kicking off” his shoes, resulting in the


                                                   -4-
incriminating drugs being found. The main issue in this case is whether defendant voluntarily
removed his shoes or removed them because he felt coerced. Because the trial court found that
defendant removed his shoes voluntarily, the burden is on defendant to present evidence to
preponderate against that finding. The existence of consent and whether consent was given
voluntarily are questions of fact. State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983).
We will examine defendant’s argument that there was no consent given or that, at the least, any
consent given was coerced.

         Defendant argues the circumstances surrounding the shoe removal were coercive. He points
to State v. Morelock, 851 S.W.2d 838, 840 (Tenn. 1992), for the proposition that a prolonged and
extended traffic stop can result in the invalidation of consent. The underlying facts of Morelock,
however, indicate a far more coercive atmosphere than the present case. In Morelock, defendant
refused to give a police officer consent to open a trunk five times before finally consenting to open
it. In the present case, there was one question, “Well, do you want to take your shoe off?”, followed
by an immediate removal of the shoes. The coercive elements that were found in Morelock are not
found in the instant case, making it clearly distinguishable.

         In Schneckloth v. Bustamonte, the United States Supreme Court listed a number of factors
to be taken into account when assessing the voluntariness of a defendant’s consent. 412 U.S. at 226.
These factors include defendant’s age, education, intelligence, lack of advice regarding constitutional
rights, length of detention, whether there was repeated and prolonged questioning, and any use of
physical punishment. In the present case, there is nothing presented to indicate defendant’s age,
education, or intelligence were a factor. There is no evidence he was subject to any physical
punishment or to a barrage of repeated questioning. If anything, only the length of detention and lack
of advice concerning constitutional rights apply.

        Defendant points to State v. Halprin, CCA No. 1079, 1989 LEXIS 180, at *2 (Tenn. Crim.
App., filed March 13, 1989, at Knoxville), where this Court held that detaining a defendant longer
than necessary for the purpose of the initial traffic stop creates a coercive environment. Yet, in
Halprin, the defendant testified he was ordered to open the trunk after having refused consent to do
so. This is clearly distinguishable from the instant case where, following the officer’s initial request,
defendant removed his shoes without protest. Additionally, defendant points to United States v.
McCaleb, 552 F.2d 717, 721 (6th Cir. 1976), where the court stated that consent must be proved by
clear and positive testimony and must be unequivocal, specific, intelligently given, and
uncontaminated by any duress or coercion. However, in McCaleb, the court concluded that the
defendant had been improperly stopped and that the DEA agents told him he could consent or remain
in detention until a warrant was obtained. In the present case, there was no such coercive
environment.

        While knowledge of one’s rights is a factor in determining voluntariness, such knowledge
is not a prerequisite for consent. Schneckloth, 412 U.S. at 249. Furthermore, in order for consent
to a search to be considered voluntary, a defendant need not be advised he is free to leave. Ohio v.
Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). The fact that defendant was


                                                  -5-
unaware he did not have to remove his shoes is not dispositive in this case. It does not vitiate the
voluntariness of the act.




                                           Conclusion

        The trial court found defendant voluntarily removed his shoes in response to the police
officer’s statement. We conclude defendant has not met his burden of showing that the evidence
preponderates against that finding. Accordingly, we affirm the judgment of the trial court.




                                                       ______________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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