            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                         OCTOBER 1999 SESSION

                STATE OF TENNESSEE v. DENNIS W. MENZIES

                   Direct Appeal from the Circuit Court for Benton County
                           No. 98CR741     Julian P. Guinn, Judge



                   No. W1998-00608-CCA-R3-CD - Decided April 20, 2000


Based upon a tip from a confidential informant that the defendant was transporting illegal drugs, law
enforcement officers stopped the defendant’s vehicle. Following an “alert” by a drug-sniffing dog,
officers searched the defendant, his vehicle, and the car hauler he was operating. Cocaine was found
both on the defendant’s person and in the console of the car he was hauling. After the court
overruled the defendant’s motion to suppress the search and seizure, he was convicted of possession
of cocaine with intent to manufacture, sell, or deliver. He appealed his conviction, asserting that the
stop and search were illegal. Based upon our review, we affirm the judgment of the trial court.

T.R.A.P. 3; Judgment of the Circuit Court is Affirmed.

JUDGE ALAN E. GLENN delivered the opinion of the court, in which JUDGE NORMA MCGEE OGLE
joined, JUDGE JOHN H. PEAY, not participating.

Raymond L. Ivey, Huntingdon, Tennessee, for the appellant, Dennis W. Menzies.

Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General,
G. Robert Radford, District Attorney General, and Beth Boswell, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION


        The defendant, Dennis W. Menzies, appeals as of right his conviction by a Benton County
Circuit Court jury of possession of cocaine with intent to manufacture, sell, or deliver. The charge
resulted from a warrantless search and seizure of the defendant’s vehicle, the trial court denying the
defendant’s motion to suppress. The defendant presents two issues for review:

               I. Whether there was sufficient reasonable suspicion to justify
                  stopping the vehicle driven by the defendant; and
               II. Whether the search of defendant’s person was valid.

Based on our review of the record, we uphold the trial court’s denial of the motion to suppress and
affirm the conviction.

                                PROCEDURAL BACKGROUND

          Both the defendant and a co-defendant, Timothy Harold Peebles, were indicted by the
Benton County Grand Jury on a single count of possession of cocaine with intent to manufacture,
sell, or deliver. The defendant’s motion to suppress evidence of cocaine found on his person and
in a wrecked vehicle he was transporting was denied after a hearing. At the conclusion of the trial,
the jury found Peebles not guilty but convicted the defendant of possession of cocaine as charged
in the indictment. The defendant was sentenced as a Range I standard offender to a term of eight
years.1 Six months of the sentence were ordered to be served in continuous confinement and the
remainder on Community Corrections.2 Notice of appeal was timely filed.

                                               FACTS

        Sheriff Bobby Shannon, a career police officer in Benton County, testified at the suppression
hearing that he was involved in a search of an automobile belonging to the defendant and a wrecked
vehicle being transported by the defendant at the Birdsong exit off of I-40 in Benton County on
December 10, 1997. Sheriff Shannon had received information from an informant that the defendant
would be leaving for Nashville that morning with a car hauler, probably with one other occupant;
that the defendant would proceed to Nashville to a car auction, Metro Car Sales; and that he would
be bringing cocaine back with him. Sheriff Shannon testified further that he knew the informant and
that the informant was connected with the drug culture. The informant had given Sheriff Shannon
information in the past but not drug-related information. The sheriff also testified that the informant
was not seeking any consideration in return for the information concerning the defendant.

       On the morning of December 10, Sheriff Shannon and Chief Deputy Chris Rogers went in
an unmarked vehicle to the Cuba Landing exit off I-40 to watch for the defendant’s car hauler, a
vehicle which Sheriff Shannon already knew. Between 7:00 and 8:00 a.m., the vehicle was spotted
headed towards Nashville. The Sheriff then returned to meet in McKenzie, Carroll County,
Tennessee, with Steve Lee, director of the drug task force for the District Attorney General’s Office


       1
         Defendant was convicted of a Class B felony, not a Class E felony as incorrectly indicated
on the judgment form included with this record.
       2
        The jury also set the defendant’s fine at the maximum of $100,000. We note that the trial
court deferred action on defendant’s motion to reduce the fine as excessive given the circumstances.
We have recognized that an oppressive fine can disrupt future rehabilitation and prevent a defendant
from becoming a productive member of society. See State v. Marshall, 870 S.W.2d 532 (Tenn.
Crim. App.), perm. app. denied (Tenn. 1993).

                                                 -2-
for the 24th Judicial Circuit. Sheriff Shannon testified that Lee told him the informant had also
given Lee information in the past and that this information had led to arrests and at least two
convictions. Plans were then put in place to station different officers in vehicles at various points
along I-40, starting at the Bucksnort exit and including the Birdsong exit where Sheriff Shannon and
Steve Lee were stationed. The operation involved seven law enforcement officers altogether,
including Officer Jacque Bass, a trained canine handler. The officers were in place at approximately
2:00 p.m.

      Officers stationed at the Bucksnort exit first spotted the defendant at approximately 7:20 p.m.
He was heading west on I-40 with a wrecked car on the hauler when he stopped briefly at the
Bucksnort exit, as the informant had predicted he would.

        Sergeant Donald Wayne Blackwell, an officer with the City of Paris Police Department who
was also assigned to the 24th Judicial District Drug Task Force, was the officer who initially stopped
the defendant. Sergeant Blackwell was driving the vehicle that turned on strobe lights, blue lights,
and a siren as the defendant’s vehicle moved up the exit ramp at the Birdsong exit off of I-40.
Sergeant Blackwell testified to the following sequence of events:

               A. We got out and explained to Mr. Menzies why he was
                  stopped. They were – Mr. Menzies and Mr. Peebles were
                  frisked, patted down to see if he had any weapons on his
                  person. He was not searched at that time. He was explained
                  that we had information that he was supposed to be bringing
                  cocaine back in and was asked if he would give permission to
                  search his vehicle.

               Q. Did he give permission to search the vehicle?

               A. At first he said he would, and then he hesitated. And after he
                  hesitated and showed some reluctance in giving consent, at
                  that time Director Lee told Officer Bass to get the canine,
                  brought the canine to do a sniff of the car hauler.

               Q. At that point did the canine then sniff the car hauler?

               A. Yes, ma’am.

               Q. Did you see the dog alert on any areas?

               A. Yes, ma’am.

               Q. After the dog had alerted what did you do?

               A. After I saw two alerts that the dog gave, one of them on the

                                                 -3-
                  inside of the cab of the car hauler where Mr. Menzies and Mr.
                  Peebles had been, I felt at that time that I had probable cause
                  to search Mr. Menzies. And I had him to empty his pockets
                  out onto the hood of the Jeep where I was standing with
                  Deputy Stockdale. He emptied his pockets out. And one of
                  the things that was in his pants pockets was a dark blue
                  cigarette lighter that was in with his money. At the bottom of
                  it, it had some black marks on it. It was kind of opaque color.
                  I picked the lighter up, and the lighter didn’t work. And when
                  I inspected the bottom of it, it was a false bottom. Opened it
                  up and it was packed with cocaine.

       As to the informant, Sheriff Shannon testified at the suppression hearing in the following
manner:

              Q. The person you were talking to, did you know whether or not
                 this person knew Mr. Menzies?

              A. Yeah, I did. I knew that he knew him.

              Q. All right; he knew Mr. Menzies?

              A. Right.

              Q. All right; now, did this person tell you how he knew that they
                 would be making this trip to Nashville?

              A. Yes.

              Q. And what was that?

              A. Because every sale day that Mr. Menzies went up there and
                 bought cars and brought cocaine back.

              Q. All right; this was an every sale day occurrence?

              A. Right.

              Q. And the person that told you this told you he had personal
                 knowledge of this?

              A. Right.

              Q. And so you then determined the next sale date?

                                               -4-
               A. Yes.

               Q. Okay; now, when he mentioned the name of Menzies and Mr.
                  Peebles, but Mr. Menzies in particular, was that a name you
                  were familiar with?

               A. It was.

               Q. How were you familiar with Mr. Menzies?

               A. We’d had him under investigation for selling drugs for at least
                  ten years.

               Q. All right; and whether or not that he had sold drugs or was
                  innocent, did you have a strong suspicion he had been selling
                  drugs?

               A. Yes, I did.

               Q. And had you received other information from this in the past
                  from numerous sources?

               A. Numerous sources, yes.

               Q. And, in fact, had you tried to catch him?

               A. Yes, sir.

               Q. Were you ever able to?

               A. No.

          Steve Lee, Director of the Drug Task Force of the District Attorney General’s Office for the
24th Judicial Circuit, testified that he had “worked” the informant previously. The informant had
“done some drug cases” that resulted in convictions in Benton County. Lee testified further that he
and Sheriff Shannon had personally interviewed the informant on the day of the defendant’s arrest.
Lee testified that “[a]fter interviewing him and with the past history that I’d had with him before,
I felt like he was telling us the truth.”

       On cross-examination, Lee responded in the following exchange concerning the informant:

               Q. Did the informant tell you how he knew that on this date, I
                  believe December the 10th, is that right?


                                                 -5-
              A. Yes, sir.

              Q. Of 1997, that Mr. Menzies would be going to Nashville to a
                 car auction to bring back cocaine?

              A. He had been with him when this had taken place before,
                 several times.

              Q. How long ago before December 10th?

              A. He had been with him like the week before.

              Q. The week before. And based on that, he knew that Mr.
                 Menzies would be bringing back on the day that you arrested
                 him?

              A. That, and he had talked to him prior to that and knew he was
                 going back again.

              Q. Going back to an auction or going back for cocaine?

              A. Going back to an auction and picking up cocaine.

              ....

              Q. Well, you stated that the informant had talked to Mr.
                 Menzies?

              A. Yes, sir.

              Q. All right; a couple of days before Mr. Menzies was arrested?

              A. Right.

              Q. And, allegedly, Mr. Menzies told him this. Is that what you
                 were told?

              A. Yes, sir.

       In denying the motion to suppress, the trial court noted that the issue was essentially a
“warrantless search based upon information of a confidential informant.” The trial court ruled as
follows:

              And this Court finds that there was reasonably trustworthy

                                              -6-
               information that a crime had been committed and specifically
               identified the property, that is the controlled substance, that was
               subject to seizure. The Court further finds that the informant had a
               basis for that information, that the credibility of the informant was
               properly established and that the exigencies of the situation were such
               that a warrantless search was indeed justified in this instance.

       At the trial, Director Lee gave the following testimony, adding new details concerning the
informant:

               Q. What information did you receive from the informant on
                  December 10th?

               A. He went into detail about what time Mr. Menzies would
                  leave, what he would be driving, which was a truck, what we
                  call a rollback, that he would go to Nashville to the car
                  auction and that he would bring back cocaine, and it would be
                  in two Bic lighters, that he would stop at Bucksnort to get
                  beer, and he would come back the Birdsong exit.

       Lee was asked on cross-examination, “[A]re you fabricating just to get the confidential
informant in?” He responded, “No, sir.”

        At the hearing on the motion for a new trial, the defendant argued that, even though Sheriff
Shannon and Director Lee met with the informant together, Sheriff Shannon could not testify as to
a definite time when the informant had been with the defendant while Lee seemed able to add
increasing detail each time he testified. The defendant claims that such discrepancies undermine any
police corroboration of the informant and therefore “the stop was bad” because it was unsupported
by articulable reasons to stop him. The trial court noted:

               I recall we wrestled with this question on at least one prior occasion,
               and the Court then found that there was reasonably trustworthy
               information that the crime had been and was being committed, that
               the officers had basis for their information, that there was established
               the credibility of the informant and the exigent circumstances, that is
               the vehicle on the open highway, was certainly sufficient to warrant
               the warrantless search at that time. There were troubling differences
               between the testimony of the two witnesses. I think there was
               perhaps some explanation of those differences. But I’m of the
               opinion that the information was indeed received and that the
               information was within itself sufficient.

                                            ANALYSIS


                                                 -7-
       The standard which we apply in reviewing the trial court’s ruling on the defendant’s motion
to suppress was explained in State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998):

               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 resolution 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). We afford to the party prevailing in the
               trial court the strongest legitimate view of the evidence and all
               reasonable and legitimate inferences that may be drawn from that
               evidence. The findings of a trial court in a suppression hearing will
               be upheld unless the evidence preponderates against those findings.
               Id. The application of the law to the facts found by the trial court,
               however, is a question of law which this Court reviews de novo.
               State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

Thus, in making our analysis, we will uphold the trial court’s factual analysis, unless the evidence
preponderates against it, and will review de novo the application of the law to the facts.

                               A. Grounds for Permissible Stop

        The issue of the officers’ right to stop the defendant must be resolved before any other
questions are reached. It is well-settled law that a police officer may make an investigatory stop
when the officer has a reasonable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392
U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); see also State v. Bridges, 963 S.W.2d 487,
492 (Tenn. 1997). In justifying the intrusion, the officer “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably warrant
that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Additionally, we must consider the
“automobile exception” to warrant requirements, as set out in Carroll v. United States, 267 U.S. 132,
45 S.Ct. 280, 69 L.Ed. 543 (1925), as explained in Wyoming v. Houghton, 526 U.S. 295, 300, 119
S.Ct. 1297, 1300, 143 L.Ed.2d 408 (1999):

               Thus, the Court [in Carroll] held that “contraband goods concealed
               and illegally transported in an automobile or other vehicle may be
               searched for without a warrant” where probable cause exists.

       In State v. Pully, 863 S.W.2d 29 (Tenn. 1993), our supreme court explained the manner in

which the tip of an informant, upon which an investigatory stop is made, must be measured:

               When a stop is based on the tip of an informant, however, the danger
               of false reports, through police fabrication or from vindictive or
               unreliable informants, becomes a concern. Thus, both state and
               federal courts have developed tests for determining the reliability of

                                                -8-
               informants' tips. In the context of "probable cause" determinations,
               Tennessee law requires a showing of both the informant's credibility
               and his or her basis of knowledge. See State v. Jacumin, 778
               S.W.2d 430, 436 (Tenn.1989). The Court in Jacumin held that

                   while independent police corroboration could make up
                   deficiencies in either prong, each prong represents an
                   independently important consideration that 'must be
                   separately considered and satisfied in some way.'

Id. at 31 (footnote omitted) (quoting State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989)). The
court then noted the difference between “probable cause” and “reasonable suspicion”:

               Although the Jacumin factors are helpful in determining not only
               whether "probable cause" exists, but whether "specific and articulable
               facts" justify a stop,

                   [r]easonable suspicion is a less demanding standard than
                   probable cause not only in the sense that reasonable suspicion
                   can be established with information that is different in
                   quantity or content than that required to establish probable
                   cause, but also in the sense that reasonable suspicion can arise
                   from information that is less reliable than that required to
                   show probable cause.

Id. at 32 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301
(1990)).

        With these guides in mind, we turn to the “stop” of the defendant to determine if the police
officers had sufficient reasonable suspicion to carry out a permissible seizure of the defendant.3

         At the suppression hearing, Sheriff Shannon testified that the surveillance and stop of the
defendant were prompted by information from a single informant who told both Sheriff Shannon and
Director Lee of the approximate time the defendant would be leaving on December 10; the fact that
Peebles would probably accompany the defendant; that the defendant would stop at the Bucksnort
exit on the way back to Benton County; and that the defendant would take the Birdsong exit to return
to Benton County. Sheriff Shannon testified further that the defendant had been under investigation
for some ten years for suspected drug dealings and that in the past “numerous sources” had told him
the defendant was selling drugs, such information being in the category of “casual rumor circulating
in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v.


       3
       From the moment that Sergeant Blackwell turned on his blue lights and brought the
defendant to a full stop, the defendant was “seized” within the meaning of Terry.

                                                 -9-
United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969). Here the legality of
the stop hinges primarily on whether the informant’s tip meets the two-prong Jacumin test.

        Under the first or “basis of knowledge” prong of the test, facts must be sufficient to
determine “whether the informant had a basis for his information that a certain person had been, was
or would be involved in criminal conduct or that evidence of crime would be found at a certain
place.” State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992) (citing Wayne R. LaFave,
1 Search and Seizure, § 3.3(a) (2d ed. 1978)). Here, both Sheriff Shannon and Director Lee
personally knew the confidential informant, knew that he was connected with the drug culture, and
that he was acquainted with the defendant. At the suppression hearing, Sheriff Shannon responded
on cross-examination to the question, “You don’t know how the confidential informant came by any
information given you, do you?” by answering, “No, I don’t.” But later on redirect examination,
Sheriff Shannon stated that the informant had personal knowledge of the trips the defendant took to
purchase cars and cocaine. Director Lee, on the other hand, was quite specific in his testimony
concerning the basis of knowledge of the informant, which was that the informant had been with the
defendant “numerous other times when he picked up cocaine” and had talked to him and knew that
he was going to an auction to pick up cocaine on December 10. Director Lee testified that
everything learned from the informant was learned during the interview that he and Sheriff Shannon
conducted together. While there is a difference in the two officers’ testimony, it is clear from Sheriff
Shannon’s statement on redirect that he considered the informant as having personal knowledge of
the defendant’s drug activities. In State v. Marshall, 870 S.W.2d 532, 539 (Tenn. Crim. App.), perm.
app. denied (Tenn. 1993), this court held that when the informant advised the officer that his
information was based upon personal observation, the police were “sufficiently advised of his basis
of knowledge.” A common sense approach leads us to conclude that the confidential informant in
this case had firsthand knowledge of the dual purpose of the defendant’s trips to the auction in
Nashville, and, therefore, the basis of knowledge prong of the test was satisfied without the need to
find corroboration from the defendant’s activities observed by officers on December 10.

        Under the second “credibility” prong, facts must be revealed that show either the inherent
credibility of the informant or the reliability of his information on the particular occasion. See Moon,
841 S.W.2d at 338. It is generally true that the credibility of an informant is shown by his having
given information in the past to law enforcement officers that has proven reliable; that is, the
informant has a proven “track record.” See id. at 339. In State v. Bridges, 963 S.W.2d 487, 491
(Tenn. 1997), our supreme court held the following:

               In the present case the informant who provided the tip about the
               defendant’s criminal activity had assisted Officer Blackwell on a case
               approximately eight years earlier in which an arrest and conviction
               were made on a cocaine charge. Blackwell had known this informant
               for a number of years and said this informant had “always been very
               straightforward and very honest and very reliable” with him. These
               facts minimally satisfy the credibility prong of the Jacumin test.

In this case, the second prong of the test was satisfied because the informant had given information

                                                 -10-
to Director Lee in the past that led to two convictions of other drug dealers in Benton County.4

        As further corroboration of the informant’s information, Sheriff Shannon had suspected the
defendant for approximately ten years of drug dealings and he and other officers observed the
defendant’s travel to and return from Nashville, as the informant had advised would occur. See State
v. Kelly, 948 S.W.2d 757, 762 (Tenn. Crim. App. 1996). Kelly distinguishes State v. Coleman, 791
S.W.2d 504 (Tenn. Crim. App. 1989), perm. app. denied (Tenn. 1990), because in Kelly, as in the
instant case, officers had background information about the defendant as well as corroborating the
information from the informant. While the informants in both Kelly and Coleman were anonymous,
the informant in the instant case had established reliability based upon previous information
provided.

        The defendant has accurately described the trial court’s comparison of the testimony of
Sheriff Shannon and that of Steve Lee, Director of the 24th Judicial District Drug Task Force:

               There were troubling differences between the testimony of the two
               witnesses. I think there was perhaps some explanation of those
               differences. But I’m of the opinion that the information was indeed
               received and that the information was within itself sufficient.

        Since “resolution of conflicts in the evidence are matters entrusted to the trial judge as the
trier of fact,” Odom, 928 S.W.2d at 23, this court cannot assess the credibility of the State’s
witnesses.

        Accordingly, considering the confidential informant’s demonstrated basis of knowledge and
credibility under the two-pronged test of reliability, we conclude that the informant’s tip provided
“specific and articulable facts” sufficient to support a finding of reasonable suspicion justifying the




       4
         Our supreme court has concluded that “the gravity of the perceived harm is a crucial element
in assessing the reasonableness of an investigative Terry stop.” State v. Pully, 863 S.W.2d 29, 33
(Tenn. 1993). The defendant in this case argues that this was not a situation of imminent danger
with weapons involved. Justice Powell, in a concurring opinion in United States v. Mendenhall, 446
U.S. 544, 561, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980), noted that “[t]he reasonableness of a
stop turns on the facts and circumstances of each case. In particular, the Court has emphasized (i)
the public interest served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the
objective facts upon which the law enforcement officer relied in light of his knowledge and
expertise.” In this case, the initial stop was a typical “pull-over” with lights flashing. As for the
public interest, it is surely served when the sale and use of illegal drugs are curtailed. See State v.
Kelly, 948 S.W.2d 757, 762 (Tenn. Crim. App. 1996) (“the public interest served was the
interdiction of a drug sale”).

                                                 -11-
investigatory stop under Terry.5

                                   B. Search Incident to Arrest

       The defendant next contends that in the absence of an arrest, the officers had no basis to
engage in a search of the defendant’s person. Specifically, the defendant contends that the
search—that is, the ordering of the defendant to empty his pockets after the drug dog alerted on the
vehicle—could not have been incident to arrest because Officer Blackwell testified that he had not
formally placed the defendant under arrest when he ordered him to empty his pockets. The
defendant relies on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) to
support his argument that to compel a full search, the suspect must be in custodial arrest.

        Our supreme court has noted that the “fundamental principle of search and seizure
jurisprudence is that the police may not conduct a search unless they first show probable cause and
obtain a warrant from a neutral magistrate.” State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).
A warrantless search or seizure is, therefore, presumed to be unreasonable and in violation of both
the federal and state constitutions. Evidence discovered as a result of a warrantless search is subject
to suppression, unless the State is able to demonstrate that the search or seizure was carried out
pursuant to one of the narrowly defined exceptions to the requirement that the police first obtain a
warrant. See State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997) (citing Coolidge v. New
Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971)). A warrantless
search incident to a lawful arrest is one of those narrowly defined exceptions. See State v. Watkins,
827 S.W.2d 293, 295-96 (Tenn. 1992) (citing New York v. Belton, 453 U.S. 454, 460, 101 S.Ct.
2860, 2864, 69 L.Ed.2d 768 (1981) (holding that “when a policeman has made a lawful custodial
arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search
the passenger compartment of that automobile”). Police are permitted to search the body of the
person arrested and the immediately surrounding area. See Chimel, 395 U.S. at 763, 89 S.Ct. at
2040. Ample justification for such searches and seizures is found in the dual purposes of removing
any weapons that might be used to resist arrest or effect escape, and of preventing the concealment
or destruction of any evidence on the arrestee’s person. See id. We, therefore, first determine
whether the defendant was under lawful custodial arrest when Officer Blackwell conducted the
search of his person by requiring him to place all the items in his pockets on the hood of one of the
police vehicles.

       A lawful custodial arrest is justified upon a showing of probable cause to believe that a crime
has been committed and that the suspect of the investigation committed that crime. See Tenn. Code


       5
        This case is distinguishable from United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995),
in which officers encountered defendants, whose truck had broken down on the highway and found
cocaine in the vehicle after utilizing a drug-sniffing dog. Here, officers had reasonable suspicion to
stop the defendant’s vehicle. The court in Buchanon concluded that “the troopers did not have
reasonable and articulable suspicion for seizing the defendants, and the truck, for a limited
investigatory purpose.” 72 F.3d at 1226.

                                                 -12-
Ann. § 40-7-103(a)(4) (Supp. 1999) (“An officer may, without a warrant, arrest a person: . . .(4) On
a charge made, upon reasonable cause, of the commission of a felony by the person arrested[.]”).
Probable cause has been construed by our supreme court as existing “if the facts and circumstances
within the officer’s knowledge at the time of the arrest, and of which the officer ‘had reasonably
trustworthy information sufficient to warrant a prudent man in believing that the petitioner had
committed or was committing an offense.’” State v. Henning, 975 S.W.2d 290, 300 (Tenn. 1998)
(quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). As determined
above, the confidential informants’s tip was reliable, reasonably trustworthy information, and a
certified drug-sniffing dog, handled by a trained officer, alerted on the vehicle being transported on
the defendant’s car hauler where, upon searching the vehicle, illegal drugs were found concealed in
the false bottom of a lighter.

        The law is well settled that probable cause to search is established by an “alert” from a drug-
sniffing dog. Romo v. Champion, 46 F.3d 1013, 1020 (10th Cir. 1995) (“a dog alert without more
[creates] probable cause for searches and seizures”); Hearn v. Board of Pub. Educ., 191 F.3d 1329,
1333 (11th Cir. 1999) (search of vehicle did not violate the Fourth Amendment because “[i]t was
based upon the probable cause generated by the dog sniff, and justified by the automobile exception
to the general requirement for a warrant”); Harrison v. State, 7 S.W.3d 309, 311 (Tex. Ct. App.
1999) (“when a trained and certified narcotics dog alerts an officer to apparent evidence or
contraband, probable cause exists to search a vehicle”); State v. Braendle, ____ P.2d ____ (Idaho
Ct. App. 2000) (“The reaction of the drug detection dog provided the probable cause to justify the
search.”).

       Thus, we find that the officers had probable cause for a warrantless arrest.

        Having determined that a warrantless arrest was permissible under the circumstances of this
case, we still must determine if an arrest was in fact made. In Tennessee, an arrest is defined as the
“taking, seizing, or detaining of the person of another, either by touching or putting hands on him,
or by any act with indicates an intention to take him into custody and subjects the person arrested
to the actual control and will of the person making the arrest.” West v. State, 425 S.W.2d 602, 605
(Tenn. 1968) (citations omitted). Here, Officer Blackwell testified to the following:

               Q. Once you saw what was in the lighter in Exhibit Number 2
                  [the lighter from the defendant’s pocket], what did you do
                  with that?

               A. I kept possession of it at that time. I put some flex cuffs on
                  Mr. Menzies. He was placed in the back seat of the Jeep
                  Cherokee. And then we called for a marked patrol unit to
                  transport him. And I advised him of his rights. Then I went
                  over to where Rick Gallimore was searching the car that was
                  on the back of the car hauler.

Based upon the evidence presented, we conclude that the defendant was under lawful custodial arrest

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and that the search of his person was permissible.6

                                          CONCLUSION

       Accordingly, because both the stop and search of the defendant were constitutionally valid,
we hold that the trial court correctly overruled the defendant’s motion to suppress the evidence
obtained in the search. Therefore, we affirm the conviction.


                                                        Judge Alan E. Glenn
                                                        Judge John H. Peay (Not Participating)
                                                        Judge Norma McGee Ogle




       6
          The defendant argues that the order of events made the search of his person unlawful
because he was not placed under arrest until after he had been ordered to empty his pockets and the
cocaine had been found in the false bottom of the lighter. We find that the search in this case,
though prior to arrest, was part of the same “transaction” and is therefore valid under the holding of
the United States Supreme Court in Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564,
65 L.Ed.2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged
search of petitioner’s person, we do not believe it particularly important that the search preceded the
arrest rather than vice versa.”). See also Warden v. State, 379 S.W.2d 788, 791 (Tenn. 1964)
(holding that a search incident to arrest will be upheld “even though the search actually precedes the
arrest, if the two may be regarded as part of one and the same transaction”).

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