        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               October 4, 2016 Session

      STATE OF TENNESSEE v. CHRISTOPHER DOUGLAS SMITH

                 Appeal from the Circuit Court for Carroll County
                   No. 15-CR-78       Donald E. Parish, Judge
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              No. W2015-01826-CCA-R10-CD - Filed March 14, 2017
                    ___________________________________


After the trial court denied an interlocutory appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure, the State sought an extraordinary appeal pursuant to Rule
10 of the Tennessee Rules of Appellate Procedure. This Court granted the State‟s
application. On appeal, the State argues that the trial court erred in excluding the
evidence seized from Defendant because the arresting officer had probable cause to arrest
him for a felony drug offense and search him incident to that arrest. Following our
review, we reverse the judgment of the trial court.


Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Reversed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN, J.,
joined. CAMILLE R. MCMULLEN, J., filed a dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Matthew F. Stowe, District Attorney General; and R. Adam Jowers, Assistant District
Attorney General, for the appellant, State of Tennessee.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellee, Christopher Douglas
Smith.


                                       OPINION

                                  Factual Background

       On May 4, 2015, the Carroll County Grand Jury returned an eight-count
indictment charging the Defendant, Christopher Douglas Smith, with possession of
methamphetamine with intent to deliver in Counts 1 and 5, possession of drug
paraphernalia in Counts 2 and 8, unlawful possession of a weapon by a convicted felon in
Count 3, possession of a weapon during the commission of a dangerous felony in Count
4, possession of hydrocodone with intent to deliver in Count 6, and possession of less
than 0.5 grams of marijuana in Count 7. Counts 1 through 4 were alleged to have
occurred on December 14, 2014, and Counts 5 through 8 were alleged to have occurred
on March 12, 2015. On June 19, 2015, Defendant filed a motion to suppress evidence
seized during his March 12, 2015 arrest, specifically, approximately 30.2 grams of
methamphetamine, seven-hundred dollars in cash, a small bag of marijuana, an LG smart
phone, and eighteen hydrocodone pills. The Carroll County Circuit Court held an
evidentiary hearing on July 2, 2015.

        Investigator Joey Hedge testified that, on March 12, 2015, he obtained a search
warrant for Defendant‟s house. The search warrant was based on information received
from a confidential informant (“CI”) who informed Investigator Hedge that
methamphetamine was being sold out of Defendant‟s house by Defendant and his
girlfriend, Tonya Swafford. Investigator Hedge testified that the CI had provided reliable
information in the past that led to other search warrants and convictions. Investigator
Hedge also stated that he “was getting information all over the place” that Defendant was
selling drugs. Investigator Hedge had been to Defendant‟s house three months prior in
December 2014 to execute another search warrant where he recovered methamphetamine
and drug paraphernalia. Investigator Hedge included information about the prior search
warrant and items found at Defendant‟s house in December 2014 in the affidavit
supporting his March 2015 search warrant.

       The search warrant for Defendant‟s house was obtained at 2:15 p.m. on March 12,
2015. Before executing the search warrant, Investigator Hedge called the CI and asked
him to go back to Defendant‟s house to “see if there [were] any drugs in the residence.”
The CI confirmed that there were and that Defendant “had, in his pocket, approximately a
golf ball size of [m]ethamphetamine.” Investigator Hedge drove to Defendant‟s house to
execute the warrant, however, Defendant and Ms. Swafford were not home. Investigator
Hedge testified that he then “circled through town” and “[saw] both parties traveling
[e]ast on Main Street in [their] vehicle.” Investigator Hedge said that he was “very
familiar” with Defendant, Ms. Swafford, and the car they drove because he had stopped
them in the car before and had “seen it around.” After seeing Defendant and Ms.
Swafford drive by, Investigator Hedge called another officer he was working with,
Officer Drake Whitworth, “to let him know that [Investigator Hedge] was looking for the
vehicle.” Investigator Hedge proceeded to the Huntingdon Police Department where he
met Commander Johnny Hill and got in an unmarked patrol car. Officer Whitworth then
called Investigator Hedge and informed him that Defendant and Ms. Swafford were in the
parking lot of Prater‟s Taters, a local business on Main Street.
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        Investigator Hedge and Commander Hill drove to the parking lot where they saw
Defendant “leaning over in a vehicle.” The officers pulled into the parking lot and
parked in front of Defendant and Ms. Swafford‟s car but did not turn on the blue lights of
the patrol car. Investigator Hedge testified that, once he pulled in, he saw Defendant
talking to two other individuals in a car parked beside Defendant‟s car. Investigator
Hedge said that he was familiar with one of the individuals because she was “known for
drugs” and he received information in the past regarding her involvement with
methamphetamine. Investigator Hedge then confronted Defendant to inform him that the
officers had a search warrant for his house. Investigator Hedge recalled that, when he
first confronted Defendant, he “was getting a little antsy” and “acted as if he was going to
run.” Investigator Hedge testified that he “went ahead and put cuffs on [Defendant], and
told him he wasn‟t under arrest, but he was being detained.” Next, Investigator Hedge
performed “a slight pat down” of Defendant to check for weapons, but did not feel
anything that appeared to be a weapon. At some point, Investigator Hedge learned that
Ms. Swafford was in a nearby store, and he entered the store to also inform her that
officers had a search warrant for her house. Investigator Hedge confronted Ms. Swafford
inside the store and testified that she told him, “I‟ve got what you want” or “what you‟re
looking for” and that it was in her purse. Investigator Hedge escorted Ms. Swafford
outside where he searched her purse and found approximately 2.8 grams of
methamphetamine.

        When Investigator Hedge returned to the parking lot, he performed a second pat
down of Defendant “[s]ince [the officers] had received information of [Defendant]
having [m]ethamphetamine in his pocket.” Investigator Hedge testified that he felt
money in Defendant‟s pocket as well as “a bulge that had a gritty feeling,” which, in his
experience as an officer, felt like methamphetamine. Investigator Hedge seized the items
from Defendant, which included 30.2 grams of methamphetamine, cash, a cell phone, and
a small amount of marijuana. Investigator Hedge clarified that, before he performed the
second pat down of Defendant and seized the items from Defendant, he read both
Defendant and Ms. Swafford their Miranda rights.1 Investigator Hedge also testified that
Ms. Swafford signed a written consent to search both her house and the car, which was
titled in her name. In the car, officers found a ledger with names and numbers and an
unmarked bottle in the console containing eighteen hydrocodone pills. After searching
Defendant‟s house, officers found a plate with white residue on it which tested positive
for methamphetamine, another ledger with names and numbers, scales, and
methamphetamine slides. Investigator Hedge testified that Defendant had approximately
$700 cash in his pocket and that Ms. Swafford had $1115 cash in her purse.


       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).
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       After the State‟s direct examination of Investigator Hedge, the trial court asked a
series of questions relating to the location of the officers‟ patrol car and the car that
Defendant and Ms. Swafford had driven to the parking lot. After repeated questioning,
Investigator Hedge acknowledged that it was his intent to block Defendant and Ms.
Swafford‟s car when he pulled in front of them in the parking lot.

       On cross-examination, Investigator Hedge acknowledged that he had been
watching Defendant‟s house for about twelve weeks prior to March 12, 2015. He also
stated that he had known Defendant “since the late 90s” and had stopped him
approximately four or five times in the past but acknowledged that none of Defendant‟s
prior arrests had been for methamphetamine.

        The trial court granted the motion to suppress all items except the hydrocodone
pills, which were found in the car and not on Defendant‟s person. Specifically, the court
found that, while Investigator Hedge had a right to encounter Defendant in the parking lot
and ask him questions, “it was the officer‟s intention to detain [Defendant] from the very
beginning.” Furthermore, the court found that Investigator Hedge intended to detain
Defendant by blocking his car from moving and that, “as soon as they encountered each
other, the officer handcuffed [Defendant], and told him that he was being detained. That
is an arrest. That‟s the definition of an arrest, and he did so without just cause to do it at
that particular time.” The trial court entered an order on July 16, 2015, suppressing the
evidence and dismissing two counts of the indictment.

       Ultimately, this Court granted the State‟s application for extraordinary appeal
pursuant to Rule 10, and concluded that “the trial court „acted in an arbitrary fashion‟ by
refusing to grant the State an interlocutory appeal pursuant to Rule 9” and that “review of
the suppression issue at this time is necessary to prevent possible irreparable injury to the
public‟s interest.” See State v. Meeks, 262 S.W.3d 710, 720 (Tenn. 2008).

                                          Analysis

       The State claims that the trial court improperly suppressed the evidence found on
Defendant because Investigator Hedge had probable cause to believe that Defendant
unlawfully possessed a quantity of methamphetamine when he was arrested. Defendant
does not respond to the State‟s argument regarding probable cause. Rather, Defendant
argues that the trial court properly suppressed the evidence because Defendant was
subject to an improper stop and frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

       When reviewing a motion to suppress, this Court is bound by the trial court‟s
findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence and
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resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. Id. We review the trial court‟s conclusions of
law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005).

       The Fourth Amendment to the United States Constitution and Article I, Section 7
of the Tennessee Constitution protect against unreasonable searches and seizures.
“[U]nder both the federal and state constitutions, a warrantless search or seizure is
presumed unreasonable, and evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971); State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996)). In
the case of a warrantless search, the State bears the burden of proving that the search was
conducted pursuant to one of the exceptions to the warrant requirement. Id.

        Not all police-citizen encounters implicate constitutional protections. See, e.g.,
State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006). The Tennessee Supreme Court
has recognized three tiers of interactions between law enforcement and private citizens:
“(1) a full scale arrest which must be supported by probable cause; (2) a brief
investigatory detention which must be supported by reasonable suspicion; and (3) brief
police-citizen encounters which require no objective justification.” State v. Daniel, 12
S.W.3d 420, 424 (Tenn. 2000) (citations omitted). Of these categories, “only the first
two rise to the level of a „seizure‟ for constitutional analysis purposes.” State v. Day, 263
S.W.3d 891, 901 (Tenn. 2008). “[W]hat begins as a consensual police-citizen encounter
may mature into a seizure of the person.” Daniel, 12 S.W.3d at 427. A seizure occurs
“„when the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.‟” Day, 263 S.W.3d at 901-02 (quoting Terry, 392 U.S.
at 19, n.16). The relevant inquiry is “whether, „in view of all of the circumstances
surrounding the incident, a reasonable person would have believed he or she was not free
to leave.‟” State v. Randolph, 74 S.W.3d 330, 336 (Tenn. 2002) (quoting Daniel, 12
S.W.3d at 425).

        As an initial matter, the record reflects that Investigator Hedge‟s search of
Defendant could only qualify as a search incident to arrest, not an investigatory stop and
frisk, because Defendant was immediately restrained and handcuffed prior to any pat
down or search of his person. The trial court found that Investigator Hedge apprehended
Defendant and intended to place him under arrest when he blocked Defendant‟s car in the
parking lot. Investigator Hedge also acknowledged that it was his intent to block
Defendant at that point. However, even if the arrest did not occur at this point, Defendant
was clearly arrested when he was handcuffed and restrained by Investigator Hedge.
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Although Investigator Hedge claimed only to “detain” Defendant and not “arrest” him
when he handcuffed him, as the State correctly concedes, the subjective intent of the
officer and whether he intends to arrest or detain a defendant is irrelevant. State v.
Bishop, 431 S.W.3d 22, 36 (Tenn. 2014) (citing State v. Huddleston, 924 S.W.2d 666,
676 (Tenn. 1996)). Rather, the correct determination is whether “a reasonable, innocent
person would not feel free to leave” and whether there is “actual restraint on the
arrestee‟s freedom of movement under legal authority of the arresting officer.” Bishop,
431 S.W.3d at 35. Defendant was clearly restrained from movement and not free to leave
when Investigator Hedge confronted him in the parking lot. See Daniel, 12 S.W.3d at
426 (“[C]ourts have typically held that an encounter becomes a „seizure‟ if an officer. . .
physically restrains a citizen or blocks the citizen‟s path”). Furthermore, the initial pat
down of Defendant did not result in the seizure of any evidence. Rather, the evidence
was seized when Investigator Hedge performed a second subsequent pat down after
Defendant had already been handcuffed and verbally given his Miranda rights.
Therefore, the search of Defendant could only be valid as a search incident to an arrest,
and the validity of the search depends on the validity of the arrest, which requires
probable cause.

        A police officer may make a warrantless arrest when the officer has reasonable
cause to believe that the person being arrested committed a felony. See T.C.A. § 40-7-
103(a). “A full-scale arrest supported by probable cause is, of course, an exception to the
warrant requirement.” State v. Echols, 382 S.W.3d 266, 278 (Tenn. 2012) (citing State v.
Hanning, 296 S.W.3d 44, 48 (Tenn. 2009)). Probable cause requires more than “mere
suspicion,” but does not require “absolute certainty.” Yeargan, 958 S.W.2d at 637 (citing
Grey v. State, 542 S.W.2d 102, 104 (Tenn. Crim. App. 1976)); State v. Tays, 836 S.W.2d
596, 598-99 (Tenn. Crim. App. 1992). “Probable cause for an arrest without a warrant
exists if, at the time of the arrest, the facts and circumstances within the knowledge of the
officers, and of which they had reasonably trustworthy information, are „sufficient to
warrant a prudent man in believing that the [defendant] had committed or was
committing an offense.‟” State v. Bridges, 963 S.W.2d 487 (Tenn. 1997) (quoting Beck
v. Ohio, 379 U.S. 89, 91 (1964)).

        The warrantless arrest herein was based in part on information from the CI,
necessitating the application of the two-prong Aguilar-Spinelli test. See Aguilar v. Texas,
378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969); see also State v.
Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989) (adopting the Aguilar-Spinelli test over the
totality of the circumstances approach announced in Illinois v. Gates, 462 U.S. 213, 230
(1983)). If probable cause for a warrantless arrest is based upon information obtained
from a CI, the Aguilar-Spinelli test requires: (1) the CI have a basis for the knowledge
provided, and (2) the CI is credible or the information reliable. See Tays, 836 S.W.2d at
600 (applying Aguilar-Spinelli test to the validity of an arrest based on information
                                            -6-
supplied by a confidential informant). Here, the CI had a basis of knowledge, established
by the CI‟s prior observations which led to the grant of a search warrant for Defendant‟s
home as well as the CI‟s personal observation of Defendant‟s criminal activity in the
form of Defendant‟s possession of a “golf ball” size piece of methamphetamine in his
pocket hours prior to the arrest. Moreover, the fact that a search warrant had already
been issued by a neutral and detached magistrate on the basis of the CI‟s observations
support a finding that the CI was credible. Additionally, Investigator Hedge testified as
to the CI‟s credibility at the hearing by informing the trial court that the CI gave
information in the past leading to arrests and had worked with several law enforcement
agencies as a CI. Finally, even if for some reason the information provided by the CI
does not in and of itself satisfy the Aguilar-Spinelli test, the independent observations of
the investigator, coupled with the information supplied by the CI, gave probable cause for
the arrest. The investigator saw Defendant outside his parked car in a parking lot. At the
time, Defendant, who had previous arrests for drug related offenses, was leaning into the
window of the car of a known drug user just a few hours after the CI reported to the
investigator that Defendant had a pocket full of methamphetamine. All of this knowledge
together certainly gave the officer probable cause for a warrantless arrest. Because
probable cause existed for the arrest, the trial court‟s grant of the motion to suppress must
be reversed.

       Further, while not argued by the State, even if there was no probable cause for
Defendant‟s arrest, the items located in Defendant‟s pocket would have been inevitably
discovered after Defendant‟s companion gave written consent to search the vehicle in
which Defendant was riding. Under the inevitable discovery doctrine, illegally obtained
evidence is admissible if the evidence would have otherwise been discovered by lawful
means. Nix v. Williams, 467 U.S. 431, 444 (1984); State v. Ensley, 956 S.W.2d 502, 511
(Tenn. Crim. App. 1996). Proof of inevitable discovery “involves no speculative
elements but focuses on demonstrated historical facts capable of ready verification or
impeachment.” Nix, 467 U.S. at 444 n.5. Interestingly, the trial court in this case
determined that the search of the car was lawful and did not dismiss the count of the
indictment charging Defendant with possession of the hydrocodone pills found therein.
The trial court found that the hydrocodone was a “different category” because it was
“evidence that was seized from the vehicle with permission by the owner and the driver
was granted the search of the vehicle;” the only question was whether Defendant was in
possession of those items. When Investigator Hedge approached Defendant‟s companion
in the nearby store, she told him she had what he wanted. They returned to the vehicle
and a search of her purse resulted in the discovery of methamphetamine. She was
arrested and later consented to a search of the vehicle. The search of the vehicle resulted
in the discovery of eighteen hydrocodone pills. At that time, Defendant could have been
arrested for possession of the hydrocodone. The officers could have then searched his

                                            -7-
person incident to a lawful arrest, and the methamphetamine, cash, cell phone, and
marijuana would have been inevitably discovered.

                                      Conclusion

      For the foregoing reasons, the judgment of the trial court is reversed and the case
remanded for further proceedings.


                                                _________________________________
                                                TIMOTHY L. EASTER, JUDGE




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