        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 27, 2012

              STATE OF TENNESSEE v. JERMAINE JOHNSON

        Interlocutory Appeal from the Criminal Court for Davidson County
                     No. 2011-B-1381   Monte Watkins, Judge


                No. M2012-00391-CCA-R9-CD - Filed March 26, 2013


The Defendant-Appellee, Jermaine Johnson, was indicted for one count of possession with
intent to sell or deliver .5 grams or more of cocaine in a drug-free zone. The trial court
granted in part and denied in part Johnson’s motion to suppress evidence. Pursuant to Rule
9 of the Tennessee Rules of Appellate Procedure, we granted the State’s interlocutory appeal
challenging the trial court’s suppression of 14.5 grams of cocaine found near Johnson, and
we granted Johnson’s cross-appeal of the denial of his motion to suppress 1.43 grams of
cocaine found on him. Upon review, we affirm the partial denial of Johnson’s motion,
reverse the court’s decision to suppress evidence, and remand the case for further
proceedings consistent with this opinion.

     Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court
                       Affirmed in Part and Reversed in Part

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER, J., and C HRISTOPHER (C HRIS) C RAFT, S PECIAL JUDGE, joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton , Assistant Attorney
General; Victory S. (Torry) Johnson, III, District Attorney General; and Deborah Housel,
Assistant District Attorney General, for the Appellant, State of Tennessee.

Jodie A. Bell, Nashville, Tennessee, for the Defendant-Appellee, Jermaine Johnson.

                                        OPINION

       On September 3, 2010, the Crime Suppression Unit of the Metropolitan Nashville
Police received a complaint of drug activity in the area of Lewis Street in Nashville,
Tennessee. Officers responded and conducted surveillance in the area. They observed the
Defendant-Appellee, Jermaine Johnson, and another man, Mr. Hudson, in the parking lot.
One officer approached Johnson and found 1.43 grams of cocaine and $609.00 in cash on
him, and another officer found a bag of 14.5 grams of cocaine “near” Johnson in the parking
lot. Johnson was arrested and subsequently indicted for one count of possession with intent
to sell or deliver .5 grams or more of cocaine in a drug-free zone. He filed a motion to
suppress any and all evidence derived from his detention, search, and warrantless arrest.

       Following a hearing, the trial court found that the officer had reasonable suspicion to
stop Johnson. The court denied Johnson’s motion to suppress the 1.43 grams of cocaine and
money found on his person. However, the court summarily determined that there was not
“[a] sufficient nexus established between the bag of cocaine found in the parking lot and the
[D]efendant[.]” Consequently, the court granted Johnson’s motion to suppress the 14.5 grams
of cocaine recovered from the parking lot. This Court granted the State’s untimely filed
application for permission to pursue an interlocutory appeal as well as Johnson’s application
for permission to appeal.

        Motion to Suppress. At the hearing on the motion to suppress, Detective Vickie
Dills testified for the State, and Johnson and his girlfriend, Adrian Frank, testified for the
defense. Only an aerial map of the parking lot was entered into evidence.

       Detective Dills testified that on September 3, 2010, she was working for Hermitage
Crime Suppression Unit of the Metropolitan Police Department in Davidson County with
Detectives Smith and Jenkins. She said after they received a complaint of drug activity
“near” 727 Lewis Street, the three officers drove their unmarked police car to Lewis Street
to conduct surveillance in the area, which was known for drug trafficking.

        Upon arrival, Detective Dills observed “two gentlemen walking away from the 727
Lewis Street area.” She said the two men “went in opposite directions and kind of split up,”
and further opined that the men “didn’t want to be caught together.” Detective Dills testified
that Johnson “went . . . on the other side of the parking lot and Mr. Hudson went to the lower
side of the parking lot.” She said a bag of 14.5 grams of cocaine was found “[o]n the upper
side of the parking lot, near where Johnson was.”

       Detective Dills testified that when the officers exited their car, they were “in [their]
raid gear, clearly identified as police.” She said she

       called to [Johnson] and asked him if [she] could talk with him for a second.
       He walked over and said “yes.” [Detective Dills] asked him what he was
       doing and he said “nothing.” Then [Detective Dills] asked him if he had
       anything on him and he said “no.” [Detective Dills] asked him if [she] could
       search him and he said “yes.” He raised his arms up (indicating).

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Detective Dills found “a dollar bill with one point three grams of cocaine inside of it” in
Johnson’s right coin pocket and six hundred nine dollars in “smaller denominations” on him.


       Detective Dills said Detective Jenkins then “called out from the other side of the car
and said that he had found a larger baggy of cocaine,” which subsequently field-tested
positive for cocaine base. Detective Dills testified that Johnson was “[a]bout four or five
feet” from where Detective Jenkins held up the cocaine. Detective Dills then advised
Johnson of his Miranda rights, and he stated that “he only smokes.”

        Detective Dills testified that Detective Jenkins observed Johnson “making a throwing
motion with his hand whenever he was walking” when the officers pulled up and got out of
their vehicle. She agreed that it was at the moment that she got out of the unmarked police
car with her raid vest on that the two men split up, and she agreed that “the dope was found
in that same direction that the defendant went.”

       On cross-examination, Detective Dills agreed that the sole reason the officers were
in the Lewis Street area was in response to the call about drug activity and that she did not
see Johnson do anything illegal, “make any movements towards” her, or “act threatening.”
She also acknowledged that she did not take photographs, ask Johnson to sign a consent
form, or record her conversation with Johnson. She said it was Detective Jenkins’s
responsibility to write the offense report. She agreed that the case file did not state that
Johnson consented to a search.

       Detective Dills said after she spoke with Johnson, Detective Jenkins “described
something being tossed” and “told [her] that he did see what appeared to be throwing.” She
denied that Detective Jenkins reported seeing just “an item flying through the air.” She said
she did not see Johnson the entire time, because she was in the back seat of the car which
“slightly obstructed” her view.

        Detective Dills testified that Johnson appeared “nervous” and that after she found the
cocaine wrapped in the dollar bill in his pocket, she placed him in handcuffs. She could not
recall whether she had found the cash, which consisted of five, ten, and twenty-dollar bills,
prior to handcuffing him.

       On re-direct examination, Detective Dills testified that the police department had
“recovered a lot of weapons from the area, lot of drugs. There’s been a lot of shootings,
stabbings in the area.” She testified that in high crime areas, such as Lewis Street, a trained
officer is looking for “hand movements,” to see if an individual has a weapon or drugs.



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        Ms. Adrian Frank testified that on September 3, 2010, Johnson, her boyfriend,
received a phone call from Ms. Dana, who told him to come pick up some shirts she had for
him. Ms. Frank said that Johnson, driving Ms. Frank’s car, backed into a parking space at
Ms. Dana’s residence. Ms. Frank said she waited in the car for “at the most, five minutes”
and saw Johnson coming from the residence towards her car. She did not see Johnson drop
anything. Ms. Frank saw the unmarked police car “fly down the drive backwards” and stop
behind her car. She testified that one officer stopped Johnson “on his way to get in the car”
and looked in his bag of shirts and asked him if she could talk to him. She said she had both
windows down but did not hear the officer ask Johnson for permission to search. She
testified that the officer “was asking how he was doing and stuff and [she] heard him, [say]
‘okay,’ but . . . [she] really didn’t hear much of a conversation.” Ms. Frank thought Johnson
“didn’t have a choice” about “engag[ing] in that encounter” with Detective Dills, because
there were “three policemen . . . swarming that area and they called and they stopped him at
the car and asked to talk for a minute.”

       On cross-examination, Ms. Frank said she saw Johnson and Hudson walking together
and then saw them go in different directions when Johnson started towards her car. She
turned around to watch the police officers speed down the alley, stop behind her car, and exit.
A male police officer talked to her at the passenger window and shined a flashlight inside her
car but did not search it. She acknowledged that Detective Dills did not hold a gun on
Johnson and that Johnson replied, “Yes, I can talk to you.” She saw Johnson gesture to
Detective Dills, and she agreed that Johnson raised his arms before Detective Dills searched
his pockets.

        Johnson testified that he was raised in the Lewis Street area, has family there, and
visits “about three or four times a month.” He said Ms. Dana, who lived at 727 Lewis Street,
called and asked him if he was “going to come and get them shirts,” and on September 3,
2010, he drove to pick up the shirts. He said he backed in and parked facing the “project
wall,” and “Ms. Dana was sitting on her porch, and the bag was hanging on the rail.” He said
he grabbed the bag of shirts and talked with Ms. Dana “for a couple of minutes,” and as he
walked back across the parking lot to the car, where Ms. Frank was waiting, he saw a car
“shoot up the driveway” backwards. He said he did not know it was a police car, because
it is “not uncommon” for cars to drive backwards at a high rate of speed there. But after
Detective Dills “jump[ed]” out of the car which was parked behind his, he knew she was a
police officer.

        He testified Detective Dills “asked [him], could she–told me to come there, could she
talk to me.” He said “the other people ran,” but he “left the [driver’s side car] door open and
walked straight to her.” She asked him what he was doing and what was in his bag. He said
he was not doing anything, was getting in his car to leave, and had shirts in his bag. He

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threw the bag of shirts onto the trunk of the car and raised his hands. He said she searched
the bag and asked if he had identification with him, and he pulled out his billfold and handed
her his identification. She asked him if he had any drugs, weapons, or anything she needed
to know about on him, and, with his arms raised, he said, “I don’t have anything on me.”
When she patted his pockets, he said, “I’m going to be honest with you now. . . . What I do
have on me is a dime of powder.” After Detective Dills handcuffed him, she discovered the
money in his billfold, and Detective Jenkins found the bag of cocaine. Johnson told the
officers they “need[ed] to fingerprint that bag, that don’t belong to me.” Detective Dills read
him his Miranda rights. Johnson said he would “tap” cocaine powder and smoke marijuana,
but he did not “deal with crack cocaine.” He said he did not give the officer permission to
search him.

       Johnson acknowledged that he had a twenty-one-year-old second degree murder
conviction. On cross-examination, he said he used drugs but did not sell them. When the
State asked if he agreed that he had four convictions for possession and exchange of drugs,
he said he did not “know what that exchange is” but he “pleaded guilty of those things
because [he] was guilty.” He said Detective Dills only touched his pockets but that he
considered that a search.

       By written order, the trial court determined that there was reasonable suspicion
supporting the investigatory stop of Johnson; therefore, the search of his person revealing
1.43 grams of cocaine and $609.00 was valid. The trial court further determined, without
elaboration, that the nexus “established between the bag of cocaine found in the parking lot
and the defendant” was not sufficient. Accordingly, the trial court denied Johnson’s motion
to suppress the evidence seized from his person and granted Johnson’s motion to suppress
the drugs seized from the parking lot. This appeal followed.

                                          ANALYSIS

        In its appeal, the State contends that the trial court erred in applying the nexus doctrine
to the cocaine found in the parking lot and that its retrieval did not constitute a search. In
response, Johnson asserts that the trial court properly applied the nexus doctrine in
suppressing the evidence. In Johnson’s cross-appeal, he argues the trial court erred in failing
to find that [Johnson was] unlawfully detained when he came into contact with Officer Dills
and erred in concluding that [Johnson] consented to a search of his person. The State
counters that the trial court correctly analyzed Detective Dills’s encounter with Johnson. We
agree with the State in both appeals.

        An appellate court may consider the proof presented at the suppression hearing and
the trial when determining whether the trial court properly granted or denied a motion to

                                                -5-
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established that
“a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The Tennessee
Supreme Court explained this standard in Odom:

               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. The party prevailing in the trial court is
       entitled to the strongest legitimate view of the evidence adduced at the
       suppression hearing as well as all reasonable and legitimate inferences that
       may be drawn from that evidence. So long as the greater weight of the
       evidence supports the trial court’s findings, those findings shall be upheld.

Id. However, this court’s review of a trial court’s application of the law to the facts is de
novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
(citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the evidence
preponderates against the trial court’s findings. Odom, 928 S.W.2d at 23; Yeargan, 958
S.W.2d at 629.

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. 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).

         “Exceptions to the warrant requirement include searches incident to arrest, plain
view, hot pursuit, exigent circumstances, and others, such as the consent to search.” State
v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007). “‘[T]he “plain view” exception to the Fourth
Amendment warrant requirement permits a law enforcement officer to seize what clearly is
incriminating evidence or contraband when it is discovered in a place where the officer has
a right to be.’” State v. Niles, No. M2011-01412-CCA-R3-CD, 2012 WL 1965438, at *11
(Tenn. Crim. App. June 1, 2012) (quoting Washington v. Chrisman, 455 U.S. 1, 5-6 (1982)).
“The plain view doctrine is applicable when (1) the object seized was in plain view, (2) the
viewer had a right to be in the position to view the object, and (3) the incriminating nature
of the object was immediately apparent.” Id. (citing State v. Cothran, 115 S.W.3d 513, 524-
25 (Tenn. Crim. App. 2003)). We conclude that the bag containing over fourteen grams of
cocaine was in plain view of the officers in the parking lot and did not require a warrant.
Furthermore, its retrieval did not constitute a search. See State v. Ross, 49 S.W.3d 833, 839

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(Tenn. 2001) (“‘[A]n investigation by governmental authorities which is not a search as
defined by the Supreme Court may be conducted without probable cause, reasonable
suspicion or a search warrant.’”)(quoting State v. Bell, 832 S.W.2d 583, 589-90 (Tenn. Crim.
App.1991)).

         Additionally, “when evaluating whether a particular defendant’s Fourth Amendment
rights have been violated, we look to two inquiries: (1) whether the individual, by his
conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ and (2) whether the
individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as
“reasonable.”’” State v. Ross, 49 S.W.3d at 840 (quoting Katz, 389 U.S. at 361) (Harlan, J.,
concurring)). We have previously determined that a co-owner of residential property, who
did not reside on the property, did not have an actual, subjective expectation of privacy in its
parking lot or in an opening in the structure’s foundation, “which was used to gain entrance
to the area beneath the structure” and which did not have a “door or covering.” State v.
Matthews, 805 S.W.2d 776, 780 (Tenn. Crim. App. Aug. 22, 1990). Additionally, we
concluded that “society is not willing to accept an expectation of privacy in (a) a parking lot
which is provided for the use of tenants and their guests or (b) an area under a rooming house
which does not have a door or other means to secure the area and is not being used either by
the owner or tenants to store personal property.” Id. at 781; accord California v. Greenwood,
486 U.S. 35, 39 (1988) (concerning the “warrantless search and seizure of the garbage bags
left at the curb outside the . . . house”), quoted in State v. Bell, 832 S.W.2d 583, 590 (Tenn.
Crim. App. 1991); United States v. Diaz, 25 F.3d 392, 396 (6 th Cir. 1994); State v. Levi
Battle, III, No. M2006-00288-CCA-R3-CD, 2007 WL 957207, at *4 (Tenn. Crim. App. Mar.
29, 2007) (“Defendant had no reasonable expectation of privacy when he parked his car in
the hotel parking lot.”); State v. Jose Roberto Ortiz, No. M1998-00483-CCA-R3CD, 1999
WL 1295988, at *16 (Tenn. Crim. App. Dec. 30, 1999) (concluding defendant “did not
possess any expectation of privacy in the parking lot of [another’s] apartment complex.”);
see also Chico v. State, 394 S.W.2d 648, 651 (Tenn. 1965) (“The law is settled that when the
land on which the evidence is found is not possessed as a part of the curtilage or used in the
daily operation of the premises, then the constitutional provision against unreasonable
searches and seizures does not apply.”). Under these authorities, we conclude that Johnson
did not have a subjective expectation of privacy in the parking lot and that society is not
prepared to recognize as “reasonable” an individual’s expectation of privacy in such a lot.
Matthews, 805 S.W.2d at 781. Because Johnson did not have a reasonable expectation of
privacy, he was without standing to challenge the actions of the officers. Accordingly, the
question as to whether the search and seizure was reasonable is moot. Id. at 780.

      The trial court granted Johnson’s motion as it relates to the 14.5 grams of cocaine,
because it found an insufficient “nexus” between the cocaine and Johnson. Under Fourth
Amendment law, the nexus doctrine applies to search warrants and instructs that

                                              -7-
       An affidavit in support of a search warrant must set forth facts from which a
       reasonable conclusion might be drawn that the evidence is in the place to be
       searched. The nexus between the place to be searched and the items to be
       seized may be established by the type of crime, the nature of the items, and the
       normal inferences where a criminal would hide the evidence.

State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted). Because the validity
of a search warrant is not at issue, the nexus doctrine does not apply. Furthermore, as the
State notes, in the context of warrants, a nexus is required between the place to be searched
and the evidence to be seized, not between the suspect and the evidence.

       The Defendant cross-appeals the trial court’s denial of his motion to suppress the
cocaine and cash found on him. He contends that the trial court erred in finding that
Detective Dills had reasonable suspicion to stop Johnson and that he consented to the search.
The State asserts that the “trial court correctly analyzed Detective [Dills’s] encounter with
[Johnson].” We conclude the evidence does not preponderate against the trial court’s
determination that the investigatory stop was supported by reasonable suspicion and that
Johnson voluntarily gave consent to search his person.

       A warrant is not required for an investigatory stop if the officer has “a reasonable
suspicion, supported by specific and articulable facts, that a criminal offense has been or is
about to be committed.” State v. Bridges, 963 S.W.2d 487, 492 (Tenn.1997) (citing Terry
v. Ohio, 392 U.S. 1, 21, (1968)). Probable cause is not required for an investigatory stop.
State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989) (citing Terry, 391 U.S. at
27 and Hughes v. State, 588 S.W.2d 296, 305 (Tenn.1979)). The Tennessee Supreme Court
has stated that a “[r]easonable suspicion is a less demanding standard than probable cause.”
Bridges, 963 S.W.2d at 492 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).
Reasonable suspicion for an investigatory stop will be found to exist only when the events
which preceded the stop would cause an objectively reasonable police officer to suspect
criminal activity on the part of the individual stopped. State v. Levitt, 73 S.W.3d 159, 172
(Tenn. Crim. App. 2001); State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996).
The likelihood of criminal activity required for reasonable suspicion is not as great as that
required for probable cause, and is “considerably less” than would be needed to satisfy a
preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7 (1989); see
also State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998). Determining whether reasonable
suspicion exists requires consideration of “the totality of the circumstances”:

       Circumstances relevant to the evaluation include, but are not limited to, the
       officer’s personal objective observations, information obtained from other

                                             -8-
       police officers or agencies, information obtained from citizens, and the pattern
       of operation of certain offenders. A court must also consider the rational
       inferences and deductions that a trained officer may draw from the facts and
       circumstances known to him—inferences and deductions that might well elude
       an untrained person. Finally, the content, quality, and quantity of information
       possessed by police must be assessed in determining whether it is sufficiently
       reliable to support a finding of reasonable suspicion.

State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998) (citations omitted).

       “While arrests and investigatory stops are seizures implicating constitutional
protections, consensual encounters are not.” State v. Berrios, 235 S.W.3d 99, 104 (Tenn.
2007) (quoting State v. Nicholson, 188 S.W.3d 649, 656 (Tenn.2006) and citing State v.
Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)). “‘[A] seizure does not occur simply because a
police officer approaches an individual and asks a few questions.’” Id. (quoting Florida v.
Bostick, 501 U.S. 429, 434 (1991)).

        Based on the above authority, we conclude that the trial court did not err in finding
that Detective Dills had a reasonable suspicion to stop Johnson and that Johnson voluntarily
answered both questions posed by Detective Dills. The evidence at the hearing established
the following: (1) the Lewis Street area was known for drug activity; (2) the officers had
received “a complaint of drugs being sold on Lewis Street;” and (3) in their surveillance of
the area, the officers saw “[Johnson] . . . walking with another individual and split up once
they were being approached by police officers.” Both Johnson and Ms. Franks testified
consistently with Detective Dills that she asked Johnson if she could talk to him, that Johnson
responded affirmatively, and that he raised his arms prior to her search. The record fully
supports the trial court’s determination that reasonable suspicion supported the stop, that
Johnson provided a voluntary response to police questioning, and that Johnson consented to
the search. Johnson is not entitled to relief.

                                       CONCLUSION

        Based on the foregoing, the judgment of the trial court is affirmed in part and reversed
in part. The court’s denial of Johnson’s motion to suppress is affirmed, and its suppression
of evidence is reversed. This case is remanded to the Davidson County Criminal Court for
proceedings consistent with this opinion.

                                                    _______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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