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

     STATE OF TENNESSEE v. RICKY J. JONES and SHANE EUGENE
                        MCCLANAHAN

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


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


The Defendant-Appellee, Shane Eugene McClanahan, was indicted in Case No. 2012-CR-
150 for possession of not less than one-half ounce nor more than ten pounds of marijuana
with the intent to sell or deliver, driving while under the influence of marijuana while
accompanied by a child under thirteen years of age,1 and possession of drug paraphernalia.
McClanahan was later indicted in Case No. 2012-CR-193 for driving a motor vehicle on a
cancelled, suspended, or revoked license and driving a motor vehicle on a cancelled,
suspended, or revoked license, second or subsequent offense. McClanahan’s charges
stemmed from evidence obtained during a warrantless search of his vehicle. In a separate
case, the Defendant-Appellee, Ricky J. Jones, was indicted in Case No. 2012-CR-147 for the
manufacture of marijuana consisting of not less than 100 marijuana plants nor more than 499
marijuana plants, possession of not less than ten pounds, one gram nor more than seventy
pounds of marijuana with the intent to sell or deliver, and possession of drug paraphernalia.
Jones was later indicted in Case No. 2012-CR-268 for money laundering. Jones’s charges
stemmed from evidence obtained pursuant to a warrant that substantially relied on the
evidence recovered during the warrantless search of McClanahan’s vehicle. McClanahan
and Jones filed motions to suppress the physical evidence recovered in their cases.
Following an evidentiary hearing, the trial court granted McClanahan’s and Jones’s motions
to suppress and dismissed their indictments. In this appeal as of right, the State argues that
the trial court erred in granting McClanahan’s suppression motions and in dismissing his
cases. Upon review, we affirm the trial court’s judgments.



        1
            W e note that McClanahan was charged with violating not only Tennessee Code Annotated section 55-10-401
but also Code section 55-10-414, the statute making it a Class A misdemeanor to violate Code section 55-10-401 while
accompanied by a child under thirteen years of age. Given that Code section 55-10-414 was repealed in 2005, we are
unsure why McClanahan was charged with violating this statute. However, given that we are affirming the judgments
of the trial court suppressing the evidence and dismissing the indictments in this case, this issue is moot.
 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, and J OHN E VERETT
W ILLIAMS, J., filed an opinion concurring in results. T HOMAS T. W OODALL, J., filed a
dissenting opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Tom
P. Thompson, Jr., District Attorney General; and Jason L. Lawson, Assistant District
Attorney General, for the Appellant, State of Tennessee.

J. Branden Bellar and Jacky O. Bellar, for the Defendant-Appellees, Ricky J. Jones and
Shane Eugene McClanahan.

                                         OPINION

                                           FACTS

        Michael J. Agee, a deputy and “K-9 handler” for the Smith County Sheriff’s
Department, testified that in the early evening of May 11, 2012, he saw the Defendant, Shane
Eugene McClanahan, leave a home on Toney Hollow Lane in Smith County, Tennessee, in
his vehicle. He followed McClanahan for ten or twelve miles before McClanahan stopped
at the Stage Coach General Store on Highway 25. McClanahan parked his vehicle and exited
the driver’s seat before walking into the store. Deputy Agee followed him inside and saw
him purchase a drink at the cash register. He then walked past McClanahan, so close it was
“almost brushing distance,” and smelled the odor of marijuana. Deputy Agee stated that he
was familiar with the odor of marijuana because of his work as a “K-9 handler” for the Smith
County and DeKalb County Sheriff’s Departments as well as his work as a patrol deputy.
He testified about what happened next:

               [McClanahan] started to exit the store, and I was going to exit the store
       behind him and stop him. The clerk inside the store kept hollering at me to
       come back and was asking me if I needed anything, and before I could tell her
       I didn’t, and [as I was] trying to get out the door, Mr. McClanahan done got
       in his vehicle and left out on Highway 25 going towards Trousdale County.

Deputy Agee saw McClanahan get into the driver’s seat of his vehicle because he could see
him through the store front. He told the clerk he did not need anything and “got in his patrol
vehicle and caught up with him and pulled him over.” Deputy Agee stated that he stopped
McClanahan around “[a] half a mile, a mile maybe” from the store just over the county line
in Trousdale County. He said the basis for the stop of McClanahan’s vehicle was the “odor

                                              -2-
of marijuana on [McClanahan].” He believed that McClanahan had “been smoking or might
have been unable to drive or had some on him.” He detailed what happened after stopping
the McClanahan:

                  I asked him to exit the vehicle, because once I walked up to his window
          I seen there was a minor child in the passenger’s seat beside him, to ask him
          about the marijuana. I didn’t want to ask him about it in front of the child. I
          didn’t know if it was his at the time but I didn’t want to ask him about it in
          front of the kid.

          He asked McClanahan to step out of his vehicle, and he complied. Deputy Agee
stated:

                  I asked him about the marijuana and [McClanahan] stated several times
          that he didn’t have any, and I informed him that I was a K-9 handler and I had
          the K-9 dog with me and I was going to search his vehicle with the dog, and
          he said, if that’s what I had to do, that’s what I had to do.

        Deputy Agee recalled McClanahan giving him his name and date of birth because he
did not have a driver’s license at the time of the stop. He called McClanahan’s name and
date of birth into dispatch and while he was waiting for a response, he got his service dog out
and allowed him to do a “free air search[,]” where the dog sniffed around the outside of
McClanahan’s vehicle. Shortly thereafter, the dog alerted that it detected drugs on the
driver’s side of McClanahan’s vehicle. After the dog indicated the presence of drugs, some
backup officers arrived, and Deputy Agee asked McClanahan to step out of the car. Sheriff
Steve Hopper stood with McClanahan while Deputy Agee searched the car. During the
search, he uncovered “a brick of marijuana . . . [on] the driver’s side rear seat in a tackle
box.” Deputy Agee stated that he did not receive the information that McClanahan’s driver’s
license had been suspended for the fourth or fifth time until after the search of the vehicle
had been completed.

        On cross-examination, Deputy Agee said that he first saw McClanahan standing
beside his vehicle at a residence on Toney Hollow Lane and that he was not violating the law
at the time. He admitted that McClanahan committed no traffic violations in his presence
before he stopped at the store. However, he said he lost sight of McClanahan’s vehicle for
a period of time before he saw the vehicle again on Highway 25 before McClanahan stopped
at the store. Deputy Agee stated that he was not looking for McClanahan after he lost sight
of him and coincidentally saw him again before McClanahan stopped at the store.




                                                -3-
        Deputy Agee said that although he smelled the marijuana when he walked past
McClanahan, he did not stop him at that time. He explained: “I was going to stop him
before he left and the clerks got to asking me did I need something or was I looking for
something, and as I was trying to get out the door he was getting in his truck and leaving.”
He acknowledged that nothing prevented him from telling McClanahan to stop. He also
acknowledged that McClanahan committed no traffic violations when he left the store and
drove down the road. Although Deputy Agee was only able to observe McClanahan in the
store for “[j]ust a few minutes,” he said there was nothing in McClanahan’s movements that
indicated he was impaired. However, he stated that he was unable to look at McClanahan’s
eyes or hear his speech inside the store. Deputy Agee said that he did not have a videotape
of McClanahan’s stop because his patrol car was not equipped with a camera.

       On redirect examination, when the State asked him why he did not ask McClanahan
about the marijuana inside the store, Deputy Agee replied:

               Well, as I was coming in he was at the cash register and as I walked by
       him that’s when I smelled [the marijuana], and he started out as I was turning
       around, and the clerks, they went to hollering at me and asked me did I need
       something or could they help me, and as I was trying to get to him, they were
       trying to talk to me and I was trying to get out the door. I mean, I didn’t want
       to be rude to the clerks but I knew I needed to get with him before he left.

       On recross-examination, Deputy Agee said that McClanahan never gave him consent
to search his vehicle.

                                        ANALYSIS

       The State argues that the trial court erred in granting McClanahan’s suppression
motions and in dismissing his indictments. Specifically, the State contends that although the
trial court properly determined that Deputy Agee had reasonable suspicion to stop
McClanahan when he detected the odor of marijuana, the court erred when it held that
Deputy Agee’s “time for reasonable suspicion ceased once [McClanahan] got into that
vehicle and got down the road.” The State asserts that “the passage of a few seconds or
minutes does not alter the existence of reasonable suspicion that a person is either using
marijuana or in possession of marijuana.” It further asserts that because the odor of
marijuana, by itself or with other facts and circumstances, can provide sufficient probable
cause for a warrantless search or the issuance of a search warrant, the odor of marijuana in
this case provided Deputy Agee with reasonable suspicion that a criminal offense was
occurring or had occurred. Consequently, the State contends that reasonable suspicion



                                             -4-
justified Deputy Agee’s stop of McClanahan’s vehicle a half mile to a mile away from the
store and that the court’s judgment suppressing the evidence should be reversed.

       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. Ross, 49 S.W.3d 833, 839
(Tenn. 2001) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee
Supreme Court explained this standard:

               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.

Odom, 928 S.W.2d at 23. 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 Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect individuals from unreasonable searches and seizures. See
U.S. Const. amend IV; Tenn. Const. art. 1, § 7. However, the Tennessee Supreme Court has
noted that Tennessee’s decisions applying search and seizure law are slightly more restrictive
than federal law. State v. Richards, 286 S.W.3d 873, 877-78 (Tenn. 2009) (citing State v.
Lakin, 588 S.W.2d 544, 549 (Tenn. 1979)). “[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.” Yeargan, 958 S.W.2d at 629 (citing
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bartram, 925 S.W.2d
227, 229-30 (Tenn. 1996)). When determining whether the seizure and search are
unreasonable, we must consider “whether the officer’s action was justified at its inception,
and whether it was reasonably related in scope to the circumstances which justified the
interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20 (1968). In other words, “would
the facts available to the officer at the moment of the seizure or the search ‘warrant a man
of reasonable caution in the belief’ that the action taken was appropriate?” Id. at 21-22.
Pursuant to the “fruit of the poisonous tree” doctrine, evidence that is obtained through an
unlawful search or seizure is excluded from use by the State. See Wong Sun v. United
States, 371 U.S. 471, 484-85 (1963); State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996).

                                               -5-
This exclusionary rule “was designed to protect Fourth Amendment guarantees by deterring
lawless searches, seizures, and arrests.” Huddleston, 924 S.W.2d at 674.

        Because a seizure occurred at the time that Deputy Agee stopped McClanahan’s
vehicle, we must determine whether this warrantless seizure, which occurred prior to the
warrantless search of his vehicle, was reasonable. See State v. Kevon Fly, No. E2006-01979-
CCA-R3-CD, 2007 WL 2141543, at *4 (Tenn. Crim. App. July 26, 2007). A well-
established exception to the warrant requirement is an investigatory stop based upon “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, 392 U.S. at 21; Yeargan, 958 S.W.2d at 630; State v. Watkins, 827 S.W.2d
293, 294 (Tenn. 1992)). 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;
Hughes v. State, 588 S.W.3d 296, 305 (Tenn. 1979); State v. Foote, 631 S.W.2d 470, 472
(Tenn. Crim. App. 1982)). Moreover, “‘[w]here a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that criminal activity may
be afoot . . . ,’ the officer may briefly stop the suspicious person and make ‘reasonable
inquiries’ aimed at confirming or dispelling his suspicions.” Minnesota v. Dickerson, 508
U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 30) (citing Adams v. Williams, 407 U.S.
143, 145-146 (1972)).

       The Tennessee Supreme Court recently restated the law regarding reasonable
suspicion:

       Reasonable suspicion must be supported by more than the officer’s “inchoate
       and unparticularized suspicion or ‘hunch,’” Terry, 392 U.S. at 27, 88 S.Ct.
       1868; however, “‘reasonable suspicion can be established with information
       that is different in quantity or content than that required to establish probable
       cause . . . [and] can arise from information that is less reliable than that
       required to show probable cause.’” State v. Pulley, 863 S.W.2d 29, 32 (Tenn.
       1993) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110
       L.Ed.2d 301 (1990)); see also Day, 263 S.W.3d at 903.

               Trial courts must examine the totality of the circumstances when
       evaluating whether an officer has established the requisite level of suspicion
       to justify a Terry stop. Binette, 33 S.W.3d at 218. These circumstances
       include an officer’s observations, information from other law enforcement
       personnel or agencies, information from citizens, known patterns of criminal
       offenders, or deductions based upon experience. State v. Watkins, 827 S.W.2d
       293, 294 (Tenn. 1992). When evaluating the reasonableness of the police

                                              -6-
       officer’s suspicion, the nature of the crime suspected may be a factor. See
       State v. Winn, 974 S.W.2d 700, 703 (Tenn. Crim. App. 1998) (“A frisk has
       been upheld as reasonable when the suspected crime might typically involve
       the use of a weapon . . . [such that] an officer [may] reasonably infer that a
       weapon might be in the possession of the suspect.”).

State v. Moats, 403 S.W.3d 170, 178-79 (Tenn. 2013).

       In this case, at the conclusion of the suppression hearing, the trial court made the
following oral findings of fact and conclusions of law:

              I’ll tell you, this is a very problematic case. Let’s sort of analyze this
       thing to the cases and the Constitution. Of course the analysis starts on any
       warrantless search that it’s presumed unconstitutional. So the burden comes
       on the State, and it’s a very heavy burden to show that there is a reasonable
       suspicion and then probable cause and the absent warrant that the vehicle be
       stopped.

              Now, you can go through the case law, and when you look at all the
       case law on what the objective basis is for stops, reasonable suspicion, of
       course there’s a bunch of it out there. Unfortunately, I couldn’t find a case
       with this set of facts where we had a reasonable suspicion at one point and
       then a stop somewhere else. So it becomes problematic because I couldn’t
       find anything that was sort of similar to this.

               But we do know going through what we all know about the law, you
       know, you look for at W[h]ren [v.] United States, which was decided–a U.S.
       Supreme Court case way back in 1997. Let’s make sure we’re all on the same
       page. The Court there held that if there is a sufficient objective factor to
       justify a stop, the mere fact that the stop is pretextual does not render it
       unconstitutional.

                Now the reason I bring that up, even though there’s been no testimony
       this is a pretextual stop, I’m having a problem putting this thing together given
       the way the events transpired, but we’re going to get back to that in a moment.

               What this Court must look at, you know, we go back down and we look
       at United States [v.] Cortez, which I think we’re all familiar with, decided by
       the U.S. Supreme Court in 1981, and in that particular case it does state, and
       it’s a very good rule, but it talks about that a Court must consider the rational

                                              -7-
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.

       In analyzing a reasonableness of an investigatory stop, the Court is not
bound or limited in its consideration of the facts. Instead, the Court is entitled
to draw its own conclusions from the facts as found, much the way the jury
does.

        So, we do have testimony that this is a trained officer. We do have
testimony this is a trained dog. But here’s the problem the Court has, the
officer testified from the stand as to a reasonableness that there might be
criminal activity afoot. But he testified that for ten or twelve miles, minus the
time he left him, there was no indication that this Defendant was driving
erratically or illegally.

       So, at that point, there’s no reasonable suspicion to stop the Defendant,
Mr. McClanhan. Now, we can also, I hope agree, because this is the law, Mr.
McClanahan was not stopped at the grocery store. You know, every officer
has every right to be where they have a right to be. Mr. McClanahan was in
the store. The officer was in the store.

       Here’s where it becomes very problematic. Mr. McClanahan was in
there making a purchase and the officer testified that he went in not to
purchase anything, just to check on Mr. McClanahan. Well see, I have a
problem. He says, Mr. McClanahan made it out the door, but the officer is still
there another full–three minutes was his testimony, and because the clerks
were trying to interrupt him.

        I’m sorry, but I just have a real problem with that. I know human
nature. I’ve been in this business for thirty years. If you think criminal
activity is afoot, you don’t worry about the clerk. You don’t worry about them
saying, hey, do you want to buy–you just get out the door and you stop them
outside the door. That’s just the way law enforcement is supposed to operate.

       You don’t worry about being rude to people, particularly in this
particular case because the testimony was clear. The officer testified that he
nearly brushed up against Mr. McClanahan–Officer Agee, Deputy Agee. Yet
somehow Mr. McClanahan gets out the door and out to the road before he can
even get into his car to get to him.

                                       -8-
              Now, on the other hand, Deputy Agee testifies he smells dope, but on
       the other hand, he also testifies, well, it just wasn’t important enough for him
       to get out the door immediately and question him and stop him outside that
       door. The Court has a real problem with that. I’ll just tell you right now.

               The other thing the Court has a problem with–now, [Deputy] Ag[]ee
       testified that he smelled dope on Mr. McClanahan. He could have, but it’s
       also a public place, a grocery store. It could have been on the clerk. It could
       have been on other people. See, the place to determine that would have been
       outside the store, because I do think–I do think that Officer Agee had
       reasonable suspicion once he smelled it on Mr. McClanahan to stop Mr.
       McClanahan.

              Once he got inside that vehicle and got down that highway with all the
       evidence that this Court’s had–remember, we’re talking about evidence.
       We’re not talking about my personal opinion. We’re talking about evidence
       and the law. That there was no indication, no physical indication that Mr.
       McClanahan was under the influence of any drug or alcohol.

              The officer even testified that he committed no driving violations, but
       I think that his time for reasonable suspicion ceased once he got into that
       vehicle and got down the road.

       Here, Deputy Agee testified that he stopped McClanahan’s vehicle based on the odor
of marijuana he detected when he walked past McClanahan in the store. He claimed that he
stopped McClanahan’s vehicle because he was unable to detain McClanahan in the store
before he got into his car and drove away. We agree with the trial court’s conclusion that
Deputy Agee had a reasonable suspicion that McClanahan had committed or was about to
commit a criminal offense at the moment when he observed the odor of marijuana near
McClanahan in the store. Moreover, we conclude that the evidence does not preponderate
against the trial court’s implicit finding that Deputy Agee’s explanation for not acting on this
reasonable suspicion sooner was not credible. See Terry, 392 U.S. at 20 (“But we deal here
with an entire rubric of police conduct–necessarily swift action predicated upon the
on-the-spot observations of the officer on the beat–which historically has not been, and as
a practical matter could not be, subjected to the warrant procedure.”). Immediately upon
detecting the odor of marijuana near McClanahan’s person, Deputy Agee should have briefly
detained him either inside the store or just outside the store for the purpose of investigating
the odor. See United States v. Hensley, 469 U.S. 221, 234 (1985) (holding that “[a] brief



                                              -9-
stop and detention at the earliest opportunity after the suspicion arose is fully consistent with
the principles of the Fourth Amendment.”).

        While we acknowledge that police need “an escalating set of flexible responses,
graduated in relation to the amount of information they possess[,]” see Terry, 392 U.S. at
10, we conclude that it was unreasonable for Deputy Agee to wait until McClanahan had
gotten into his car and driven nearly a mile down the road before initiating the investigatory
stop. In reaching this conclusion, we note that the seizure and search of McClanahan’s
vehicle was significantly more intrusive than a seizure and search of his person at the store
would have been. See Illinois v. Caballes, 543 U.S. 405, 419 (2005) (“In applying Terry, the
Court has several times indicated that the limitation on “scope” is not confined to the
duration of the seizure; it also encompasses the manner in which the seizure is conducted.”);
Hensley, 469 U.S. at 235 (holding that a police flyer that was supported by a reasonable
suspicion on the part of the first police department “justified the length and intrusiveness of
the stop and detention” of the defendant by a second police department). The facts in this
case necessitated a typical “on-the-street” investigatory stop. Accordingly, we conclude that
the trial court properly granted the suppression motions in this case.

        I note that Judge Woodall has filed a well-reasoned dissenting opinion in this case,
wherein he states that he would reverse the trial court’s orders granting the suppression
motions filed by McClanahan and Jones, would reverse the orders dismissing these cases,
and would reinstate McClanahan’s and Jones’s charges for further proceedings. Judge
Woodall concludes that Deputy Agee’s response in initiating the stop of McClanahan’s car
“was reasonably related in scope to the circumstances” which justified the investigatory
detention. Terry, 392 U.S. at 20. I respectfully disagree. In my view, the record supports
the trial court’s finding that Deputy Agee did not act quickly enough in initiating the
investigatory detention after detecting the odor of marijuana near McClanahan’s person.
Judge Woodall also concludes that because McClanahan’s stop was not illegal, the search
warrant for Jones’s home, which heavily relied on the evidence seized from McClanahan’s
vehicle, was not constitutionally infirm.

         He additionally asserts that even if the stop of McClanahan’s vehicle violated
McClanahan’s Fourth Amendment rights, Jones did not have standing to object to the seizure
and search of McClanahan’s vehicle for the purpose of challenging the search warrant for
his home. Again, I respectfully disagree because I believe that McClanahan’s stop was, in
fact, illegal. Moreover, I note that any challenge to the suppression of evidence in Jones’s
cases or the dismissal of Jones’s cases has been waived because the State did not challenge
the trial court’s order suppressing the evidence against Jones or its orders dismissing Jones’s
cases. Instead, the State’s only issue on appeal was whether the trial court erred in granting



                                              -10-
McClanahan’s motions to suppress. Accordingly, any issue regarding Jones’s cases is
waived. See Tenn. R. App. P. 13(b). I affirm the trial court’s judgments.


                                   CONCLUSION

      Upon review, the trial court’s judgments are affirmed.




                                                 ___________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




                                          -11-
