           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            JUNE SESSION, 1996


STATE OF TENNESSEE,           )      C.C.A. NO. 02C01-9409-CR-00201
                              )
      Appellee,               )
                              )
                                                                 FILED
                              )      SHELBY COUNTY
VS.                           )                                   August 27, 1997
                              )      HON. L. T. LAFFERTY
VINCENT D. JONES,             )      JUDGE                       Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk
                              )
      Appellant.              )      (Certified Question of Law)




FOR THE APPELLANT:                   FOR THE APPELLEE:

HOWARD L. WAGERMAN                   JOHN KNOX WALKUP
HOWARD B. MANIS                      Attorney General and Reporter
Suite 1313, 200 Jefferson
Memphis, TN 38103                    SARAH M. BRANCH
                                     Counsel for the State
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0485

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     KEVIN R. RARDIN
                                     Assistant District Attorney
                                     201 Poplar Avenue-3rd Floor
                                     Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


         Appellant Vincent Jones entered a plea of nolo contendere in the

Shelby County Criminal Court to a charge of possession of cocaine with the

intent to sell or deliver. As a Range I standard offender convicted of a Class B

felony, Appellant received a sentence of eight years in the Tennessee

Department of Correction. Pursuant to Rule 37(b)(2)(i) of the Tennessee

Rules of Criminal Procedure, Appellant, with the agreement of the State and

the trial court, reserved for appellate review the question of the legality of the

search which led to Appellant’s arrest. Appellant also contends on appeal that

his sentence is excessive.



         After a careful review of the record, we affirm the judgment of the trial

court.



                           I. FACTUAL BACKGROUND

         The proof shows that, on October 15, 1993, Officer Dennis Benjamin

and his partner, both of the Memphis Police Department, were patrolling the

Getwell Gardens area of Memphis, notorious for its drug activity. From across

the street, Officer Benjamin observed Appellant flagging down cars and

offering, in exchange for money, a substance contained in plastic bags.

Officer Benjamin observed three such transactions over a period of fifteen

minutes and then proceeded to pull up beside Appellant. Appellant attempted

to run and then stuffed a plastic bag down the front of the waistband of his

pants. Officer Benjamin apprehended Appellant and, In order to check



                                          -2-
Appellant for weapons, Benjamin ran his hand around Appellant's waistband

and felt a bulge. According to Officer Benjamin, the bulge felt like a pack of

rock crack cocaine. Officer Benjamin felt the bulge a little bit more, pulled up

Appellant's shirt, and took the plastic bag. Appellant was then placed under

arrest.



      On March 31, 1994, a Shelby County Grand Jury indicted Appellant for

possession of a controlled substance with intent to sell and deliver in violation

of Tennessee Code Annotated Section 39-17-417. On June 25, 1994,

Appellant filed a pretrial motion to suppress evidence seized during his arrest.

Following an evidentiary hearing, the trial court denied the motion. On March

6, 1995, Appellant entered a plea of nolo contendere, reserving the

suppression issue as a certified question of law pursuant to Rule 37(b)(2)(i) of

the Tennessee Rules of Criminal Procedure.



      At his sentencing hearing, Appellant testified that he had learned his

lesson and was a changed man. He pointed to the fact that he now had a full

time job with Federal Express, was enrolled in the University of Memphis, and

was responsible for supporting his three children. In addition, Appellant

testified that he had no prior criminal record. However, in questioning

Appellant, the trial court learned that Appellant had been selling crack for three

to four months in order to earn an extra two hundred dollars per week. At the

conclusion of the sentencing hearing, the trial court sentenced Appellant to

eight years, ordering him to serve four months of the sentence on weekends

with the balance of the sentence served on probation.




                                       -3-
                          II. MOTION TO SUPPRESS

      Appellant first alleges that the trial court erred in refusing to grant his

motion to suppress evidence seized during his arrest. The Fourth Amendment

guarantees "the right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures." The

United States Supreme Court has consistently held that searches and

seizures "conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment--

subject only to a few specifically established and well-delineated exceptions.”

Katz v. United States, 389 U.S. 347, 357 (1967) (citations omitted); see also

State v. Bartram, 925 S.W .2d 227, 230 n.2 (Tenn. 1996). One such exception

was recognized in Terry v. Ohio:

      [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 and that
      the persons with whom he is dealing may be armed and
      presently dangerous, where in the course of
      investigating this behavior he identifies himself as a
      policeman and makes reasonable inquiries, and where
      nothing in the initial stages of the encounter serves to
      dispel his reasonable fear for his own or others’ safety,
      he is entitled for the protection of himself and others in
      the area to conduct a carefully limited search of the
      outer clothing of such persons in an attempt to discover
      weapons which might be used to assault him.


392 U.S. 1, 30 (1968). "The purpose of this limited search is not to discover

evidence of crime, but to allow the officer to pursue his investigation without

fear of violence." Adams v. Williams, 407 U.S. 143, 146 (1972). If the

protective search goes beyond what is necessary to determine if the suspect

is armed, it is no longer valid under Terry and its fruits will be suppressed.

Sibron v. New York, 392 U.S. 40, 65-66 (1968).


                                        -4-
      In Minnesota v. Dickerson, 508 U.S. 366 (1993), officers observed the

defendant leaving what they believed to be a residence where drug sales

regularly took place. Upon seeing the officers, the defendant abruptly turned,

walked in the opposite direction and began behaving in an evasive manner.

The officers stopped the defendant and conducted a pat down of his outer

clothing. During the frisk one of the officers felt a small lump in the

defendant’s jacket pocket. The officer realized the lump was not a weapon,

but he continued to manipulate the object inside the pocket to determine what

it was. Believing the object to be crack cocaine, the officer seized the object

which in fact was a small packet of cocaine. The Court concluded that the

identity of the packet of cocaine was not “immediately apparent” and that the

continued manipulation of the packet in the defendant’s pocket after the officer

recognized it was not a weapon, exceeded the permissible bounds of a Terry

search. Therefore the Court held that the search was illegal and affirmed the

lower Court’s suppression of the cocaine. However, the Court held that if

during a lawful Terry “frisk” an officer

             pats down a suspect’s outer clothing and feels an
             object whose contour and m ass makes its identity
             immediately apparent, there has been no invasion of
             the suspect’s privacy beyond that already authorized
             by the officer’s search for weapons; if the object is
             contraband, its warrantless seizure would be justified
             by the same practical considerations that inhere in
             the plain view context.

Id. at 375-76.

      In the case sub judice, Appellant raises no issue concerning the initial

investigatory detention of him by the police. Neither does he contend that a

pat down of him for possible weapons was unlawful. He does however equate

this case with Dickerson and maintains that the identity of the crack cocaine


                                           -5-
he was carrying in the front waistband of his trousers was not “immediately

apparent” and thus its seizure, once the officer determined it was not a

weapon, was unlawful.



      This Court has equated “immediately apparent” with the idea of

probable cause. In other words, if immediately upon touching the suspicious

object the officer has probable cause to believe the item is contraband then

the item may be lawfully seized. State v. Bridges, No. 02C01-9412-CC-

00298, 1995 W L 764998 (Tenn. Crim. App. Dec. 28, 1995), perm. app.

granted, (Tenn. June 3, 1996); State v. W hite, No. 03C01-9408-CR-00277,

1997 WL 336977 (Tenn. Crim. App. June 7, 1995). In Texas v. Brown, 460

U.S. 730 (1983), the Supreme Court stated that an object is considered to be

“immediately apparent” when the officer develops a reasonable belief as to the

object’s identity. Id. at 741-42. The officer has then established probable

cause and the seizure of the item is justified if the officer can reasonably

conclude that the item may be contraband or other evidence of a crime. The

Brown Court rejected the notion that the officer be “possessed of near

certainty” of the object’s identity. The Supreme Court acknowledged in Brown

that probable cause “requires that the facts available to the officer would

‘warrant a man of reasonable caution in the belief’ that certain items may be

contraband . . . .” Id. at 742 (citations omitted). In Brown, the officer, during a

routine driver license checkpoint, observed among other things in the

defendant’s vehicle an opaque, green party balloon knotted at the tip and

knew from his experience that such balloons were often used to package

narcotics. The Court determ ined that the officer possessed sufficient probable

cause to seize the balloons, finding that it was irrelevant that the officer could

                                        -6-
not see though the opaque balloon. The presence of the balloon itself under

the circumstances, “particularly to the trained eye of the officer,” strongly

indicated that drugs were likely to be found inside. Id. at 743.



        Although Brown dealt with the “plain view” doctrine, the same analysis is

useful when considering the “plain feel” doctrine of Minnesota v. Dickerson.

Applying this reasoning to the instant case, it appears that the officer who

searched Appellant observed him offering a substance taken from a plastic

bag to the occupants of cars in exchange for money. This activity was

occurring in a notoriously high crime area known to the officer to be rife with

drug dealing. W hen the officer approached Appellant, he ran away and was

observed stuffing the plastic bag containing what appeared to be rocks in the

front of his pants.1 The officer stated that immediately upon touching the item

in Appellant’s waistband he recognized it as containing some sort of rocks.

The officer also testified that he had experience in hundreds of cases such as

this.



        W e think that given this officer’s experience and his observation of

Appellant’s activities in this high crime area coupled with his having seen and

then felt a plastic bag of rocks in the front of Appellant’s pants constituted

probable cause to believe that the plastic bag contained contraband. W e

therefore affirm the decision of the trial judge in denying the motion to

suppress.




1
        Com mon experience counsels us that ordinarily people do not carry plastic bags in the
        front of their trousers.

                                                 -7-
                               III. SENTENCING

      Appellant also alleges that his sentence was excessive. Specifically, he

argues that he should have received full probation.



      W hen an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d).

However, this presum ption of correctness is “conditioned upon the affirmative

showing that the trial court in the record considered the sentencing principles

and all relevant facts and circumstances.” State v. Ashby, 823 S.W .2d 166,

169 (Tenn. 1991). In the event that the record fails to demonstrate such

consideration, review of the sentence is purely de novo. Id. If appellate

review reflects that the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this Court must

affirm the sentence, “even if we would have preferred a different result.” State

v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). In conducting a

review, this Court must consider the evidence, the presentence report, the

sentencing principles, the arguments of counsel, the nature and character of

the offense, mitigating and enhancement factors, any statements made by the

defendant, and the potential for rehabilitation or treatment. State v. Holland,

860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden

of showing the impropriety of the sentence imposed. State v. Gregory, 862

S.W .2d 574, 578 (Tenn. Crim. App. 1993).



      W e note initially that, because the record demonstrates that the trial

court adequately considered the sentencing principles and all relevant facts

                                        -8-
and circumstances, our review of Appellant’s sentence will be de novo with a

presumption of correctness.



      The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the

limited capacity of state prisons and mandates that “convicted felons

committing the most severe offenses, possessing criminal histories evincing a

clear disregard for the laws and morals of society, and evincing failure of past

efforts of rehabilitation shall be given first priority regarding sentencing

involving incarceration.” Tenn. Code Ann. § 40-35-102(5). A defendant who

does not qualify as such and who is an especially mitigated or standard

offender of a Class C, D, or E felony is “presumed to be a favorable candidate

for sentencing options in the absence of evidence to the contrary.” Id. § 40-

35-102(6). A sentencing court may then only deny alternative sentencing

when presented with sufficient evidence to overcom e the presumption. State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). A denial of alternative

sentencing in the face of the statutory presumption should be based on the

following considerations: whether confinement is necessary to protect society

from a defendant with a long history of criminal conduct, whether confinement

is necessary to avoid depreciating the seriousness of the offense, whether

confinement would provide an effective deterrent, and whether measures less

restrictive than confinement have failed in the past. Tenn. Code Ann. § 40-35-

103(1).



      Because Appellant was convicted of a Class B felony, he is not entitled

to the statutorily mandated presum ption of alternative sentencing. However,

in light of certain factors favoring an alternative sentence, the trial court

                                         -9-
ordered a sentence of periodic confinement followed by a period of probation.

W e must now address whether Appellant should have been granted full

probation.



      The defendant always bears the burden of establishing suitability for full

probation. Tenn. Code Ann. § 40-35-303(b). In order to justify full probation,

the defendant must demonstrate that such a sentence will “subserve the ends

of justice and the best interest of both the public and the defendant.” State v.

Dykes, 803 S.W .2d 250, 259 (Tenn. Crim. App. 1990). When determining

suitability for full probation, the sentencing court should consider the following

factors: (1) the nature and circumstances of the criminal conduct involved; (2)

the defendant’s potential or lack of potential for rehabilitation, including the risk

that, during the period of probation, the defendant will commit another crime;

(3) whether a sentence of full probation would unduly depreciate the

seriousness of the offense; and (4) whether a sentence other than full

probation would provide an effective deterrent to others likely to commit similar

crimes. State v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim. App. 1995)

(citations omitted).



      At the conclusion of the sentencing hearing, the trial court concluded

that, in light of the nature of the criminal conduct involved, the total suspension

of Appellant's sentence would undermine the seriousness of the offense. The

trial court pointed out that Appellant “made a decision to enter into the drug

traffic business." In addition, Appellant admitted that he sold drugs three

times a week for four months in order to support himself. The trial court

concluded that Appellant was a "professional drug seller" and that he should

                                        -10-
be appropriately punished for his actions. The trial court was very lenient with

Appellant considering the nature of the offense. Given the pervasive problem

of narcotics in our society generally, and the problem of crack cocaine

particularly, we agree with the trial court that full probation would depreciate

the seriousness of this offense.



      Appellant claims that the trial court failed to take into account the fact

that he had no prior criminal record, had a full-time job, and supported three

children. On this claim, Appellant's arguments are clearly misplaced. The trial

court was very com promising with Appellant by allowing him to serve his jail

time on the weekends so as not to interfere with his job or his earnings.

Therefore, the sentence must be upheld.



      Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




CONCUR:


___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
DAVID H. W ELLES




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