         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 18, 2004

              STATE OF TENNESSEE v. RICKY ALLEN FRAZIER

                     Appeal from the Criminal Court for Sullivan County
                             No. S46,293   R. Jerry Beck, Judge



                          No. E2003-02853-CCA-R3-CD - July 9, 2004


The defendant, Ricky Allen Frazier, entered pleas of guilt to possession of Oxycodone, a Class A
misdemeanor; possession of more than one-half ounce of marijuana for resale, a Class E felony;
manufacturing marijuana, a Class E felony; possession of drug paraphernalia, a Class A
misdemeanor; possession of open title, a Class C misdemeanor; violation of the registration law, a
Class C misdemeanor; speeding, a Class C misdemeanor; and maintaining a dwelling where a
controlled substance is used or sold, a Class D felony. The trial court imposed an effective sentence
of six years. As a part of the plea agreement, the defendant reserved a certified question of law under
Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The single question presented for
review is whether the search and seizure of the defendant and his vehicle violated the Fourth
Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution.
The judgments are affirmed.

                  Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN ,
JJ., joined.

Cary C. Taylor, Kingsport, Tennessee, for the appellant, Ricky Allen Frazier.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman McIntire, Assistant Attorney
General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                             OPINION

       In early August 2001, Sergeant Dale Phipps and other officers of the Kingsport Police
Department, acting on a tip from an unnamed citizen that a shipment of thirty to forty pounds of
marijuana was to be delivered at the trailer on August 7, conducted surveillance of a trailer located
at 1745 Audie Street in Kingsport for three or four days. During that time, the defendant and Larry
Henson were seen at the trailer on a regular basis with, according to Sergeant Phipps, "traffic coming
and going . . . conducting some sort of business." On August 8, the defendant and Henson entered
the trailer and after 15 to 20 minutes, Henson walked outside and placed a "rolled up brown paper
bag," which Sergeant Phipps estimated to be of a size capable of containing one-half pound of
marijuana, into the trunk of a white Cadillac. Henson waited in the passenger side of the vehicle
until the defendant emerged from the trailer and drove the vehicle away.

        As Sergeant Phipps and Detective Rusty Wallace continued to watch the trailer, two other
officers, Kingsport Police Detectives Joey Graham and Sean Chambers, searched for and found the
vehicle driving on Virginia Avenue. A prior check of the license plate number had established that
the number was not registered to a Cadillac but to a Chevrolet Cavalier. The two detectives, driving
an unmarked vehicle, paced the Cadillac, which had no brake lights, at 45 mph through a 30 mph
zone. When the defendant drove into the parking lot of the Midway Market, the detectives also
stopped there. Detective Chambers, who was dressed in street clothes, walked to the driver's side
of the vehicle, showed the defendant his badge, and identified himself as a police officer. According
to Detective Chambers, neither of the cars blocked the path of the Cadillac. When the defendant
opened his car door, Detective Chambers immediately detected a "reeking" odor of marijuana on his
person. Detective Chambers asked the defendant to step out of the car and requested permission
to search his person. The defendant replied, "Go ahead." Shortly thereafter, two uniformed officers,
Sergeant Jerry Robinson and Officer Justin Quillen, arrived at the scene in separate, marked patrol
cars. Upon searching the defendant, Detective Chambers found $9,527.00 in cash in the defendant's
pocket. After asking for and receiving the defendant's permission to search the vehicle, Detective
Chambers looked throughout the passenger compartment of the car, finding nothing. The detective
then asked the defendant for the keys to the trunk and was directed to the ignition of the vehicle.
Detective Chambers removed the keys, opened the trunk, and found inside the brown paper bag eight
individually wrapped bags of marijuana having a total weight of more than 200 grams. Detective
Chambers conceded that by the time he asked to search the vehicle, the defendant was no longer free
to leave. It was his contention that the defendant was free to leave until the cash was found in his
possession.

       Later, a search warrant was issued for the trailer. Two and one-half pounds of marijuana
were found inside. The defense did not offer any proof at the hearing on the motion to suppress.

        At the conclusion of the hearing on the motion to suppress, the trial court accredited the
testimony of Detective Chambers and determined that although there were sufficient grounds for the
officers to stop the defendant, the defendant had actually stopped his vehicle at the convenience store
of his own accord and was not the subject of an investigatory stop initiated by law enforcement. The
trial court also concluded that the initial encounter between the defendant and Detective Chambers
did not constitute a seizure. It ruled that the defendant was not "in custody" until Detective
Chambers found the cash in the defendant's pocket. The trial court concluded that the discovery of
the cash, along with the odor of marijuana and the detectives' observations during the surveillance,
gave the officers probable cause to arrest the defendant and to search the vehicle he was driving.




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        The defendant argues on appeal that the tip provided by a citizen informant, the period of
surveillance, and the officers' observance of the brown paper bag being placed into the trunk of the
vehicle was insufficient to establish the requisite suspicion to warrant the initial detention. In
addition, he claims that the additional information acquired by the officers after the vehicle was
stopped at the convenience market did not rise to the level of probable cause to arrest. He also
argues that the consent to the search of his person and his vehicle was involuntary because he was
"surrounded by four officers" at the convenience market. The state submits that the certified
question is too broad and, therefore, does not comply with the requirements of Rule 37. In the
alternative, the state asserts that the trial court correctly denied the defendant's suppression motion.

        Both the state and federal constitutions protect individuals from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any
evidence discovered subject to suppression. U.S. Const. amend. IV; Tenn. Const. art. I, § 7;
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490
(Tenn. 1997). Neither, however, limits all contact between citizens and law enforcement and both
are designed, instead, "'to prevent arbitrary and oppressive interference with the privacy and personal
security of individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Our courts have recognized three types of police-
citizen interactions: (1) a full scale arrest, which must be supported by probable cause; (2) a brief
investigatory stop, which must be supported by reasonable suspicion; and (3) a brief police-citizen
encounter, which requires no objective justification. See Florida v. Bostick, 501 U.S. 429, 434
(1991); Brown v. Illinois, 422 U.S. 590 (1975); Terry v. Ohio, 392 U.S. 1 (1968). "Only when the
officer, by means of physical force or show of authority, has in some way restrained the liberty of
a citizen may we conclude that a 'seizure' has occurred." Terry, 392 U.S. at 19 n.16.

        In State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993), our supreme court ruled that “the
reasonableness of seizures less intrusive than a full-scale arrest is judged by weighing the gravity of
the public concern, the degree to which the seizure advances that concern, and the severity of the
intrusion into individual privacy.”

        Our determination of the reasonableness of a stop of a vehicle depends on whether the officer
had either probable cause or an “articulable and reasonable suspicion” that the vehicle or its
occupants were subject to seizure for violation of the law. See Delaware v. Prouse, 440 U.S. 648,
663 (1979); State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989). Probable cause has
been generally defined as a reasonable ground for suspicion, supported by circumstances indicative
of an illegal act. See Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While
probable cause is not necessary for an investigative stop, it is a requirement that the officer’s
reasonable suspicion be supported by “specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21;
Pulley, 863 S.W.2d at 30; Coleman, 792 S.W.2d at 505; see also State v. Watkins, 827 S.W.2d 293,
294 (Tenn. 1992) (applying Terry doctrine in context of vehicular stop). In determining whether
reasonable suspicion exists, an important factor in the analysis is that reasonable suspicion is a less
demanding standard than probable cause not only in the sense that reasonable suspicion can be


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established with information that is different in quantity or content than that required to establish
probable cause, but also in the sense that reasonable suspicion can arise from information that is less
reliable than that required to show probable cause. Pulley, 863 S.W.2d at 32 (citing Alabama v.
White, 496 U.S. 325, 330 (1990)).

        Courts considering the issue of reasonable suspicion must look to the totality of the
circumstances. Those circumstances include the personal observations of the police officer,
information obtained from other officers or agencies, information obtained from citizens, and the
pattern of operation of certain offenders. Watkins, 827 S.W.2d at 294 (citing United States v.
Cortez, 449 U.S. 411, 417-18 (1981)). Objective standards apply rather than the subjective beliefs
of the officer making the stop. State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996).

         When the trial court makes a finding of facts at the conclusion of a suppression hearing, the
facts are accorded the weight of a jury verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.
1994). The trial court’s findings are binding upon this court unless the evidence in the record
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson,
878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984). Questions of
credibility of witnesses, the weight and value of the evidence, and resolution of conflicts in 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 the evidence. Odom, 928 S.W.2d
at 23. The application of the law to the facts, however, requires de novo review. State v. Daniel,
12 S.W.3d 420, 423-24 (Tenn. 2000). Likewise, if the evidence does not involve a credibility
assessment, the reviewing court must examine the record de novo without a presumption of
correctness. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        In United States v. Drayton, 536 U.S. 194, 201-02 (2002), the United States Supreme Court
determined that there is no Fourth Amendment violation when an officer simply approaches a person
in a public place and poses a question. Even when there is no basis to suspect a crime, officers may
ask questions, ask for identification, and ask for consent to conduct a search, so long as the means
used to induce the cooperation are not coercive. Id.; see State v. Daniel, 12 S.W.3d 420, 425 (Tenn.
2000). A reviewing court must examine "all the circumstances surrounding the encounter" in
determining whether the law enforcement conduct would have indicated a lack of freedom "to
decline the officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 439. As
indicated, the subjective intent of the officer is not controlling. State v. Johnson, 980 S.W.2d 414
(Tenn. Crim. App. 1998).

        In this instance, of course, the trial court found that there was no coercive action on the part
of the police and no indication that the defendant was not free to leave during the original
confrontation, at least until the large amount of cash was found on his person. The trial court ruled
that because the initial exchange was "friendly" and "strictly consensual," the defendant was not yet
in custody. In our view, the trial court, which saw and heard the witnesses at the suppression
hearing, did not err by concluding that the defendant was not in custody at the time of his initial


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encounter with Detective Chambers. Moreover, even if the initial encounter qualified as an
investigatory stop, the state had established the requisite level of articulable suspicion warranting
an intrusion for investigatory purposes. A citizen had provided a tip that an illegal drug transaction
was about to occur at a specific place. Over a three- or four-day period, police had observed regular
visitation to the trailer by a variety of people, including the defendant and co-defendant, Henson,
and watched as a brown paper bag, which Sergeant Phipps testified was commonly used to transport
illegal drugs, was placed by Henson into the trunk of the defendant's vehicle. The license plate on
the Cadillac being driven by the defendant had been issued to a Chevrolet Cavalier. Detective
Chambers observed the defendant exceed the speed limit and drive without brake lights. Under the
totality of the circumstances, a brief investigatory detention would have been warranted.

        It is well settled that a search conducted pursuant to a voluntary consent is an exception to
the requirement that all searches and seizures be conducted pursuant to a warrant. State v. Bartram,
925 S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). "To
pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion." State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). The
following factors are used to evaluate the voluntariness of the consent:

       (1) whether the defendant is in custody;
       (2) the length of detention prior to the giving of consent;
       (3) the presence of coercive police procedures;
       (4) the defendant's awareness of the right to refuse to consent;
       (5) the defendant's age, education and intelligence;
       (6) whether the defendant understands his constitutional rights;
       (7) the extent of the defendant's prior experience with law enforcement; and
       (8) whether the defendant was injured, intoxicated, or in ill health.

See, e.g., State v. Carter, 16 S.W.3d 762, 769 (Tenn. 2000). The state must show "more than
acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49
(1968). The trial court's finding that a search is consensual will not be overturned unless the
evidence preponderates against the ruling. Brady v. State, 584 S.W.2d 245, 251-252 (Tenn. Crim.
App. 1979).

         Although an unmarked police car containing two plain-clothed officers, one of whom
identified himself as an officer, first arrived at the convenience market, two other uniformed officers
in a marked vehicle eventually arrived at the scene. Although the defendant claimed that one of the
police cars partially blocked his vehicle and that the presence of four officers was patently coercive,
the trial court concluded otherwise. The trial court ruled that under the entirety of the circumstances,
the defendant was not under arrest or even subject to an investigatory detention at the time the officer
sought consent to search his person. The only proof offered at the hearing on the motion to suppress
was that the defendant freely consented to the search of his person and, later, to the search of his
vehicle.



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         Further, the warrantless search of an automobile is permissible under certain circumstances.
If the officer has probable cause to believe the vehicle contains contraband, the mobility of the
vehicle is an exigent circumstance warranting an immediate search. Carroll v. United States, 267
U.S. 132, 153-56 (1925); State v. Leveye, 796 S.W.2d 948, 950 (Tenn. 1990). If probable cause
justifies a search of a vehicle, it justifies a search of every part of the vehicle, including the trunk.
United States v. Ross, 456 U.S. 798, 823-24 (1982).

       In our view, the relatively large amount of cash found in the possession of the defendant
coupled with the marijuana odor and the officers' observations at the trailer established probable
cause to arrest. In addition, the mobility of the vehicle and the likelihood that it contained
contraband justified its search.

        Accordingly, the judgments are affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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