# FILED
July 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN TH E COURT OF CRIMINA L A PPEA LS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1 996 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A. N o. 03C01-9606-C C-00239 Appellee, ) ) Loudon County V. ) ) Honorab le E. Euge ne Eble n, Judge ) RODNEY P ERNELL HA WKINS, ) (Rule 37 Appeal - Felo nious Possess ion

) of Cocain e) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Mary Kath erine Longworth Charles W. Burson Attorney at Law Attorney General & Reporter Suite One, 410 Wharf Street P.O. Box 501 Robin L. Harris Loudon, TN 37774 Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Char les Ha wk Distric t Attorney General Frank A. Har

vey Asst. Dist . Attorney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILE D: ___________________
AF FIRMED
PAU L G. SUMM ERS, Judge-2- O P I N I O N The appellant, Rodney Pernell Haw kins, wa s indicted on one count of possession of cocaine with intent to sell , one count of possess ion of cocaine w ith intent to deliver, and one count of possession of an ope n container of alcoho l in a motor vehi cle. The appella nt made a motion to su ppress the pack age of cocaine seiz ed from his vehi cle and his statements given to the police

. Following a hearing, the trial court denied the appellant's m otion to suppress finding that the search and sei zure was conducted as a result of the pla in view sightingof the contraband. The a ppellant pled g uilty to the charge of pos session of cocaine wi th intent to sel l, reserv ing the ri ght under Tenn. R . Crim. P. 37(b )(2)( I) to appe al a ce rtif ied qu esti on of law, di spos itive of h is cas e. Th e two remaining counts against the appellant were dismisse d. In essence, the appellant asks

this Court

to determine w hether the searc h and seizur e of contraband from his

vehicle was unconst itutional. We find the actions constitutional and affirm the judgment of the trial court.

FACTS
On September 20, 1994, at approximat ely 11:00 p.m., Officer Hamilton, a Loudon County de puty sheri ff, observed the appel lant awkw ardly par ked on a neighbo rhood ro ad in Le noir City, T enness ee. Th e appe llant was ha ving a conversati on with a female companion who w as standing outside of his vehicle. The female was dri nking a beer . This caught the officer's atten tion. He pull ed up behind the appell ant's vehi cle. He g ot out and wal ked up to the female. As the officer did this, he noticed an open beer sitting between ap pellant’s legs. He also observed a white p owdery substance near the vehicl e's console and a plastic baghanging from the console.

The off icer asked the appellant to step out of the vehicle. He administered a n umber of sobriety tests. The appell ant passed these t ests.1 During oral ar gument the appel lant rel ied heavily on the fact

that he was parked upon a private road. He , therefore , argued tha t he had a gr eater ex pectation o f priva cy. W e find this argument misguided. The 4th Amendment protects peop le not pl aces. The record reveal s that t he property the appell ant parked on was not his p roperty. A person should have no greater e xpectation of priv acy on an other's pro perty than he or she w ould on a p ublic road

. -3- The officer then asked theappellant w hether the plast ic bag belon ged to him. The appellant respo nded affirm atively. The officer then searche d the vehicle removing the plastic bag from the console containing 10.4 grams of cocaine . He then placed the appel lant under arr est.
The findings of fact and conclusions of law made by the trial court after an evidentiar

y hearingare afforded the weight of a jur y ver dict. State v. Dick , 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993) . This Court will n ot set aside the judgment of the trial court un less the evidence contained in the reco rd preponderates ag ainst its findi ngs. Id

.
The appellant ma kes several arguments related to Off icer Hamilton's search of his vehicle. Fi rst, he arg ues that he was parked on pr ivate prope rty and the police had no legiti mate reason to appr oach his vehicle. 1 Second, he argues that t he warrant less search of the vehicl e does not fall w ithin any recogniz ed exception to the warr ant requirement and was, therefore, unconstitutional.
The state argues

that the war rantless sear ch and seiz ure of the appellant's pr

operty was justified under the plain v iew doctr ine. The plain v iew doctrine req uires proof that: (1) the objec ts seized were in p lain view; (2) the viewer had a right

to be in posit ion for the vi ew; (3) the seized o bject was discovered inadvert ently; and (4) the incri minating nature of the object was immediately apparent. State v. Ho rner , 605 S.W.2d 835, 836 (Tenn. Crim. App

. 1980); Coolidge v. New Hampshire , 403 U.S. 443, 91 S.Ct. 2022, 29 L.E d.2d 564 (1971).2 The ap pel lan t argues tha t wi tho ut t he ai d of a fl ashl igh t Off ice r Hamil ton woul d not have been able t o observe a whitepowdery subst ance on his consol e. This argument i s misguided. The fact that the cont ents of a vehicl e may not have been visi ble with out the use of arti ficial illuminat ion does no t preclude such ob serv ation from application of the plain v iew doc trine. Unit ed St ate s v. Johnson , 506 F.2d 6 74 (8th Cir. 1974). The pla in view doctr ine does not disappear when t he sun goes do wn. -4- Officer Hamilton t estified as he appr oached the vehi cle he noticed a beer between the appellant's legs. He also testif ied that he noticed a white powdery substance, w hich he believ ed to be contraband, and a plastic bag in the vehicle. 2 This Court fin ds that these facts establish 3 of the 4 requirements man date d by Horner

to allow a warra ntless seiz ure under the pl ain view doctrine. The pivotal q uestion that must be resolved by this Court is w hether the officer had a right to be in a posit ion to view the seiz ed contraband. Therefore, whether or

not the search and the subsequent seizure were valid depends on whether the initial appr oach of the vehic le was constitutionall y permiss ible.

The standards for reviewi ng police conduct become more st ringent as the degree of invasion of the citi zen's pri vacy i ncreases. Robertson v . State , 596 A.2d 1345, 1350 (Del. 19 91). For the purpose of dete rmining which standard is appropriate, many courts now recognize a three-tier analytical mode f irst formulated by the United States C ourt of Appeals for t he Fifth Circ uit in United States v. Berry , 670 F.2d 583, 591 ( 5th Cir. 1982) . The first tier of police-ci tizen encounters inc ludes full scal e arrests th at must be support ed by probabl e cause. Id . The seco nd in clud es br ief inves tigat ory sto ps th at mu st be supp orte d by a reasonable susp icion. Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed. 889 (1968); State v. Co leman , 791 S.W.2d 504, 505 (Tenn. Crim. App . 1989). The third tier

includes communi ty caretak ing or publ ic safety functi ons that involve no coercion o r detention. Berry , 670 F.2d at 591. With regard to the community car

etaking functi on, it is now generally

held that the pol ice may engage a ci tizen and as k questions as long as the citiz en is wi lling to carry on the conversati on. State v. Butl er , 795 S.W.2d 680, 685 (Tenn. Crim. App . 1990). Since these encou nters are cons ensual, they do not requi re pre-ex isting probable cause or

even reasona ble suspici on. Id . These princi ples have been3 Offi cer Ha milt on t est ifi ed t hatthe femal e dr ink ing beer caug ht h is a tt ent ion . He coul d have rat ion all y, and reas onab ly, conc lud ed t hatthe femal e migh t be int oxic ate d. Moreove r, he co uld have reasonably concluded th at the a ppellant might be int oxicated and pr eparing t o drive his vehi cle under the influen ce of an in toxican t. -5- applied to police encount ers with persons sitting in parked vehicles. 3 W ayne R. LaFave, Search and Seizur e § 9.2(h) at 41 5 (2d ed. 1987). Furthermore, the propriety of the police condu ct depends on the totality of the circumstances existingat the time of the encounter. United States v . Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 69 5, 66 L.Ed. 621 (1981 ). Therefore, the of ficer’s conduct in this case must be considered i n light of the t ime and place of the encounter and the conduct of the par

ties involved.
This encounter beg an when the officer saw a female dr inking beer next to a vehicle parked awk

wardly in the middle of a r

oad. Given the lateness of the hour, the nature of the location, and the place ment of the car, the officer could have reasonably concluded that he sh ould investigate the situation furth er. This encounter could be classified as a community caretaking o r public saftey function whic h would not even requ ire a show ing of reasonabl e suspicion. Howeve r, based upon the t otality of thecircumstances, we find th at Officer Hamilton possessed reason able suspicion and was entirely justified in approaching t he appellant's vehicle. 3

Once lawfull y in a posi tion to see the op en container and the white powdery substance, Officer

Hamilton came w ithin the purv iew of the pla in view doctrine. Accordingly , we concl ude that the evi dence does not prep onderate against the findings of the trial court. The judgment overruling the appellant's motion to suppres s is affirmed.

______________________________ PAUL G. S UMMERS, Ju dge
CONCUR:-6- ______________________________ JOSEPH M. TIPTO N, Judge

______________________________ JOHN K. BYER S, Senio r Judge