### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 15, 200 1 Session

STATE O F TENNESSEE v. GONZA LO MOR AN GAR CIA
Direct Appeal from the Criminal Court for Davidson County

No. 99-C-2220 Steve Dozier, Judge

No. M2000-01760-CCA-R3-CD - Filed February 20, 2002

The appellant, Gonzalo Moran Garcia, appe als his conviction by a jury in the Davidson Cou nt y Criminal Court of one count of p ossession of one tho

usand gra ms or more

of metha mphetamine with intentto deliver, a class A felony. He raises the following issues for our review: (1) whether the

trial court erred i n denying

his pre- trial motio n to suppre ss; (2) whether the trial court erred in admitting at trial the testimony of Daniel A. Rosales, an officer employed by the Houston Police Department in Texas ; (3) whether the evidence underlying the a ppellant’s conviction is sufficient; and (4) whether the trial court erred

in rejecting his proposed jury instructions. Following a thorough review of the rec ord and th

e partie s’ briefs, we reve

rse the ju dgment of

the trial court and remand

this case to the tria l court fo r a new tr ial.
Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Reve rsed and Remanded.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J ERRY L. S MITH J., join ed

. J OHN E VERETT W ILL IAMS , J; filed a dissenting opinion.

RichardMcGee, James Holt Walker, and Bobby Ballinger, Nashville, Tennessee, for the a ppellant , Gonzalo Moran Garcia.

Paul G. Summers, Attorney General and Reporter; David H. F indley, A ssistant A

ttorney G eneral ; Victor S. Johnson, III, District Attorney General; and John Zimmerman, AssistantDistrict Attorney General, for the appellee, State of Te nnessee.

OPINION

I. Factua

l Background On Sept ember 24 , 1999, a Davidson County Grand Jury returned an indictment charging the appellant with one count of possession of one t housand grams or more of methamphetamine with inten t to deliver. The indictment arose from the traffic stop on May 9, 1999, of the vehicle that the appellant was driving on Interstate Highway 24 inDavidson County and the subsequent

seizure by police of

approximately 40.1 pounds, or more than eighteen thousand g

rams,1 Off icer K ohl’ s first nam e is spe lled “D ebo rah” in the tria l transc ript.

-2- of methamphetamine. Following his indictment, the appellant filed a motion to suppress any evidence obtained

during or as a res ult

of the traffic stop. The trialcourt conducted a hearing on the appellant’s motion on December 10, 1999.
A. Suppress ion Hearing At the supp

ressi on heari n g, the Stat

e prese nted the t estimony o f Debra

Kohl, 1 an offic er with the Me

tropolita n Nashvill e Police D epartme nt. She tes tified tha

t she had b een empl o ye d by the police department for eleven year s and was currently assigned to the Highway Interdiction Unit of the Twentieth Judicial District Drug Ta sk Force. Prior to working with the Highway Interdiction Unit, she was a patrol officer for sever al years, which

position required training in the investigation and apprehension of drunk drivers. She joined the Highwa y Interdiction Unit eight months prior to

the traffic stop in this case and, due to her new assignment, attende d two conferences

on illegal drug interdiction that were organized by the United States Customs Service and the Drug Enf orcement Administration (hereinafter the DEA). Additionally, she wor ked with the United State s Customs Service in El Pas o, Texas, for one week. Finally, she attended additional training conferences in Nashville and Memphis on illegal drug interdiction.

Kohl related that, on May 9, 1999, at approx imately 10 :50 p.m., she was traveling

on Interstate Highways 40 and 24 in a marked patrol car whe

n she notic ed the ap

pellant’ s vehicle traveling in the right lane. Her attention was drawn to the appellant’s vehicle because it swerved onto the line dem arcating the righ t boundar y of its lan

e. Kohl slo wed her

patrol c ar and began to monitor the appellant’s vehicle.

As the appe

llant’s ve hicle pr oceede d on Inter state

Highway 24 toward Chattanooga, it continued to weave within its lane. Kohl opined that the driver of t he vehicle was driving carelessly, recalling:

The vehicle

would driv e in its la ne - - it stayed in its lane of traffic; but, as the vehicle was going in its lane of traffic, it would go to the left-lane marker, then it would swerve over to the right-lane marker, then it would swerve over to the left-lane marker.

And I became concerned for his safety, as well as the safety of other motorists, and decided to stop the vehicle, at that point in time. Kohl testifie d that she

suspecte d, among o ther poss ibilities, t hat t he driver o f the vehicle was intoxicated.

After

stopping the appellant’s vehicle, Kohl approached the passenge r’s side o n foot. Peering through th

e front, passenge

r’s side window, she

motioned f

or the dr iver toopen the window. When the appellant complied, Kohl identified herself and asked the appe llantto join her

at the rear of his vehicle. The appellant, however, did not respond, and Kohl inquired in English whethe r he spoke Spanish. The appella nt responded aff

irmatively, wher

eupon Koh

l instruct ed him in Spanish-3-

to get out of

his car and come to the rear of his vehicle

. Kohl asserted at the suppression hearing that she speaks Spanish with sufficient fluency to “get through a traffic stop.”

The appellant followed the officer’s instructions, and Kohl informed him in Spani sh that she w as an officer with the Metropolitan Nashville Police Department a nd had stopped hi s vehicle because he was we aving with

in his lane . The app ellant re peated in Engli sh , “I was weavi ng.” Accord

ingly, Koh

l continue d the conv ersation in English. She reca

lled at the suppress io n hearing that the appellant was appropriately responsive to a ll her inquiries in English.
Although at this poin

t d uring the traffic stop Kohl had not observed any signs that the appellant was intoxicated, she was not yet satisfied that he was fre e of an y impairme

nt. Accordingly, she inqu ired whe ther the appella nt had bee

n drinking

alcohol a nd, upon hi s denial, inquired if he was tired. The appellant conce ded that he was tired, admitting that he had been driving since he left Los Angeles, California, on the previous day, pausing only briefly at a “fe

w rest stops” to sleep. K ohl asked the appellant about his destination, and he indicated that he was traveling to Georgia. Kohl recalled:

And I said, “Where in Georgia?”

. He said he didn’t know. I said, “Well, how are you supposed to know where you suppos ed to go in Georgia?”. And he said, w

hen he go t close to t

he - - to th

e ar ea, he had a pager number he

was suppo sed to ca

ll. I asked him who the pager number belonged to. And he sa id it was hi s cousin, Miguel’s. I asked if he knew where Miguel lived. And he said, “No.” Then I a sked him wh

ere he w as going to

stay at. And he said he didn’t know where he was going to stay; he thought a hotel, maybe. Then I asked him if the vehicle was his vehicle. And he said, no, that it belonged to his cousin. I asked h im what his cousin’sname wa s. And he told me, “Well, he’s not really my cousin.” So, then I said, “Well, who is he?”. “He’s my friend.” So, I said, “Well, is he your cousin or is he your friend?”. He - - “Well” - - he said, “W ell, he’s a friend who’s like a cousin.” I said, “Okay. What’s your cousin’s name?”

. And he gave me a name. And I said, “

Well, tha t’s nice o f him to let

you borro w the ca

r on this trip.” He said, Well, he’s not really my friend.” I said, “Well, then who is he?”. He said, “He’s a friend of my friend a t work.”-4- . . . . I said, “Well, what kind of work do you do?”. And he said that he did hardwood-floor work. At that point in time, I a sked him if he had the

registra ti on , and he went to the glove box and retrieved the registration for me.
Kohl further indicated at the suppression hearing that she requested the appellant’s driver’s license

after in quiring c oncerni

ng the len gth of the appellant’s journey and prior to inquiring concerning the ownership of the vehicle in whi ch t he appellant was driving. Upon observing the appellant retrieve his driver’s license from his wallet, Kohlwas satisfied that the appellant was not intoxicated. As to her s ubseque nt acquis ition of the

vehicle registra tion docum

ent, Kohl was unab le to recall at the suppression hearing whether the na me recorded on the document was the sa

me as the

name provided by the appellant and iden tified by him as belonging to the vehicle’s owner. Kohl testified that she did, however, confirm tha t the reg ist ration matched the vehicle’s license plate. Moreover, after o

btaining b oth the ap

pellant’ s driver ’s licens e and his v ehic le regi stration d ocument, she asked the appellant about his driving record and his arrest record. With respect to the latter, the appellant informed Kohl that he had once been ar rested for driving under the influence.
Having examinedthe appellant’s driver’s licence and vehic le registration document , Kohl explained to the appellant that she was going to issue him a warning citation. Add iti onally, upon inquiry by

the appe llant, she provided him with directions to a location at which he could park his car and sleep. Finally, sheinstructed the appellant to wait inside his car while she completed the necessary paperwork.

Ret aining the appellant’s driver’s license and vehicle r egistration document, Kohl returned to her patrol car. Inside the patrol car, she radioed a fellow office r, DeanHunter, and asked that he transport a drug-detection dog to the scene of the traffic stop. She then filled out a warning citation for

violation of “lane restrictions.” She also prepared a “ Consent to Search” form written in Spanish before returning to the appellant’s vehicle.

Upon approac

hing the a

ppellant once ag ain, Kohl

instructed him to get o

ut of his vehicle and, upon his compliance, returned to him his driver’s license and ve hic le registration document

. She also

gave to him the warning citation, thanked him, and informed him, “The stop’s complete.” The appellant began walking back to his vehicle, and she turned to begin walking toward her patrol car. She pause d, howeve r, and as ked the a

ppellant if she could ask him

severa l question s. The appellant returned to her location, and she asked him if he ha d any weapons in his vehicle. He responded, “No.” She then asked him if he had any illegal drugs in the ve hicle. Kohl recalled: At that point in time, his d emeanor change d. He gav e me a - - a nervous, laughing, “No.” And he - - he became fidgety. You could

see him sc ratch ing on his ba ck. He w as nervo

us, and you could literally see his Adam (sic) apple, a ner vous si gn, bobbing up and down, which I was talking t o him, which, to me, is an indicator of some type of deception.2 A rocker panel is “the porti on of t he body panel ing of a vehicl e that is si tuat ed bel ow the doors il ls of the passenger compartment.” W EBSTER ’ S T HI RD N EW I NTERNATIONAL D ICTI ONARY 1965 (19 93).
-5- Following the above exchange, Kohl asked the ap pella nt if she c ould sear

ch his vehicle. He quickly offered to open his trunk for

her inspection, but Kohl declined the appellant’s offer and instead asked

him if he was able to read in Spanish. Upon receiving an aff irmative reply, she asked him to read the Spanish “Consent to Search” form that she had pre pared. Kohl testified, “[A]s he read, you could follow his finger going along each sentenc e, which, to - - me, demonstrated that he was actually reading the statement.” The consent form c ontained advice concerning the appellant’s right to re

fuse con sent to a s earch o f his vehicle , his right t o limit any c onsent to

certain

areas of his vehicle, and his right to r evoke his consent at any time. Nevertheless, the appellant signed the

consent f orm, agr eeing to a search of his veh

icle with out imposing

any limita

tions.

Meanw hile, Offi cer Dean Hunter had arr ived at the scene of the traffic stop with a drug-detectiondog. Following the appellant’s consent to a sear ch of his vehicle, Hunter permitted the dog to snif

f the veh icle. The dog signal ed the pr

esence of drugs in both

the driver’s side and

the passenger’s side of the vehicle. Accordingly, Hunter, Kohl, and a third officer began a search of the vehicle.
During the sear ch, Hunte r notice d that the

vehicle ’s rocke

r panels 2 had been freshly painted. He therefore procured a drill and used the tool to remove the screws “that hold the rubber

or plastic molding over the top of [one of] the rocker pane ls.” Upon removing the “rubber or plastic molding,” Hunter in serted a small meta

l probe into pre- existing sc rew hole s, meeting

with some resistance. He then d

rilled int o the pre-existing holes “[a]nd . . . started coming up with some terry -

- white-te rry-cloth materi al, like a bath-towel material.” At this point, Kohl retrieved a “buster” or density meter from her patrol car and mea sured the density of the rocker panels, receivingunusually high measure

ments. Due

to the high

me asu rements, the officers drilled new holes in the rocker panels. In addition to the terry cloth material, “a pinkish-brown-type material . . . c ame out on the drill bit.” Kohl recounted that they tested the substance for the presence of cocaine but received negative results. Nevertheless, “we knew something wa s there that didn’t belong there.” Finally, the offi cers broke the rocker panels, re vealing “duct-taped bundles.” Kohl arrested the a ppellant , and subsequ e nt testing established that the bundles contained approximately twenty kilograms of methamphetamine.

The State also introduced into evidence at the suppression hea ring a videotape of Kohl ’s traffi c stop of the appellant. The videotape does not contain an audio compone nt. Kohl explainedthat, following the traffic stop, she discovered that the battery powe ring the a udio equipment was dead.

In addition to Kohl’s testimony and the videotape of Kohl’s traffic stop of the appellant, the State presented the testimony of Officer De an Hunter of the MetropolitanNashville3 Off icer H unte r is iden tified as “ W ilford Ro den e H unte r” in th e trial tran script.

-6- Police Departm

ent. 3 Hunter

related that

he had been a police officer f or approximately twenty years and had been a “canine

officer” for approximately thirteen yea rs. According to Hunter, he had been assigned two different drug-detection dogs during the course of his ca reer as a canine handler; moreover, he was certified by the United States Police Canine Association (hereinafter UPCA) as

a trainer of drug-detection dogs. Hunter testified that he was currently assigned a drug-detection dog namedLou. Prior to the traffic stop in this case and in accordance with the standards of the UPCA, Lo u h ad successfully completed a ten-week tra ining course in drug detection. Additionally, Lou underwent continuing training a minimum of eight hours each week.

Hunter further testified

that he was currently assigned to the Highway Interdiction Unit of the Tw entieth Ju dicial Di strict Dr ug Task For

ce and, on May 9, 1 999, was p atrollin g th e interstates with Lou. Hunter confirmed that he and Lou assisted Kohl during the traffic stop of the appellant’s vehicle and that Lou alerted the officers to the pr esence of illegal dr

ugs i n the vehi cle four times, three times on the driver’s side of the vehicle and once on the passenger’s side. During the ensuing search of the appellant’s vehicle, Hunter noticed that the vehicle’s rocker pan els ha d been freshly

painted. He explained at the suppression hearing that he noticed the f reshly painted rocke r panels due to his past e mployment in an autom

obile body

repair shop. Hunt

er car efully examinedthe entire vehicle and did not see any other areas where the ve hicle had been re-painted.

As a result

of Hunter’s discovery, the officers removed the plastic molding covering

one of the rocker

panels, and Hunter

inserted a metal probe into pre-existing holes. Hunter reca lled, “I was meeting resistance; and, when I’d take the probe, because it was a sharp object on the e nd, and push [further] . . . , I could go through the resistance and I could go to the bottom of the rocker panel.” Hunter noted that a rocker panel is normally hollow. Accor dingly, he c onc luded that “somethi ng was i n the rocker panel, that wasn’t necessa rily supposed to be there.” Further investiga tion reve aled pac

kages co nceale d inside the rocke r panel.

Fina lly, the State introduced into evidence without objection a certified copy o f Metropolitan Nashville Code § 12.68.170, entitled “Careless driving.” See Tenn. R. Evid. 202(b). The ordin ance pr

ovides: A. E very p erson operating a vehicle upon the streets within the metropolitan gover nment, o r upon any private road or driveway or parking are a, sh all drive the same in a careful and prudent manne r, having regard for the width, grade, curve s, corners, traffic and use of these streets and private areas, and all other attenda nt circumstance s,
so as not to e

ndanger the life, limb or property of any person. Failure to d rive in such manner shall constitute careless driving a nd a violation of this chapter.
By means of an interpreter, the appellant testified at the suppression hearing for the sole purpose of establishing his standing to contest the search of the vehicle in which he was driving-7-

on the night of

the traffic stop. He asserted that the owner of the vehicle had given him permission to use the vehicle, providing him with the keys. The appellant explained that the owner was willing to loan him the

vehicle because the owner was on vacation in Mexico. According to the appella nt, the owner was aware

of the appellant’s planned trip to Georgia. The appellant c oncludedthat, prior to the traffic stop at issue in this case, he had been in exclusive possession of the vehicle for three days.
Following the suppr ession he aring, on

Februar y 8, 2000, t

he tria l court de nied the appellant’s motion to suppress. As relevant to this appeal, the court concluded:

[T]he seizure inv ol ving the de fendant was base d upon re asonable suspicion; the defendant has standing to challenge the subsequent search of the vehicle; the initial search of the vehicle was ba sed upon consent; [and] the e xtended search of the vehicle’s exter ior rocker panels was based upon consent and further proba ble cause . . . .

B. Trial The app el lant’s case proceeded to trial on May 15, 2000. As at the suppre ssion hearing, the State presented the testimonies of both O ff icer Kohl and Officer Hunter. Hunter ’s testimony at trial was substantially identical to his testimony at the suppression hearing . Kohl also reiterated much of her testimony at the suppression hearing but added a description of her duties as a member of the Hig

hway Int erdictio n Unit: Ba sically, what we d

o is, we sit

on the side

of the inte

rstate an d monitorthe flow of traffic. And, we see traffic violations that occur,

we - - uh - - pull the violator and the vehi cle over and issue them a warning ticket, speeding ticket. And, uh - - from there, sometimes we get stolen ve hicles; w e get fug itives fr om justice ; we get pe ople with weapons ; uh - - we get people with narcotics, just an array of different things. She related

to the jury that the location of the traffic stop in this case “is one of the busiest []sections of the interstate system in [Nashville].” She asserted that she stopped the app ellant’s v ehicle because, in addition

to suspecting the appellant of intoxication, she was concerned that “possibly he was sleepy, was getting tired and maybe he’s gonna fa ll asleep at the wheel.”

Kohl also added at

trial that she was unable to see insidethe appellant’s vehicle prior to making the traf

fic stop because the windows of the vehicle were tinted. Only whe n she stopped the appella

nt’s vehi cle and t

he appellant roll ed down hi s window w as she ab le to see bothth e appellant and the condition of the interior of his vehicle. In particular, she noted that the interior was littered with empty

Coca-Col a cans, e

mpty juice bottles, and half-eaten sandwiches. The appellant explainedto her that

he had tr aveled a lmost nonsto

p from Cal

ifornia a nd intended to visit his co

usin in Georgia for

a couple of weeks. Kohl recalled that, notwithstanding the appe llant’s claim that he

was pausing br

iefly at r est stops a

nd nappin g in his vehic le, ther e were no blanke

ts or pillow s in the vehicle.-8- In addition to the appellant’s responses to her questions concerning his destination and the ownership of his vehicle, the nonstop nature o f the app ellant’s journey, reflected by the condition of the interior of his vehicle, suggested to Kohlthe possi bility that the appellant was engaged in the tra nsportat ion of ille gal drugs . Moreove r, a can of air freshener was located on the center conso le of the

vehicle , and Kohl

could det

ect the o dor of ai

r freshener ins ide the ve

hicle , albeit the odor was “very minute.” Kohl observed that air freshener is “commonly used by people hauling drugs to mask the odor of the narcot ic that they’r e hauling.” According to Kohl, her suspicion that the appellant was transporting illegal drugs prompted her radio call to Officer Hunter and her p repara tion of a Sp anish “Co nsent to Se arch” f orm.

Kohl emphasized at trial that, upon returning to the appellant his driver’s license and vehicle registration document and issuing a warning citation, she “told him to have a safe trip and the stop is complete”; she allowed him to begin walking toward his vehicle; and she turne d to begin walking toward her patrol car. Kohl recounted, “ [A]fter he started back to his car and I had started back to mine, then, I s aid, ‘Excuse me. Can I ask you a couple of questions?’ And, so, he walks over to where I’m at, he shakes his head, a nd he says, ‘Yes.’”
During the ensuing encounter, Kohl’s suspicion o f the appellant was heightened even further when the appellant immediately offered to open his trunk in respon se to her request to search his vehicle. She noted, “[I]n the past when I found drugs that weren’t in the trunk, people always want you to look in the trunk. And, to me, they’re trying to divert my attentionaway from where they are. They want me to look in the trunk.” That having been said, she also testifiedthat, of the several hundred traffic stops that she performed while working with the Tw entieth Judicial District Drug Tas k Force, approximately ten traffic stops res ulted in the

seizure of drugs.

Kohl also clarified at trial that Hunter and his drug-detection dog Lou arrived as she

was seated i n her patrol car completing the appellant’s warning c itation. Hunter and Lou remained in their patrol car while Kohl requested and obtained the appe llant’s c onsent to s earch h is vehicle. Kohl recalled that the appellant could see Hunter’ s patrol car parked behind her own, but she was uncerta in if the appellant was aware of the pre sence of a drug-detection dog insideHunter’s patrol

car. A third officer arrived after Lou ha d already signaled the presence of illegal drugs in the appellant’s vehicle.

During the officers’ search, the appe llant stood approximately fifteenfeet away from his vehicle

and was able to observe their activities. Prior to examining the rocker pane ls, the officers detached the seats and

lifted c arpeting inside the passenger compartment of the vehicle. Additionally, the officers climbed inside thetrunk, lifted the carpeting, and removed the spare tire

. Finally, the officers ex amine d the vehi cle’s e ngine, re moving the

top of the

air filte r. At no tim

e prior to the discovery of the bundles of methamphetamine did the appellant expr ess any objection to the scope of the officers’ searc h. The officers ultimately removed bundles of methamphetamine from rocker panels on both the driver’s side and the pa ssenger’s side of the appellant’s vehicle.

Following the appellant’s arrest, Kohl questioned him concerning his knowledge of the drugs. No twithstan ding the a ppellant ’s claim

that he sp oke “[a

] little bit ” of Engli sh and Kohl’s-9-

limited proficiency in Spanish, Kohl obtained the assistance of a Spanish-s peaking o fficer in both advising the appe

llant of hi s Mi randa rights and questioning the appellant. By means of the interpreter, the appellant denied any knowledge of the drug s. However, in contrast to his earlier statemen ts to Kohl, the appellant now acknowledged that he was trave ling to “Fores t Pa rk” in Georgia. The appellant also provided Kohl, from memory, the pager number belonging to his cous in Miguel, whom he had intended to visit in Georgia. The appe llant dec lined Koh

l’s invita tion to “ro ll over, meaning, . . . do a control delivery, meaning . . . take the dope on to where it needed to go, as if he hadn’tbeen intercepted or stopped.” Kohl noted that the appellant wa s not carrying large amounts of curr

ency or a pager a t the time o f his arr

est. He did have in his possession an America West Air lines tick et stub mar

ked “IA H” and a businesscard belonging to the managers or owners of a Super 8 Motel in Houston, Texas.

After questioning the appellant, Kohl telephoned the pager number provided by the appella nt. She discovered

that the n umber wa s, in fac t, assigne d to a residence rather than a pa ger. A woman answered the telephone and informed Kohl that there was no one named Miguel living at that residence. Kohl also investigated the license plate number of the vehicle driven by the appellant and the vehicle registration. She discovered that, although the vehicle registration number wa s assigned to a Ferna

ndez Or osco Efr ain in Los A

ngeles, C aliforni a, the lic ense pla te numb er wa s assigned to a Manuel Gonzales in the same city.

In addition to the testimonies of Kohl and Hunter, the State presented the testimony of Kathy Car

man, a ch emist empl o yed by the Tennessee Bureau of Investigation (here inafter the TBI) at the TBI

CrimeLaboratory. She related that she performe d testing on the substance contained in eachof the twenty-eight bundles seized by police from the vehicle driven by the appellant on May 9, 1999. She discovered

that the bundles contained methamphetamine and weighed a total amount of 40.1 pounds or a l

ittle more than eigh teen thou sand gra

ms.

The State next

present ed the te stimony of D aniel Rosa les, an officer employed by the Houston Poli ce Depa

rtment in Texas. He testified that he had been a police of ficer for seventeen years a nd had pa rticipat ed in drug

investiga tions for t welve ye ars. He

noted tha t he was currently assigned to a federalDEA t ask forc e known a s the “Hig h Intensity Drug Tr

affick ing Area Task Force” (hereinafter the HIDTA) a nd had been so assigned for six years. He related

that the mission of HIDTA was to investigate criminal organizations dealing in illegal d rugs. Dur

ing the course

of his assig nment to HIDTA, he had investigated approximately forty or fifty diffe rent criminal organizations dealing in marijuana, cocaine, heroin, methamphetamine, and various other, synthetic drugs. The investigations spanned many areas of t he countr

y, including Texas, Tennessee, Californ ia, New Y ork, New

Jersey, Illinois, a

nd Missour

i.

As to his spec ific task s, Rosalesrelated that his job entailed working undercover on

one occasion as a buyer for an org anizatio n dealing in heroin

and metha

mphetamin

e. He al so participated

in the execution of

more tha n five hundred se arch wa rrants . Additionally, he noted, “I’ve interviewed peop le that we re selling drugs on

the corners; I’v e intervie wed peop le that are transporting drugs; I’ve interview ed the top of an organization. At one point or another, I’ve-10-

i nterviewed

pretty we

ll every level of an organ ization. ” In par

ticular, he had int

erviewed at leas t fifty dru g courie

rs.

Based upon his experience, Rosales testified concerning the ca re with which criminal organiz ations select thei

r drug co uriers: The transpor

tatio n is - - is - - you’re gonna be getting someone that is trusted w ithin the or

ganizat ion. I mea

n, someti mes it’s family, sometimes it’s a referral from a friend within the organization. If - - if I recom mend th is lady right here and I’m in the organization and she loses a load, then, I’m held responsible. So, there is never going to be anybody that’s not trusted within the organization. Rosales observed

that, sometimes, organizations further ensure the delivery of dr ugs by threatening the courier s and by requiring th at couri ers per iodically call a c ellular t

elephone or a page r, usin g codes in order to communicate the progress of their journey. He noted tha t the most common mode of transporting illegal drugs within the UnitedStates of Ameri ca (her einafte r the USA) is automob ile or truck.

Rosales further related to the jury that the str eet valu e of meth ampheta mine in Houston is one hundred dollars per gram, albeit he acknowledged that the street value in Houston is “the higher retail end. ” Accordingly, the street value of the methamphetamine seized from the appellant would be approximately 1.8 million dollars. Rosales noted that a courier’s fee is based upon the quantity of drugs transported. He remarked that the quantity of drugs at issue in thi s case was even greater than the quantity gener ally transported by the organizations that he investigated.

Fina lly, Rosales e

xamined t

he Ameri ca West

Airlinesticket stu

b found in t

h e appellant’s possession at the time of his arrest. He confirmed that America West Airlines operates flights to and fr

om Houston, Texas. Moreover, he testified that the initials “IAH” wr itten on the ticket stub signifies “Intercontinental Airport of Houston.”

The appella

nt testified on his own

behalf t hrough a n interpr eter. He informe d the jury that he was born in Gu atemala , where he atten ded scho ol through the sixth g

rade. H e came t

o the USA on February 22, 1989, when he was eighteen year s old. His parents and fi ve of his brothers still resided

in Guatemala, but one of his brothers and several uncle s and cousins hadimmigrated, like him, to the USA. The appellant’s native language is Spanish, although h e unders tands “[ s]ome words” in English.

The appellant further informed the jury that he was cur rently marri ed to a wo man from Mexico na

med Gurd aluepe Po lideo and had thre e childr

en, the yo ungest having been bornonly two months bef

ore the i nstant of

fense. Pr ior to this offense, the appellant worked full-time installing and re-finishing hardwood floo rs. He was an independent contractor and e arned a net income of approximatelytwenty-five thousand dollars each year. Nevertheless, he was able to save sufficient funds to satisfy in cash hospital bills stemming from the birth of h is younges t child. He

noted tha t, although his family did not possess health insurance, he “found a cheap progr am for the delivery.”-11- As to the instantoffense, the appellant related to the jury that he and his wif

e had als o saved funds in preparation for a trip to visit his cousin Miguel Avila in Georgia. Accordingly, the appellant had five hundred dollars with him at the time of Kohl’s traffic stop of his v ehicle, in addition to funds in his bank account. The appellant asserted that both he and his wife ha d b ee n planning the trip f

or sever al months, but his wife ultimately decided that she would not accompany him due to the

recent birth of th

eir young est

child. Neverth

eless, the appell ant deci ded to visit his cousin as planned. He asserted that he knew his cousin w ell, a lthough he denied that he had ever used his cousin’s “pager” number, having memorized the number solely for the purpose o f his trip to Georgia. According to the appellant, he intended to stay in G

eorgia f or appro ximately

one and one-half or two w eeks.

The appellant additionally testified that a co-worker and friend

named Efrain Orosco loanedhim

a car three da ys prior to

his trip. Sp ecifica

lly, Orosc o asked th

e appell ant to ca

re for h is

car while Orosco was on va cation for on e month in Mexico. Orosco was also a friend of the appellant’s cousin, Miguel, and was aware of the appellant’s planned trip to Georgia. Accordingly, notwithstanding his ownership of a 1994 Chevrolet Suburban, the appellant decided to use Orosco’s 1990 Pontiac Bonneville for the lengthy trip. The appellant noted that he had exclusive control of Orosco’s vehicle during Orosco’s absence. He de nied that Orosco ever

asked or required that

the appellant drive the Pontiac Bonneville to Georgia.

The appellant only part ly dis puted Koh l’s acc ount of the

traffic stop of his vehicle

on Interstate Highway 24 in Davidson County. He denied ever stating to Kohl that he did not know his destinati on in Geor

gia. More over, he

denie d ever stating that a cousin owned the vehicle that he was driving. Finally, he denied ever offering to open his trunk for Kohl’s inspection following her request to searc h his vehic le. Howe

ver, he c oncede d that Koh l only reques ted his permission to search his vehicle after issuing him a warning citation and informing him that the stop was over and that he was free to leave. He conf irmed that, prior to obtaining his consent, Kohl showed him t he “Consent to Search” form written in Spanish. Finally, he acknowledged that he c onsented i n writing to the search of his vehicle with a full awarene ss of his right to

refuse consent and his right to revoke his consent at any time.

The appellant also presented the testimony of his wife, Gurdaluepe Moran Polideo Garcia. She stated that her husband was an excellent worker , specializing in hardwood floors, and that he wa s able to me

et all the financi al needsof his family. She noted that, othe r than his trip to Georgia, the appe

llant had only take

n vacati ons with he

r, drivin g with her

to visit fa

mily in Bull Head City, Arizona. She denied that she or her husband had ever f lown to Arizona or to Houston, Texas.

The appellant next presented the testimony of Miguel Bouquet. Bouqu et testified that he lived in

Venice, California, and owned a business known as Bouquet Floors. Bouquet noted that he had owne d his busine ss for approximately twelve or fourteen years, a nd the appellant had worked for him approximately twenty or twenty-five times during the past four or fi ve years. Bouquet asserted that the quality of the appellant’s work was “ve ry good,” and the appellant was reliable.-12- Finally, the appellant presented the testimony of his nephew, Rubin Munez Palidio. Palidio testifie d that he lived in Bull H ead City, Arizona. He observed that his uncle was a good

man and had always treated others well. Palidio further related that he ha

d previou sly worke d with his uncle, de scribing his uncle as a hard worker. Finally, he denied that his uncle maintaine d a “luxurious” lifestyle, asserting that his uncle’s lifestyle was “normal.”

At the conclusion of the appe l lant’s trial, the jury found the appellant guilty of possession of one tho

usand gra ms or more

of me thamphet a mine with intent to deliver. The trial court conducted a sentencing hearing on June 30, 2000, at the conc lus ion of wh ich it imposed a sentence of twenty years incarce ration in the Tennessee Department of Correction. The appellant challen ges his co nviction in this appe al.
II. Analysis A. Trial Co

urt’s De nial of Appe

llant’s Motion to Suppr ess The appellant first contends that the trial court erred in deny

ing his pre-trial motion to suppress any e

vidence obtained during or as a re sult of Kohl’s traffic stop o f his ve hicle. Hi s argument is three- fold: First, relying largely upon our supreme court’s decision in State v. B inette
, 33 S.W.3d 215 (Tenn. 2000), the appellant argues that Of ficer Kohl di d not posse ss a rea sonable suspicion at the time

of the tra

ffic stop th at he had committed, wascommitting , or was a bout to commit a criminal offense. Second, the appellant arg ues that, eve n ass uming the legality of the traffic stop atits incept

ion, the sc ope of the

stop soon e

xceeded i ts ju st if ic at io n. Th ir d a nd fi na ll y, the appe llant arg ues that th

e searc h of his ve

hicle exc eeded th

e scope o f his cons ent.

In response , the State

seeks to distinguish Binette from the instant ca se and br oadly argues that “Of

ficer K ohl was jus tified in s topping t he [appellant] to asc ertain h is conditio n, as a matter of public safety .” Second, the Statedisputes the appellant’s argument that the scope of the traffic stop exceeded its justification. Finally, the State ar gues that the police officers’ search of the

appellant’s v ehicle was within the scope of the appellant’s unqualified conse nt and was further warranted by the drug -det ection dog ’s positive indication of the presence of illegal drug s in the vehicle.

i.

When reviewing a trial court’s ruling on a motion to suppress evidence obtained by police pursuant to a wa

rrantle ss s earch o r seiz ure, t his co urt is obli ged to u phol d the t rial c ourt's findi ngs of fact unless the evidence preponder ates otherwise. State v. K eith , 978 S.W.2d 861, 864 (Tenn. 1998); State v. Odom
, 928 S.W.2d 18, 23 (Tenn. 1996); State v. A shworth , 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999). In this regard, our supreme court has observed:

Questions of cred

ibility of the wit

nesses, the weight and value of the evidence, and reso lution of c onflicts in the evid ence ar e ma tte rs entrustedto the tria

l judge asthe trier

of fact . The par

ty preva iling in the trial court is [therefore] entitled to the stron gest legitimate view of the evidence adduc ed at the suppress ion hear ing as well as all

reasona ble and legitimate inferences that may be drawn from that evidence.-13-

Odom , 928 S.W.2d at 23. The cour t has rec ently

reaff irmed tha t “the sta ndard of appella te review for findings o f fact a

t a su ppression hear ing is that articulated by this Court in Odom .” State v. Walton , 41 S.W.3d 75, 81 n.3 (Tenn. 2001)

. However, it has also expressed the following qualification: “[W]hen a trial court’s findings of fact at a suppre ssion hearing are based on evidenc e that does not involve issues of credibility, a re viewing court must examine the rec ord de novo withouta presumption of correctness.” Binette , 33 S.W.3d a t 217; see also State v. Munn , 56 S.W.3d 486, 494 (Tenn. 2001). In any event , an appellate court’s review is not limited to the transcr ipt of the s uppressi on hearing but extends to the entir e recor d of proc eeding s, including the trial transcript. State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). Moreover, an appellate court will also review de novo the trial court’s application of the law to factual findings. State v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999); Keith , 978 S.W.2d at 864.

ii. Turning first to t he legal ity of the t

raffic stop at its i nception , both the Fo urth Amendment

to the United States Constitution and Article I, Section 7 of the Tennessee Constitution protect citizens against unreasonable searche s and seizures conducted by law enforce ment office rs. In essence, “[t]he

purpose o f the Four

th Amendme

nt and ar ticle I, § 7 is to ‘safeguard the privacy and security

of individuals against arbitrary invasions of government officials.’” Munn , 56 S.W.3d at 494 ; see also State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997)(observing that “‘article I, section 7 is identical in intent and purpose with the Fourth Amendment,’” and federa l cases interpreting the Fourth Amendment should b e regarded as particularly persuasive). Accordingly, under both the United States andTennessee constitutions, searches and seizures c onducted without

a warrant are presumpt

ively unre asonable subject to a few carefully def ined exceptions. See Coo lidge v. New Hampshire , 403 U.S. 443, 454-4 55, 91 S. Ct. 2 022, 2032 ( 1971); Keith , 9 7 8 S.W.2d at 865; State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997) . Because stopping an automobile

and detaining its occupants unquestionably constitute a seizure, Wren v. United States , 517 U.S. 806, 809-810, 116 S. Ct. 1769, 1772 (199 6); United States v. Sharpe , 470 U.S. 675, 682, 105 S. Ct. 1568, 1 573 (1985 ); Delaware v. Prouse , 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979); Binette
, 33 S.W.3d a

t 218; Yeargan , 958 S.W.2d at 63 0; State v. Pulley , 863 S.W.2d 29, 30 (Tenn.1993), it follows t

hat, whe n the State

seeks to introduce

in a criminal trial evidence obtained

as a result of the wa rrantle ss stop of a

n automobi le, the Sta

te carries the burden of demonstrating by

a preponderance of the evidence the applicability of an exception to the warrant require ment, Keith , 978 S.W.2d

at 865; Yeargan , 958 S.W.2d at 629.

One excepti on to the w arrant require ment is an a

rrest based up on proba

ble caus e to believe that a cr

ime has been or is being committed. Beck v. O hio , 379 U.S. 89, 91, 85 S. Ct. 223, 225-226 (1964); Henning , 975 S.W.2d at 300; see alsoT enn. Code Ann. § 40-7-103 (1997). “Probab le cause

exists where ‘the facts and circumstance s within the[] [officers’] knowledge and of which they had reasonably trustworthy information [are] suff icient in themselves to wa

rrant a man of rea sonable caution in the belief that’ an offense has been or is being committed.” Brineg ar v

. United States , 338 U.S. 160, 175-176, 69 S . Ct. 1 302, 1310- 1311 (194 9)(alte rations in original)(quoting Carroll v. United States , 267 U.S. 132, 162, 45 S. Ct. 280, 288 (1925)) . Probable

cause will justify an arrest for even very minor criminal offe nses committed in an officer’s presence. Atwater v. City of L ago Vista , 532 U.S. 3 18, __, 121 S. Ct. 1536, 1 557 (2001 ); Statev. Walker , 12-14-

S.W.3d 460, 464 (Tenn. 2000). However, in Tenn essee, the co nstitutiona lity of such arres ts will dependupon the office

r’s comp liance w ith Tenn. Code Ann. § 40-7-118 (1997). Walker , 12 S.W.3d at 464-468.
Additionally, in Terry v. Ohio , 392 U.S. 1, 20, 88 S. Ct. 1868, 1879-1880 (1968), the United States Supreme Court indicatedthat a warrantless seizure short of an ar rest might be justified by something less than probable cause. This proposition was subseque ntly confirmed by the United States Supreme Court

in Adams v. W

illiams , 407 U.S. 143, 145-146, 92 S. Ct. 1921, 1923 (1972), and extended to investigatory stops of automob iles in United States v. Brignoni-Ponce , 422 U.S. 873, 881, 95 S. Ct. 2574, 2580 (1975); see also United States v. Hensley , 469 U.S. 221, 226, 1 05 S. Ct. 675, 679 (1985). Thus, a police officer may stop an autom obile based up on reaso nable suspicion, supported by specific and articulable facts, that the occupa nts of the automobile have committed, are committing, or are about to commit a criminaloffense. Binette , 33 S.W.3d at 218; Statev. England , 19 S.W.3d 762, 766 ( Tenn. 200 0); Keith , 978 S.W.2d at 865 (citing, among other authoriti es, United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 694 (1981), and Prouse , 440 U.S. at 663, 99 S. Ct. at 1401). While req uiring c onsiderably less than proof of wrongdoing by a preponderance

of the evidence, a reasonable suspicion requires something more than the officer’s inchoate and unparticularized suspicion or hunch. United States v. Sokolow , 490 U.S. 1 , 7, 109 S. Ct. 1581, 15 85 (1989) ; Keith , 978 S.W.2d at 867.

Either probable cause or reasonable suspicion will justify a traff ic stop under the United States and Tennessee constitutions without regard to the subjective motivations of the police officer involved. Wren , 517 U.S. at 813 ; 116 S. Ct. at 1774; United States v. Morales , 252 F.3d 1070, 1074 (9 th Cir. 2001) ; United States v. Villa-C ha parro , 115 F.3d 797, 801 (10 th Cir. 1997) ; Vineyard
, 958 S.W.2d

at 736; cf. ge

nerally City

of Indianapol

is v. Edmond , 531 U.S. 32, 45-46, 121 S. Ct. 447, 456-457 (2000). In short, the touchstone is reasonableness, whether under the state or federal constitution, Statev. Jennette , 706 S.W.2 d 614, 618 (Tenn. 198 6), and “ [r]ea sonableness, in turn, is m easured in objective terms by examining the totality of the circumstances,” Ohio v

. Robinette , 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996)

.

The trial court

in this case rejected any claim by the State that Officer Kohl possessed probable cause to believe that theappella nt was driving carelessly in violation of Metropolitan Nas hvi lle Code § 12.68.170, noting that Kohl did not testify at the suppression hearing that “the purpose of the stop was based on a violation of § 12.68.170 of the M etropolitan Tr affic Code . . . [and] the warning citation issued did no t refer ence the cited se ction of th

e Metro Co de, nor d

id it state ‘careless driving.’” Instead, the trial court determined

that Off icer Koh l possesse d a reas onable suspicion that the appellant was driving under the influence in violation of Tenn. Code Ann. § 55-10- 401 (1 998). In this regard, the court accredited K ohl’s testimony at the suppression hearing , observing: The Court has reviewed the video tape recorded by Officer Kohl and fi nds that it does support her testimony. As she appro aches th e defendant’s vehicle

from two l anes ove

r, it notic eably

swerves to the rightside of the lane. The Court finds it signi fican t that the officer didnot immediately stop the vehicle, but rather, began to monitor the-15- vehi c le to determine whether the swerving would continue. In reviewing the video, the Court notedtwo other times, approximately 20 and 65 seconds from the officer’s initial observation . . . , that the defendant’s vehicle noticeably swer ve s from one

side of the lane to the other. Also sig nificant, and in further support of the officer’s testimony, is the fact that there were severa l other vehicles traveling parallel to a nd i n close pr oximity to th

e defendant’s ve

hicle. Th is supports her testimony regarding the safety of the other motorists on the road. In addition, the Court would note that for a short period of t ime the defe

ndant’s v ehicle isnot on the v ideotape and could

only have been observed by the officer. During this occa sion an d the initial observ ati ons made a t the time w

hen the de

fendant ’s vehic le

was several car lengths ahead of the officer , only the officer, not the videotape, could accurately observe the defe ndant’s driving pattern. While the Court w ould not ne cessar ily classi fy the defendant ’ s driving as “err

atic,” it was clea rly char acteris tic of a driver

who was eith erintoxicated or about to fall asleep at the wheel. The fa ct that there were oth

er vehic les in clos e proxim i ty to the defendant amplified the situation. As it turned out, the defendant admitted that he was very tired and h ad be en driving for a long period of time, which confirmed the officer’s suspicion.

In reviewing th e trial court’s determinations, we preliminarily note the following observation by the United States Supreme Court in Ornelas v. United States
, 517 U.S. 690, 696-697, 116 S. Ct. 1657, 1661-1662 (1996)(alterations in original)(quoting Pullman-Standard v. Swint , 456 U.S. 273, 289 n.19, 102 S. Ct. 1781, 1791 n.19 (1982)):

The principal componen

ts of a de terminat ion of re asonable

suspicion

or probable cause will be the events which occurred leading up to the stop o r search, and then the decision whether these historical fa cts , viewedfrom the s t andp oint of an objectively reasonable police

o fficer, amount to reasonable suspicion or to probable caus e. Th e first part of the analysis involves only a determination of hi storic al facts, but the second is a mixed question of law and fact: “[T]he his torical facts a

re admitt ed or est ablished , the rule

of law i s undisput ed , and the is sue is whe ther the facts sa tisfy the [ releva nt] statutory [or cons titutional] standard, or to put it another way, whether the rule of

law as applied to the established facts is or is not violated.” Thus, we review de novo the trial court’s ultimate determination of whe ther the “historic al facts ” in this case amount to probable c ause or reason able suspicion. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999)(“Cases that involve mixed questions of law and fact are subject to de novo review.”). But see State v. Long , 694 S.W.2d 337, 339 (Tenn. Crim. App. 1985)(“The trial court’s finding as to probable cause is to be given the weight of a jury verdict and is conclusivein this court unless the-16-

evidence prepond

erates against th at judgme nt.”). Th e more di fficult

question is whether

we should accord the trial court’s findings o f “histor ical facts” a pre sumption of correctness.
Relying upon Binette , 33 S.W.3d at 217, the appellant asserts that the recording of the traffic stop on videotape precluded “the norma l deference given to trial cou rts on the basis of their unique position to observe the demeanor and conduct of witnesses,” wa rranting instead an examination of the record de novo wi

thout a pr esumption

of corr ectness . The State

respondsthat, in contrast to Binette
, id. at 216, the trial court in this case relied upon Officer Kohl’s testimony in additio n to the videotape in making its findings of fact. The State emphasizes the trial court’s observation that, at times, “only the officer, not the videotape, could accur ately observe the defendant’s driving pattern.” Accordingly, the State concludes that “the standa rd of review s et forth in [ Odom , 928 S.W.2 d at 23,] i s more pr operly a pplicabl e” to the

trial cou rt’s find ings of fa ct.

In Binette , 33 S.W.3d at 217, the supreme court explained that, when a trial court’s findings of fact on a motion to suppress are based solely on evidence that does not involve issues of credibility, an appe llate court“is in the same position as the trial court and is just as capable of reviewing the evidence.” Accordingly, we agree with the Stat e that, if the trial court ha d based it s findings o f fact o n testimony by Kohl re

lating to th

e appell ant’s dr

iving duri ng those mo ments on the videotape rec ording whe n the appellant’s vehicle is obscured from view due to the re lative positions of the v eh icle and Kohl’s patrol car, the lighting conditions on the interstate, and other vehicles traveling on the int erstate , this cour

t would not be in the same position as the trial court in reviewing the evidence, and the Odom standar d would apply. However, in its order denying the appellant’s motion to suppress, the trial court ultimately cites its own observations of the videotape recording in support

of its dete

rmination of reas o na ble suspic ion. Inde ed, the c ourt coul d cite nothing else as Kohl did not testify at the suppression hearing or at tria l that the a

ppellant ’s vehic le engaged in any add

itional we aving dur

ing those m

oments on t

he videot ape rec ordin g wh en it is obscured from view.

In any event, our de novo review of the videotape of the traf fic stop in this c ase substantiates the trial court’s findings that the appellant’s vehicle drifted to the right side of its lane

as Kohl began to drive past the vehicle, and the veh icle wove slowly fr

om one side

of its lane

to another and back again on

at least two additi onal occ asions. O ur revie w of the videotape

also substantiates the trial

court’s observa

tion of the

presenc e of othe

r vehicl es in clos e proximity t o the appella nt’s. Accordingly, we proceed to a determination of “whether these historical facts, viewed from the standpoint of an objectively reasonable police offic er, amount to reasonable suspicionor to probable cause.” Ornelas , 517 U.S. at 696, 116 S. Ct. at 1661-1662.

The State effectively conceded in the trial court a nd now concedes on appeal that the appellant was driving in compliance with Tenn. Code Ann. § 55-8-123(1) (1998), which statutory provision states: Whenever

any roadway has been divided into two (2) or more cle arly markedlanes for t

raffi c . . . [a] vehicle shall be driven as near ly as practic able

entirely within a single lane and shall not be moved from4 See also United Stat es v. Lest er , 647 F.2d 8 69, 873 (8 thCir. 1981)(hol ding that the “the va lidity of the arrest sho uld be judge d by whether the a rres ti ng offi cers act uall y had probabl e caus e for the a rres t, rather than by whether the officers gave the arrested pers on th e righ t r easo n fo r the ar rest”); United States v. Saunders , 476 F.2d 5, 7 (5 thCir. 1973)(holding that , “[w]hen an officer makes an arrest, which is properly supported by pro bable cause to arrest for a certain offense, neither his s ubjecti ve reli ance on an offense for which no probable cause exi sts nor his verbal

an nouncement of the w ron g of fense vitiates th e arre st”); Stat e v. Munoz , 965 P. 2d 349, 352 ( N.M. Ct. App. 1998)(hol ding that “ [t]he s ubjecti ve belief of the off

icer does not in i tsel f affect the va li dit y of t he [t

raff ic] st op; it

is the evidence kno wn to the officer tha t counts, not the off icer’ s view of the gov ernin g law ”); W AYNE R. L A F AVE , 1 S EARCH
AND S EI ZURE , § 1. 4(d ), at 11 0-11 1 (3 d ed . 199 6)(o bserv ing that the exclusio n of ev idenc e solely d ue to a n officer ’s mist aken statement of the grounds for an arrest is unjust

ifi ed “because such situat ions are o ften attribu table to complicat ed legal d istinctions b etwee n offens es or a n officer ’s fai lure t o record allthe base s or t he st ronge st basi s upon which the arrest

was made”); cf. Florida v. Royer , 460 U.S. 491, 507, 103 S. Ct . 1319, 1329 (1983)( observi ng that “the fact that t

he officer s did not bel ieve ther e was probable cause a nd proceed ed on a con sensual or Terry -stop ration ale

wou ld not foreclose the State from justif ying [defendan t’s] custody by proving p robable cause”).

-17- such lane until the driver has first ascertained that such movement can be made with safety . . . . The State did, however, attempt to argue at the suppression hearing that the a ppellant was driving his vehicle in violation of Metropolitan Nashville Code § 12.68.1 70, wh ich section proscribes driving carelessly “so as . . . to endanger the life, limb or proper ty of any person.” As noted by the trial court, Officer Kohl at no time cla imed reliance upon or even knowledge of this metropolitan code section in stopping the appellant’s vehicle. Nevertheless, “an arrest is not render ed unlawful by the fact that

an officer who has autho rity to mak

e an arr est for a particular offe

nse err oneously states he is making an arrest for some other offense, or even for a cause which is not in fact an offense, or states the offense inaccurately.” State v. Robinson , 622 S.W.2d 62, 68 (Tenn. Crim. App. 1980). 4 Notably, the State does not include this argument in its brief on appeal. In any event, as we conclude during our discussion below, the record simply does not refle ct t hat, at the time of the traffic stop, the appellant was currently endangering “the life , limb or propert y of any person.” Metropolitan Nashville Code § 12.68.170.

Our supreme court has acknowledged in the past that one of the first indications of drunk driving is “zigzagging down the road or driving in anunnatural fashion.” Ervin v. Sta te , 268 S.W.2d 351, 353 (Tenn. 1954). Yet, more recently, in Binette , 33 S.W.3d at 219, our supreme court refused to conclude that the weav ing of an automobile within its own lane that is neither “pronounced” nor “exaggerated” aff ords an officer reasonable suspicion of the dr iver’s intoxication. Similarly, this court has noted its reluctance

to c onclude t

hat a per son drivin g in a manner that a n office r deems “improper,” when the driving is not erratic or haphazard a nd does not create a dangerous situation, is subject to seizure while proceeding along a highwa

y in a lawf

ul manner . Only the

hypotheti cal “pe

rfect” driver would not be subject

to seizur e if we w ere tohold that minor driving “errors,” which neither violat e ourtraffic code nor create a hazard, indicate that a person might be intoxicated.”5 Cf. People v. Pere z , 221 Cal. Rptr. 776, 778 ( Cal. App. Dep’t Super. Ct. 1985)(“[ P]ronounce d weaving with in

a lane p rov ides an office r with reas onable cause to s top a ve hicl e on sus pici on of dri ving under the inf luence where such weaving continu es for a sub st antial d is tance ”); Ro berts v . State , 732 So. 2d 1127, 1128 ( Fla. Dist . Ct . App. 1999)(“[ C]onti nuous we av i ng , ev en i f on l y wi t hi n [ a mo t or i s t ’s own ] l an e, du ri ng t he t i me thatshe was being fol lowed presented an obje cti ve basi s for suspe cti ng that

she wa s und er the influe nce .”); State v. Bail ey , 624 P.2d 66 3, 664 (Or. Ct. App. 1981)( “[T]he obs ervation of a vehi cle weaving wit hi n its ow n lan e for a subs tantial d istance give s rise to pro bab le cause to b elieve that the d river is drivi ng un der the i nfluence of i ntoxicants and just ifi es a st op for furt her investigation.”); Comm onwealth v. Baumgardner , 767 A.2d 106 5, 10 68 ( Pa. S upe r. Ct. 200 1)(h oldin g tha t, in ord er to provide an off

icer with r easonabl e sus pici on to s top a motorist on suspi cion of dri ving under the i nflue nce, t

he weaving of an aut omobile wi thi n it s own lane must be “ ‘exces sive ,’” “‘pronounc ed,’ ” or “‘ exaggera ted’ ” as oppos ed to “‘slight, ’” “‘minim um,’” or “‘su btle’” ); Ne al v. C om mo nw ealth , 498 S. E.2d 422, 425 (Va. Ct. App. 1998)(“An isol ated ins tance of mild weav ing within a lane is not suffici ently erratic to justify an investi gatory stop [of an autom obile]. Th e test is one of reasonab leness under ‘the totalit y of circumstances.’”).

6 Judge Smit

h fil ed a di ssent

ing opi nion.
-18- Statev. Smith , 21 S.W.3d 251, 258 ( Tenn. Crim. App. 199 9); see also State v. Don Palmer Black , No. 03C01-9812-CR-00424, 1999 WL 1273510, at *5 (Tenn . Crim. App. at Knoxville, December 29, 1999). 5

In Bi nette , 33 S.W.3d at 218 & 218 n. 2, the supreme court distinguished several

cases in which the “police observed the defendant we ave in a pronounced manner to the outside and inside boundaries of the lane.” In particular, we note that the cour t distinguis hed the c aseof State

v. Tompkins , 507 N.W.2d 736, 737 & 740 (Iowa Ct. App. 1 993), in which the Iowa court found

reasona ble suspicion of

a defendant’s intoxication when the police officer followed the defendant’s automobile

for one mile and, during this distance, observed the defenda nt’s car weave

in its own lane of traffic between the center line a nd the right side boundary line four or five times. We have difficul ty distinguishing Tompkins from the instant case. Neverth eless, two members of the panel of judges r eviewing the instant case, including both the author of this opinion and Judge Smith, participated

in State v. G uy Bine tte , No. 03C01 -9802-CR- 00075, 199 9 WL 42760 6 (Tenn. Crim. App. at Knoxville, June 28, 1999), reversed by Binette , 33 S.W.3d at 220. 6 Recollecting the videotape of Binette ’s traff ic stop, we

must conc lude that

the appe llant’s ve hic le in this case was weaving in neither a pronounced nor exagge rated manner.

That having been said, the supreme court in Binette
, 33 S.W.3d at 219 , cautionedthat “[ t]he number of times that a vehicle touches the center line or dr ifts within . . . a l ane is no t dispositive . . . . Rather, . . . a court must consider thetotality of the circumstances in determining whether reasonable suspicion was present at the time a stop was initiated.” See gene rally Cortez , 449 U.S. at 417-418, 101 S. Ct. at 695. The totality of circumstances “includes, but is not limited to, objective observations, information obtained from other police officers or agencies, information obtained from

citizens, and the rational inferences and de ductions that a trained police officer may dr aw from the facts and circumstances.” State v. Harper , 31 S.W.3d 267, 271 (Tenn. Crim. App

. 2000); see also State v. Simpson , 968 S.W.2d 776, 783 (Tenn. 1998).-19- Viewing the totality of circumstanc es in this case, we note that, in contrast to the defendant in Binette , 33 S .W .3d at 219 , the appe llant did not succes sfully ne gotiate in tersec tions, stop lights, and winding roads immediately prior to Kohl’s traffic stop of his vehicle. Rather, he was traveling on an interstate highway and was confr on ted with on

ly occas ional and

gradual curves. Moreover, in co ntrast to Binette
, id. at 218, there was considerable traffic on the highway, heightening the potentialdanger to other motorists. Certainl

y, an off icer is not required to postpone
an investigative seizure until a motorist has a wreck. Cf. Ervin , 268 S.W.2d at 353. As noted by the United States Supreme Court in Terry , 392 U.S. at 20-21, 88 S. Ct. at 1879 (quoting Camara v. Municipal Court , 387 U.S. 523, 534-535 & 536-537, 87 S. Ct. 1727, 1735 (1967)), when assessing the reasona

bleness of an inve stigatory seizure , “it is nec essary ‘ first tofocus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen, ’ for the

re is ‘no ready test for determining reasonableness other than by balanc ing the need to . . . seize . . . against the invasion which the . . . seizure .

. . entails.’” See also Pulley , 863 S.W.2d at 33 (obs erving th at “the g ravity of the perc eived ha

rm is a crucial element in assessing the

reasona bleness of an investigative Terry stop”). N everthe less, even when viewed in the context of the totality of circumstances, the weaving of the appellant’s vehicle in t his ca se was sim

ply insufficient

to justify Kohl’s stop of the appellant’s vehicle based upon a reasonable suspicion of the appellant’s intoxication.

Underscoring our conc lusion, we also reje

ct any conte nti on that the officer’s suspicion that the appellant was falling asleep afforded her a n independent

basis for the seizure. In Mincey v. Arizona , 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978)(quoting Wayne v. United States , 318 F.2d 205, 21 2 (D.C. Cir . 1963)), the Supre me Court obse

rved, “‘ The nee d to protect or preserve life or avoid s erious in

jury is just

ificatio n for wha

t would be

otherwis e illegal

abse nt a n exigency or emergency.’” Correspondingly, the Court has noted:

Because of the extensive regulation of motor vehicles and traffic, and also b ecause of the frequency with which a vehicle can be com e disabled or involved in an accident on public highways, the extent of police-citizencontact

involving a

utomobiles

will be sub stantiall

y gre ater than polic e-citiz en conta ct in a hom

e or off ice. Some

suc h contacts will occur because the office r may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police of

ficers . . . frequ ently inve stigate ve hicle ac cidents in which there is no claim of criminal liability and engage in what, for want of a bett erterm, may be described as community caretaking function s, t otally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Cady v. Dombrowki , 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973). Whether relying upon a theory of exigency, a “community caretaking functions” doctrine, or both, several courts have acknowledged

that probable cause to believe or reasonable suspicion

of criminal a ctivity

may not be a necessary prerequisite to an office r’s investigative stop of an automobile or other seizure. See, e.g. , United States v. Gregory , 79 F.3d 973, 978 (10 th Cir. 1996) ; Russoli v. Salisbur y Township , 126 F. Supp.2d 821, 846- 848 (E.D. Penn. 2000 ); State v. Fie ld , 847 P.2d 1280, 1283-1284 (Kan. 1993); Rowe v. State , 769 A.2d 8 79, 890-8 91 (Md. Ct. App. 2001 ); State v. Pinkham , 565 A.2d 318, 3197 In State v . Jennifer Gale McC lure , No. W2000-01822-CCA-R3-CD, 2001 WL 720649, at *10 n. 2 (Tenn.

Cr i m. App. at Jackson, June 27 , 2001), we ack now ledged that, outside the context of an offi c er’s p rob able c ause to beli eve or reasonable suspicion of crim inal ac ti vity, whether an int rusion upon an indivi dual’s pri vacy or personal

secu rity is complet ely pret extual may indeed be re levan t. Cf. a lso Edmond , 531 U.S. a t 45-46, 121 S. Ct . at 456-457. That said, we emph asize that we ar e ref erri ng here t o Kohl’s beli ef that t he appel lant

was intoxicated and not to t he app ellant’s con tention that K ohl’ s traffic sto p of his au tom obile wa s othe rwise prete xtua l.

8 So me cou rts have dist inguished for a nalytical purpose s bet ween the “ scope” of an i nvest igative de tention and the “durat

ion” of an inve sti gati ve det enti on, the former ter m evident ly re ferr ing exc lusi vely t o the i nvest igative met hods employed by p olice d urin g the deten tion. See, e.g. , Un ited Sta tes v. P urce ll , 236 F. 3d 1274, 1277- 1280 (11 thCir. 2001). W hile purely a matte r of semanti cs, we fi nd it more useful to consi der both the durat ion of the t

raffic sto p an d th e inves ti gati ve methods empl oyed by poli ce duri ng the s top t o be int erre lat ed face ts of the dete nti on’s s cope. Concededl y, the Supreme Court has indicated that, “if an i nvesti gative s top continues indefi nitel y, ats ome point it can no l onger be just ifi ed as an i nvest igative s top, ” regar dles s of t he eff ici ency of i nvest igative met hods employed by the police. Sharpe
, 470 U.S. at 685, 105 S. Ct . at 1575. Conver sel y, s ome courts have sugge ste d that cert ain pol ice inves ti gati ve methods may viola te con stitution al pro scriptio ns reg ardle ss of th eir impactupon the dur ation of the traffic sto p. Cf. United Stat es

v. Ho lt , 264 F. 3d 1215, 1228- 1229 (10 thCir. 2001)(en banc ), and United Stat es v. Shabazz , 993 F.2d 43 1, 436 (5 thCir. (con tinue d...)
-20- (Me. 1989); Barrett

v

. Commonwea

lth , 462 S.E.2d 109, 111-112 (Va. 1995). However, as noted previously, the appe

llant’ s dri ving in this case did not constitute an imminent threat of injury or death to himself or others, and Kohl herself conceded that her stop of the appellant’s automobile was not“divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Dombrowki , 413 U.S. at 441, 93 S. Ct. at 2528

. 7

iii. Assuming in anticipation of further appe llate proceedings that the traffic stop of the appellant’s vehicle

was lawf ul at its inc eption, a

n investig ative de

tention ma

y violate the Fourth Amendment

to the United States Constitution and Article I, Section 7 of the Tennessee Constitution “by virtue of its intolerable intensity and scope.” Terry , 392 U.S. at 18-20, 88 S. Ct. at1878-1879;

see also Simpson , 968 S.W.2d at 783. In other words, the officer’s interfe rence with a person ’s constituti onallyprotected liber ty interests must be both justified at its ince

ption and r

easonab ly related in scope to those circumstances justifying the interference. Terry , 392 U.S. a t 19-20, 88 S. Ct. at 1879. With respect to the lawful scope of an investigative detention, a plura lity of the United States Supreme Court has elaborated that

an investiga

tive dete ntion must

be tempor

ary and l ast

no longer than is necessary to effectuate the pur pose of the stop. Similarly, t h e investigative methods employed should be the least intrusive means

reasona bly available to verify or dispel the of f icer’s suspicion in a short period of time. Floridav. Royer , 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-1326 (1983); see also Sharpe , 470 U.S. at 686, 105 S. Ct. at 1575 (observing that, when assessing whether a detention is too long to be justified as an investigative stop , the proper inquiry is whether the police “diligently pursued a means of investiga tion that w as likely t

o confirm or dispel their susp icions qui ckly, dur

ing which time it

was necessary to detain the defendant”); Simpson , 968 S.W.2d at 783 (citing Sharpe , 470 U.S. at 686, 105 S. Ct. at 1575). 8 The reasonableness of the scope of a traffic stop, like the reasona bleness8 (.. .continued)

1993). Gen erally , how eve r, the re ason ablen ess of a traffic sto p’s d uratio n w ill be judged b y refe rence to t he police inves ti gati ve meth ods oc casioning that duration , and the re asona bleness of pol ice inves ti gati ve methods wi ll be judged, at l east in part, by ref

erence to t

he ti me requir ed for thei r complet ion.

-21- of its justification, will be measured in objective terms without regard to the subjective intentions of the officer. Robinette , 519 U.S. at 38, 117 S. Ct. at 420-421.

In this case, the appellant contends that Kohl’s inquiries concerning the appellant’s destination, the ownership of his vehicle, his occupation, and his record of tra ffic violations and arrestswere unrelated to the justification for or purpose of the traffic stop, i.e., ascertaining whether the appellant was intoxicated or falling asleep at the wh eel. Similarl y, he contends that Kohl’s subsequent

radio call to Officer Hunter reque sting the presence of a drug-detection dog at thescene of the traffic stop and her preparation of a Spanish “Consent to Search” form exceeded the lawful scope of the traffic stop

. Finally, the appell ant conte nds that Ko

hl’s req uest to se arch hisvehicle additionally and unreasonably expanded his detention beyond its lawful scope.

Th e State responds that Kohl’s in itial ques tioning of

the appe llant wasconsiste

nt with the purpose of

the traffic stop, and the appellant’s responses contributed to the office r’s rea sonable suspicion that the appellant was transporting illegal drugs. Kohl’s reasonable suspicion, in turn, justified any additional detention of the appellant occasioned by the officer’sradio call to Hunter and h er prepar ation of a Spanish “C onsent to Se arch” f orm. The S tate doe s not addr ess on app eal th e appellant’s complaint

concerning Kohl’s request to search the appe llant’s vehicle; however, in the trial court, the State asserted that the officer’srequest occurred following the conclusi on of the t

raffic stop and during an ensuing consensual encounter.

The trial court concluded that the questions posed by Officer Kohlwere not beyond the scope of the traffic stop. As already indicated by the Court, Officer Kohl had

reasona ble suspicion

to believe that the defendant was intoxicated or

was about to fall asleep at the wheel. She testified that the defendant explainedthat the reason he was tired w as because he had been driving since leaving Los Angeles the p revi ous day (t his is implausibl e in and of itself) a nd had onl

y slept br iefly at a few res t stops. The conver satio n logically continued with a discussion concerning the defendant’s destination and ownersh ip of the vehicle. Officer Kohl’s testimony regarding the qu estions she aske d also indicatedthat she was trying to determine whether the defenda ntwas intoxicated or just tired.

In terms of the additional time it took Offi cer Kohl to fill out a consent to search form and request that a drug detection dog be sent to the location, the Court finds that these actions by the officer were notunreasonable under the state and fede ra l constitutions and were-22- supported by reasonable suspicion that the defenda

nt was en gaged in criminal activity at the time she was filling out the form and making the requ est. The d

efenda nt’s eva siveness

in answering the officer’s questions regarding his destination and the ownership of the vehicle, along with the fac t tha t the vehi cle had C aliforni a licens e plates , created rational infe rences and deductions that the defendant’s ve hicl e
was possibly sto len, or th at he wa s possibly engage d in transporting contraband. . . . While the evasiveness of the defendant’s re s po nses didnot rise to

the level of giving

the offic er proba

ble cause to arre st or search the defendant’s vehicle at that point during the stop, it did give the officer reasonable s uspicio n to detain the defendant long enough to fill out the consent fo rm, reque st the drug detection dog and to ask the defendant for his consent to search the vehicle.

In regard to the additional questioning concerning whether there was contraband

in the vehicle and whether the defendant would c onsent to having the vehicle searched, the Courtfinds that these actions were also based upon reasonable suspicion.

. . . .
As to the detention of the defendant in the case at bar, the C ourt credits Office

r Kohl’s t

estim on y and finds that any extended detention of the defendant after th e initi al stop was based upon

reasona ble suspicion. Even assuming Off icer Ko hl did not have

reasona ble suspicion, the Court would find tha t the “extended” detention in this case w as minuscule and not unreasonable under either the state or federal constitutions . . . .

We first address the legality of Kohl’s inquiries co nc erning the appellant’s destination, the ownership of his vehicle, his occupa tion, and his record of traffic violations and arrests

. Exploring the appropriat e scope of an investigative detention, our supreme court has indicatedthat the police may employ investigative methods unrelated to the purpose of the detention

so long as the investigative methods do not prolong the detention an d do not otherwis e implica te federal or state constitutional pro vision s. See England , 19 S.W.3d at 767-768. That having been said, we note that courts have disagreed about whether a police office r’s questioning of a

motorist

on a subject unrelated to the purpose of a traff ic stop violates the Fourth Amendment even when the questioning does not pro long the initial, valid seizure. Cf., e.g.
, United Sta tes v. Holt , 264 F.3d 1215, 1228-1229 (10 th Cir. 2001), and United States v. Shabazz , 993 F.2d 431, 436 (5 th Cir. 1993). In any eve

nt, Offic er Kohl’ s question ing of the appella nt in this cas e in fact p

rolonged the traf fic stop. Therefore, we must de termine w

hether t he questi oning wasrelated to Kohl’s initial purpo se of ascertaining whether the appellant was intoxicate d or falling asleep.-23- Preliminarily, c ourts hav e held t hat requ ests for d

river’slicense s and veh icle registrationdocument s, inquiries concerning travel p lans and v ehicle o wnership , compute r check s, and the issuance of citations are investigative methods or activities consistent with the lawful scope of any traf fic stop. United Sta

tes v. We st , 219 F.3d 1171, 1176 (10 th Cir. 2000) ; United States v. Hill , 195 F.3d 258, 268 (6 th Cir. 1999) ; United States v. Lyton , 161 F.3d 1168, 1170 (8 th Cir. 1998)

. But see United Sta

tes v. Ga rcia , 205 F.3d 1182, 1187 (9 th Cir. 2000)(holding that officer’s inquiries concerning driver’s travel plans did not exceed the scope of traffic stop when “it was standard procedureto delay drivers for a short period of time to w ait for a

n arres t report,” the conversation didnot cause any additional delay, and the conversation did not alter the subsequent chain of events). However, they have generally done so in the context of

traffic stops base d upon pro

bable ca use to believe that the motorist com mitted a tr

affic vio latio n. In the context of a traffic stop based upon

reasona ble suspicion, at least one court has ruled that the stop must end as soon as the suspicion

is dispelled and may not be

prolonge d even to

perform the limited functions enumerated above. United States v. McSwain , 29 F.3d 558, 561 (10 t h Cir. 19 94). Nevertheless, we conclude that reque sting

a motorist’s identification and engaging him in a brief conversatio n by asking routine questions concerning his destination and purpose and the ownership of his vehicle may bereasonably related to ascertaining the cause of erra tic or irregular driving and determining whether the motorist poses

a danger to others on the road. See, e.g. , United Sta tes v. Barahona , 990 F .2d 412, 416 (8 th Cir. 1993). The difficulty in the instant case lies in Kohl’s concession at the sup

pression hearing that, after disc ussing with the appellant “his length of travel” and observing him retrieve his driver ’ s license, she was satisfied that he was not intoxicated. Moreover, at that point, she had obtained an explanation for the appellant’s weaving. While the appellant’s a dmitted f atig ue justified Kohl’s further inquiry regarding his precise destination in Georgia, Kohl’s subsequent inquiries conc erning the ownership of the vehicle in which the appellant was driving, the appellant’s occupation, and the appellant’s record of traffic violations and arre sts were inconsistent with the original purpose of the traffic stop.

Of

course, “[a]ft er [Kohl] satisfied [herself] that [the a ppellant] was not drunk or otherwis e impaired, [she] [was] justified in continuing to detain [the appellant] if, by then, [she] had

reasona ble and articulable suspicion that [the appellant] was engaged in other criminal ac tivity. ” United States v. E rwin , 155 F.3d 818, 822 (6 th Cir. 1998) ; see also , e.g. , United Sta tes v. Mur

illo , 255 F.3d 1169, 1174 (9 th Cir. 2001). As previously indi cated, a det erminati on of rea sonable suspicion depends upon the totality of circumstances “as understood by those versed

in the field of law enforcement.” Cortez , 449 U.S. a t 418, 101 S. Ct. at 695. Again, the trial court concluded that the appellant’s “evasiveness in answering the office r’s ques tions reg arding hi s destination and the ownersh ip of the vehicle, along with the fact that the vehicle had California license plates,” afforded Kohl a reasonable suspicion that the appellant’s vehicle was stolen or the appellant was tra nsporting contraband. The State additionally notes the appe llant’s vi rtually nonstop journey from California, reflected b y the litter in th

e appell ant’s ve

hicle. Fin ally, the

office r noted the prese

nce of a ir freshener in the appellant’s vehicle.

A motorist’s inability to produce proof of ownership of his vehicle or authorization to operate

the vehic le may just

ify a re asonable

suspicion

of crimin al activi

t y, United St ates v. Hunnicut t , 135 F.3d 1345, 1349 (10 th Cir. 1998), including the transportation of contraband, United-24-

States v. Arango , 912 F.2d 441, 447 (10 th Cir. 1990). Moreo ver, inc onsistencies in information given to an officer during a traffic stop, such as the appe llant’s st atementsconcer

ning the id

entity of the owner of the vehicle that he was driving, may give r ise to rea so nable suspicion of criminal activity. United Sta

tes v. Smith , 263 F.3d 571, 592 (6 th Cir. 2001). However, we reiterate t h at Kohl’s questions concerning the ownership of the vehicle exceeded the la wful scope of the traffic stop.
Turning to the remaining grounds of reasonable suspicion, a motorist’s lack of knowledge concerning his precise destination and a motorist’s out-of-state license pla te will not, wi thout more, s upport an officer’s reasonable suspicion of c riminal activity. United States v. Ramos
, 42 F.3d 1160, 1163 (8 th Cir. 1994). As to Kohl’s observation of a can of air freshe ner in the appellant’s vehicle , we note that she o nly detected a slight odor of the air freshener emanating from the vehicle . Thus, not

withstand ing her kn owledge

of the fr equent u se of air

freshener by drug couriers to mask

the odor of illegal drugs, her observation minimally strengthened her suspicion of criminal activity. Cf., e.g.
, West , 219 F.3d at 117 8; United States v. Patterson , 65 F.3d 68, 71 (7 th Cir. 1995); U nited States v. Rivera , 595 F.2d 1095, 1099 (5 th Cir. 1979). Finally, unusual travel plans may support

an officer’s reasonable suspicion of c riminal activity. Sokolow , 490 U.S. at 9, 109 S. Ct. at 1586-1587. In this case, the appellant’s travel plans included driving virtually nonstop from California to Georgia

in two days. Nevertheless, while acknowledging Office r Kohl’s experience

and specialized training, we must conclude that the totality of

circumstances did not support a reasonable suspicion of criminal activity sufficient to warra ntexpanding the scope of the traffic stop absent the appellant’s responses to Kohl’s questioning concerning the ownership of the vehicle. Cf. Murillo , 255 F.3d at 1174 (evidence of a long r oad trip in a short time frame in a rental

car contributed along with othe r factors to officer’s reasona ble suspicion of drug-related criminal activity), and United States v. Wood
, 106 F.3d 942, 947 (10 th Cir. 1997)(the presence of fast food wrap pers in a vehicle will not otherwise support an officer’s rea sonable suspicion of cri mina l activity). In so concluding, we note the United States Supreme Cou rt’s recent observation that several factors taken

together may form a particularized and objective basis for a Fourth Amendment intrusion even when each individual factor alone is susce ptible to in nocent explanation. United States v . Arvizu , __ U.S. __, __, 122 S. Ct. 744, __ (2002). The factors in this cas e, however , formed no more than an inchoate and unparticular ized hunch of criminal activity.
Accordingly, other than advising the appellant to rest prior to continuing his journey, Kohl was required to terminate the traffic stop following her inq uiries concerning the appellant’s destination. Instead , the dete nti on continued until Kohl’s return to the appellant of his driver’s license and vehic le regist

ration do cument a

nd her iss uance o f a warn ing cit ation , approx

imately thirteen minutes following the traffic stop’s inception. “When a police officer issues a traffic citation

or warning and returns a driver’ s license and registration, a traffic stop ceases to be a seizure for purposes of the Fourth

Amendmen

t to the United States Constitution and Article I, Section 7 of the Tennessee Constitu tion and becomesa consen sual enc ounter un less a dr iver has‘object

ively

reasona ble’ ca use to believe that he or she is not free to leave.” See State v. McCrary
, 45 S.W.3d 36, 42 (Tenn. Crim. App. 2000), perm. to appeal denied , (Tenn. 2001), and cases cited therein. The determination of the point at which the traffic stop ceases to be a seizure is ultimately a question of law. Id. ; see also State v. Daniel , 12 S.W.3d 420, 423-424 (Tenn. 2000)(“[T]he trial court’s9 In this reg ard, w e ack now ledg e that th e State failed to add ress in its b rief the con sti tut ionality of Kohl’s

reques t for

the a ppell ant’ s cons ent, but “thi s Court shoul d be fr ee t o examine the v alidity o f a sear ch [o r othe r Fou rth Am end me nt intru sion] using any app rop riate legal a naly sis wh ere th e reco rd in th e case perm its us to d o so.” State v. James A . Hearn , No. 01C01- 9511-CR-00377, 1997 WL 537089, at *2 (Tenn. Crim. App. at Nas hvil le, Septe mber 2, 1997)(Smit

h, J., con curr ing) ; see also State v. Jose Ro berto Ortiz , No. M1998-00483-CCA-R3-CD, 1999 WL 1295988, at *7 (Tenn. Crim . App. at Nashville, Decem ber 30, 1999 ).
-25- conclusion that a seizure did not occur is a conclusion of law derived from an application of

the law to the undisputed facts of this case.”).

Our conclusi on that the

traffic stop terminated upo n Kohl’s r eturn to the appellant of his driver’s license

and vehic le registra

tion docum

ent and he r issuanc e of a wa

rning cita tion enta ils

our resolution of the appellant’s further complaint that Kohl’s request for his consent to a search of his vehicle likewise exceeded the lawful scope of the traffic stop. 9 In particular, the recordreflec ts that Kohl’s re quest for the appellant’s consent o ccurre d followin g her r eturn to th

e appell ant of his driver’s license and vehicle registration document and her issuance of

a warning citation. Moreover, Kohl informed the appellant that he was free to l eave pr io r to requesting his consent, cf, e.g.
, Immigration

and Naturalization Service v. Delgado , 466 U.S. 210, 216-221, 104 S. Ct. 1758, 1762- 1765 (1984), and neither an officer’srequest for a motorist’s consent to a search of his vehicle nor

an officer’s inquiry

concerning the presence

of weapons or ill egal dru gs in the vehicle, without more, constitutes objectively rea sonable cause to believe that the motorist is no t free to leave. McCrary

, 45 S.W.3d at 43, and cases cited t herein. Final ly, we do not believe that the mere presence of a secondpatrol car transformed the encounter into a seizure, particularly as the appellant was unaware that Kohl had requested the presence of the a dditional officer, and Hunter and Lou rema ined in their patrol car until the a

ppellant consented to a sea

rch of hi s vehicle . Accor dingly, Kohl’s req

uest for the appella

nt’s cons ent to a se arch of his vehic le did

not implica te the Fourth Amendment to the United States Constitution or Article I, Section 7 of the Tennessee Constitution.

iv. Focusing n ext, fo r reaso ns made a pparent later in t his opinion , upon the

consent itself and the consequent search of the appellant’s ve hicle, it is wel l sett led that a search conducted pursuant to a voluntary conse

nt is yet another exception to the requir ement that searches and seizures be co nducted pursuant to a warrant. State v. Bartram , 925 S.W.2d 227, 230 (Tenn. 1996)(citing Schneck lothv. Bustamon

te , 412 U.S. 218, 93 S. Ct. 2041 (1973)). In contrast to the determination of when a seizure has occurred, the determination of whether a con sent to a s earch w as volunta rily givenis a question of fact to be determined from the totality of circumstances. Schn eckloth , 412 U.S. at 227, 248-249, 93 S. Ct. at 204 7-2048, 2 059; Ashworth , 3 S.W.3d at 29. Significantly, the appellant does not dispute the t rial cou rt’s find ing that the appe llant’s c onsent to t

he sear ch of his vehicle was, in fact, “‘unequivocal, specific, intellige ntly given, a

nd uncontaminated by dure ss or coercion,’” Simpson , 968 S.W.2d at 784 (citing State v. Brown , 836 S.W.2d 530, 547 (Tenn. 1992)); Ashworth , 3 S.W.3d at 2 9; see also Schneck loth , 4 12 U.S. at 248- 249, 93 S. Ct. at 2059, and the record does not preponderate otherwise. Rather, as noted e arlier, the appellant asserts that the office rs’ sea rch in thiscase exc eeded th e scope o f his cons ent.-26- Initially, regardless of the precise scope of the ap pellant’s consent, the drug-detection dog Lou signaled to the officers the presence of illega l drugs in the appellant’s vehicle. “A positive indication by a properly-trai ned dog is s u fficient to establish probable cause for the prese nce of a controlled substance.” United States v. Navarro-Camacho , 186 F.3d 701, 706 ( 6th Cir. 1999) ; see also England , 19 S.W.3d a t 768. Moreover, in Carroll , 267 U.S. at 149, 45 S. Ct. at 283-284, the United States Supreme Court held that an officer’s probable ca use to believ e t hat an au

tomobile contains contraband will authorize the warrantless sea rch of the automobile. See also Maryland v. Dyson , 527 U.S. 465, 466-467, 119 S. Ct. 2013, 2014 (1999). Indeed, in Carroll , 267 U.S. at 132, 45 S. Ct. at 280, the Court concluded that probable cause supported the officer s’ search of the defendant’s vehicle despite the officer s’ removal of the upholstering on the seats. In other words, application of the automobile exception to the warrant requirement authorizes even the destructive dismantlementof portio ns of an a uto mobile in which contraband may be secreted. See, e.g. , Californ ia v. Acevedo , 500 U.S. 565, 57 1, 111 S. Ct. 1982, 1987 (1991)(noting the Court’s application of the Carroll

doctrine to “searches of integr al parts of the automobile itself”); see also, e.g. , Patterson , 65 F.3d at 71 (noting that probable cause would authorize dismantling the “interior cover” of a truc

k’s tailga te); United States v. Strickland , 902 F.2d 937, 942 (11 th Cir. 1990)(noting that a searc h based u pon proba ble caus e may inc lude some injury to the vehicle or items within the vehicle if the dama ge is rea sonably

necessary to gain access to a specific location where contraband is likely to be found).

That having been said, a finding of probable cause on the basis of a drug-de tection dog’s indication of the presence of illegal drugs should turn on the reliability of the dog, and the trial court should ensure that the dog is reliable by an appropriate finding of fact. England , 19 S.W.3d at 768. Fact

o rs re levant to a dog’s reliability include the dog’s training, the dog’s “track rec ord,” withemphasis on the amount of fa ls e n egatives and false positives the dog has furnished, and the officer’s training a

nd exper ience w ith this particular dog

. Id. The trial court in this case did not directly addre ss the issue of Lou’s reliability as it did not have the benefit of our supreme court’s decision in England . The cou rt did, neverthel ess, note

Hunter’s testimony concerning both his own certificationas a

traine r of drug-detection dogs and Lou’s training in drug detection. We note , however, that, although Hunter testified that drug-detection dogs are gener ally traine d b y their handler s, he did not e

xplicitly r ecount hi s own training and e xperience with

Lou, nor did he testify concerning Lou’s “track record.” Cf. State v. SelinaG. Harrelson , No. W1999-00521-CCA-R3-CD, 2000 WL 1051854, at *6 (Tenn. Crim. App. at Jackson, July 28, 2000), perm. to appe al denied
, (Tenn. 2001). The Sixth Circuit Court of Appeals has observed:

When the evidence presented, whet her t estimony from the dog’s trainer or records of the dog’s training, establishes that the dog is genera lly certified as a drug detecti on dog, any other evidence, incl uding the testim

ony of othe

r exper ts, that ma

y detract from th e reliabil ity of the dog’s performance properly goes to the “c redibility” of th e dog. La

ck of add itional ev idence, such as do cumenta tio n o f the exact course of training, similarly would affect the dog’s reliability.-27-

United States v. Diaz , 25 F.3d 392, 394 (6 th Ci r. 1994). In any event, we need not evaluate the evidence of Lou’s reliability as we conc lude that , in fact , the off icers did not unlaw fully exceed the scope of the appellant’s consent to search.

The trial court in t his case concluded that the “search c onducted by police did not

exc eedthe consent granted by the defendant.” The sc ope of a party’s consent is measured by a standard of “‘objective’ r

easonab leness - - what would the typ ical rea sonable p erson ha ve under st oo d by the e xchange between the officer a nd the suspect.” Florida v. Jimeno , 500 U.S. 248, 251, 111 S. Ct. 1801, 18 03-1804 ( 1991). “ Objectiv e reaso nablene ss is a question of law that is reviewed de novo.” United States v. Rich , 992 F.2d 502, 505 (5 th Cir. 1993). But cf

. United States v. Martel-Martines , 988 F.2d 855, 858 (8 th Cir. 1993).

The understanding of a “typicalreasona ble person” will generally depend upon the object of the search. Jimeno , 500 U.S. a t 251, 111 S. Ct. at 1804 . Thus, in Jimeno , the United States Supreme Court concluded that, whenan offic er infor ms a motorist th at he is se arching for nar cotics, it is objecti vely rea sonable f or the of ficer to conclude that a general consent to search the motorist’s vehicle includes consent

to search containers within the vehicle that might contain drugs. Id. More importantly, “‘cour

ts have gi ven broa

d scope to

a consen t to a gene

ral sea rch of a vehic le f

or narcoti cs, interpreting the consent to include non-destructive dismantlement of parts of the vehicle, particularlywhen the defendant was present at the time and voiced no objection.’” Statev. Garc ia
, 986 P.2d 491, 493-494 (N.M. App. Ct. 1999); see also United Sta tes v. Zap ata , 180 F.3d 1237, 1243 (11 th Cir. 1999)(holding that a police officer did not exceed the scope of a general consent when he removedan inter

ior door p anel of a

n automobi le with his fingers , disloca ting two pla stic clips ; “a search does not exceed the scope of consent mere ly because an officer for c es open a secured compartment

that rea sonably ma

y contain the objects of the se arch”) ; Un ite d States v. Flores , 63 F .3d 1342, 1362 (5 th Cir. 1995) (holding t hat polic e did not e

xceed sc ope of ge

neral consent b y removing two screws and two vent covers from the interior panels of an automo

bile); United States

v. Torres , 32 F.3d 225, 231-232 (7 th Cir. 1994)(indicating that general consent enco mpassed t h e removal of screws fastening a wooden compartment of a trailer); cf. United States v. Alverez , 235 F.3d 1086, 1088-1089 (8 th Cir. 2000)(general consent to searc h a vehic le likely d

id not encom

pass the cuttin g of the spare tire), and Martel-Martines , 988 F.2d at 858 (holding that the defendant’s failure to object rendered it objectively reasonable for officers to conclude that the his general consent to a search of his truck included consent to punch a

small hole

in a conc ealed c ompartme nt)

.
The record in this case reflects th at the appellant was aware of the object of the offi cer’s search, namely illegal drugs. Moreover, the “Consent to Sear ch” form signed by th e appellant provided , “I . . . g ive my con sent to Agents of the 20 th Judicial D istrict Dr ug Task Force, to conduct a

complete search of my entir

e vehicl e and conte

nts within it.” The search of the officers pursuant to this consent extended to the removal of the screws from the molding covering one of the vehicle’s rocker panels and the molding itself, actions unaccom p anied by any objection from the appellant and constituting “non-destructive dismantlement” of a portion of the vehicle. Indeed, the appellant ha d previo usly stood by silently while the officers engaged in other “non-destructive dismantle ment” of his vehicle. Accordingly, we cannot conclude that the r emoval of the screws and the molding was outside the scope of the appellant’s general consent. Having removed the screws-28-

and molding, the officers could insert a probe into the pre-existing screw holes, thereby discovering the presence of a

forei gn object

inside the

normally hollow roc

ker pane l and, par

ticularl y in combinat i on with the dr

ug-dete ction dog’ s positive indicatio n of the pr esence of illega l drugs, establishing the probable cause necessary to exte nd the search

beyond the scope of the appellant’s consent.

v.

Finally, we address an issuelargely neglect ed by both

parties in this appe al, namely whether the exclusionary rule requires the suppression of the methamphetamine s eized by police in the inst ant cas e. State v. James A. Hearn , No. 01C01-9511-CR-00377, 1997 WL 537089, at *2 (Tenn. Crim. App. at Nashville, Septembe r 2, 1997)( Smith, J., c oncurring); see also State v. Jo se Roberto Ortiz , No. M1998-00483-C CA-R3- CD, 1999 WL 1295988, at *7 (Tenn. Crim. App. at Nashville, December 30, 1999), perm. to appeal denied
, (Tenn. 2000). Although we have concluded that Kohl’s traffic stop of the appellant violated the F ourth A mendment to the United States Constitution and Artic le I, Sec ti on 7 of t he Tenne ssee Cons titution bot h at its inc eption and in its scope, the United States Supreme Court has observed, “The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule wereviolated by the police conduct.” Illinois v. Gates , 462 U.S. 2 13, 223, 10 3 S. Ct. 2317, 2324 (198 3); see also, e.g. , Daniel , 12 S.W.3d at 428.

In Wong Sun v. United States , 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963), the Supreme Court broadly observed that the exclusionary rule operate s to bar the admissibility of evidence obtained both directly and derivatively from an unlawful invasion of an indi vidual’s privacy or personal security. However, theCourt declined to hold that “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to li ght but for the illegal actions of the police.” Id. at 487-488, 417. Instead, the court held that, in determining whether physical or ve rbal evidence is the fruit of a prior illegality, the “apt question . . . is ‘whether, granting establishment of the primary i llegalit

y, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be p urged of the primary taint.’” Id. at 488, 417. Thus, a consent to a search that is preceded by an unlawful seizure may neve rthelessvalidate

the search if the consent is both (1) voluntary, Simpson , 968 S.W.2d at 784; Schneck

loth , 412 U.S. at 248-249, 93 S. Ct. at 2059; and (2) “ sufficie ntly an act of free

will to purge the primary taint of the unlawful invasion,” Wong Sun , 371 U.S. at 486, 83 S. Ct. at 416-417; cf. Brown v. I

llinois , 422 U.S. 5 90, 602, 95 S. Ct. 2254, 2 261 (1975 ); United Sta te s v . Peters , 10 F.3d 1517, 1534 (10 th Cir. 1993) ; see also United States v. Chavez-Villareal , 3 F.3d 124, 127-128 (5 th Cir. 1993) ; United States v. Richardson , 949 F.2d 851, 858 (6 th Cir. 1991). “The first prong focuses on coercion, the second on the causal connection with the constitutional violation.” ChavezVillareal , 3 F.3d at 127.

As previous ly noted, the appellant consented to a search of his vehicle following the conclusion of the un lawful tr affic st op in this c ase. Onc e again, the trial court found and it i s undisputed that the appellant’s consent was voluntary. Of course, du e to its determination that Kohl’s traffic stop of the appellant comported with the Fourth Amendment of the United States-29-

Constitution and Article I, Section 7 of the Tennessee Constitution, the trial court did not ad d ress the issue of atten

uation. Neverthe

less, the issue of a ttenuatio n is one that this court reviews de novo, Statev. Ford , 30 S.W.3d 37 8, 380 (Te nn. Crim. A

pp. 2000) , and the r

ecord be fore thiscourt is adequate for purposes of our review

.

To determine whether the causal connection between an illegal seizure and a consent to search has been broken, a court s hould con sider the following

factor s set forth by the U nited State s Supreme Court in Brown , 422 U.S. a t 603-604, 95 S. Ct. at 2 261-2262 : (1) the tempor a l proximity of the illegal seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpo se and fl agran cy of the of ficial mis conduct. The State carries the burden of establishing sufficient attenuation. Id. at 604, 2262.

We acknowledge that the ap pellant c onsented to a sear

ch of his v ehicle w ithin minutes of the conclusion of the traffic stop in this case. Moreover, any reasonable suspicion ar ising during an unlawful traffic stop will not attenuate the connection between the seizure and a subsequent

consent t o a search. United States v. Ward , 961 F.2d 1526, 1534-1535 (10 th Cir. 1992), overruled on other grounds by United Sta tes v. Littl e , 18 F.3d 1499, 1506 (10 th Cir. 1994) ; cf. United States v. Sprinkle , 106 F.3d 613, 619 (4 th Cir. 1997) ; State v. Robert Lee Mallard , No . M2000- 00351-R3-CD, 2001 W L 178461, at **4-5 (Tenn. Crim. App. at Nashville, February 23, 2001). Conversely, as alre ady noted , Kohl did n ot requir e reaso nable

suspicion of criminal activity in order to request the appe llant’s c onsent to

se arch his vehicle, and Kohl did not use knowledge acquired during the unlawful traffic stop to elicit a consent from the appellant. Cf. United States v. Hearn , 496 F.2d 236, 241-244 (6 th Cir. 1974). In fact, Kohl’s preparation of a Spanish “Consent to Search” form during the appellant’s detention was intended to ensure that any subsequent c on sent w as an independent

act of free will. Correspondingly, although Kohl radioed Officer Hunte r during the appellant’s detention, she did not infor m t he appellant that she had requested Hunter’s a nd Lou’s presence, nor did she ind icate any intention to seek their assistance until and unless the appellant consented to a search of his vehicle. In other words, she did not obtain the appellant’s consent by exploiting the fruit of the unlawful detention. Indeed, examples of circumstances sufficie nt to cre ate
a discontinuity between an illega l traffic s top and a consent to search include the officer ’s communica tion to the driver that he is free to leave prior to reque sting consent to search and he r advice to the driver of his right to refuse consent. United States v. Ramstad , 120 F. Supp.2d 973, 980 (D. Kan. 2000); see also United States v. Fernandez , 18 F.3d 874, 882 (10 th Cir. 1994); United States v. Ramos , 42 F.3d 1160, 1163-1164 (8 th Cir. 1994) ; Bretti v. Wainwr ight , 439 F.2d 1042, 1045-1046 (5 th Cir. 1971). The rec ord in this case reflects both of the above circumstanc es. In particular, we note that, notwithstanding thelanguage barrier between Kohl and the appellant, the appellant emp hasized

at trial th at he unde

rstood tha

t he was f ree to le ave and

that he wa s free to refuse consent to the search. Finally, contrary to the appellant’s asser tions in his brief, we do not believe t hat the official misconduct in this case, i.e., the traffic stop, was either f lagrant or characterized by “a qua

lity of purposefulness.” Brown , 422 U.S. at 605, 95 S. Ct. at 2262.-30- Whether Kohl’s misconduct was flagrant or purposef ul is parti cularly

important

to
our attenua tion anal ysis i n lig ht of the deterrent purposes of the exclusionary rule . As one noted authority has observed, “the underlying purpos e of the ‘ attenua ted connection’ te st

is to mark ‘the pointof diminishing retur ns of the deterrence principle.’” W AYNE R. L A F AVE , 5 S EARCH AND S EIZURE , § 11.4(a), at 235 (3d ed. 1996) . That the impropriety of the seizure in this case was not obvious and that the point of diminishing returns was reache d is appar ent from the trial court’s agreement

with Kohl that the appellant’s driving “was clearly chara cteristic of a

driver w ho was either intoxicated or about to fall asleep at the wheel,” an d is illustra ted by the

legitimate disagre ements between judge s and courts i n Binette , No. 03C01-9802-CR-00075, 1999 WL 427606, at **1-2, and Binette , 33 S.W.3d at 220-222, concerning the degree of we aving within a lane that will support

an officer’s reasonable suspicion of the dr iver’s intoxication. Cf. Chavez-Villareal , 3 F.3d at 128 (“[T]he required indicia of individua

lized sus picion we

re so utterly lacking herein that only suppression will serve the deterrence function of the exclusionary rule.”). Similarly, while the scope of the tra

ffic stop exceed ed its justi fication , the lack of rea sonable s uspicion j ustif yin g the officer’s expansion of that scope was not indisputable, and, the thirteen-minute detention did no t otherwis e amount to an instance of “flagrant” misconduct. Also, we do not believe that Kohl’s status

as a member of the Highway I nterdic tion Unit

alone pr eponder ates aga inst the tr ial cour t’s manif est
accre ditation of her testimony concerning the purpose of the traff ic stop. In this regard, w e emphasize that there is no evidence before this court of the pa ttern of a bus e of authority that

so concerned

Circuit Judge Clay in his concurring opinion in United States v. Freeman
, 209 F.3d 464, 467-472 (6 th Cir. 2000).

In sum, we conclude that the appellant’s consent to the searc h of his vehicle and the office rs’ consequ ent disco very of 4 0.1 poundsof metha mphetamin

e were not the fruit

o f Kohl’s unlawful traffic

stop of the

appella nt. Therefore, we

cannot say that the trial court erred in denying the appella

nt’s motion

to suppre ss withrespect to the methamphetamine seized from the appe llant’s vehicle. We note, however, that the trial court should hav e s uppressed at trial Kohl’s testimony concerning her obse

rvations durin g the unl awful detention and until her return to the appellant of his driver’ s license

and vehic le regist

ration do cume nt and her issuance of a warning citation. Because weare reversing the appellant’s conviction on other grounds and remanding this case for a new trial, the court below should limit Kohl’s testimony accordingly.

B. Testimony by Officer Daniel Rosales The appellant next challenges the trial court’s admission at trial of the testimony of Officer Rosales that criminal organizations dealing in illegal drugs select only tru ste d individua ls to transport their goods and that such organizations calculate the c ouri er’s fee a ccording to the amount of illegal drugs transported. The appellant grounds his complaint upon the following two argumen ts: (1) the State failed to timely notify him of its intention to call Rosales as a wi tness , thereby violating Tenn. R. Crim. P. 12; and (2) Rosal es’ testimony was inadmissib le pursua nt to Tenn. R. Evid. 702 and 403.10 Simil arl y, Rosales lat er t est ifi ed befor e the jury that he had fi rst

spoken wit

h the pr osecut or at most one and one-half or t

wo weeks prior to tr

ial, but he was unsure of t he precise time.
-31- The State responds that “there [was] no prolonged delay between the State’s decision to call[Rosalesas a

witness] and the defendant’s receipt of notifica tion.” Moreover, the State argues that the excl usion of Ro sales’ te stimony wa s not the a ppropria te remedy for any delay as the remedy of a continuance was available to the appellant. Finally, the State assert s that “Of

ficer Ro sales’ testimony substantially assisted the trier of fact in this case in that it estab lished tha t t he car containednearly two million dollars of methamphe tamine, that drug couriers were paid by the amount being transported, and that drug deal e rs did not cavalierly relinquish control of such expensive merchandise.”

i.

The record reflects that the appellant filed a motion fo r discovery on October 19, 1999. Among other items, he requested “[t]he correct names and cur rent addresses of any witness the State inte

nds to use in its case in chief and particularly those whose na mes are not endorsed on the Indictme

nt.” The appella nt cited T enn. Code

Ann. § 40- 17-106 (1 997) in support of

his reque st. The prosecutor fi led a response on Octobe

r 28, 1999 , but did not

name any

additiona

l witnesse s. Rather, he state d, “Def

ense cou nsel may a ssume tha

t any specific request

which is not answe

red is either not discoverable or the information requested is not available .”

On May 8, 2000, one week before the appellant’s trial, the prosecu tor sent to defense counsel a letter

notifying him that, “[a]s I had advised you earlier,” the State would be calling Officer Daniel A. Rosales to testify as an expert witness. The letter arrived in defense counsel’s office on May 9 and contained a brief description of Rosales’ proposed

testimony. On May 10, 2000, def ense counsel filed a motion in

limine asking that the trial court order the prosecutor to refra in at trial from referring to Rosales’ testimony pending a hearing to determine its admissibility.

On May 16, 2000, the second day of the appellant’s trial, the trial court conducted a jury-out hearing to address the admissibility of Rosales’ testimony. During the jury-out hearing, Rosales indi cated th at he had been co ntacted

by a DEA a

gent conc erning th

e appell ant’s ca se approximatelytwo or three weeks prior to trial and had first spoken with the prosecutor approximatelyone andone-half weeks prior to tr ial. 10 Moreover, Rosales communicated to the trial court the substanc e of his pr

oposed te stimony. In

addition to

the testimony summariz ed earl ier in this opinion, Ro sa les indi cated that he would testify that he had never encounte red a drug courier who was unaware that he was transporting contra band.

The parties’ argumen

ts befor e the tria l court we

re substa ntially si milar to their positions in this app eal. We addit ionally no te defe

nse coun sel’s ex

planatio n to the trial

court fo r his failure to request a continuance due to the timing of the State’s notice concer ning Rosa les’-32-

testimony. Specifically, defense counsel asserted, “My c lient has been sitting in jail since May 9 th

. His family flew in from Los Angeles.”

The trial court concluded that defense counsel had wa ived any objection to the timing of the State’s notice by proceeding to trial without requesting a continuance. Moreover, the court ruled that Rosales could testify as an expe rt in t he field of “drug operations, modus operandi,” observing, [T]he main issue is . . . is the probative value [of Rosales’ testimony]

outweighedby the prejudicial effec t to Mr. Ga rcia? A nd, I think

to
some degree it is; that is, to the issues about . . . Officer Rosales’s . .

. the proffered testimony of Officer Rosales ga ve about he’s never interviewed

anyone that did not know that they were transporting drugs, crossesthe li ne in t erms of becoming speculative in the Court’s opinion.

But I do think his proffer concerning the drug organiza tions, the hierarchy of d rug organizations, mules, transporters, whatever you want to call them, the fact that they’re trusted and paid for transportation - - for transporting illegal substances, and the reasons why h e would think that t hey would

know are

areas t hat would substantia lly assist this jury in de

termining an issue in this case; that, is, did Mr. Ga

rcia kno wingly pos s es s this? Now , [Rosale s has] alre ady said, and General Zimmermann said, that he does not have any information about Mr. Gar[ci ]a in particular; but, that in and of itself does not make it inadmissible. I mean, he can in general . .

. as I’ve stat ed, describe the reasons why a transporte r would know without. . . eliciting - - the State el iciting through him that no one he’s ever interviewed did not know. I mean, I think the areas about the value of the substance . . . and, it goes to the weight in t erms of whether that’s Ho us ton or LA o

r Nashville or Geo

rgia. Uh - - but, the value - - uh - - a s I’ve a lready s tated, the hiera

rchy, in g eneral , and using peop le that the

y trust . . . and getting paid . . . and, that - - that general testimony about what a mule does [are admissible].

ii. We first address the appellant’s complaint concerning the timingof the State’s notice to defense counsel that Rosales would testify at the appellant’s trial. The appellant apparently relies wholly upo n Tenn. R. Crim. P. 12( d), whic h provide s:

Notice by the State of Intention to Use Evidence:-33- (1) At the Discretion of the S tate. - At the arraignment or as soon thereafter as is pra cticable , the state

may give n otice to

the defendant of its intention to use specified evidenceat trial in order to afford the defendant an oppor tunity to ra

ise objectio ns to such evid ence pr ior to trial under subdivision (b)(3) of this rule. (2) At the Req

uest of the Defe

ndant. - At the arraignment or as soon thereafter as is practicable, the defendant may, in or der to afford an opportuni ty to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the state’s intention to use . . . an y evidence which the defendant may be entitled to discover under Rule 16 . . . . No twithstanding the appellant’s reliance upon the above rule, w e note our supreme co urt’ s observation in State v. Cook , 9 S.W.3d 98, 101 (Tenn. 1999)(quoting United Sta tes v. Bar letta , 644 F.2d 50, 54 (1 s t Cir. 1 981)), that “‘[a]t least as used in 12(b), . . . [m]otions to suppress ar e . . . “objections to evidence on the ground that it was illegally obtained”, including “evidence obta ined

as a result of an illegal search” a nd “other forms of illegality such as the use of unconstitutional

means to obtain a confession.”’” Accord ingly, bec ause Rosa

les’ test imony did no t c omprise i llegally obtained evidenc e, Tenn. R. Crim. P. 12 (d) is irrelevant to the resolution of this issue. Moreover, assumi ng the applica bility of Tenn. R. Crim. P. 12(d), Tenn. R. Crim. P. 16 does not authorize pretrial discovery of

the names and addresses of State’s witnesses. State v. H arris , 839 S.W.2d 54, 69 (Tenn. 19 92); State v. Ma rtin , 634 S.W.2 d 639, 643 (Tenn. Crim. App. 198 2); State v. Ji m m y Clyde Jones , No. 02C01-9703-CC-00120, 1997 WL 777077, at *8 (Tenn. Crim. App. at Jackson, December 18, 1997).

Rather, the pertinent authority is Tenn. Code Ann. § 40-17-106, which statute the appellant relied upon in the trial court but largely and inexplica bl y ignores on appeal, thereby waiving any reli ance the reon. Te nn. R. App. P. 27(a)(7); Tenn. Ct. of Crim. App. Rule 10(b). Notwithstanding waiver, the appellant is not entitled to relief under Tenn. Code Ann. § 40-17-106. That statute provides that “[i]t is the duty of the district attorney general to endorse on e ach indictmen t or pres entment, at the ter m at which

the same is found, the names of such witnesses as the district attorney general intends shall be summoned in the cause.” Id. The statute is directory rather than mandatory and does not nece ssarily disqualify from testifying a witness whose name has been omitted fr

om the indi ctment. Harris , 839 S.W.2d at 69. Rather, our supreme court has indicatedthat

a defendant is not

entitled t o relief absent a showing of prejudice, bad fa ith, or undue advantage. Id. ; see als o State v. Al len , 976 S.W.2 d 661, 667 (Tenn. Crim. App. 199 7); State v. Kendricks , 947 S.W.2d 875, 883 (Tenn. Cr im. App. 19 96); State v. Joel Guilds , No. 01C01-9804- CC-00182, 1999 WL 33 3368, at * 3 (Tenn. Crim. App. at Nashvill e, May 27, 19 99). Spec ifically withrespect to prejudice, “‘it is not the prejudice which re sulted fromthe witness’ testimony but the pre judice which resulted from the defendant’s lack of notice which is relevant.’” Kend ricks , 94 7 S.W.2d at 883. The deter mination of

whether a witnessomitted fromthe indictment should testify lies within the sound discretion of the trial court. Allen , 976 S.W.2 d at 667; Kendricks , 947 S.W.2d at 883.-34- We cannot conclude that the trialcourt abused its discretion in the instant case. As noted by the State, the appellant was aware for at least six days prior to trial that Rosales intended to testify. Moreover, nothing in the record disputes the prosecu tor’s referenc e in his May 4, 1999 letter to a prior discussion with defense counsel concerningRosales’ testimony. Significantly, the appellant has failed to state what more he cou ld or would have done if he had been provided Rosales’ name at an earlier date, and he there fore demonstrates neither any prejudice suff ered by himself nor any undue advantage enjoyed by the State. See, e.g. , State v. Hutchison , 898 S.W.2d 161, 170-171 (Tenn. 199 4). We a lso agre e with the

State that the a

ppellant ’s failur

e to requ est a continuance must be we

ighed in th

e balanc e agains t the exc lusion of Ro sales’ testimony. See, e.g. , Allen , 976 S.W.2d at 667. In this regard, we disag ree with the appellant that “it is beyond belief” that the prosecutor did not decideto use Rosales’ testimony well before issuing the appellant notice. Boththe trial cou rt and the parties r emarke d upon the

unusual na

ture of Ro sales’ te stimony. It is certain ly possible that the idea to call Rosales as a witness was the result of brainstorming occurring in the final weeks prior

to trial and required

some degr

ee of re flection prior to a pproval. In short, the appellant has simply failed to carry his burden of demonstrating his entitlement to relief. In any event, the appellant’s true complaint lies with the content of Rosales’ testimony, an issue we now turn to ad dress.

iii. In State v. Coley , 32 S.W.3d 831, 834 (Tenn. 2000), our supreme court observed that the following principles guide a trial court’s determination of whether t o adm it expert testimony relating to scientific, technical, or other specialized know ledge:

First, the evidence mus t be releva nt to a fact at issue in the case. Tenn. R . Evid. 401, 402. Second, the expert must be qualified by specialized

knowledge, skill, experience, training, or education in the field of exper tise, and the testim

ony in que stion must su

bstantially assist the trier of

fact to understand theevidence or determine a fact in iss ue. Tenn. R. E

vid. 702; [ McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 265 ( Tenn. 199 7)]; State v. Begley , 956 S.W.2d 471, 475 (Tenn. 1997). Finally, when the expert witness offers an opinion

or states an infe rence, the underlying facts or data upon which the expert relied must be trustworthy

. Tenn. R. E vid. 703; McDaniel
, 955 S.W.2d at 265. The admissibility of expert testimony rests within the sound discretion of the trial court. Coley , 32 S .W.2d at 833; see also State v. William R. Stevens , No. M1999-02067-CCA-R3-DD, 2001 W L 579054, at * 15 (Tenn. Crim. App. at Nashville, May 30, 2001).

On appeal, the appe

ll an t challenges neither Rosales’ qualification as an exper t nor the trustwor

thiness of the under lying facts or data upon which he relied. Rather, the appellant simply asserts that Rosal es’ testimony was irrelevant and, rather than substantially assisting the trier of fact to understa

nd the evi dence o

r dete rmine a f

act in issu e, posed

a signific ant dange

r of unfa ir11 Other Tenn essee case s thatare cl osel y anal ogous t o Coley incl ude the foll owing: I n State v. Ballard , 855

S.W.2d 557, 561 -562 (Ten n. 1993), the suprem e court held that expert tes ti mony con cern ing th e pro file of a sexu ally abused child was i nadmissible for the purpose of proving that the vict im had in fact been s exually abused. M ore recent ly, in Stat e v. Sm ith , 42 S. W.3d 101, 110 -11 2 (T enn . Crim . Ap p. 20 00) , perm. to appeal deni ed , (Tenn. 2001 ), this court held t

hat e xpert

tes ti mony concerni ng the general behavi or of ot

her cr iminal suspe cts during quest ioni ng by police had no value in as sess ing the credibil it y of the de fendant ’s s tat ements t o the pol ice. Simil arl y, i n Stevens , No. M1999 -0 206 7- CCA- R3- DD, 2001 WL 579054, at * 20, this court held that the State cou ld not estab lish that the moti ve of the p erpe trator w as “sex ual ass ault b rou ght a bou t by a prec ipitating stressor ” by intr od ucing e xpert tes ti mony comparing the cri me scene at i s s ue t o the “t yp i ca l cr i me scene ” in whi ch “se xual a ssaul t brought about by a

preci pit ati ng stressor” wa s the m otiva tion. See also State v. Ashburn , 914 S.W .2d 1 08, 1 11- 113 (Ten n. Cr im. A pp. 1 995 ). But cf. State v. Willi am Au brey Trotter , No. 01C01- 9701-CR-00019, 1998 WL 75423, at *4 (Tenn. Cri m. App. at Nashvill e, Februar y 24, 1998) , and id. at * 5 (Tipton, J., concurring).
-35- prejudice. For purposes of clarity, we also emphasize that the challenged testimony does not appear to encompass Rosales’ testimony concerning the street value of the methamphetamine, nor would the appellant prevail on that basis. See, e.g. , State v. Matthews , 805 S.W.2d 776, 782 (Tenn. Crim. App. 1990). Instead, the c hallenged testimony comprises Rosales’ testimony concerning the practic es of cr

iminal org anizatio ns dealin g in illega l drugs.

In su pport of his cha

llenge, t he appellant see

ks to anal ogize Ros ales’ te stimony to expert testimony concerning the reliability of eyewitness testimony. Our supreme court addressed the admissibility of the latter in Coley , 32 S.W.3d at 833-8 38. The court concluded that “general and unpartic

ularize d expert

testimony c oncerning the reliability of eyew itness tes timony, whi ch is not speci fic to the

witness whose testimony is in question, does not substantially assist the trier of fact.” Id. at 838. The court b ased its d ecision o n the follo wing rati onales: ( 1) exper t t estimon y concerning eyewitne ss identif ication simply offe

rs gener alities a nd is not specific to t

he witnes s whose testimony is in question; (2) the subject of the reliability of eyewitness identification is within the common understanding of reas onable pe rsons; an d (3) such testimony may mislea

d and con fuse the jury, resulting

in the jury ’s aband

onment of

its respon sibility as fact-f inder and its adoption of the judgment of the expert. Id . at 837-838. 11

We agree wit h the appell ant that our supreme court’s decision in Coley has some bearing upon the instant case. Like the expert testimony at issue in Cole y , R osales’ testimony concerning the care with which organizations dealing in illegal drugs select their dr ug couriers and the method by which the courier’s fee is calculate d was of a general nature a nd was not

specific to this case. Indeed, the connection betwee n the expert testimony and the case at hand is more attenuated

t ha n that in Coley as, even assuming Rosales’ generalizations concer ning criminal

o rganizations can be applied with confidence to any one orga nization, the State did not introduce evidence, nor bring any charges, concerning the appe llant’s participation in su ch an organization. Cf. Statev. Michael F. Marasc iello , No. M1997-00049-CCA-R10-CD, 2000 WL 1130126, at **19- 20 (Tenn. Crim. App. at Nashville, July 28, 2000), perm. to appeal denied , (Tenn. 2000)(publication pending). Accordingly, contrary to t he S tate’s po sition on a

ppeal, w hether s uch orga

nization s would entrust large quantities of illegal drugs to an unwitting courier does not make the appellant’s-36-

knowledge of the methamphetamine any more or

less probable. Tenn. R. Evid. 401. In short, the testimony was irrelevant. Cf. United States v. Cordoba , 104 F.3d 225, 229-230 (9 t h C ir. 1997). Moreover, even assuming the appellant’s participation in a c riminal organization, we are not convinced t hat the jury required the testimony of an expert to conclude that such a n organizat io n would not entrust 1.8 million dollars worth of methamphetamine to an unwitting courier. Finally, notwithstanding the disputed testimony’s lack of probative value and defense counsel’s e fforts on cross-examinationto clarify Rosales’ lack of any knowl edge specifically perta ining to the appe

llant, the testimony created a danger of u nfair prejudice, confusion of the issues, or misleading the jury

as it unavoidably left the jury with the imp ression th at the ap

pellant w as a memb er of a l arge-s cale criminal organization. Tenn. R. Evid. 403.

While we would not characterize the S tat e’s case against the appellant as insubstan tial, the credibility of the appellant or lack thereof was undoubte dly acritical component of the jury’s resolution in favor of th e State. Pa

rticular ly in the c ontext of

Kohl’s ina

dmissible testimony concer

ning the a ppellant ’s sta

temen ts during his illegal detention, we cannot conclude with confidence that the introduction of Rosales’ testimony did not affect the judgment. Tenn. R. Crim. P. 52(a); see also

Tenn. R. App. P. 36(b). Acco rdingly, we must reverse the appellant’s convicti on and re

mand this c ase for

a new tri al.

C. Denial of Motion for Judgment of Acquittal The appellant next asserts that the trial court erred in de nying his motion for judgment of acquittal under Tenn

. R. Crim. P. 29(C). When a trial court is presented with a motion for a judgment of acquittal, the court’s sole concern is the leg al sufficiency , as opposed to the weight, of the evidence. State v. Blanton , 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996); State v. Er ic Terr ell Glover , No. W2000-01278-CCA-R3-CD, 2001 WL 1078279, at *5 (Tenn. Crim. App. at Jackson, September

14, 2 001). Of course, when a motion for judgment of acquittal is a compone nt of a motion for new

trial, Te nn. R. Crim. P. 33(f) a

uthorizes t

he trial c ourt to g

rant a ne w trial if it disagrees with the jury about the weig ht of the evidence. The acc

uracy of a tria l court’s“thirtee

nth juror” determination, however, is not subject to appellate review. State v. Mo ats , 906 S.W.2d 431, 435 (Tenn. 1995). In other wor ds, once the trial court approves the jury ’s verdi ct as the thirteen th juror, appellate review is limited to the legal sufficiency of the evidenc e; th at is, whether any “rational trier of

fact” could have found the essential elements of the offe nse beyo nd a rea sonable doubt. Jackson v . Virginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2 789 (1979 ); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e).

The standard of legal sufficiency is predicated upon the p rinciple that all factual issues raised by the evide nce, in cluding questions concerning the credibility of witnesses and the weight and value to be given the evidence, are r esolved by the trier of fact. Statev. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990). Consequently, on appeal, we afford the State as the pr evailing party the strongest legitimate view of the evidence and all r easonable inferences which may be drawn theref rom. State v. W

illiams , 657 S.W.2d 405, 410 (Tenn. 1983). This standar d appliesto-37-

convictions based upo n d irect evidence, circumstantial evidence, or both. State v. Carruthers , 35 S. W.3d 516, 557 (Tenn. 2000). Thus, as in the case of direct evidenc e, the weight to be given circumstantial evidence and “‘[t]he infere nces to be drawn from such evidence, a nd the ex tent to which the circ umstance s are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958).

The State in this case wa s requir ed to prove bey ond a reasonable doubt that the appellant k nowingly possesse d methamphetamine with intent to deliver and that the methamphetamine weighed one thousand grams or more. Tenn. Code Ann. § 39-17-417(a)(4) and (j)(10)(1997). The leg islature has defin ed the term “de liver” o r “deliv ery ” as “the

actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or notthere is an agency

relationship.” Tenn. Code Ann. § 39-17-402 (6) (1997). Moreover, in State

v. Transou , 928 S.W.2d 949, 955-956 (Tenn. Crim. App. 1996)(citations omitted), this court elaborated upon the meaning of the term “ possession” used in Tenn. Code Ann. § 39-17-417: “The term possession . . . embraces both actual and cons t ructive possession. Before a person c a n be foun d to constr uctively possess
a drug, it must appear that the person has ‘the power and intention at

a give n time to exer

cise domin

ion and co ntrol ove

r . . . [the d

rugs] either directly or throug

h others.’ In othe

r wo rds, ‘constructive possession is the ability to reduce an object to actual possession.’ . .

. See also State v. Ro ss , 49 S.W.3d 833, 845-846 (Tenn. 2001).

The State may prove

a criminal offense by

the use of circumstantial evidence alone. Statev. Tharpe , 726 S.W.2d 896, 899-900 (Tenn.19 87); S tate v. Knight , 969 S.W.2d 939, 941 (Tenn. Crim. App. 1997 ). Howev er, bef ore a jur y ma y c onvict a d

efenda nt of a cr iminal off ense basedupon circumstantial evidence alone, the facts and circumstances “must be so strong and cogent
as to exclude every

oth er reasonable hy

pothesis save the guilt of the defendant, and that bey ond a

reasona ble doubt.” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1 971); see also State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). “In summary , a conviction for a criminaloffense cannot be predi cated so lely

upon conj ecture , guess , specula tion, or a mere pos sibilit

y th at [ the accused] may be

guilty.” Transou , 928 S.W.2d at 955.

Thus, this court has held that the mere presence of an accuse d in an area wh ere dru gs
are discover

ed or mer e asso ciation w it h a perso n who doesin fact c ontrol the drugs o r proper ty where the drug s are discove red is not, alone, sufficient to support a finding that the accused constructively

possesse d the drug s. Id. at 956. However, a defendant’s ownership or control over

a vehicle in which the contraband is secreted will support a finding of constructive possession and, hence, knowing possession. Ross , 49 S.W.3d a t 846; State v. Brown , 915 S.W.2d 3, 7-8 (Tenn. Crim. App. 1995); State v. Johnny Bernard Jones , No. 02C01-9801-CC-00026, 1998 WL 886567, *2 (Tenn. Crim. App. at Jackson, December 21, 1998). Moreover, a defendant’s knowledge of the-38-

drugs may

be infer red fro m the la

rg e q ua nt it y or value of the drugs. See, e .g. , United States v. Ocampo , 937 F.2d 485, 488 (9 th Cir. 1991). Similarly, Tenn. Code Ann. § 39-1 7-419 (1997) provides that “[i]t ma

y be inferred from the

amount of

a contro lled substa

nce or su

bst ances possessed by a

n offend er, alon g with

other relevant facts surrounding the arrest, that the controlled substance . . . w[as] possessed with the purpose of selling or otherwise dispensing.”

Again, the appellant in this case wa s the driver and sole o ccupan

t of a veh icle in which approximately eighteen thousand grams of methamphetamine were secreted. Accord ing to th e appella

nt, a “fr iend” ha d loaned h

im the veh

icle app roximate ly three days prio

r to his arres t because the friend

was going to Mexico on vacation for one month. The appellant acknowledged that he had exclusive possession of thevehicle. He also acknowledged that his friend was awa re of his planned trip to Georgia to visit his cousin and, moreover, knew hi s cousin. However, the appellant denied th at his fri end instr ucted him to take the car

to Georg ia and de

nied any a

warene ss of the drugsin the car . Never theless, during hisconsensu al encou nter with Officer Kohl following the traffic stop, the a

ppellant displaye d nervou sness only when que stioned c oncerning the poss ible presenceof illegal drugs in the vehicle. Additionally, expert testimon y establi shed that , in some markets, the metha

mphetamine found in

the vehic le was worth ap proximate

ly 1.8 millio n dollars

. A reasona ble jury c ould have

concluded that it wa s utterly implausible that a drug smugg ler would entrust the appellant with a vehicle containing 1.8 million dollars worth of methamphetamine for one month without inf

orming the

appella nt of its co ntents and without any instructions concerning the appellant’s use of the vehicle, in the vague hope that the appellant would either successfully conve y the drugs to the appropr

iate des tination or

otherwis e hold the

drugs in safety until the owner’s return. This issue

is without me

rit.

D. Jury Inst ructions Finally, the appellant

complains concerning the trial court’s rejection of his proposed jury instruction on the lesser-included offense of criminal re sponsibility for facilitation of a felony and his propos ed instr

uction tha

t a defe ndant’s mere association with a person who does in fact control the drugs or property where the drug s are discovered is insufficient to establish the defend a nt’s constructive posse ssion of the drug s. With respect to the facilitation instruction, the appellant asserts that, pursuant to State v. Burns , 6 S.W.3d 453, 467 (Tenn

. 1999) , facilit ation is “clearly” a lesser-included offense of the charged offense, and the instruction was wa rranted by the State’s theory at trial that the appellant was a dr ug couri er working on behalf of a criminal organization. With respect to the instruction on “mere association, ” the appellant relies upon Transou , 928 S.W.2d at 956, and asserts that the instruction was warranted in light of undisputed evidence that the appellant did not own the vehicle in which the methamphetamine was discovered.

The State responds that the trial court properly refused to instruct the jury on facilitation because , “[t]o b e guilty of facilitation, the defendant would have to know the drugs were in the car. If he knew the drugs wer e in the car and he drove the car , then he transported the drugs and is guilty of the charged offense .” As to the

proposed instructi on on mere

associa tion, the St

ate-39-

asserts that the su

bstance of the ins truction w as inher ent in the court’sinstructi on on constructive possession.

i.

We agree with the ap

pellant th at facil

i t ation is a lesser-included offense of possession of a controll ed substance with intent to deliver. Burns , 6 S.W.3d a t 467; see also State v. El y , 48 S.W.3d 710, 720 ( Tenn. 200 1)(notin g that, al though defendant

was not sp ecifica

lly char ged with criminal responsibility for the conduct of another, “part (c) of the Burns test expressly states that facilitation of the charged offense is a lesser- included offense of the charged off ense”), cert. denied ,

__U.S. __, 122 S. Ct. 408 (2001). A ccordin gly, the tr

ial cour t was oblig ated toinstruct the jury on facilitation if

there ex isted evidence that reasonable minds could acce pt as to the lesser-included offense and this evidence was legally sufficient to support a conviction of the lesser -included offense. Burns , 6 S.W.3d at 469. Significantly, “[w]hether sufficient evidence supports a conviction of the char ged offe nse does not affe ct the tri al court ’s duty to in struct on the lesse r offen se if evidence also supports a finding of guilt on the lesser offense.” Id. at 472; see also Statev. Bowles , 52 S.W.3d 69, 80 (Tenn. 2001). But cf. Statev. Doney D. Miles , No. W2000-02587-CCA-R3-CD, 2001 WL 1078281, a

t **4-5 (Tenn. Crim. App. at Jackson, September 14, 2001). In determining whether the evidence warranted an instruction on fa cilitation, the court was required to “view the evidence liberally in the light most favorable to the existence of the lesser-included

offense without making any judgments on the credibility of such evidence.” Burns , 6 S.W.3d at 469.

“A person iscriminally respon sible for the fac il itation of a felony if, knowing that another intends to commit a specific felony, but without the intent req u ired for criminal responsibility under Tenn. Code Ann. § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of t he felony.” Tenn. Cod

e Ann. § 39 -11-403 ( a)(1997 ). Thus, facilitation requires the absence of any “intent topromote or assist the commission of the offense, or to bene fit in the proceeds or results of the offense.”Tenn. Code Ann. § 39-11-402(2) (1997).

We must agre e with the

State tha t there isno eviden

ce in the record

that the appellant

was criminally responsible for facilitating the commission of thecharged offense by another. Aga in, the appellant

was charged with possession of methamphetamine with intent to deliver. Arguably,

as the appellant was the driver and sole occupant of the ve hicle transporting the drugs to Georgia, there was no one to whom he could furnish substantial assistance in committing the offense of felony possession of a controlled subs tance. How ever, we note that a person may exer cise constructive possession through another. Transou , 928 S.W.2d at 955-956. At least in the context of

possession of stolen property, we have observed that a pe rson “‘has such constructive possession where the g oods ar e in the possession of someone over whom he has for the time being direction and control, such as his authorized servants or agents, . . . so that the goods will be forthcoming when he orders, and also where by his direction the goods are deposited in a place su bject to his control, or-40- where t hey a re conc ealed on his premis es by othe

rs with his knowledge or consent.’” Sullivan v. State , 513 S.W.2d 152, 154 (Tenn. Crim. App. 1974). Nevertheless, assuming that the owner of the vehicle or someone other than the appellant had constructive possession of the drugs through the appellant, that the appe llant wasaware

of the pe rson’s in tent to deliver the drugs, and that the a ppellant furnishe d substant

ial assist ance in t he commiss ion of the

offense , no reas onable juror could have believed that

the appellant

did not intend “to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense.” Tenn. Code Ann. § 39-11-402(2). Indeed, assuming the appellant’s knowledge of the drugs, the appellant possessed no other reason for using the vehicle in question in order to drive to Georgia other than to assist in the commission of the offense or, at

a minimum, benefit from the “results of the offense” by virtue of a voiding the

use of his own vehicle for the le ngthy trip. Accordingly, no instruction on the lesser-included offense of facilitation was warrante d. See, e.g. , Ely , 48 S.W.3d at 724.

ii. As to the appe

llant’s pr oposed ins truction o n “mere associa tion,” a d efenda nt has a “constitutional rightto a correct and complete charge of the law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a reque sted instruction if it is supported by the evidence, embodies a party's theory, and is a correct statement of the law.” State v. Phipps , 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App. 1994). However, trial courts need not give requested instructions if the substance of the instructions is covered in the general charge. State v. Zi rkle , 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995). We must agree with theState that “the substance of the requested instructi on is inher

ent in the court's instruction that constructive possession requires that the defendant have both the power and intention t

o exercis e contro l over an

object” and in

the court’s instruction on circumstantial evidence. State v. Johnny Way ne Tillery , No. 01C01-9506-CC-00182, 1998 WL 148326, a

t *1 (Tenn . Crim. App. at Nashville, March 30, 1998); State v. Mi lton Jerome Johnson , No. 139, 1991 WL 35752, at *2 (Tenn. Crim. App. at Jackson, March 20, 1991).

III. Conclusion For the foregoingreasons, we reverse the judgment of the trial court and remand this case fo r a new tr ial.

___________________________________ NORMA McGEE OGLE, JUDGE