### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jul y 26, 200 5

STA TE OF TEN NES SEE v. MIC HAE L N . S MITH

Direc t Appeal from the Circ uit Court for Coff ee C ounty No. 33,410F Ge rald L. Ew ell, Sr., Judge

No. M2005- 00173-CCA -R3-C D - F iled Septem ber 23, 2005

The trial c ourt found the defe ndant, Michae l N

. Smit h, g uilty of possession of a contr olled substance with intent to sell or deliver and posse ssion of drug para pherna lia. On appe al, the def endant a rg ues that t h e t ri al co u rt err ed in denying his motion to suppress evidenc e seized as a result of a n investigatory

stop. Following our re view, we aff irm the dec ision of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J.C. M C L IN , J ., delivere d the opinion of the court, in which G AR Y R. W A DE , P.J ., and D AVI D H. W EL L ES , J ., joined.

Cy nth ia M. F ort ( on app e al)
, andGl e n R. F un k ( a t tria l) , N a sh vil le , T e nn e sse e , f or the app e lla nt, Michae l N. Smit h.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; B re nt C. Che rry , As sis ta nt A tto rn e y Ge ne ra l; C. Michae l L ayne, District Attorne y Gene ral; and K enneth J. S helt o n , As s istant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F acts and P roce dural Hi story

At th e s u p p r e s s io n h e ar in g , H ig h w a y Patr o l O f f ic e r Rh e tt Camp b e ll
, te s ti f ie d th a t he was patrolling the westbound lane of I nterstate 24 in Coff ee County

when he observe d the def endant’ s vehicle a lso heading westbound. As Offic er Campbell pulled up beside the de fendant’s vehicle and passed it, he notice d that the window tint on the driver’ s-side windows appe are d darke r than a llowed by statute. Off

icer Campbell also perc eived that the w in d o w t i nt on the front windshield wa s excessive bec ause it extended bey ond the manufa cture r’s fa ctory installed shade ba nd. After1

T en ne ssee C o d e A nn o t ated § 5 5

- 9

- 1 0 7 (a)(1 ) st ates that w i nd o w s o f v eh i cles o p era t ed o n p ub l i c ro ad s i n T en ne ssee m ust have a vi si b l e l i ght t rans m i t t ance o f at l east t hi rt y

- f

i ve p ercent , and wi t h t he excep t i o n of the m a n u fac tur e r’ s st and ard ins ta lled sh a d e b a n d , t h e w ind sh ie ld m u st ha v e a li g h t t ra n sm itt a n c e o f at lea st se v e n ty p e rc e n t.

-2- observin g th ew in d o w ti n ti n g , O f f ic e r Campbell stopped the de fendant’s vehicle be cause he suspec ted the window tint violated Tenne ssee Code A nnotated sec tion 55-9-107(a )(1)

. 1

Offic er Camp bell testified that upon appr oaching the vehicle , he told the def endant that he pulled him over bec ause he thought his “window tint was too dark.” A fter c hecking the def endant’ s driver’ s license and reg istration, Offic er Campbell noticed a presc ription pill bottle in the ashtray and inquired whether it be longe d to the defe ndant. The c onversation quickly turned to drug s; where upon, the de fe nd a nt ad mitte d tha t he ha d use d mariju a na a fe w h ou rs e arl ie r andha d d ru g pa ra ph e rn a lia in his po sse ssi on . A c c or din g to O ff ic e r C a mpb e ll, the de fe nd a nt c on se nte d to a se arc h o f h is v e hic le when Offic er Campbell told the de fendant that he would be lenie nt if the para pherna lia was a ll the defe ndant had in his possession. At this time, the def endant a cted stra ng ely

by shaking his head a nd

sa y ing , “ No . I ’m no t goin g h ome .” Th e de fe nd a nt’ s r e sp on se ma de Of fi c e r C a mpb e ll e xtre me ly nervous so he took the defe ndant’s key s and plac ed them on the roof of the ve hicle for his safety , then asked the defe ndant to be truthful with him. I n response , the def endant a dmitted that he had approximately

ten pounds of marijuana in the toolbox and bed of his vehicle. He aring this, Office r Ca mpb e ll a dv ise d th e de fe nd a nt o f h is Miranda rig hts, placed the defe ndant under arr est, and then

sear ched the vehicle. In sear ching the defendant’s vehicle, Office r C ampbell uncove red w hat turned out to be over nine teen pounds of ma rijuana.

On c r o s s

- e xa

m i natio n, Of

fi c e r C a mpb e ll a dmi tte d th a t he didno t ha ve his “ tin t c ard ” wi th h im on the day

he stopped the de fendant. Offic er Campbell stated that he did not re alize his ti nt car d was missing until after he had stopped the de fendant. Offic er Campbell reiter ated that afte r he a pproac hed the ve hic le the top ic of

c on ve rs a tio n q uic kly

we nt f ro m w ind ow tin t to dr

ug s.

The de fendant testified that Offic er Campbe ll told hi m the rea son his ve hicle was stopped was beca use the window tint appe are d too dark but that was the ex tent of the c onversation. The defe ndant stated that the tint on his vehicle was i nstalled by a re putable business; there fore , he did not believe that hi s w ind ow tin t w a s il le g a l. A c c or din g to the de fe nd a nt, wh e n Of fi c e r Ca mpb e ll qu e sti on e d h im about the p re s cripti on bottle, he told the office r it was a pr escription for penicillin. Furthe r, the defe ndant ac knowledg ed that he told Of fice r Campbell that he had rec ently smoked marijuana

and produce d drug para

pherna lia when a sked if he ha d “any other drug s in the vehicle.” The de fenda nt denied dr opping his he ad and ma king the statement “I ’m not g oing home .”

Th e de fe nd a nt s ta te d th a t O ff ic e r C a mpb e ll t oldhim “ he ha d the ri g ht to se arc h th e ve hic le afte r that point.” Although the defe ndant rec alled that Offic er Campbell told him to be honest and asked w hether he had any other controlled substances in the car , the defe ndant stated that he did not

reme mber Of

fice r C am p b el l ever

say ing, “ I f this is all that is i n here , y ou are g oing home .” The defe ndant admitted that bef ore he was plac ed under

arr est, he told Off

icer Campbell that he had a

bout ten pounds of marijuana in his truck, but he wa s just taking it to be deliver ed somewhe re.-3-

TimothyTurner , the owner of Ex treme Auto Trim, testified that he installed the window tint on th e d e f

e n d a n t’ s tr

u c k

. T u r n e r

r e c a ll e d th a t h e in s ta ll e d a “ me d iu m t in t, ” d ark e n e d a t th irty

- f ive perc ent on the side windows of the defe ndant’s truc k. Turner could not rec all if he installed tint on the front windshield of the defe ndant’s truc k. Turner also testified that he had be en in the window tinting business for twenty -two y ear s and was very familiar with Tenne ssee laws reg arding window tin t. A s T urne r e xpla ine d, tin t f ilm c ome s in de sig nate d p e rc e nta g e s a nde ve ry ve hic le that le a ve s h is shop is alway s below the leg al limit. Turner ac knowledg ed that we ather conditions and the size of the windshield could g ive the appe arance that the tint is too dark or too low.

F oll ow ing the su pp re ssi on he ari ng , th e tr ia l c ou rt fo un d that Of fi c e r Ca mpb e ll h a d p ro ba ble

cause to stop the defendant’s vehicle to de termine whe ther the tint exceeded t h e lawful leve l of intensityon the side windows or the lawful wi d t h at t h e top of the windshield. Subsequently , the defe ndant was c onvicted of posse ssion of a controlled substanc e wi t h i n t ent to sell or deliver and po sse ssi on of

dr ug pa ra ph e rn a lia a ndwa s o rd e re d to se rv e a tot a l e ff e c tiv e se nte nc e of

tw o y e ars

.

II. Ana lys is

On appe al, the def

endant challeng es t he trial court’s denial of hi s motion t o suppress evide nce of marijuana and drug para pherna lia found in his vehicle afte r he was stopped beca use of his window tint. Specifica lly , the def

endant a sserts that the investig atory stop was unre asonable beca use Off icer Ca mpb e ll d id n ot h a ve pr ob able c aus e or re a so na ble su sp ic ion to s top his ve hic le fo r h a vin g ill e g a lly tin te d w ind ow s. Th e de fe nd a nt co nte nd s tha t th e sto p w a s p re te xtua l be c a us e Of fi c e r C a mpb e ll c ou ld

no t ha vere a so na

bly be lie ve d a

tin t of fe ns e oc c ur

re d an d ne ve r at te mpt e d to inve sti g a te thi s o ff e ns e once he stopped the vehic le.

Whe n re vie wi ng the tr ia l c ou rt ’s de c isi on on a mot ion to s up pr e ss, thi s Co urt c on du c ts a de novo revie w of the tria l court’s c onclusions of law an d application of la w to fac ts. See State v. Walton, 41 S .W.3d 75, 81 (Tenn. 2001). How ever , the trial court’ s fi ndings of fac t are presumed

c or re c t un le ss the e vid e nc e c on ta ine d in the re c or d pre po nd e rate s a g a ins t th e m. S e e Sta te v. Danie l, 12 S.W .3d 420, 423 (Tenn. 2000) . “Que stions of credibility of t he witnesses, the weig ht and value of the e vidence , and re solution of conflicts in the evidenc e are matters entrusted to the trial judg e as the trier of fac t.” State v. L awr ence , 154 S.W .3d 71, 75 (Tenn. 2005) (quoting State v. Odom, 928 S.W. 2d 18 , 23 (T e nn . 199 6) ). Mo re ov e r, the pr e vaili ng pa rt y is e nti tle d to the str on g e st l e g iti ma te view of the evidenc e and a ll reasona ble and leg itimate infere nces that maybe dra wn from that evidenc e. State v. Hicks, 55 S.W .3d 515, 521 (Tenn. 2001) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)

.

Both the state and fede ral constitutions protec t individuals from unreasona ble sea rche s and seizures. See U.S. Const. amend. I V; Tenn. Const. art. I , § 7. There fore , a se ar ch or se izure

c on du c te d w ith ou t a

wa rr a nt i s p re su me d u nr e a so na ble a nda ny

e vid e nc e discov e re d s ub je c t to suppression. See Coolidg e v. Ne w Hampshire , 403 U.S. 443, 454-55 (1971); State v. Bridge s, 963 S.W .2d 487, 490 (Tenn. 1997) . Howeve r, the e vidence will not be suppressed if the State prove s that-4-

the war rantless sea

rch or seizure was c onducted pur suant to one of the nar rowly define d exceptions to the war rant re quirement. State v. B inette, 33 S.W.3d 215, 218 (Tenn. 2000).

On e of the se na

rr ow e xce pti on s occ ur s whe n a law e nf or c e me nt of

fi c e r sto ps a n auto mob ile based on pr obable c ause to be lieve that a tr aff ic violation has occurre d. Whren v. United States, 517 U.S. 806, 810 (1996); State v. Viney ard, 958 S.W.2d 730, 734 (T en n

. 1 9 9 7 ). I f the off icer has probable cause to believe that a traff ic violation has occ urre d, any seizure will be upheld even if the stop is a pretext for the off icer ’s subjective motivations in making the stop. See Whren, 517 U.S. at 813-15; Viney ard, 958 S.W .2d at 734-35. Another such exception oc curs when a law enf orce ment office r initiates an investig atory stop based upon specific and articulable fa cts that the def endant ha s

e ith e r c omm itt e d a

c ri min a l of

fe ns e or is abo ut to c omm it a c ri min a l of fe ns e

. Te rry v. Oh io, 39 2 U .S. 1, 2 1 (1 9 6 8); Bine tte, 33 S.W .3d at 218. This narr ow exception has bee n extended to the inv e sti g a tory

sto p o f ve hic le s. Se e Un ite d St a te s v . B ri g no ni- Pon c e , 4 22 U. S. 8 73 , 8 81 (1 97 5) ; State v. Watkins, 827 S .W.2d 293, 294 (Tenn. 1992). In evaluating whe ther the la w enf orce ment office r had re asonable suspicion to justify an investi g atory stop, this Court must consider the totalityof the circ umstances, whic h includes the pe rsonal obser vations and rational infere nces a nd deductions of the traine d law enf

orce ment office r making the stop. See Ter ry , 392 U.S. at 21; Watkins, 827 S.W .2d at 294. Objec tive standards a pply , rathe r than the subjec tive beliefs of the offic er making the stop. State v. Norwor d, 938 S .W .2d 23, 25 (Tenn. Crim. App. 1996)

.

Ou r r e vie w o f the re c or d ind ic a te s that Of fi c e r Ca mpb e ll po sse sse d r e a so na ble su sp ic ionto suspect that the de fendant was eng ag ed in criminal activity . Tenne ss ee C o de Annotate d section 55 -9 -1 07 (a )( 1) state s:

I t is unlawful for a ny

person to oper ate, upon a public highw ay , street

o r r o a d
, a n y mo to r v e h ic le r e g is te r e d in th is s tate , in w h ic h any wi n d o w .

. . h as b ee n al t er ed
, tre a t e d o r r ep l ac ed b y t h e a ff i x i n g,

app lic a tio n o r i ns ta llatio n o f any ma te ri a l w hic h:

(A) H as a visible lig ht transmittance of less than thirty -fi ve per cent (35%) ; or

(B ) W ith the exception of the manufa cture r’s standa rd installed shade band, re duces the visible light transmitt ance in the winds hield below seventy perc ent (70%)

.

The statute expressly

authorizes a “police office r of this state to detain a motor vehicle be ing ope rate d

on the publ ic roads, streets or highw ay s of this state when suc h office r has a rea sonable be lief that the
motor vehicle is in violation of subdi vision (a) (1), for t he purpose of conduc ting a field compa

rison test.” Tenn. Code Ann. § 55-9-107( c). Her e, Of fice r Campbell’s testimony indicates that he stopped the def endant’ s vehicle ba sed upon his observations that the darkly tinted windows of the de fendant’s vehicle violate d a Te nnessee statute. Althoug h Offic er Campbe ll did not realize that he did not have his “ t i n t car d” with him until he stopped the defe ndant, he issued the de fendant a ver bal warning about his tinted windows. I n addition, T imothyTurner testified that he installed a thirty -five pe rce nt-5-

tint on the side windows of the defen d an t ’s v eh i cle, which is the darke st tint allowed by law. Ac c or din g to T urne r, c e rt a in w e a the r c on dit ion s may c a us e the tin t to app e ar da rk e r than it

a c tua lly is, and, depending on windshield siz e, a band of tint may appea r t o extend past the permissible fac tory installed band. Ther efor e, base d upon the t otality of t he circumstance s, it is our view that the of fice r’s stop was not prete x tual but based on reasona ble suspicion that the def

endant violated le g al window tint li mits.

Although not dire ctly addre ssed in the defe ndant’s brief, we also note that Offic er Campbe ll’s investigatory

stop did not ex cee d its scope. A police of fice r’s a ctions after

conduct i ng an inv e sti g a tory

sto p mu st r e a so na

bly re la te to the c ir c ums ta nc e s w hic h ju sti fi e d th e sto p inthe fi rs t pla c e . Se e Te rry , 3 92 U. S. at 20 . T he de te nti on “ mus t be te mpor ary a ndla st n o lo ng e r tha n is

nece ssary to effect u at e the purpose of the stop.” F lorida v. Roy er, 460 U .S. 491, 500 (1983). Mo re ov e r, the of

fi c e r s ho ulde mpl oy

the le a st i ntr

us ive me a ns re a so na

bly a va ila ble to inv e sti g a te his or her suspicions in a short period of time. I d. I n determining the r easona bleness of the detention, the prope r inquiry

is whet h er d u ring the detention, the of fice r dilige ntly

pursued a

means of investigation that was like l y t o co n fi rm or dispel his or her suspicions quickly . United States v. Sharpe, 470 U .S. 675, 686 (1985). “I f th e t i m e, m an n er or scope of the investig ation exceeds the proper parameters,” a constitutionally permissible stop may be tra nsformed into impermissible stop. State v. Tr oxe ll, 78 S.W. 3d86 6, 87 1 ( Te nn . 2 00 2) . H ow e ve r, if the of fi c e r d e ve lop s a

re a so na ble suspicion that the occupant is eng ag ed in othe r criminal activity during a valid stop, furthe r dete ntion is ju s ti f ie d

. St a te v

. B r a n d e n H a n e y a n d L a w r e n c e D a v is
, N o

. E 2 0 0 2

- 0 0 5 5 9

- CC A

- R3

- CD
, 2 0 0 3 WL 22169708, at *5 (Te nn. Crim. App., at Knoxvi lle, Sept. 19, 2003).

Ag ain, the re cord ref

lects that afte r initiating a stop in order to determine if the window tint

on the de fe nd a nt’ s ve hic le wa s ill e g a l, Of fi c e r Ca mpb e ll no tic e d a pr e sc ri pti on pil l bo ttl e in pl ain view, which le d him to ask the defe ndant questions reg arding drug s. During the conve rsation, the defe ndant admitted that he h ad rec ently smoked marijuana

and voluntarily

produce d drug pa r ap h e r n a l i a h e w a s c arr y i n g

. T h e o f f i c e r w a s t h e n j u s t i f

i e d i n d e t a i n i n g t h e d r i v e r fo r t he tim e

rea sonably nece ssary to determine whether the defendant had “any other drugs in the vehicle.” As the conve rsation continue d , the def endant a dmitted he had appr ox imately ten pounds of marijuana in his truck, which g ave the office r probable cause to searc h the def endant’ s truck. Where an off icer has proba ble cause to believe a vehic le contains c ontraba nd and th e m o b ilityof the ve hicle is an exigent cir cumstance , the vehicle may be sea rche d or seized without a war rant. See Carroll v. United States, 267 U.S. 132, 153-56 (1925); State v. L evey e, 796 S.W.2d 948, 950 (Tenn. 1990).

I n addition, Office r Campbell ’s testimony established that the de fendant consented to a sear ch of his vehicle. The trial court’s finding that a search is consensua l will not be overturned unless the evidenc e pre ponderates ag ainst the ruling . Br ady v. State, 584 S.W .2d 245, 252 (Tenn. Crim. App. 1979). The trial judge acc redited Office r C ampbell’s testimony by overr uling the de fendant’s motion to suppress, and no f

acts a re pr esent that indicate the def endant’ s consent wa s not voluntary . The defe ndant’s consent further supports our decision that Offic er Campbe ll’s continued detention of the defe ndant and se arc h of his vehicle w as lawf ul.

III. Conclusi on-6-

F or the se re a so ns , w e c on c lud e that th e tr ia l c ou rt did not e rr

in d e nying the mot ionto

su pp re ss. We the re fo re a ff ir m th e de cis io n of th e tr ia l c ou rt , d e nying the de fe nd a nt’ s mo tio n to suppress.

___________________________________ J .C. McL I N, J UDGE