This appeal results from the trial court’s granting a delayed appeal as post-conviction relief. 1

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 8, 2005 Session

STATE OF TENNESSEE v. MIGUEL GARCIA

 Appeal from the Criminal Court for Hamblen County

No. 02CR192 James E. Beckner, Judge

No. E2004-01698-CCA-R3-CD - Filed March 28, 2005

A Hamblen County Criminal Court Jury convicted the defendant, Miguel Garcia, of possession of

more than three hundred grams of cocaine with the intent to deliver, a Class A felony, and the trial

court sentenced him as a Range I, standard offender to twenty-two years in the Department of

Correction. The defendant appeals, claiming that the trial court erred in denying his motion to

suppress and that his sentence is excessive. We affirm the defendant’s judgment of conviction, but

we modify his sentence under the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct.

2531 (2004), from twenty-two years to twenty years. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part,

Sentence Modified

JOSEPH M. TIPTON,J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J. C.

MCLIN, JJ., joined.

Greg W. Eichelman, District Public Defender, and Ethel P. Rhoades, Assistant Public Defender, for

the appellant, Miguel Garcia.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; C.

Berkeley Bell, Jr., District Attorney General; Jonathan Holcomb, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

A Hamblen County Grand Jury indicted the defendant with the offense of possession of

cocaine with intent to deliver in violation of T.C.A. § 39-17-417(a)(4), (j)(5). At the trial, the jury

found the defendant guilty as charged. On appeal , the defendant claims that the search of his 1

vehicle, which revealed the presence of cocaine, violated his rights guaranteed by the Fourth

Amendment to the United States Constitution and that his sentence is excessive under both state and
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federal law. The state argues that the search of the defendant’s car did not violate his constitutional

rights and that his sentence is proper. 

 

I. MOTION TO SUPPRESS

The defendant contends that because his car was immediately surrounded by law enforcement

officers when he was stopped, no exigent circumstances existed to justify a warrantless search. The

state argues that probable cause existed to believe the defendant was in possession of cocaine and

that exigent circumstances existed to search the car because of its inherent mobility. We agree with

the state. 

At the motion to suppress hearing, Morristown Police Department (MPD) Detective Sergeant

Dan Cox, the head of MPD’s narcotics and vice unit, testified he received a tip from a confidential

informant in December of 2001 that the defendant was trafficking in narcotics. He said that based

upon this tip, officers of his unit set up a surveillance of the defendant. He said the surveillance

corroborated some of the information the informant had given him, namely, the fact that the

defendant was frequently receiving packages from FedEx and UPS, the types of automobiles the

defendant was using, the way the defendant was spending his time during the day, and the people

with whom the defendant was associating. He said that in February 2002, he received information

from law enforcement officers from another state, whom and which he declined to name because of

an ongoing investigation, that the defendant was a narcotics trafficker. He said this information

corroborated the information which he received from the informant and the information gleaned as

a result of the surveillance. 

Detective Cox testified that in March 2002, he received information from another informant

that Greg Sconyers, who owned a house in the Brentwood neighborhood of Morristown, was

trafficking in cocaine and marijuana. He said this information resulted in his unit setting up

surveillance of Mr. Sconyers’ house. He said that on April 22, 2002, individuals with prior drugrelated convictions arrived at the Sconyers’ house. He said that when the first individual, Ralph

Peebles, Jr., left the house in his car, officers from his unit stopped him. He said a resulting search

uncovered the presence of cocaine and marijuana. He said that he immediately began questioning

Mr. Peebles and that Mr. Peebles confessed to buying cocaine from another individual at the

Sconyers’ house. He said that as Mr. Peebles was confessing, the other individual drove by the scene

and that his officers stopped the other individual. He said the resulting search uncovered the amount

of money, $6,000.00, that Mr. Peebles said he paid for the drugs. Detective Cox said he went to Mr.

Sconyers’ house and confronted him with this information. He said Mr. Sconyers agreed to

cooperate with law enforcement by arranging to have the defendant, who was his supplier, deliver

a kilogram of cocaine to his house the next day. Detective Cox testified that he was not present

when Mr. Sconyers called the defendant but that Mr. Sconyers called him immediately after speaking

to the defendant and told him the defendant would arrive at his house in twenty minutes, driving an

extended cab truck. He said Mr. Sconyers told him the defendant would have the kilogram of

cocaine with him.
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Detective Cox testified that approximately twenty minutes later, the defendant approached

Mr. Sconyers’ house in his truck, which matched the description provided by Mr. Sconyers. He said

that his officers had previously set up surveillance of the subdivision and that when he was told the

defendant had arrived, he ordered Officer Richardson to stop the defendant. He said that while

Officer Richardson detained the defendant, another officer walked a drug dog around the car and that

the drug dog alerted to the presence of illegal drugs. He said that Officer Richardson attempted to

obtain the defendant’s consent to search but that the defendant refused. He said that he asked the

defendant for a key to the bed of his truck, that the defendant said he did not have a key, that a search

of the defendant revealed a key, and that his officers searched the truck, revealing the presence of

a kilogram of cocaine. Detective Cox said he used “the dog search as a tool of finding drugs [i]n the

car, not as probable cause to search the car.”

On cross-examination, Detective Cox acknowledged that his officers had the defendant’s

truck blocked. He also acknowledged that Officer Richardson had detained the defendant and that

the defendant was not free to leave. Morristown Police Detectives Tony Richardson and Phil Hurst

also testified but their testimony was merely cumulative to that of Detective Cox. 

The defendant testified that when he arrived at Mr. Sconyers’ house, he was immediately

stopped by law enforcement personnel, one of whom approached his truck with a pistol drawn and

the other with a shotgun. He said that the officers’ cars had him blocked and that he could not have

fled. He said that the officers asked him to consent to a search and that he declined. He said that

an officer ran a drug dog around his truck, that the dog did not alert, and that the officers searched

his truck anyway. After listening to the evidence presented, the trial court denied the defendant’s

motion to suppress finding that probable cause existed to stop and search the defendant’s truck based

upon the automobile exception to the general warrant requirement. 

A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the

evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.

Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the

witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are

matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The application

of the law to the facts as determined by the trial court is a question of law which is reviewed de novo

on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

The Fourth Amendment to the United States Constitution protects against unreasonable

searches and seizures, and “‘article 1, section 7 [of the Tennessee Constitution] is identical in intent

and purpose with the Fourth Amendment.’” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)

(quoting Sneed v. State, 221 Tenn. 6, 13, 423 S.W.2d 857, 860 (1968)). The analysis of any

warrantless search must begin with the proposition that such searches are per se unreasonable under

the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee

Constitution. This principle against warrantless searches is subject only to a few specifically

established and well-delineated exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.

507, 514 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980). Before the fruits
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of a warrantless search are admissible as evidence, the state must establish by a preponderance of

the evidence that the search falls into one of the narrowly drawn exceptions to the warrant

requirement. See State v. Shaw, 603 S.W.2d 741, 742 (Tenn. Crim. App. 1980). For instance, a

warrant is not needed if an officer has probable cause to believe that a vehicle contains contraband

and exigent circumstances require an immediate search. Carroll v. United States, 267 U.S. 132, 155-

56, 45 S. Ct. 280, 286 (1925); accord State v. Leveye, 796 S.W.2d 948 (Tenn. 1990). “Exigent

circumstances exist when a vehicle is moving on a public highway and it is impracticable to obtain

a search warrant but do not exist after the vehicle has completed its journey and is at rest on private

premises.” Id. (quoting Fuqua v. Armour, 543 S.W.2d 64, 66 (Tenn. 1976)); see also Pennsylvania

v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996) (holding that an automobile’s “ready

mobility” is “an exigency sufficient to excuse failure to obtain a search warrant once probable cause

to conduct the search is clear”). To decide whether the search conducted in this case meets this

exception, we must determine whether the arresting officers had probable cause to believe that the

car the defendant was driving contained contraband.

If the information upon which probable cause is based is not of the officers’ personal

knowledge, but is received from an informant, probable cause under our state constitution is

determined by the application of the Aguilar-Spinelli two-pronged test. State v. Jacumin, 778

S.W.2d 430, 431 (Tenn. 1989). The test requires the state to establish a factual basis for the

information provided and the veracity of those supplying the information. Id. The veracity prong

may be satisfied by establishing an informant’s inherent credibility or by establishing the reliability

of the information. Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 588 (1969); Aguilar

v. Texas, 378 U.S. 108, 115, 84 S. Ct. 1509, 1514 (1964). However, any deficiency in the

informant’s information under this two-prong test may be overcome by independent police

corroboration. Jacumin, 778 S.W.2d at 436.

In the present case, we note that Mr. Sconyers was under investigation from members of the

MPD for trafficking in cocaine and marijuana. He told the investigators that the defendant was his

supplier, that he had talked to the defendant about buying a kilogram of cocaine, and that the

defendant was delivering it to his house. This satisfies the basis of knowledge prong. Concerning

the veracity prong, the probable cause to stop and search the defendant’s truck was based not only

upon Mr. Sconyers’ information but also upon the information revealed during the course of the

investigation of the defendant. Additionally, Mr. Sconyers’ information concerning the timing and

method of the defendant’s delivery of cocaine was corroborated before the officers stopped the

defendant’s truck. Under these circumstances, we conclude that probable cause existed to stop and

search the defendant’s truck. The defendant is not entitled to relief on this issue.

II. EXCESSIVE SENTENCE

The defendant contends that his sentence is excessive under state law and the rule announced

in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The state argues that the defendant’s

sentence is proper under state law and that he has waived any Blakely issue. We conclude that the
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trial court’s enhancement of the defendant’s sentence violated his right to trial by jury and

accordingly reduce his sentence to twenty years, the presumptive minimum in the range.

No one testified at the sentencing hearing. After considering the arguments of counsel and

the presentence report, the trial court found that the defendant was a leader in the commission of the

offense, and accordingly, enhanced his sentence from twenty years to twenty-two years. See T.C.A.

§ 40-35-114(3). The trial court found no applicable mitigating factors. Cf. T.C.A. § 40-35-113.

Appellate review of sentencing is de novo on the record with a presumption that the trial

court’s determinations are correct. T.C.A. § 40-35-401(d). As the Sentencing Commission

Comments to this section note, the burden is now on the appealing party to show that the sentencing

is improper. This means that if the trial court followed the statutory sentencing procedure, made

findings of fact that are adequately supported in the record, and gave due consideration and proper

weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,

we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate review, 

the trial court must place on the record its reasons for arriving at the

final sentencing decision, identify the mitigating and enhancement

factors found, state the specific facts supporting each enhancement

factor found, and articulate how the mitigating and enhancement

factors have been evaluated and balanced in determining the sentence.

T.C.A. § 40-35-210(f) (1990). 

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evidence, if any, received at

the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and

arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,

(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on

his own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103,

-210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

The range of punishment for a Range I defendant is fifteen to twenty-five years for a Class

A felony. T.C.A. § 40-35-112(a)(1). Unless there are enhancement factors present, the presumptive

sentence to be imposed is the midpoint in the range for a Class A felony. T.C.A. § 40-35-210(c).

Our sentencing act provides that the trial court is to increase the sentence within the range based on

the existence of enhancement factors and then reduce the sentence as appropriate for any mitigating
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factors. T.C.A. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the trial

court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act

and its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing

Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.

The defendant asserts that the trial court erred by not reducing his sentence to fifteen years,

the minimum in the range. However, he provides no authority for the proposition that the trial court

erred, nor does he state which factor in mitigation the trial court should have applied. The trial

court’s refusal to apply factors in mitigation was not error.

The defendant also asserts that the trial court violated his constitutional right to trial by jury

when it enhanced his sentence based upon its application of enhancement factor (3), which was not

found by a jury beyond a reasonable doubt or admitted by the defendant. Blakely specifies that other

than prior convictions, any facts not reflected in the jury’s verdict or admitted by the defendant used

to increase a defendant’s punishment above the presumptive sentence must be found by the jury, not

the trial court. 542 U.S. at __, 124 S. Ct. at 2537. When the trial court enhanced the defendant’s

sentence by applying factor (3), that the defendant was a leader in the commission of the offense, it

violated his right to trial by jury. We conclude this error was not harmless beyond a reasonable

doubt. See State v. Chester Wayne Walters, No. M2003-03019-CCA-R3CD, White County, slip op.

at 23-25 (Tenn. Crim. App. Nov. 30, 2004). We modify the defendant’s sentence from twenty-two

years to twenty years.

Based on the foregoing and the record as a whole, we affirm the defendant’s conviction but

modify his sentence from twenty-two years to twenty years.

___________________________________ 

JOSEPH M. TIPTON, JUDGE