### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. JA MES A. JACKSON
Direct Appeal from the Circuit Court for Williamson County No. I-498-139-A Donald P. Harris, Judge

01C01-9812-CR-00507

No. M1998-00035-CCA-R3-CD - Decided May 5, 2000

James A. Jackson a

ppeals his conviction by a jury in the Williamson County Circuit Court of one count of possession of three hundred (300) grams or more of cocaine with intent to sell or deliver, a class A felony, one count of possession of one-half (1⁄2) ounce or more of marijuana with intent to sell or deli ver, a class E fe lony, and one coun

t of possession of dr

ug paraphernal

ia, a class A misdemeanor. Pursuant to the app ellant’s convicti

ons, the trial court imposedan effective sentence of twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant presents the following issues for review: (1) whether the trial court erred in overruling the appellant’s pre-trial motion to suppress; (2) whether the trial court erred in denying the appellant’s motion for
a judgment of acquittal at the close of theState’s case and, again, at the conclusion of the trial; and (3) whether the evidenc e adduced at trial supports the jury’s verdicts. Following a review of the record and the p

arties’ briefs,

we reverse the

judgments of the tri

al court. Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed and Dismissed

. O GLE , J., delivered the opinion of the court, in which WADE , P.J., and PEAY , J., joined.
Jerry C. Colley, Columbia, Tennessee, for the appellant, James A. Jackson.

Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General, Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Factual Backgr

ound The appellan t’s convicti ons arose from a traffic stop on December 18, 1997, of a GMC Suburban s port-utili ty vehicle driven by the appellant and f rom the ensuing discovery by police of electronic scales and a subs tantial amount of cocaine and marijuana ins

ide a suitcase locatedin the luggage compartment of the vehicle. On April 13, 1998, a Williamson County Grand Juryindicted the appe

llant along with

the two passengers in the Suburban, Christina L. Howard and Jamarcus L. King, on one count of possession of three hundred grams or more of cocaine with intent to sell or deliver, one count of possession of one-half (1⁄2) ounce or more of marijuana with intent to sell or deliver, an d one count of possession of drug paraphernalia. The three co-defendants were1 The record reflects that, at thetime of the appellant’s sentencing hearing, Ms. Howard had been apprehended by police.

2 The appellant testified at the suppression hearing that the Suburban belongs to his father.

3 While the record ref

lects that the trooper

asked Mr. King about the group’s destination, the record does not ref

lect that he inquired concerning the purpose of the trip or otherwise inquired concerning Mr. King’s grandfather.


### -2- released on bail, whereupon Ms. Howard fled in order to avoid prosecution. 1 Accordingly, the State’s case proceede

d only aga

inst the appellant and Mr. King, who filed a motion to suppress the State’s use of any e

vidence se

ized by the pol ice during the traffic stop of the Suburban. The trial court conducted a suppression hearing on September 8, 1998, and denied th e motion to

suppress on September

28, 1998. The appellant

andMr. King were tried jointly on September 30 and October 1, 1998. The jury

found both the appellant and Mr. King guilty of the charg ed offenses. The trial court, however,

vacated the jury

’s verdicts as to

Mr. King and entered judgments of conviction as to the appellant.

The evi den ce adduced at the suppression hearing and at trial established that, on December

18, 1997, at appro

ximately 10:30 p.m., Michael Sprawling, a trooper with the Tennessee Highway Patrol, was parke

d in his patrol car

to one side of the southbound lanes of Interstate 65 near Franklin, Tennessee and was monitoring traffic by radar . He observed

the app ell ant dri vin g a gr ay, 1985 GMC Suburban sport-utility vehicle 2 at a speed of eighty-five (85) miles per hour in a six tyfive (65) mile

per hour speed zone and, accordingly, activated his blue lights and siren and pursued the appellant. The appellant promptly responded to the trooper’s signal and stopped his vehicle on the shoulder of the road. Troop er Sprawling parked his patrol car behind the Suburban and approached

the vehicle on foot. At this point, the trooper noticed that the appellant was accompanied

by two passengers, a female seated in the front passenger seat and a male seated in the
rear passenger seat. Troo per Sprawling asked the appellant to produce his driver’s license and registrationand, upon receiving these items, instructed the appellant to get out of his vehicle. The appellant complied with Trooper Sprawling’s order and, in response to questioning by the troope r, also explained that he lived in Fort Wayne, Indiana, and was trave ling to Marion, Alabama, nea r Birmingham, to visit his grandfather. He confided that his grandfather was ill. He then identified his female passenger as his girlfriend, C hristina Ho ward, and his male passenger as his cousin, Jamarcus K ing.

Following this brief conversation, Trooper Sprawling instru

cted the appella

nt to sit in the rear passenger seat of his patrol car while he wrote the appellant a c itation for speeding. Once the appellant was seated in the patrol car, however, the trooper again approached the Suburban and spoke with each of

the appellant’s p

assengers indiv

idually, con

firming the pass

engers’ identities and their destination. Trooper Sprawling noted that, while Mr. King accurately identified the group’s destination, he did not mention his ailing grandfather. 34 The appellant explained that he did not mention the substantial amount of cash subsequently foundin his pocket, bec

ause he was distracted by the trooper’s reaction to his confession concerning the presence of a gun inside the Suburban.


### -3-

Trooper Sprawl ing then r eturned to his patrol car and completed the citation for speeding. Thereafter, both Trooper Spra wlin g and the appellant got out of the patrol car, and the appellant signed the citation and accepted a copy. The trooper returned to the appellant

his driver’s license and registration and info rmed t he appellant that he was free to leave. However, as the appellant began to get

back into his vehicle, Trooper Sprawling inquired whether he could ask the appellant a question and further inquired whether the appellant was carrying any

drugs, weapons, or significant amounts of cash inside his vehicle.

The immediately

ensuing events a

re the subject of

disp ute. At t

he suppression hearing and at the appella nt’s tr ial, Troop er Sprawling testified that the appellant initially denied possessing any of the items listed by the trooper. The trooper recalled that he next inquired whether he could search the Suburban. According to Trooper Sprawling, the appellant cons ented to the search and only then admitted that he was carry ing a gun insi de the Suburban. In contrast, the appellant recounted at the suppression hearing and at trial that, when the trooper inquired concerning the presence of any drugs, weapo ns, or significant amo

unts of cash in his ve

hicle, he promptly confessed to the presenc e of the gun. 4 According to the appellant, the tr

ooper did not requ

est permission to search the Suburban. Rather, upon the appellant’s surrender of hi s gun, Trooper Sprawling informed the appellant that he intended to search the Suburban.

In any event,

it is undisputed that the appellant retrieved his gun from underneath the driver’s seat of the Suburban at the officer’s request and simultaneously produced a valid I ndiana gunpermit issued by

the Fort Way

ne Polic e Department. The gun itself contained one loaded ammunition clip. The appella nt also had an extra , albeit empty, clip for the gun and a box of ammunition.

It

is also undisputed th

at, at t his point , Trooper Sprawling again instructed the appellant to sit in the rear passenger seat of his patrol car and then called for back-up assistance from the Franklin Police Department. While awaiting the arrival of assistance, Trooper Sprawling removedthree suit cases from t he luggage compartment of the Suburban. Officer Charles Kirby of the Franklin Police Department arrived at the scene of the traffic stop several minutes later and, at Trooper Sprawling’s direction, searched the suitcases. A search

of two of the suitca

ses revealed on

ly men’s clothing. The thi

rd suitcase conta

ined women’s cloth

ing but also

containedtwo hundred and twenty-two

(222) grams of marijuana, two hundred and ninety-three point seven (293.7) grams of crack cocaine, and twenty-five point three (25.3) grams of powd er cocaine. T he drugs were sealed in plastic bags, which were, in turn, wrapped in a pair of jeans. The parties stipulated at trial that the street value of the cocaine was between thirty and forty -four thousand dollars ($30,000. 00

- $44,000.00) and the st

reet value of the marijuana was between eight hundred and nine hundred dollars ($800.00 - $900.00). Of ficer Kirby als o found a pai r of electron ic scales in the same bag. The appellant denied ownership of the suitcase or knowledge of its contents. Ms . Howard effec tively

### -4-

conceded that the suitcase belong ed to her but stated that she had not packed her bag and was not aware of its con

tents. Following his discovery of t he drugs, Office

r Kirby assi

sted Trooper Spra

wling in further searching the Suburban. They did not locate any additional drugs or other evidence. Trooper Sprawling did testify at the suppression hearing and at trial that, as he was searching the appellant’s vehicle, he smelled a “chemical odor” toward the rear of the vehicle. The trooper asserted that the odor did not resemble the odor of marijuana nor could he otherwise identify the odor. In c

ontrast, Officer Kirby testified that, during the search of the vehicle, he dete cted the od or of “ra w green marijuana” on t he p ass enge r si de o f th e veh icl e. N eit her o ffi cer d ete cte d an y odor indicating that marijuana had been used, i.e., smoked, inside the Suburban.

WhileTrooper Sprawling and Officer Kirby searched the Suburban and the suitcases foundtherein, Office

r Andrew Green

of the Franklin

Police Department searched the occupants of the vehicle for

weapons. A sear

ch of Ms. Howard r

evealed a small

amount of marijuan

a, adequate for personal use, in a

plastic bag. A se

arch of the appe

llant revealed th

ree separate “

bundle s” of money in one of the

appellant’s pockets. One bundle contained one thousand dollars ($1,000.00), the secondbundle c ontained five hundred dollars ($500.00), and the third bundle contained one hu ndredand forty-five dollars ($145.00). Each bundle of money was folded in half and includ e d various currency denominations. According to Officer Green, the appellant initially indicated that the mo ney belo

nged to his gra

ndmother. He then

clarified that th

e money in fa

ct belonged to hi

s mother, but he was taking the money to his grandmother in Alabama. Finally he stated that the money was intended for the payment of his grandfat her’s bills. The appella

nt indicated that h

is grandfather w as dying.

Officer Green noted that

, on one occasion,

the appellant r eferred to the b undle containing one thousand dollars ($1,000) as a “fold” and then appeared to look toward Officer Green
as if he were sea rching for a re action. Off icer Green te stified th at, during t he course of h is trainin g, he had l earned th at “ deal er fo ld” or “f old ” is a te rm c omm onl y use d in the dru g com mun ity. Moreover, Officer Green testified that he had personally heard drug dealers using the term on one
or two occasions. The officer explained that a “dealer fold” generally contains one thousand dollars ($1,000) but can a

lso contain smaller

amounts.

As n oted previous ly, the appellant testified on his own behalf at his trial. The appellant informedthe jury tha

t he was twenty

-three ye ars old and lived w

ith his parents.At the time of the instant offenses, he was employed performing “od

d jobs,” genera

lly amounting

to twenty or twenty-five

hours of work each week. By the time o f his trial, he was

employed by

his father in his father’s lawn care service. The appellant asserted that he did not have a cr iminal record.

With respect to the instant offenses, theappellant confirmed that, on December 18, 1997, he was driving to

Marion, Alabama

, near Birming

ham, to visit

his grandparents. He

explained that, at that time, his grandfather was very ill, and his mother had given him money to take t o his grandfather. The ap pellant denied ever sta ting that he inten

ded to give the mo

ney to his

### -5-

grandmother. He explained that his grandmother resides in a nursing home in Marion, Alabama, and is incapable

of h and lin g mon ey. In any event, the appellant was ca rrying one thousand, six hundred, andforty-five dollars ($1,645.00) in his pocket. He intend ed to gi ve one thousand do llars to his grandfather

and spendthe remaining amount on travel expenses and Christmas presents. According to the appellant, h

e planned to retur

n home to India

na before Christm

as.
Add iti ona lly, the appellant recounted that, on the occasion in question, he had agreed to take his cousin, Jamarcus King, to Alabama to visit their g rand parents. The app ellant had also agreed to drive a friend

, Christina Howard

, to St. Louis, Miss

ouri, followin

g his visit

to his grandparents

in Alabama and on theway home to Indiana. The appellant testified that he had known Ms. Howard

for appro

xi mately one year. He c onceded that he and Ms. Howard had once been intimate but ass ert ed t hat , at the tim e of t he t raff ic s top , th ey w e re merely friends. The appellant explained tha t, dur ing the year preceding the traf fic stop, he had encountered Ms. King approximately

once or twice each month. He denied any knowledg e of the contentsof her suitcase and also denied that she had usedany illegal drugs while inside his vehicle. Finally , the appellant conceded that, when Ms. Howard was released on bail following the instant offenses and sometime after his own release, he and Ms. Howard’s cousin drove to Tennessee in order to pick Ms. Howard up and return her to Indiana. He denied any knowledge of Ms. Howard’s location at the time of trial.

The appellant’s mother, Dorothy Jackson, testified on behalf of the appellant at tria

l. She testified that she

is fifty-fo ur years ol

d and lives in Fort Wa

yne, In diana. At the time o

f the trial, she had worked as a cook for the Fort Wayne State Hospital for thirty -three years. Her husband had workedat the Fort Way

ne Foundry

for thirty-

two years a

nd alsooperated a lawn care service in his spare time. Ms. Jackson confirmed that her mother and father lived in Marion, Alabama. She also confirmed

that, at the time of these offenses, her father was ill, and the family believe d that he was suffering from cancer. She confirmed that, on the occasion in question, she had given a substantial amount of cash to the appellant and had instructed her son to take the money to his grandfather. She explained that m ember s of he r fami ly take turns assis ting h er fat her in paying b ills . In 1997, it was her turn toassist her father in paying taxes and in replacing storm doors and windows on his house. She gave a total amount of one thousand, six hundred, and forty-one dollars ($1,641.00) in ca

sh to her son. According to

Ms. Jackson, the money was folded together, because she customarily folds her money toge

ther “in a certa

in way.” Ms.

Jackson asse

rted th at, to her knowledge, her son had never been invol

ved with illegal d

rugs.
Fin all y, Jamarcus King also testifi ed on his own behal

f at trial. He stated that he was eighteen years old and lived with his mother in Fort Wayne, Indiana. He related to the jury that he has been employ

ed full-time since

leaving high sc

hool following the

tenth grade. At

the time of the traffic stop, he was employed

at a Kentucky Fried

Chicken Restaurant. By the time of his trial, he was employed at a company called Summit Ma nufacturin g.

With respect to the instant offenses, Mr. King confirmed that he agree

d to drive to Alabama with the appellant on December 18, 1997, in order t

o visit their

grandparents , because his grandfather

was ill. Mr. King asserted that he had never met Christina Howa

rd prior to the roa

d trip

### -6-

to Alabama and did not know that she was carry ing drugs in he r suitcase. Like the appellant, he stated that he never observed Ms. Howard smoking marijuana during the road trip.
II. Analysis A. Did the Trial Court Errin Overruling the Appellant’s P

re-Trial Motion t

o Suppress? The appellant initially

challenges the

trial court’s den

ial of his motion to sup

press the State’s use at trial o

f the drugs and

the electronic scales found in Ms. Howard’s suitcase. Citing Stat e v. Morel ock , 851 S.W.2d 838 (Tenn. Crim. App. 1992), the appellant argues that Trooper Sprawling’s questioning of the appellantonce the purpose of the traffic stop had been fulfilled constituted an unlawful seizure under the Fourth Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution. Thus, evenassuming the appellant’s subsequent consent to the search of the Suburban, the discovery by police of dru gs and electronic s cales in Ms. Howard’s suitcase was the fruit of the unlawful detenti on and subject to the exclusionary rule. Moreover, the appellant notes that, absent his consent to the search of the Suburban, the search

was nototherwise justifia

ble as “a search incident to a citation.” Knowles v. Iowa , U.S. , , 119 S.Ct. 484, 488 (1998).

Citing State v. Ro berge , 642 S.W.2d 716 (Tenn. 1982), the St ate responds that the appellant does not have standing to challenge the search by police of Ms. Howard’s suitcase and the consequent

seizure of its

contents. Moreover, the State asserts that, even assuming that the appellant possesses standing to chall enge the sear

ch of Ms. Howard’s suitcase, the appellant consented to the search. Contrary to t

he appellant’s a

rgument, the State maintains that the appellan

t’s detention in this case concluded for purposes of the Fourt h Amendment to the United States Constitution and Article 1, Section 7 of the T

ennessee Constitu

tion when the troop

er issu ed the traff

ic citation, returned to the appellant his driver’s license and registration, and informed the appellant that he was freeto leave. According to the State, the subsequent conversat ion betwe en the trooper and the appellant was a consensual encounter, and the appellant’s further consent to the search of the Suburban, including Ms. How ard’s suitcase,

comported with co

nst it utional standards. T he State does not contest the app

ellant’s asserti

on that, absent the

appellant’s cons

ent, Trooper Sp

rawl ing could not have searched the

Suburban consistent with the United States andTennessee const itutions.

The trial court, at the conclusion of the September 28, 1 998 hearing, int imated his agreement

with the appellant’s proposition that Trooper Sprawling’s questioning of t he appellant following the issuance of thetraffic citation and the return of the appellant’s documents constituted
an unlawful seizure. Nevertheless, the trial court overruled the appellant’s motion to suppress due to his lac k of standing to challenge the

search of Ms. How

ard’s suitcase a

nd the seizure of its contents.

i. Standard of Review

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

rantless searc

h or seizure, this

court is obliged to up hold the tr ial court's findings of fact unless the evidence preponderates otherwise. State v. Keith , 978 S.W.2d 861, 864 (Tenn. 1998); State v. Odom , 928 S.W.2d 18, 23 (Tenn.1996); State v. Ashworth , 3 S.W.3d 25, 29

### -7-

(Tenn.Crim.App. 1999). That having been said, an appellate court’s review of the trial court’s ruling is notlimited to the record of t he suppression he

aring but extends t

o the entire rec

ord of proceedi

ngs. Statev. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). Moreover, this court reviews de novo the trial court’s application of the law to the facts. Keith , 978 S.W.2d at 864.

ii. Standing Again, the State argues, and the trial court ruled, that the appellant ’s lack of any “legitimate

expectation of

privacy” in Ms. Howard’s suitcase, i.e., his l ack of stand ing to chall enge the search of

Ms. Howard’s suitc

ase, preempts the

appellant’s suppr

ession argumen

t. Standing is ultimately

a question of law , s ubject on appeal to de novo review against the backdrop of a trial court’s factual determinations. United States v. Cooper , 133 F.3d 1394, 1398 (11 th Cir. 1998). See also United States v. Gama-Bastidas , 142 F.3d 1233, 1237 (10 th Cir. 1998); United States v. Ibarra , 948 F.2d 903, 905 (5 th Cir. 1991); United States v. Blanco , 844 F.2d344, 349 n. 4 (6 th Cir. 1988); United States v. Kuespert , 773 F.2d 1066, 1067 (9 th Cir. 1985); United States v. Smith , 621 F.2d 483, 489 n. 3 (2 nd Cir. 1980)

. Upon a de novo review, we conclude that the State’s argument and the trial court’s ruling are flawed.

Professor La

Fave noted in his t

reatise on the la

w of search and s

eizure that, in determining in any particular case whether a de fendant has standing to seek exclusion of certain evidence on Fourth Amendment grounds, it is critical that the precise police conduct being objected

to be properly identified, for this may itself turn out to be determinative on the standing issue. Wayne R. LaFave, 5 Search and Seizure , § 11.3, at 119-120 (3d ed. 1996). As previously noted, the precise police conduct ob

jected to by

the appellant is a

pparently ( 1) Trooper Spraw lin g’s quest

ioning of the appellant after the purpose for the traffic stop had been fulfilled and (2) the search

by police of the Suburban. In other words, the relevant question is not whether the appellant possesses standing to challenge the search of Ms. Howard’s suitcase but, i nst ead, whether he possesses standing to challenge his alleged seizure by Trooper Sprawling andwhether he possesses standing to challenge the search of the Suburban. If the appellant possesses standing to challenge the alleged seizure and if he was in fa ct unlawfully seized (issues that are not entirely distinct), the drugs and electronic scales could be su

bject to exclusion un

der th e “fruit

of the poisonous tree” doctrine regardless

of the appellant’ s standing to challenge the search of Ms. Howard’s suitcase. See United States v. Kimball , 25 F.3d 1, 5-6 (1 st Cir. 1994); United States v. Er win , 875 F.2d 268, 269 n.2, 272 (10 th Cir. 1989). Compare United States v. Carter , 14 F.3d 1150, 11 5 4-1155 (6 th Cir. 1994). See generally Segura v. United States , 468 U.S. 796, 804-8 05, 104 S.Ct. 3380, 338

5 (1984); Wong Sun
v. United States , 371 U.S. 471, 484, 83 S.Ct. 407, 415 (1963) ; State v. Patton , 898 S.W.2d 732, 734 (Tenn. Crim. App. 1994); State v. Taylor , No. 02C01-9 501-CR-0002 9, 1996 WL 580997, at *13 (Tenn. Crim. App. at

Jackson, October 1 0, 1996). Similarly , if the appellant

possesses standing

to challenge the search of the Suburban and if the search was in

fact unlawful, the seized contraband could be subject

to exclusion as the fruit thereof. Cf. Alderman v. United States , 394 U.S. 165, 176- 177, 89 S.Ct. 961, 968 -969 (1969)(“[ i]f police make an un

warrant ed searc h of a hous

e and seize tangible property be

longing to third p

arties . . . the home

owner may o

bject to its use a gainst him5 We note that, while the appellant contests the trial court’s den ial of his motion to sup

press, the appellant does not contest the trial court’s narrow conclusion that he lacked a ny le gitimate expectation of privacy in Ms. Howard’s suitcase.


### -8- [regardless of ] any interest in the seized items . . . because they we re the fruits of

an unauthorized search of his house”). Cf. also State v. Webb , 790 P.2d 65, 80-81 (Utah 1990)(“[a] defendant who establishes a

privacy int

erest in the plac

e searched suf

ficient to contest

the legality

of that search, i

n order to suppress evidence seized as a product of it, is not deprived of fourth amendment standing to assert that claim merely because another person ac tua lly o wns the evidentia ry items act

ually seized or the personal effect in which the seized items were found”).

The reliance b y the trial court and the State upon Roberge , 642 S.W.2d at 716, to reach a contrary conclusion

is misplaced. In Roberge , a trooper with the Tennessee Highway Patrol stopped a car in which

the defendant was riding when the trooper obser

ved the car wea

ving across several lanes. Id. at 717, 719. The trooper discovered that both the dri ve r of the car and the d efendant were intoxicated. Id. at 719. According ly, he calle

d for assistance

and additionally arranged for a “local wrecker company” to tow the ca r off the interstate highway. Id. Before allowing the towing compa ny to move th

e car, the trooper conducted a search of the car and discovered

a duff el bag in the trunk. Id. at 719-720. A search of the duffel bag revealed, in turn, seventy-four pounds of peyote c actus buttons containing mescaline. Id. at 717.

In affirming the trial court’s denial of the defendant’s

motion to suppress

the peyote cactus buttons, the suprem e court held that t

he appellant did not have standing to challenge the search of the duffel bag, because he never claimed “any rig ht, title or interest in or to the duffel bag
or its contents.” Id. at 719-720. However, unlike the appellant in the instant case, the defe

ndant in Roberge did not allege that he had been unlawfully seized. Rather, a t trial and on appeal, the defendant only challenged the search of the trunk of the ca r and the search of the duffel bag. Id. at 717-718. Moreover, in affirming the trial court’s ruling in Roberge , the supreme cou rt did not rely solely upon the de fendant’s l ack of stand ing to chall enge the search of the duffel bag but carefully noted that the sea

rch of the trunk of

the car, as to whi

ch the defendan

t did possess standing , was a valid inventory search. Id. at 717-718, 7 19-720. In s hort, the defend ant’s lack of sta

nding to challenge the search of the duffel bag was only dispositive in the con

text of a valid inventory search of the trunk of the defendant’s car. Similarly, in t his case, the app

ellant’s lack of s

tanding to challenge the search of Ms. Howard’s suitca

se 5 is only dispos itiv e if the search itself and the discovery o

f the drugs and e

lectronic scale

s are not the frui

t of a preceding

violation of the Fo

urth Amendment rights

of the appellant.
Thus, we address the appellant’s standing to challenge his alleged detention after the purpose of the traffic stop had been fulfilled and the appellant’s standing to challenge the search of the Suburban. The Fo

urth Amendment to

the United States Constitution provides that “[t]he right of the people

to be secure . . . against unreasonable searches and seizures , shall not be violated . .

. .” Article I, Section 7 of the Tennessee Constitution similarly provides “[t]hat the people shall

be
secure. . . from unreasonable searches and seizures . . . .” In thecontext of these particular6 The Tennessee Supre me Court has noted th

at generally

“‘article I

, section 7 is identic

al in intentan d purpose wi th the Fourth Amendment.’” State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997)(citation omitt e d). We consider the protections of these constitutional provisions to be coextensive for purposes of this opinion.


### -9- constitutional provisions, 6 the so-call ed “standin g” requirement is simply the “rigorous application of the principle that the rights [thereby] secured are personal.” Rakas v. Illino is , 439 U.S. 128, 139, 99 S.Ct. 421, 428 (1978).

[T]he question is whether the challenged se arch or seizure violated t he Fourth Amendment

rights of a crimi

nal defendant wh

o seeks t o exclude the evidence obtained during it. That inquiry in turn requires
a deter mination of whether the disputed search and seizure h a s infringed an int

erest of the defendant which the Fourth Amendment was designed to p

rotect. Id. at 140, 429. In other words, in challenging the lawfulness of a searc h or seizure under either the United States or

Tennessee Constit

ution, a defenda

nt must preliminaril

y establish that the disputed search or seizure intruded upon his own privacy or personal security

. State v. Daniel , No. E1997- 00142-SC-R11CD, 2000 WL 100069, at *2 (Tenn. at Knoxville, January 31, 2000). See also State v. White , 635 S.W.2d 396, 399 (Tenn. Crim. App. 1982).

With respect to the alleged seizure of the appellant by Trooper Sprawling af

ter th e purpose of the initi a l traffic stop had been fulfilled, it is beyond dispute that a criminal defendant may challenge his own seizure. Erwin , 875 F.2d at 270 (citin g United States v. Brignoni-Ponce , 422 U.S. 873, 878, 95 S.Ct. 2574, 2578 (1975)). Moreover, thetrial c ourt in this case su ggested in relianceupon Morelock , 851 S.W.2d at 838, that Trooper Sprawling’s questioning of the appellant following the issuance of th e traffic citat

ion and the return

of the appellant’ s d ocuments was inherently

coercive and, in fact, constituted a seizure. However, the United States Supreme Court has observed that,

notall personal intercourse between policemen and citizens involves “seizures”

of persons. Only

when th e officer, by means of physic al forceor show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred. Terry v. Ohio , 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16 (1968). Similarly, in Ashworth , 3 S.W.3d at 29 (quoting Immigration and Naturalization Service v. Delgado , 466 U.S. 210, 216-217, 104 S.Ct. 1758, 1762-1763 (1984)), this court recently noted that

“police que sti oni ng, b y itself, i s unlikely to r esult in a Fourth Amendment

violation. . . . Unless the circumstances of [an] encounter
are so intimidating as t

o demonstrate that a

reasonable per

son would have believed he was n

ot f ree to leav e if he had not responded, one cannot say that the questioning resulted in a detention under t he Fourth Amendment.” We therefore concluded in Ashworth that, unless a driv

er has objective

ly reasonable ca

use to believe that he is not free to leave, a traffic stop ceases to be a detention a

nd becomes a

consensual encounter

### -10-

when the police officer issues a citation or warning and returns a driver’s license and registration, notwithstanding any additional questions posed by the officer. Id. at 30 (citi ng United States v. Sullivan , 138 F.3d 126, 1 33 (4 th Cir. 1998), and United States v. Anderson , 114 F.3d 1059, 1064 (10 th Cir. 1997)). See also, e. g. , United States v. White , 81 F.3d 775, 778-779 (8 th Cir. 1996); United States v. Werking , 915 F.2d 1404, 1408-1409 (10 th Cir. 1990); United States v. Poulack , 82 F. Supp. 2d 1024, 1030 (D. Neb . 1999); United States v. D’Armond , 80 F. S upp. 2d 115 7, 1164 (D. Kan. 1999); Ferris v. State

, 735 A.2d 491, 499-506 (Md. 1999); Commonwealth v. Hoak , 700 A.2d 1263, 1267 (Pa. Super. Ct. 1996).

According to this analysis and the undisputed facts contained in the record, the appellant was not the subject

of a seizure when Trooper Sprawling inquired concerning the presence of contraband in

the car. Moreov

er, if one accr

edits Trooper Sprawling’s testimony, the appellant
was not the subject of a seizure at the time Trooper Sprawling requested and received the appellant’s consent to search the Suburban. In this regard, the appellant’s cita

tion to Morelock , 851 S.W.2d at 838, and the trial court’s reliance thereupon, is unavailing. It was undisputed in Morelock that, at all times during the encounter betweenthe officer and

the defendant, th

e defendant was the subject of a seizure. On the other hand, if one accredits the appellant’s testimony that he never consented to the search of the Suburban, the State effectively concedes (by the lack of any argument to the
con tra ry) that the search was unlawful. Because the trial court disposed of the appellant’s motion to suppress on the basis of his lack of standing to challenge the search of Ms. Howard’s suitcase, the court failed to ma

ke the necessar

y credibilit

y determina

tions.

With respect to the search of the Suburban, an ind ividual who uses an automobile with the permission of the owner normally does have standing to object to a searc h of the automobile. See, e.g. , United States v. Ga rcia , 897 F. 2d 1413, 1417-1418 (7 th Cir. 1990); United States v. Rubio-Rivera , 917 F.2d1271, 1275 (10 th Cir. 1990); Blanco , 844 F.2d at 349; United States
v. Miller , 821 F.2d 546, 548-549 (11 th Cir. 1987); United States v. Portillo , 633 F.2d 1313, 1317 (9 th Cir. 1980)

. In this case, the record reflects that the Suburban belonged to the appellant’s father, and, at the time of the traffic stop, the appellant was driving to Alabama in accordance with his mother’s instructions to deliver money to her parents.

The record is devoid of testimony concerning whether the appellant’s father granted him permission to

use the car. Moreover, the trial court failed to make any findings of

fact concerning the

appellant’s priv

acy intere st in the Suburban a

s opposed to Ms. Howard’s suitcase. In

any event,

the record is pro

bably suffi

cient to establish the appe llant’s standing to challenge the search of the Suburban. United States v. Doe , 801 F. Supp. 1562, 1573 (E. D. Te xas 1992)(“[ w]hile the burden is on the defendant to show his possession was lawful, the evidentiary

demonstration required to discharge this burden will be less

when there is no evidence showing unlawful possession”).

In sum, the absence of any factual findings by the trial court

would normally require
a remand of this case to the trial court. However, we reverse the appellant’s judgments of conviction and dismiss this case upon another ground.

B. Did the Trial Court Err in Denying the Appellant’s Motion for a Judgment of Acquittal

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at the Close of the St

ate’s Case and, Aga

in, at the Conclusion o

f the Trial? The appellant next asserts that the State failed to satisfy its burden of proof at the appellant’s trial, warranting the grant of the appellant’s motion for a judgment of acquittal either at the close of the State’s case or at the conclusion of the trial. Principles of due process protect an accused from conviction except upon proof beyond a reasonable doubt of eve ry fact neces sary to constitute the crime with which he is charged. In the Matter of Samuel Winship , 397 U.S. 358, 364, 90 S.Ct

. 1068, 1073 (1970). The reasonable-doubt standard “provides concrete substance for the pr esumption of innocence - - that “bedrock ‘axiomatic and elementary’ principle whos e ‘enforcement

lies at the foundation of the administration of our criminal law.’” I d . at 363, 1 072. Consistent with

this principle, the State may prove a criminal offense by the use of circumstantial
e vidence alone. State v. Tharpe , 726 S.W.2d 896, 899-9 00 (Tenn.1987); Marable v. State , 31 3 S.W.2d 451, 456-457 (1958 ); State v. Knight , 969 S.W.2d 939, 941 (Tenn. Crim. App. 1997). However, before a jury may c onvict a defendant of a criminal offense based upo n circumstantial evidencealone, the facts and circumstances “must be so strong and cogent asto exclude every other
reason ab le hypothesis save the guilt of the defendant, and that bey ond a reasonable doubt.” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). See also State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). “In summary, a conviction for a criminal off ense cannot be predicated solely upon conjecture, guess, speculation, or a mere possibility that [the accused] may be guilty.” State v. Transou , 928 S.W.2d 949, 955 (Tenn. Crim. App. 1996).

A motion fo r a judgment of acquitt al is a chall enge to the sufficiency of the State’s evidenceof a defendant’s guilt. Tenn. R. Crim. P. 29(a). In ruling upon a motion for judgment of acquittal,the trial court may not address the weight of the evidence, but must affor d the State the strongest legitimate view of theevidence, inclu ding all reasona

ble inferences which may be drawn fr omthe evidence. State v. Blanton , 926 S.W.2d 953, 957-958 (Tenn. Crim. A pp. 1996). A n appellate court applies the same standard as the trial court when resolving issues predicated upon the grant or denial of a motion for

judgment of acquittal. Statev. Adams , 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). See also State v. Smith , No. 02C01-9506-CR-00157, 1 999 WL 162958, at *2 (Tenn. Crim. App. at Jackson, March 25, 1999). This standard “is analogous to the standard employed in reviewing th

e sufficiency of the convicting evidence after a conviction has been imposed.” State v. Lindsay , No. 02 C01-9804-CR-00110, 1999 WL 1095679 , at *6 (Tenn. Crim. App. at Jackson, October 28, 1999).

The State in this case was required to prove beyond a reasonable doubt the a ppellant’s knowing possession of

three hundred (300) grams or more of cocaine with the intent to sell or deliver the drugs, Tenn. Code Ann. § 39-17-417( a)(4) and (j)(

5)(1997), his know

ing possession of

one-half (1⁄2) ounce or more of marijuana with the intent to sell or deliver the drugs, Tenn. Code Ann. § 39-17- 417(a)(4) and (g)(1), and his possession of drug para phernalia w ith the intent to use the paraphernalia. Tenn. Code Ann. § 39 -17-425 (a)(1) (1997). We conclu de that the State failed to prove beyond a

reasonable doub

t the appellant’s p

ossession of the dr

ugs and electr

onic scales and, accordingly

, reverse the ap

pellant’s convic

tions.

In Transo u , 928 S.W.2d at 955-956 (citations omitted), this court addressed the

### -12-

meaning of the term “possession” in the context of both Tenn. Code Ann. § 39-17-417 a nd Tenn. Code Ann. § 39-17-425:

“The term possession . . . embraces both ac

tual and constr

u ctive possessi on

. . . . Before a pe rson can be found

to constructively possess a drug, it must appear that the person has ‘the power and the intention at a given time to exercise dominion and control over . . . [the drugs] either directly or through others.’ .

. . In other wor ds, ‘constructive possession is t he ability to reduce an object to actual po ssession.’ . . . The mere presence of a person in an area where drugs are discovered is not, alone, sufficient to support a finding that the person possessed

the drugs.

. . . Likewise, m ere association

with
a perso n w ho does in fact control the drugs or property where the drugs are di scovered is insufficient to support a finding that the person possessed the drugs.” We have h eld, however, that a d efendant’s posse

ssion of contraba

nd may be inf

erred from a defendant’s ownership or control over a vehicle in which the contraband is secreted. State v. Brown , 915 S.W.2d 3, 7-8 (Tenn. Crim. App. 1995); State v. Shaw , No. 02C01 -9811-CC- 00363, 199

9 WL 1095630, at *4 (Tenn. Crim. A pp. at Jackson, Octo

ber 21, 1999); State v. Sullivan , No. 02C01-9803- CC-00071, 1999 WL 134981, at *3 (Ten n. Crim. App. at Jacks on, March 15, 1999

); State v. Sanders , No. 1, 1990 WL 11637, at *2 (Tenn. Crim. App. at Jackson, February 14, 1990).

In the instant case,

the appella

nt di d, in fact, have control of the vehicle in which police found the drugs a

nd electronic sc

ales which are th

e subject of the a

ppellant’s convic

tions. However, the drug s and electronic scales were inside a closed suitcase belonging to Christina Howard. The suitcase did n ot contain any

items belonging

to the appellant,

nor did the State adduce any evidence at trial that thea ppellant had access to the contents of Ms. Howard’s suitcase. The appellant’s undisputed testimony at trial established that, at the time of the traffic stop, he was not living with Ms. Howard nor was he engag

ed in an intimate re

latio nship with h er. Rather, the appellant testified that he was simply giving Ms. Howard a ride to her mothe

r’s home in St. L

ouis, Missouri. Other than the co ntraband found in

Ms. Howard’s suitc

aseand on her person, the police didnot discover any other drugs or parap

hernalia in

the appellant’s suitcase, in his cousin’s suitcase,
or in the Suburban itself. Trooper Sprawling and Officer Kirby both testified that, in searching the Suburban, they could not detect any odor indicativ e of drug use . Finally, the appellant testified and it w as u ndi spu ted tha t he had no p rio r cri min al h ist ory.

The State nevertheless argues that the appellant’s possession of a g un, an extra ammunition clip, a box of ammuniti on, and one thousa

nd, six hundred, and f

orty-fiv e dollar s ($1,645.00), the manner in which the money was separated and folded, and theappellant’s use of a “slang term which the jur

y was infor

med was common in the

drug community

” sufficed to est

ablish the appellant’s constructive possession of the drugs and paraphernalia. However, as to the cash, the appellant and his mother testified at trial and it was undispu ted th at Ms. Jackson had given the money to her son for the purpose of assisting her father in paying various bills

and it was undisputed that Ms. Jackson customarily folds her money. As to the gun, the appe llant did possess a valid

### -13-

Indian a gun permit. Moreover, the appellant’s possession of ammunition for the gun i s hardl y unusual, and he testified th at the extra clip simp

ly came with the gun when he purchased it. Fin all y, we acknowledge that the appe llant’s use of the term “fold” in referring to the bundle of money containing one thousand dolla rs ( $1,000) in combination with the above evidence could raise the possibility

that the appellant was aw

are of the drug

s and paraphern

alia inside Ms. Howard’s suitca se andhadthe power and intention to exercise dominion and control over the contraband. However, we have already

noted that a conviction for a criminal offense cannot be predicated upon the mere pos sib ili ty th at t he ac cus ed m ay be g uil ty.

In conclusion, we wish to emphasize that we do not reverse the ap pellant’s convictions lightly. The am ount of dru gs discovered by police in this case was sig

nificant, and this court is well aware of the damage inflicted upon our society by the illicit traffic in drug s. However, as the United States Supreme Court has observed,

[t]he accused during a criminal prosecut i on [also] has at stake [an] interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the c

ertainty th a the would be stigmatized by the conviction. Accordingly , a socie ty that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doub

t about his guilt. In the Matter

of Samuel Winship

, 397 U.S. at 363-364, 90 S.Ct. at 1072.

III. Conclusion For the foregoing reasons, we reverse the trial court’s judg ments of conviction and dismiss this case.