08/28/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 19, 2017

STATE OF TENNESSEE v. ROBERT LAMAR KELLEY

Appeal from the Criminal Court for Wilson County

No. 13-CR-339 Brody N. Kane, Judge

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No. M2016-01425-CCA-R3-CD

___________________________________

Following the trial court’s denial of his motion to suppress, the Defendant-Appellant, 

Robert Lamar Kelley, entered a guilty plea in the Wilson County Criminal Court to the 

charged offense of possession of more than ten pounds of marijuana, a Class D felony, 

for which he received a sentence of four years, with service of six months in confinement 

and the remainder on supervised probation. See T.C.A. §§ 39-17-417(a)(4), (g)(2). As a 

condition of his guilty plea, Kelley properly reserved two certified questions of law

pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) regarding the stop and search 

of his vehicle. After reviewing the record, we find no error in the denial of the motion to 

suppress and affirm the judgment of the trial court.

 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.

Comer L. Donnell, District Public Defender; Kelly A. Skeen (on appeal and at trial) and 

Shelley Thompson (at trial), Assistant Public Defenders, for the Defendant-Appellant, 

Robert Lamar Kelley. 

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; Tom P. Thompson, Jr., District Attorney General; and Jason L. Lawson, 

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background. After receiving a tip from a confidential informant, police 

stopped a truck driven by Kelley and found eleven pounds of marijuana. Following his 

indictment, Kelley filed a motion to suppress the drugs found in his vehicle. 
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At the suppression hearing, Kenneth Powers, a narcotics detective for the Lebanon 

Police Department who was assigned to the Drug Enforcement Administration (DEA)

Drug Task Force in Nashville, testified that he received information from a confidential 

informant that Kelley and Timothy Haddock were trafficking marijuana. Detective 

Powers explained that in addition to the DEA, the Tennessee Bureau of Investigation

(TBI), as well as the Nashville and Lebanon Police Departments were investigating

Kelley for drug trafficking. 

Detective Powers’ criminal informant told him that Kelley and Haddock were 

driving to the Smithville, Tennessee area to receive a load of 50 to 100 pounds of 

marijuana from some Hispanic individuals.

1 He stated that this particular informant had 

provided reliable information in the past that had been independently corroborated by 

police. In addition, this informant had made several controlled drug buys from other 

defendants in unrelated cases.

When Detective Powers asked the informant how he became aware of Kelley’s 

and Haddock’s marijuana trafficking, the informant said that he lived with Kelley and 

Haddock, which allowed him to have first-hand knowledge of their drug activities. The 

informant told Detective Powers that Kelley would often travel to his “stash house” in

Dowelltown, Tennessee, where he would pick up a shipment of marijuana that Hispanic 

drug couriers had delivered. Detective Powers acknowledged that he had no information

showing that the informant had ever been to Kelley’s home in Dowelltown. 

Thereafter, in October 2011, Investigator Mike Galluzzi2of the Nashville Police 

Department executed a search warrant on Kelley and Haddock’s residence in Old 

Hickory, Tennessee, and found 44 to 47 pounds of marijuana. Detective Powers said the

same confidential informant involved in the current case against Kelley informed him 

that the Nashville Police Department had just discovered a substantial amount of 

marijuana at Kelley and Haddock’s Old Hickory residence, and Detective Powers 

contacted Investigator Galluzzi to discuss the details regarding the discovery of this

marijuana. Detective Powers said the discovery of the marijuana at the Old Hickory 

residence further corroborated what the informant had told him about Kelley and 

Haddock’s trafficking marijuana.

 

1 We acknowledge that we do not use titles when referring to every witness. We intend no 

disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper 

titles is disrespectful even though none is intended. He would prefer that every adult witness be referred 

to as Mr. or Mrs. or by his or her proper title.

2 Although the transcript from the suppression hearing refers to this individual as Mike Galousey, 

this individual is identified as Mike Galluzzi in several other portions of the record. 
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On May 22, 2012, this informant told Detective Powers that Dennis Anderson was 

going to meet Haddock that afternoon to pick up a half-pound of marijuana at Kelley and 

Haddock’s Old Hickory residence. The police conducted surveillance at the Old Hickory

address, and at around 2:00 p.m., they observed Haddock entering and exiting the house 

and going to a home across the street. Then Haddock left his home and drove to a 

tobacco shop, where he met Anderson in the parking lot. The officers saw Haddock and 

Anderson exchange a plastic bag while looking under the hood of one of their vehicles. 

The police later stopped Anderson in Lebanon for a speeding violation and found a halfpound of marijuana in a yellow plastic bag, which also corroborated the information the 

confidential informant had given to Detective Powers. 

On June 6, 2012, Detective Powers obtained a warrant to install a Global Position 

System (GPS) tracking device on Kelley’s Ford Ranger truck. He stated that the 

probable cause for the tracking order was based on the information the informant had 

given him regarding Kelley’s pattern of drug activities with Haddock as well as his 

interviews with other detectives, including Investigator Galluzzi. Detective Powers 

acknowledged that there was no mention of Kelley’s home in Dowelltown in the warrant 

or affidavit for the GPS device. After obtaining the warrant, police installed the tracking 

device on the truck on June 8, 2012, and began tracking Kelley’s movements. Sometime 

prior to the suppression hearing, the company that provided the GPS tracking service for

Kelley’s vehicle was purchased by another company, and the GPS records showing 

Kelley’s movements were destroyed.

On June 13, 2012, Detective Powers observed a controlled drug buy by the TBI,

wherein Powers’ confidential informant and an undercover agent purchased more than an 

ounce of marijuana from Haddock at the same tobacco shop where the May 22, 2012 

drug transaction between Anderson and Haddock took place. After this controlled buy, 

the informant told Detective Powers that Haddock was Kelley’s “right hand man,” that 

Kelley was Haddock’s supplier, and that Kelley “called the shots.” Detective Powers 

said he spoke with his criminal informant on a weekly basis prior to Kelley’s stop, 

although he did not recall speaking to him on June 20, 2012, the day of Kelley’s stop in 

this case. He said his informant told him several times that Kelley was using his home in 

Dowelltown as a “stash house.” 

On June 20, 2012, Detective Powers monitored the tracking device on Kelley’s 

vehicle and discovered that Kelley was driving east on Interstate 40 past Wilson County

in the direction of his home in Dowelltown. Detective Powers immediately informed 

TBI agents in the area regarding Kelley’s movement and began following Kelley’s 

vehicle, a Ford Ranger truck, to establish surveillance. Because Detective Powers was 

afraid he would be seen, he conducted surveillance from a safe distance and continued to 

monitor Kelley’s movements through the GPS device. Detective Powers saw Kelley pull 
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into an area near Kelley’s residence in Dowelltown, which made him believe his criminal 

informant had given reliable information about Kelley picking up a shipment of 

marijuana there. 

Kelley subsequently left his Dowelltown residence, and Detective Powers and the 

TBI agents followed him from a distance. As Kelley returned to Lebanon, Tennessee,

Detective Powers contacted Detective Eric Brockman of the Lebanon Narcotics Unit and 

asked him to wait at mile marker 245 so Detective Brockman could take over physical 

surveillance of Kelley’s vehicle and conduct a “wall off stop,” meaning a traffic stop 

where officers have reasonable suspicion or probable cause to believe that a narcotics 

transaction has occurred. Detective Powers believed, at the point when he contacted 

Detective Brockman, that he had reasonable suspicion to stop Kelley and to conduct a 

narcotics investigation on the basis that Kelley’s vehicle contained marijuana. This 

reasonable suspicion was based on the information regarding Kelley’s drug trafficking 

activities and his “stash house” in Dowelltown that he had learned from his informant as 

well as Kelley’s actions in going to the house in Dowelltown. 

At the time of this call, Detectives Brockman and Rickles were travelling behind 

Kelley, and Detective Powers was following behind these detectives. Detective Powers

continued to monitor the tracking device on Kelley’s vehicle, which told him Kelley’s 

speed and location. When Kelley’s truck reached mile marker 239, Detective Powers 

observed, via his monitoring of the tracking device, that Kelley’s vehicle was travelling 

78 miles per hour, 8 miles per hour over the posted speed limit. The officers, who were 

in unmarked cars, continued to follow Kelley into Wilson County, and Detective Powers 

contacted Officer Jason Toporowski of the Lebanon Police Department to tell him that 

they were following Kelley’s Ford Ranger and that they wanted him to stop Kelley. 

Detective Powers told Officer Toporowski that Kelley’s vehicle was speeding, travelling 

seventy-eight miles per hour in a seventy-mile-per-hour zone, and asked Officer 

Toporowski to “[t]ry to develop any of his own probable cause that he could.” 

Officer Toporowski testified that when he received the telephone call from 

Detective Powers, he suspected that the stop of Kelley’s vehicle involved narcotics 

because Detective Powers was a narcotics detective. Shortly after receiving this call, at 

approximately 4:40 p.m., Officer Toporowski activated his blue lights and conducted a 

stop of Kelley’s vehicle at mile marker 235. Officer Toporowski admitted that he did not 

personally observe Kelley speeding or engaging in illegal activity prior to the stop. He 

said he never wrote Kelley a ticket for speeding because Detective Powers had observed 

the speeding violation. Officer Toporowski stated that he stopped Kelley because he had 

received a call from Detective Powers asking him to conduct the stop. He confirmed that 

a video recording was taken of the stop and that the recording accurately depicted what 

occurred during the stop. 
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Officer Toporowski said that when he stopped Kelley’s truck, he walked to the 

driver’s side of the vehicle and observed Kelley in the driver’s seat and Haddock in the 

passenger seat. He asked both men for identification and then returned to his patrol car to 

have the dispatcher conduct a license check for both men. Officer Toporowski said that

Trooper Russell Peters, who was passing by, stopped to provide assistance, although he

had not specifically asked Trooper Peters to stop. After giving Kelley’s and Haddock’s

license numbers to the dispatcher, Officer Toporowski said he approached Kelley’s truck

again and asked for Kelley to exit the vehicle. 

Officer Toporowski said Kelley exited his vehicle and, at his request, walked to 

the front of Officer Toporowski’s patrol car. For his own safety, Officer Toporowski 

patted down Kelley to ensure that he did not have any weapons on his person, though he 

admitted no one had told him Kelley was armed. Because Kelley’s pockets were bulging, 

he asked Kelley to remove the contents of his pockets, and Kelley took out nearly $6000 

cash from his pockets and placed it on the hood of the patrol car. 

Officer Toporowski said that in response to his questioning, Kelley said he did not 

have anything illegal in his vehicle. When Officer Toporowski asked Kelley if he would 

mind if he took a look in his truck, Kelley questioned why this was necessary, and 

Officer Toporowski said it was his job to ask. During this conversation, Officer 

Toporowski’s supervisor called to check on him, and he replied that he was fine. Officer 

Toporowski returned to his conversation with Kelley and asked him a second time if he 

could search the truck because Kelley had not given him a direct answer the first time, 

and Kelley replied, “I don’t mind,” which Officer Toporowski interpreted as Kelley’s

consenting to a search of his vehicle. He added that Kelley never limited his consent to 

search his vehicle in any way. He said that just after Kelley consented to the search of 

his truck, the dispatcher informed him that Kelley and Haddock did not have any 

outstanding arrest warrants. He then conducted a search of Kelley’s truck. At that point, 

the audio portion of the recording malfunctioned, although Officer Toporowski asserted 

that he had not turned off the audio. 

When Officer Toporowski started to search the truck, Officer Bates arrived to help 

him. Nothing was found during the search of the inside of the truck. However, during 

the search, Officer Toporowski observed “an odd lock” on the toolbox attached to the bed 

of the truck. After finishing the initial search, Officer Toporowski returned to Kelley and 

asked him what was in the toolbox, and Kelley said it contained “tools and stuff” because 

he did “construction.” When Officer Toporowski asked if he could “take a look,” Kelley 

replied, “I can’t get it open, I don’t have the key” because he had “lost it or didn’t have 

it.” Officer Toporowski, who had Kelley’s keys in his hand at the time, asked if one 

particular key fit the lock, and Kelley responded, “I don’t know.” When Officer 

Toporowski asked if he would mind if he tried this key, Kelley said, “[G]o ahead.”
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Officer Bates immediately got into the back of the truck, and Officer Toporowski gave

him Kelley’s keys before going back to his patrol car to return a phone call from 

Detective Powers. 

During this phone call, Officer Toporowski told Detective Powers that they had 

gotten Kelley’s consent to search the truck but had not found anything yet. When he 

added that they were trying to gain access to the tool box, Detective Powers told him they 

were sending a K9 unit to the scene. Seconds later, Officer Bates turned around, and 

Officer Toporowski could tell that “something wasn’t right.” Officer Toporowski ended 

his telephone conversation and exited his patrol car. He said when Officer Bates used 

one of Kelley’s keys, he was able to open the lock on the tool box and discovered the 

marijuana, which weighed approximately 11 pounds. Officer Toporowski asserted that 

the lock on the tool box was never forced open or broken in order to gain access to its 

contents. After Officer Bates found the marijuana, Officer Toporowski told Detective 

Powers about the drugs, and Kelley and Haddock were taken into custody and brought to 

talk to the detectives. Officer Toporowski asserted that if Kelley had told him not to look 

in his truck, then he would not have searched it. 

Trooper Russell Peters also testified that Kelley consented to the search, stating 

that when Officer Toporowski asked him if they could search the truck the first time, 

Kelley replied, “I don’t mind,” and then the second time, Kelley “shrugged like, yeah, go 

ahead.” Trooper Peters said he did not recall what he discussed with Kelley after Officer 

Toporowski began searching the vehicle but stated, “I’m sure I was just doing 

pleasantries and small talk to keep him occupied.” He said he would not have gone along 

with the search of Kelley’s truck if Kelley had refused to give consent.

 Later that day, Kelley was interviewed by Detective Powers at the police station 

after waiving his Miranda rights. During this interview, Kelley was cooperative, agreed 

to speak with police, and gave consent for officers to search another piece of property.

The video recording of Kelley’s stop was viewed by the trial court during the 

suppression hearing. The recording showed that Officer Toporowski followed Kelley’s 

vehicle for a few seconds before activating his blue lights and siren to stop him. As 

Kelley stopped his vehicle on the shoulder of Interstate 40 West at mile marker 235, 

Officer Toporowski asked the dispatcher to send him another unit. He then approached

Kelley’s truck and identified himself by name before telling Kelley that he was driving 

“78 back there in a 70.” Officer Toporowski asked for both men’s driver’s licenses and 

the vehicle’s registration before inquiring where the Kelley and Haddock were going. 

The men replied that they were driving to Daytona on vacation. After he received the 

licenses and registration, Officer Toporowski returned to his patrol car and asked the

dispatcher to check the license numbers for Kelley and Haddock. Over the radio, another 
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officer notified Officer Toporowski that he was in route. Shortly thereafter, Trooper 

Peters arrived on the scene, and Officer Toporowski and this trooper approached Kelley’s 

truck. Officer Toporowski asked Kelley to step outside his vehicle, and Kelley exited the 

truck, stopping to leave a few items inside his truck. Officer Toporowski asked Kelley if 

he had “anything illegal on him like knives, guns, drugs,” and Kelley admitted that he 

had a knife, which Officer Toporowski took from him and gave to Trooper Peters before 

informing Kelley that he needed to conduct a pat-down search. Officer Toporowski 

conducted the pat-down search while restraining Kelley’s hands and noted that Kelley

had something in the pockets of his cargo shorts. When he asked Kelley what it was, 

Kelley responded that he had a wallet, and Officer Toporowski stated, “There’s a bunch 

in there.” Officer Toporowski asked Kelley to walk over to his patrol car. He then asked

Kelley if he minded if he reached in and grabbed what was in his pockets, and Kelley

agreed. Officer Toporowski subsequently removed what appeared to be large amount of 

cash as well as a wallet from Kelley’s pockets. He then asked Kelley if he had “any 

weapons or anything like that in the back of your truck,” and Kelley’s response cannot be 

heard. When Officer Toporowski continued to search his pockets, Kelley made a 

statement that cannot be heard, and Officer Toporowski replied, “It is just part of our job, 

what we’re kinda out here doing.” After emptying Kelley’s pockets, he released the 

restraint on Kelley’s hands and asked if he had “anything illegal in the back of the 

vehicle,” and Kelley said, “No,” and shook his head in the negative. Then Officer 

Toporowski asked, “Mind if I take a look?,” and Kelley, stated, “Uh, I mean, I don’t 

mind” and then asked why it was necessary, and Officer Toporowski said, “That’s just 

part of our job.” When Officer Toporowski again asked, “You don’t mind if we take a 

quick look,” Kelley said, “I guess not.” Officer Toporowski approached Kelley’s truck

while Kelley and Trooper Peters conversed in a friendly manner, although their 

conversation was not captured on the audio portion of the recording. Officer Toporowski 

then requested Haddock to exit the vehicle and when he asked Haddock if he had

anything “on him,” Haddock said, “No.” Officer Toporowski conducted a quick patdown search of Haddock. He did not remove anything from Haddock’s pockets before 

asking Haddock to walk with him to the front of his patrol car. At that point, the audio 

from the microphone on Officer Toporowski’s uniform stopped functioning. Officer 

Toporowski approached Kelley’s truck and held up two items that had been placed on the 

car’s hood, and he returned them to Kelley before walking back to Kelley’s truck. 

Officer Toporowski opened the driver’s side door of the truck as Officer Bates, a

motorcycle officer, arrived on the scene and began assisting with the search of Kelley’s

truck. At the time, Trooper Peters continued to engage in friendly conversation with 

Kelley and Haddock and received a telephone call. Officer Toporowski and Officer

Bates continued to search the truck and opened both the driver’s and passenger’s doors to 

the truck, although most actions related to the search were obscured because Kelley and 

Haddock were blocking the camera’s view of the truck. Officer Toporowski walked back 

to his patrol car and appeared to ask Kelley a question, and when he heard Kelley’s 
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response, Officer Toporowski nodded and returned to Kelley’s truck. A few seconds 

later, Officer Bates climbed into the back of Kelley’s truck, and Officer Toporowski 

returned to sit in his patrol car, where the audio resumes from the microphone inside the 

patrol unit. Officer Toporowski told someone over the radio or a cell phone that they 

“haven’t found a thing.” An instant later, Officer Bates opened a duffle bag in the back 

of Kelley’s truck. Officer Toporowski told the person he was talking to that he had to go 

as Trooper Peters and Officer Bates quickly handcuffed Kelley and Haddock and placed

them in the back of Officer Toporowski’s patrol car. A few seconds later, Officer Bates

climbed back into the back of Kelley’s truck and picked up the duffle bag, which caused

either Kelley or Haddock to curse as they are sitting in the patrol car. Officer Bates

brought the bag to the hood of Officer Toporowski’s patrol car and, in the presence of 

Officer Toporowski, removed two large bales wrapped in plastic wrap. Either Kelley or 

Haddock then said, “Well, that’s it.” 

At the suppression hearing, Kelley testified that that Officer Toporowski asked 

him if he could search his truck two or three times, and Kelley replied that Officer 

Toporowski could look at “whatever is in plain view” but that he could not “search 

through [his] vehicle.” He claimed that he clearly told Officer Toporowski that he could 

not search his truck, which was why he kept asking for consent to search. Kelley also 

claimed he was protesting the search to Trooper Peters on the video recording but that

that particular portion of the recording did not have audio. He said that when he saw 

Officer Toporowski going through the back of his truck, he asked why he was searching 

his vehicle, and Trooper Peters responded, “I’m just here for support or back up.” Kelley 

claimed that he did not have a key to the tool box and that the tool box had “a lock that 

you could jimmie open.” 

 

At the conclusion of the suppression hearing, the trial court denied the motion to 

suppress. While it did not enter a written order, the court made the following oral 

findings of fact and conclusions of law at the end of the hearing:

I’ve reviewed the video tape, watched it twice before we ever got 

here. I’ve had an opportunity to read the Defendant’s brief, which was very 

helpful to me. I read the cases as well. And to be honest, I did have some 

concerns prior to the hearing about what happened out there on the side of 

the road.

After hearing the proof, watching the witnesses, because I didn’t 

know exactly what the State’s witnesses were going to say, I do believe that 

reasonable suspicion existed to make the stop, both with the speeding 

allegation based on the GPS review that [Detective] Powers testified to as 

well as the ongoing drug issues[.]
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I do believe, based on the experience and the corroboration from this 

confidential informant [that] this confidential informant is definitely 

reliable. Some other transactions occurred which were foretold by this 

confidential informant, so I am satisfied upon that as well with of course 

the [informant’s] basis of knowledge. I am satisfied that reasonable 

suspicion existed to make the stop on the side of the road.

Then we get to the issue of consent. Folks, like I said, I listened to 

this twice on my laptop at the office. I couldn’t hear it, I didn’t hear it the 

first time through when we watched it today, but on the second run through 

it was pretty evident to me, and this was replayed again I believe two more 

times after that, when the Defendant was asked, does he mind if I search the 

car, he says, no, I mean, I don’t mind. And then it goes on. You can’t hear 

everything that was said thereafter, but I consider that valid consent based 

on what I watched.

It’s true, [the State] asked if he was protesting and that sort of thing, 

and I don’t believe the Defendant would have been required to scream and 

go crazy trying to object to the search of the vehicle, but I do believe by my 

observations of his demeanor from the stop after the statement was made to 

Officer Toporowski [that his demeanor was] not consistent with one that 

was continuously objecting or protesting what was going on.

I credit the testimony of Trooper Peters with respect to their 

conversation, what was said. He was right there within four or five feet of 

the conversation with his back to the traffic and he testified that he gave 

consent. He even indicated that had Officer Toporowski had persisted with 

a search of the vehicle against his consent that he would not have gone 

along with it. 

So, I’m satisfied based on the testimony I’ve heard that this is a legal 

and valid stop based on the reasons given by [the prosecutor] in his closing. 

I’m satisfied that that’s what occurred in this matter. Albeit, when I came 

in today, I wasn’t. I did have some concerns, but after hearing the proof 

and seeing that it wasn’t like this tool box got pried open by some special

pliers or something like that, it appears it was opened. There was a little bit 

of discrepancy on whether it was a key that opened it or not. I don’t 

believe Officer Toporowski knew exactly how it was opened, but there was 

no evidence that it was actually pried open by a crow bar or something 

along those lines.
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So, based on my review of the facts and the video tape and my

observations of the witnesses, their demeanor, I find that it is a valid stop, a 

valid seizure of evidence, so I’m going to allow that evidence to be used at 

the trial in this matter on Wednesday. 

Following the denial of his motion to suppress, Kelley entered a guilty plea to 

possession of marijuana in excess of ten pounds and properly reserved the following two 

certified questions of law:

(1) Did the trial court err in finding the stop of the defendant’s vehicle was 

supported by reasonable suspicion that the defendant was transporting 

illegal controlled substances, sufficient to permit a Terry stop, and therefore 

that the stop was constitutionally permissible? If the aforesaid question is 

answered in the affirmative, then did the trial court err in finding the stop of 

the defendant’s vehicle was supported by a reasonable suspicion that the 

defendant was committing a traffic violation (travelling in excess of the 

speed limit), sufficient to permit a Terry stop, and therefore the stop was 

constitutionally permissible? 

(2) If the stop is valid, did the trial court err in finding the search of the 

defendant’s vehicle was pursuant to the defendant’s valid consent, and 

therefore the search was constitutionally permissible?

ANALYSIS

Kelley argues that the trial court erred in denying his motion to suppress the 

evidence found in his truck. He claims that his stop was not supported by reasonable 

suspicion that he possessed marijuana or was speeding. He also asserts that he never 

consented to a search of his truck. We conclude that because the stop and the search of 

Kelley’s vehicle were constitutionally permissible, the trial court properly denied the 

motion to suppress. 

Although this is an appeal of two certified questions of law, we apply the same 

standard of review as we would in considering the underlying issue, which is the denial 

of the motion to suppress. State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citing 

State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006)). A trial court’s findings of fact in 

a suppression hearing will be upheld unless the evidence preponderates otherwise. State 

v. Odom, 28 S.W.2d 18, 23 (Tenn. 1996). The prevailing party in the trial court “is 

entitled to the strongest legitimate view of the evidence adduced at the suppression 

hearing as well as all reasonable and legitimate inferences that may be drawn from that 

evidence.” Id. Moreover, “[q]uestions of credibility of the witnesses, the weight and 
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value of the evidence, and resolution of conflicts in the evidence are matters entrusted to 

the trial judge as the trier of fact.” Id. Despite the deference given to trial court’s 

findings of fact, this court reviews the trial court’s application of the law to the facts de 

novo with no presumption of correctness. State v. Montgomery, 462 S.W.3d 482, 486 

(Tenn. 2015) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).

Both the Fourth Amendment to the United States Constitution and article I, section 

7 of the Tennessee Constitution protect citizens from unreasonable searches and seizures. 

See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “[U]nder both the federal and state 

constitutions, a warrantless search or seizure is presumed unreasonable, and evidence 

discovered as a result thereof is subject to suppression unless the State demonstrates that 

the search or seizure was conducted pursuant to one of the narrowly defined exceptions to 

the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing 

Coolidge v. New Hampshire, 403 U.S. 403, 454-55 (1971); State v. Bartram, 925 S.W.2d 

227, 229-30 (Tenn. 1996)); see State v. Davis, 354 S.W.3d 718, 727 (Tenn. 2011). 

I. The Stop. Kelley argues the trial court erred in finding that the stop of his 

vehicle was supported by reasonable suspicion that he possessed marijuana. 

Alternatively, he argues that the trial court erred in finding the stop was supported by 

reasonable suspicion that he was speeding.

One exception to the warrant requirement is a brief investigatory stop of a vehicle 

that is supported by reasonable suspicion. State v. Keith, 978 S.W.2d 861, 866 (Tenn. 

1998). An officer may make an investigatory stop of a vehicle based upon “a reasonable 

suspicion, supported by specific and articulable facts, that the occupants of the vehicle 

have committed, are committing, or are about to commit a criminal offense.” State v.

England, 19 S.W.3d 762, 766 (Tenn. 2000) (citing United States v. Cortez, 449 U.S. 411, 

417 (1981)); Terry v. Ohio, 392 U.S. 1, 20-23 (1968). “‘[R]easonable suspicion can be 

established with information that is different in quality or content than that required to 

establish probable cause and can arise from information that is less reliable than that 

required to show probable cause.’” Hanning, 296 S.W.3d at 49 (quoting State v. Day, 

263 S.W.3d 891, 903 (Tenn. 2008)). Moreover, the likelihood of criminal activity 

required for reasonable suspicion is not as great as that required for probable cause and is 

“considerably less” than that required to satisfy the preponderance of the evidence 

standard. State v. Lindsey A. Ochab, No. M2015-02290-CCA-R3-CD, 2016 WL 

6247429, at *7 (Tenn. Crim. App. Oct. 26, 2016) (quoting United States v. Sokolow, 490 

U.S. 1, 7 (1989)). 

The Tennessee Supreme Court has defined reasonable suspicion as “‘a 

particularized and objective basis for suspecting the subject of a stop of criminal 

activity.’” Day, 263 S.W.3d at 903 (quoting State v. Binette, 33 S.W.3d 215, 218 (Tenn. 
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2000)). The objective standard for determining whether an officer has reasonable 

suspicion is whether “the facts available to the officer at the moment of the seizure or the 

search warrant a man of reasonable caution in the belief that the action taken was 

appropriate[.]” Terry, 392 U.S. at 21-22 (internal quotation marks and citations omitted). 

“‘The issue of whether reasonable suspicion existed to validate a traffic stop is a mixed 

question of fact and law.’” Davis, 354 S.W.3d at 726 (quoting State v. Garcia, 123 

S.W.3d 335, 342 (Tenn. 2003)). The State bears the burden of presenting sufficient facts 

to establish reasonable suspicion. Day, 263 S.W.3d at 908. “[T]he reasonableness of 

seizures less intrusive than a full-scale arrest is judged by weighing the gravity of the 

public concern, the degree to which the seizure advances that concern, and the severity of 

the intrusion into individual privacy.” State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). 

A court must consider the totality of the circumstances in determining whether 

reasonable suspicion is supported by specific and articulable facts. State v. Watkins, 827 

S.W.2d 293, 294 (Tenn. 1992); Binette, 33 S.W.3d at 218. These circumstances include 

officers’ objective observations, information obtained from other law enforcement 

officers or agencies, information obtained from citizens, offenders’ pattern of operation, 

and officers’ inferences and deductions based on experience. Yeargan, 958 S.W.2d at 

632 (citing Watkins, 827 S.W.2d at 294; Cortez, 449 U.S. at 418; Terry, 392 U.S. at 21).

“[T]he content, quality, and quantity of information possessed by police must be assessed 

in determining whether it is sufficiently reliable to support a finding of reasonable 

suspicion.” Keith, 978 S.W.2d at 867. In making a reasonable suspicion determination, 

“[o]bjective standards apply rather than the subjective beliefs of the officer making the 

stop.” Day, 263 S.W.3d at 903 (citing State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. 

App. 1996); Terry, 392 U.S. at 21-22). Reasonable suspicion must not rely on an 

officer’s “inchoate and unparticularized suspicion or ‘hunch.’” Terry, 392 U.S. at 27;

Hanning, 296 S.W.3d at 49. 

 

A. Reasonable Suspicion of Marijuana Possession. Kelley argues that his stop 

was not supported by reasonable suspicion that he possessed marijuana. 

First, Kelley complains that all of the information regarding his alleged drug 

activities came from a single criminal informant, who told Detective Powers that Kelley

used his Dowelltown home as a “stash house” for marijuana trafficking. Kelley claims

that this informant was not reliable because Detective Powers admitted that the informant 

had never been to Kelley’s Dowelltown residence, Detective Powers conceded that he 

had not talked to the informant on June 20, 2012, the day of Kelley’s stop, and Detective 

Powers acknowledged that he could not recall the last time his informant told him Kelley 

used the Dowelltown residence for drug activities. 
- 13 -

When information from a confidential informant contributes to the stop of a motor 

vehicle, a totality-of-the-circumstances analysis may be appropriate in determining 

whether reasonable suspicion or probable cause exists to support the stop. Compare State 

v. Tuttle, 515 S.W.3d 282, 307-08 (Tenn. 2017) (overruling Jacumin and adopting the 

Gates totality-of-the-circumstances analysis when determining whether an affidavit 

establishes probable cause for issuance of a search warrant), with Day, 263 S.W.3d at 903

(“Under circumstances where the information forming the basis for a motor vehicle stop 

is derived from an anonymous informant, Tennessee law requires some showing of both 

the informant’s veracity or credibility and his or her basis of knowledge.”), and Keith, 

978 S.W.2d at 866 (While independent police corroboration can make up deficiencies in 

either prong of this test for an informant’s reliability, “each prong represents an 

independently important consideration that must be separately considered and satisfied in 

some way.”). In conducting this totality-of-the-circumstances analysis, an informant’s 

“veracity,” “reliability,” and “basis of knowledge” remain highly relevant but should not 

be recognized as distinct and independent requirements to be rigidly applied in each case. 

Id. at 303 (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). Circumstances 

surrounding the informant’s tip, such as contemporaneous police corroboration of the tip

or corroboration of several details of the informant’s information, may increase the 

reliability of the tip. Simpson, 968 S.W.2d at 782. 

When considering the reliability of the informant in this case, the trial court 

recognized that this informant had a long history of providing information that was later 

corroborated by the police, which made him credible. It also found that the informant 

predicted other transactions related to this case that were confirmed by the police, which 

established the informant’s basis of knowledge that Kelley was trafficking marijuana. 

Detective Powers specifically testified that the informant told him he knew of Kelley’s 

trafficking of marijuana because he lived with Kelley and Haddock, which allowed him 

to personally observe their drug activities. The evidence does not preponderate against 

the trial court’s finding that the informant in this case was reliable. 

Kelley also claims that reasonable suspicion to stop him was lacking because the 

GPS device, which allowed Detective Powers to follow him to Dowelltown and back 

was obtained based on information from this same confidential informant as well as 

information from the unrelated stop of his co-defendant Timothy Haddock. Kelley 

complains that the warrant application and supporting affidavit for the GPS device only 

referenced his residence in Old Hickory and a car lot in Smithville and did not reference 

his residence in Dowelltown, where he was leaving at the time to his stop. He claims that 

although the State tried to use the informant’s information to have “built[-]in reasonable 

suspicion” to stop him regardless of his location, this information amounted to a “mere 

hunch” and fell short of the reasonable suspicion required to stop his vehicle. We have 
- 14 -

already determined that the confidential informant in this case was reliable, and, as we 

will explain, the stop in this case was lawful. 

At the time that Officer Toporowski stopped Kelley, the confidential informant in 

October 2011 had promptly alerted Detective Powers that a substantial amount of 

marijuana had been found by the Nashville Police Department at the residence shared by 

Kelley and Haddock, which corroborated the informant’s claim that Kelley and Haddock 

were trafficking marijuana. The informant also predicted the drug transaction between 

Haddock and Anderson on May 22, 2012 and participated in a controlled buy of drugs 

from Haddock on June 13, 2012. He informed Detective Powers that Haddock was 

Kelley’s “right-hand man,” that Kelley was Haddock’s supplier for the drugs, and that 

Kelley “called the shots” regarding the drugs. Regarding the stop in this case, the 

informant told Detective Powers that Kelley and Haddock were trafficking marijuana and 

that Kelley often travelled to his “stash house” in Dowelltown, where he would pick up 

shipments of marijuana that had been delivered by Hispanic drug couriers.

On June 20, 2013, Detective Powers, while monitoring the GPS device on 

Kelley’s vehicle, discovered that Kelley was driving east on Interstate 40 past Wilson 

County, which indicated that Kelley might be travelling to his home in Dowelltown, and 

Detective Powers followed Kelley to an area near this home. When Kelley left the 

Dowelltown residence, Detective Powers and TBI agents followed him from a distance. 

As Kelley entered Lebanon, Detective Powers contacted Detective Eric Brockman and 

asked him to wait at mile marker 245 so Detective Brockman could take over physical 

surveillance of Kelley’s truck for him and could conduct a traffic stop supported by 

reasonable suspicion or probable cause that a narcotics transaction had occurred. 

Detective Powers and the TBI agents continued to follow Kelley, and Detective Powers 

continued to monitor Kelley’s movements through the GPS device installed on Kelley’s

truck. After Detective Powers realized that Kelley was travelling at 78 miles per hour, 8 

miles per hour over the posted speed limit, he notified Officer Toporowski, who initiated

the stop. 

When considering whether Officer Toporowski had reasonable suspicion that 

Kelley was trafficking marijuana at the time of the stop, we recognize that the doctrine of 

collective knowledge applies in this case. The Tennessee Supreme Court has recognized

this concept of collective knowledge when determining whether an officer has probable 

cause to arrest a suspect:

When determining whether the police possessed probable cause, the 

courts should consider the collective knowledge that law enforcement 

possessed at the time of the arrest, provided that a sufficient nexus of 

communication existed between the arresting officer and any other officer 
- 15 -

or officers who possessed relevant information. Such a nexus exists when 

the officers are relaying information or when one officer directs another 

officer to act. State v. Echols, 382 S.W.3d at 278; 2 [Wayne R.] LaFave[,

Search and Seizure: A Treatise on the Fourth Amendment] § 3.5(a)-(c)

[(5th ed. 2012)]. It matters not whether the arresting officers themselves 

believed that probable cause existed. State v. Huddleston, 924 S.W.2d 666, 

676 (Tenn. 1996) (“[An officer’s] subjective belief that he did not have 

enough evidence to obtain a warrant is irrelevant to whether or not probable 

cause actually existed.”).

State v. Bishop, 431 S.W.3d 22, 36 (Tenn. 2014).

Because the doctrine of collective knowledge applies when determining whether 

an arresting officer has probable cause to arrest a particular suspect, it is logical that this 

doctrine also applies when determining whether an officer possessed reasonable 

suspicion to stop an individual. This idea of imputed knowledge has been applied by this 

court in the past. See State v. Bryant, 678 S.W.2d 480, 482-83 (Tenn. Crim. App. 1984) 

(concluding that the initial detention of the defendant by an officer who heard another 

officer’s description of the defendant’s vehicle and request for assistance over the police 

radio was lawful even though the officer who stopped the defendant had not witnessed 

any unlawful activity by the defendant). Under the concept of collective knowledge, all 

of the information known to Detective Powers would be imputed to Officer Toporowski 

at the time of the stop, so long as a sufficient nexus of communication existed. Because

Detective Powers had reasonable suspicion that Kelley possessed marijuana and then 

directed Officer Toporowski to act by stopping Kelley, a sufficient nexus existed such 

that Detective Powers’ reasonable suspicion was imputed to Officer Toporowski. 

B. Reasonable Suspicion Based on a Traffic Violation. Alternatively, Kelley 

argues that the stop of his truck was not supported by reasonable suspicion that he was 

speeding. He also contends that his detention exceeded the permissible scope of a lawful 

traffic stop. 

A police officer’s initiation of a traffic stop constitutes a seizure under the United 

States and Tennessee Constitutions. Whren v. United States, 517 U.S. 806, 809-10 

(1996); State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997); Pulley, 863 S.W.2d at 30. 

“As a general rule . . . the stop of an automobile is constitutionally reasonable, under both 

the state and federal constitutions, if the police have probable cause or reasonable 

suspicion to believe that a traffic violation has occurred.” Vineyard, 958 S.W.2d at 734. 

Kelley argues that the only proof he was speeding came from the GPS device 

monitored by Detective Powers and that no officer personally observed him speeding. 
- 16 -

He also asserts that because his speeding offense was a misdemeanor, the officers should 

have given him a citation and released him in lieu of effecting a custodial arrest. See

T.C.A. §§ 40-7-118(b)(1), 55-10-207(b)(1). 

Initially, we note that Officer Toporowski had probable cause to initially stop 

Kelley based on Detective Powers’ communication to him that Kelley was speeding. See

Bishop, 431 S.W.3d at 36 (collective knowledge doctrine). Officers regularly enforce 

speeding laws by having one officer serve as the lookout with a radar gun and another 

officer positioned in a place where he can stop and issue citations to violators. See, e.g.,

Bryant, 678 S.W.2d at 483. “‘It is well established that a traffic violation—however 

minor—creates probable cause to stop the driver of a vehicle.’” State v. Davis, 484 

S.W.3d 138, 143 (Tenn. 2016) (quoting United States v. Barry, 98 F.3d 373, 376 (8th Cir. 

1996)); see State v. Berrios, 235 S.W.3d 99, 105 (Tenn. 2007) (“As a general rule, if the 

police have probable cause to believe a traffic violation has occurred, the stop is 

constitutionally reasonable.”); Vineyard, 958 S.W.2d at 736 (holding that officers’ 

observation of the defendant’s violations of traffic laws created probable cause justifying 

the stop). 

Moreover, at a minimum, Officer Toporowski’s stop of Kelley’s truck was 

supported by reasonable suspicion that he was speeding. Although Kelley argues that 

Officer Toporowski did not personally see him speeding, this court may consider an 

officer’s reliance upon information provided by another officers when making a 

reasonable suspicion determination. See Yeargan, 958 S.W.2d at 632; Watkins, 827 

S.W.2d at 294. Based on the information provided by Detective Powers, Officer 

Toporowski had reasonable suspicion, supported by specific and articulable facts, that 

Kelley had committed the offense of speeding at the time of the stop. 

Kelley also claims that because the GPS records documenting his speed were 

destroyed, the State failed to establish that he was driving in excess of the posted speed 

limit at the time of the stop. He asserts that although Detective Powers told Officer 

Toporowski that he was speeding at mile marker 239 or 240, he was not actually stopped 

until five miles later and that Officer Toporowski admitted he never observed Kelley 

doing anything illegal prior to the stop. We note that the fact that the GPS records are no 

longer in existence does not lessen the impact of Detective Powers’ testimony that he 

monitored Kelley’s movements through the GPS device and that Kelley’s speed was 

eight miles over the posted speed limit just prior to the stop, which was accredited by the 

trial court. As we have already recognized, the information Detective Powers provided to 

Officer Toporowski provided sufficient reasonable suspicion to stop Kelley for speeding. 

We note that no constitutional violation exists if there is a valid reason for the traffic stop,

even if the officers have other motives in effecting the stop. Whren, 517 U.S. at 813. 

Regardless of whether the officers believed that Kelley was engaged in the possession of 
- 17 -

marijuana, Officer Toporowski had a valid reason for stopping Kelley for speeding based 

on the information he learned from Detective Powers. 

In addition, Kelley asserts that his detention and subsequent search exceeded the 

scope of a lawful traffic stop for speeding. He complains that there were multiple armed 

officers at the scene, that he and Haddock were ordered out of the car and searched, and 

that these searches culminated in Officer Toporowski’s reaching into their pockets while 

handcuffing or restraining their hands behind their backs. While it is questionable

whether Kelley included this specific issue in his certified question, we will briefly 

address whether the detention and search in this case exceeded the scope of the traffic 

stop for speeding.

We recognize that “a law enforcement officer making a valid traffic stop must not 

prolong the stop for longer than necessary to process the traffic violation without having 

some reasonable suspicion of other criminal activity sufficient to warrant prolonging the 

stop.” State v. Harris, 280 S.W.3d 832, 842 (Tenn. Crim. App. 2008). The duration of 

the stop must be “‘temporary and last no longer than necessary to effectuate the purpose 

of the stop.’” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting Florida v.

Royer, 460 U.S. 491, 500 (1983)). A traffic stop may become unreasonable “‘if the time, 

manner or scope of the investigation exceeds the proper parameters.’” Id. (quoting 

United States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001)). An officer’s conduct during 

an investigative stop must be “reasonably related in scope to the circumstances which 

justified the interference in the first place.” Terry, 392 U.S. at 20. The proper inquiry is 

whether the officers diligently pursued a means of investigation that was likely to 

confirm or dispel their suspicions quickly during the detention. Troxell, 78 S.W.3d at 

871 (citing Simpson, 968 S.W.2d at 783). 

Even if Officer Toporowski only had probable cause or reasonable suspicion to 

stop Kelley for speeding, he developed reasonable suspicion that Kelley possessed

marijuana during the course of the stop. Prior to the stop, Detective Powers told Officer 

Toporowski that Kelley had been speeding and asked him to “[t]ry to develop any of his 

own probable cause that he could.” Officer Toporowski suspected that narcotics were 

involved in this stop because Detective Powers, a narcotics detective, had told him to stop 

Kelley’s vehicle. After initiating the stop, Officer Toporowski detained Kelley while 

checking his driver’s license and the vehicle’s registration, and this detention was within 

the permissible scope of the traffic stop. See Harris, 280 S.W.3d at 840 (recognizing that 

“[r]equests for driver’s licenses and vehicle registration documents, inquiries concerning 

travel plans and vehicle ownership, computer checks, and the issuance of citations are 

investigative methods or activities consistent with the lawful scope of any traffic stop.”

(internal quotation marks and citations omitted)). Shortly after Officer Toporowski 

stopped the vehicle, he asked Kelley to step outside of the vehicle, and such requests 
- 18 -

have been deemed only a “de minimis” intrusion or a “mere inconvenience.” Berrios, 

235 S.W.3d at 107. When Kelley exited his vehicle, Officer Toporowski asked him if he 

had “anything illegal on him like knives, guns, drugs,” and Kelley admitted that he had a 

knife, which gave Officer Toporowski reasonable suspicion to conduct a pat-down 

search. See id. at 108 (stating that an officer has the authority to conduct a reasonable 

search for weapons for the purpose of his safety, where he has reason to believe that the 

suspect is an armed and dangerous individual); Terry, 392 U.S. at 27 (If an officer “has 

reason to believe that he is dealing with an armed and dangerous individual, regardless of 

whether he has probable cause to arrest the individual for a crime,” he may conduct a 

limited pat-down search for weapons.). A subsequent search of Kelley’s person revealed 

that he had approximately $6000 in his pockets, which gave Officer Toporowski probable 

cause or, at a minimum, reasonable suspicion that a search of the vehicle would reveal 

narcotics. Seconds later, Officer Toporowski asked Kelley for consent to search his

vehicle, and Kelley agreed to the search. We conclude that at the time Officer 

Toporowski made this request to search, he was diligently pursuing his investigation in a 

way that was likely to confirm or dispel his suspicions quickly. The video recording of 

the stop shows that only fifteen minutes elapsed from the initiation of the stop to the 

discovery of the marijuana. Almost immediately after Officer Toporowski made the 

request to search, Kelley agreed to the search of his truck and never objected to or limited 

the scope of this search, which resulted in his being detained for a longer period of time. 

Because the time, manner, and scope of the investigation did not exceed the proper 

parameters of the stop, Kelley has failed to show that the officers unreasonably detained 

him following the traffic stop. 

II. The Search. Finally, Kelley argues that the trial court erred in finding that he 

consented to the search of his truck. He also claims that there was no proof supporting 

the officers’ claim that they accessed the marijuana inside the toolbox with a key he 

provided. 

When evidence is seized following a warrantless search of a vehicle, the State 

must prove that the search was conducted pursuant to one of the exceptions to the warrant 

requirement. Troxell, 78 S.W.3d at 871 (citing Keith, 978 S.W.2d at 865). One such 

exception is a search conducted pursuant to a person’s consent. Id. (citing Schneckloth v. 

Bustamonte, 412 U.S. 218, 248 (1973)); Bartram, 925 S.W.2d at 230. 

The State has the burden of establishing that an individual’s “‘consent was, in fact, 

freely and voluntarily given.’” State v. Reynolds, 504 S.W.3d 283, 306 (Tenn. 2016)

(quoting Schneckloth, 412 U.S. at 222). To be valid, consent must be “‘unequivocal, 

specific, intelligently given, and uncontaminated by duress or coercion.’” State v. 

Ingram, 331 S.W.3d 746, 760 (Tenn. 2011) (quoting Berrios, 235 S.W.3d at 109). A

defendant’s will cannot be overborne and his act of consenting must be “the product of an 
- 19 -

essentially free and unconstrained choice.” State v. Cox, 171 S.W.3d 174, 185 (Tenn. 

2005). Whether a person voluntarily consents to a search is a question of fact to be 

determined from the totality of the circumstances. Berrios, 235 S.W.3d at 109 (citing 

Schneckloth, 412 U.S. at 227; Cox, 171 S.W.3d at 184, 186).

Factors to consider in determining whether an individual’s consent is voluntary 

include the time and place of the encounter, whether the encounter was in a public or 

secluded place, the number of officers involved, the degree of hostility during the 

incident, whether weapons were displayed, whether consent was requested, and whether 

the consenter initiated contact with the police. Cox, 171 S.W.3d at 185. In addition, an 

individual’s “age, education, intelligence, knowledge, maturity, sophistication, 

experience, prior contact with law enforcement personnel, and prior cooperation or 

refusal to cooperate with law enforcement personnel” are relevant in determining whether 

consent is voluntary. Id. (internal quotation marks and citation omitted). Finally, an 

individual’s “‘[k]nowledge of the right to refuse consent’” is also a factor in determining 

the voluntariness of consent. Id. (quoting Schneckloth, 412 U.S. at 235-47). 

Even if a person’s consent is voluntary, evidence seized in the search will be 

inadmissible if the search exceeds the scope of the consent given. Troxell, 78 S.W.3d at 

871 (citing 3 Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996)). When 

determining the scope of consent, any express or implied limitations on the time, 

duration, area, or intensity of the police activity necessary to accomplish the stated 

purpose of the search, as well as the expressed object of the search should be considered. 

Id. (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). The scope of consent is not 

based on the subjective intentions of the consenting individual or the subjective 

interpretations of the searching officer but on “‘objective’ reasonableness—what would 

the typical reasonable person have understood by the exchange between the officer and 

the suspect.” Id. at 871-72 (quoting Jimeno, 500 U.S. at 251). 

Kelley claims he told the officers they could “look around at what’s [sic] ever in 

plain view” but that they “[did] not have consent to search [his] vehicle.” He argues that 

the trial court should not have accredited the testimony of the officers because neither 

Officer Toporowski nor Officer Peters were able to recall anything said during their 

discussions with Kelley other than the fact that Kelley consented to a search of his 

vehicle. He also claims that the malfunctioning of the audio portion of the recording at 

the precise moment the officers claimed he gave consent is suspicious. 

After hearing the testimony from Officer Toporowski, Trooper Peters, and Kelley 

and after reviewing the recording of the stop several times, the trial court found that when 

Kelley “was asked, does he mind if I search the car, [Kelley] says, no, I mean, I don’t 

mind.” The trial court also found that Kelley’s demeanor supported a finding that he 
- 20 -

consented to the search of his truck. The court stated, “I don’t believe the Defendant 

would have been required to scream and go crazy trying to object to the search of the 

vehicle, but I do believe by my observations of his demeanor from the stop after the 

statement was made to Officer Toporowski [that his demeanor was] not consistent with 

one that was continuously objecting or protesting what was going on.”

 When considering the voluntariness of Kelley’s consent, we note that at the time 

of the stop, Kelley was thirty-three years old. The record shows that Kelley had average 

intelligence and that he had prior experience with both law enforcement and the criminal 

justice system. In October 2011, a warrant was executed on Kelley’s Old Hickory house, 

where officers discovered 44 to 47 pounds of marijuana, and Kelley was indicted for this 

offense. At the time of the stop, Kelley had prior convictions for possession of marijuana 

in excess of ten pounds, possession of marijuana not less than one-half ounce nor more 

than ten pounds, misdemeanor theft, and a weapons offense. 

We next consider the details of the incident in determining the voluntariness of 

Kelley’s consent. The video recording of the stop shows that the stop occurred in the late 

afternoon on the shoulder of an extremely busy interstate. While there were a total of

three officers at the scene, all of these officers were professional and respectful during the 

course of Kelley’s stop and detention. Nothing in the record suggests that the officers 

pressured or coerced Kelley into giving consent to search, and no officer drew his 

weapon during the encounter. In particular, we recognize that Officer Peters provided 

clear, unequivocal testimony about Kelley’s consent to the search, which was accredited 

by the trial court, and we will not second-guess the credibility determinations made by 

the trial court on appeal. Considering the totality of the circumstances, we conclude that 

the evidence, including the video recording and the testimony from Officer Toporowski

and Trooper Peters, supports the trial court’s finding that Kelley consented to the search 

of his vehicle.

Lastly, Kelley argues that “there was no proof on the record that the officers got 

into the toolbox, located in the back of his truck, by any means of a key that he supplied.” 

At the suppression hearing, Officer Toporowski testified that when he asked Kelley if any 

of the keys on his keychain would open the lock, Kelley responded, “I don’t know.” He 

then asked if Kelley would mind if he tried the keys, Kelley said, “[G]o ahead.” Officer 

Toporowski stated that Officer Bates used one of the keys on Kelley’s keychain to open 

the lock and that the lock did not have to be forced open. After hearing this proof, the 

trial court made the factual finding that the officers did not pry the toolbox open, and the 

proof does not preponderate against this finding. The record does not show that the

officers exceed the scope of the consent given by Kelley. After concluding that the initial 

stop was justified and that the detention was reasonable in scope and duration, we further

conclude that Kelley voluntarily consented to the search of his truck, which led to the 
- 21 -

discovery of the marijuana. Therefore, the trial court properly denied the motion to 

suppress. 

CONCLUSION

Because the stop and the search in this case were constitutionally permissible, we 

affirm the judgment of the trial court. 

_________________________________

CAMILLE R. McMULLEN, JUDGE