### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 26, 200 2 Session

STATE OF TENNESSEE v. LESLI E DARRELL DEBORD
Direct Appeal from the Criminal Court for Cum berland County No. 5932 Lillie Ann Sells, Judge

No. E2001-02808-CCA-R3-CD June 26, 2003

The appella

nt, Le slie Dar

rell Deb ord, pled

guilty in the Cumberland County Criminal Court to two counts theft of p

roperty over one thousand d

ollars ($ 1000), Cla ss D felo nies, and three counts of theft of property ove

r ten thousand dollars ($10,000), Class C felonies. Thetrial court sentenced the appellant to an eff ective s e ntence of ei ght ye ars incarceration in the Tennessee D epartment of Correction. The trial court suspended the appellant’s sentence, ordering the appellant to serve 104 da ys in the Cum berland

County Jail on cons ecutive

weekends and the

remaind er in a c ommunity corrections program. Pursu ant to the plea agreement, the appe llant reserved the right to appeal certified questionsof law ch alleng ing the t rial cou rt’s den ial of his m

otion to suppress

. Upon review of the record and

the part ies’ brie fs, we a ffirm the judgmen ts of the tr

ial cour t.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Cr

iminal Co

urt are A ffirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in whi ch G ARY R. W ADE , P.J., and J ERRY L. S MITH , J., joined.
M. Keith Davis, Dunlap, Tennessee, for the appellant, L eslie Darrell Debord.

Paul G. Summers, Attorney Gene ral and Reporter; Angele M. Gre gory , AssistantAttorney Genera l; William E. Gibson, District Attorn ey Genera l; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION I. Fact ual Backgro

und At the suppr ession he aring, Deputy

Scott Griffin of the Cumberland County Sheriff’s Department

testified that on March 26, 2 000 , at appr oximately 9:45 p.m., D eputy

Gary Bolin requested his assistance at the “Bum Pond area down off of F lat Rock Road into the Bowater property.”Depu ty Griffi n explained that this property, owned by the Bowater Corporation, was “wooded country [with] roads throu gh it for . . . hunters’ access.” Deputy Bolin was investigating

a report regarding a

stolen Arctic Cat all-terrain vehicle (“ATV” ) and a John Deere four-wheel drive backhoe allege dly

located on the pro

perty . Deputy

Bolin ad vised De puty Griffin that he had located-2-

the ATV and t

hat he al so had disc overed a n unattended flat-bed pickup tr uck p arked next to the ATV. Deputy Bolin informe d Deputy Griff in that the truck’s engine “was still hot.” Deputy Griffin agreed to assist Deputy

Bolin in his investigation.

When Deputy Griff

in arrived at

the scene, he observed a flat-bed pic kup truck parked within twe

nty -five y ards of a n ATV. Pri or to Deputy

Griffin’s arrival, Deputy Bolin had checked the ATV’s vehicle iden tificati on number (“VIN” ) and had been advised that the ATV had bee n reported stolen the previous month. Because the truck was parked near the stolen ATV, the offic ers suspectedthat it had

also bee n stolen. D eputy

Griffin checked the truc

k’s VIN number an d was advised that the truck, registered to the appellant, had not been re po rted stole n. Never theless, Deputy Griffin testified that because the engine was still warm, he and Deputy Bolin believed the truck had been recently

stolen, but not yet reported.
Deputy Griff

in observedthat the bed of the truck containe d “a fue

l tank . . . , an air

c ompressor, some cutting torch hoses” and various other items. Accor dingly, the off

icers began searching the bed of

the truck to deter

mine if an

y of th ese i tems wer

e stolen. Deputy

Griffin photographed the truck

bed and its contents. These photographs were e ntered into evidence at

the suppr essio n heari ng.

While search

ing the o pen bed o f the truc

k, Deputy Griffin discovered a closed black plasticdrill box in a

side comp artment. Deputy Griffin opened the drill box, wherein he discovered marijuana seeds and “leftover parts of a marijuana cigarette.” Upon discove ring the marijuana, the officers terminatedtheir

search and call ed Deput

y Jer ry Jackson to t

he scene . They

then dec ided to “back off” and wait to see if the driver of the truc k returned. Deputy

Griffin explained, “Since the engine was still

warm, the

re was a possibility

they would com

e back. ” Deputy

Griffin testified that at that point, the officers still believed that the truck was stolen.

As Deputy Griff

in got into his vehicle, he and the o ther off ic ers observed a truck approaching the scene. Deputy Griffin remaine d in his vehicle

while the other of ficers w alked int

o the woods to wait. As the truck pulled up beside the flat-bed pickup truck , D ep ut y Griffin approached

the driver, whom

he identifie d as the a

ppellant . Deputy

Griffin asked the

appella nt if he was the owner of the flat-bed pickup truck and the ATV

. The appellant responded that he owned the flat-bed pickup truck, but that he ha d never seen the ATV. Deputy Griffin then advised the appellant that he was under arrest for possession of ma rijuana.

While conducting a pat-down search , Deputy

Jackson discovered a set of key s on the appellant’s person, which set of key s included a key to a n Arctic Cat ATV. Deputy Jackson ga ve the key s to Deputy Griff

in, who in turn askedDeputy Bolin to deter mine if the ATV key

would start the stolen ATV. Deputy Griff in testified, “[The key] fit. [Deputy Bolin] could turn the engine over, butit wouldn’t start.” At that point, Deputy Griff in advised t he appellant that he was also under arrest for the theft of the ATV.-3- After the appellant was taken into custody , the flat-bed pickup truck was impounded and the officers searched the Bow ater property in the vicinity

of the tru ck and AT

V. Deputy

Griffin testified that approximately one-fourth of a mile down the road from the appellant’s flat-bed pickup tr uck, the officers discovered the alleg edly stolen backhoe , a red cattle trailer, and a trailer with a “Bobcat bucket.” The cattle trailer contained the makings of a “meth lab.” Behind the cattle trailer, the officers also discovered a “loader, a tree transplanter and

a ‘98 [B]obcat.” Approximately one mile from the appellant’s truck, the officers discovered a “‘66 Mustang on a Cronkite trailer.” The officers subsequently

learned that these items were stolen.

Based upon the discovery of

the ATV key on the

appellant’s person , the officers obtained a warrant to search the appellant’s pr operty. On the a

ppellant’s property , the officers found

a stolen snow blade. While executing the search warrant, the of ficers came into cont act with the appellant’s father, Loy

d Debord. He “mentioned another backhoe that was parked o n his prope rty

. . . [a]nd he asked [the officers to] check that property and check that

backhoe to see if it [was also] stolen.” When the officers searched theproperty be longing to the appellant’s father, they recovered parts of the stolen Mustang from a small shed.

Several days later, D eputy Griff in lear ned that t he appellant’s br

other ow ned prop erty adjoining the Bowater property . Deputy Griff in subsequently spoke to the appellant’ s brother, who agreed to allow the officers to sear ch his proper ty. The appe llant’s br other inf ormed the

office rs, “There are some panels there , some feeders in behind. . . . Come and get them. If they ’re stolen, I don’t want them.” The officers located several pane ls and feeding troughs that had been stolen when the cattle trailer was stolen.

During the inventory sear ch of the appe llant’s f lat-bed pickup tr uck, Dep uty Griffin discovered

a toolbox in which he found tools bearing the initials of Dr. John Simpson. Subseque ntly
, on property whic

h was being used by

the appellant, Putnam County officer s discovered

a Kubota generator repor ted stolen from Dr. Simpson . The o fficers also recovered a motorcycle r

eported stolen in the Nashville area.

On cross-examination , D eputy Griffin testified tha t although initially arre sted for possession of marijuana, the appellant became a suspect in the theft of the ATV after the appellant “came to the scene and

we realized it was his truck.” Deputy Griffin acknowledged that the officers disc overed the marijuana in a closed drill box located in a side compartment of the truck, which compartment

had “a wooden top to it.” Deputy Griffin conceded that, although the o fficers were searching the bed of the appellant’s truck for stolen property , the officer’s visual inspection revealed “nothing patently incriminating on tha t truck.” Deputy G

riffin added that the officers did not determine that night that any of t he items in the bed

of the tru ck were

stolen. Mo

reover , Deputy Griffin related that there was no room for the A TV in the bed of the appellant’s truck.
Regarding the prope

rty on which the stolen ATV and the appellant’s flat-bed pickup truck were discovered, Deputy Griffin testified that the Bowater Corporation owned t he pr op er ty. He described the property as a tree farm on which the Bowa ter Corporation raised pines for1 The appel lant pled g uil ty to cou nts 2, 4, 5, 7, and 9 of the indictment. Count 2 all eged t he t hef t of a 1999 Arctic Cat ATV ; count 4 alleged the theft of a John Deere four-wheel drive backhoe; count 5 alleged the theft of a loader,

a 1998 Bob cat, and a tr ee transplanter ; count 7 alleged the t heft of a Bobcat trail er and bucket; and count 9 alleged the theft of various tools, wire, and a chainsaw belonging to Dr. John Simpson.

-4- pulpwood. No on e r es id ed on th e p ro pe rt y. Deputy Griffin related that the tr

uck was “ backed into the woods, right off of

the gra vel road . . . [i]nto the

trees. T he front end was a

couple of feet off the actual traveled road.” The AT V was located t o the rig ht of the tr

uck, “a pproximate

ly . . . fifty

to seventy-five

feet . . . deeper

into the wo ods.” De

puty Griffin testified that the office rs were able to determine the location where theATV had b een driv en into the woods and

stated tha

t a “trail” led from the ATV to the road, exiting the woods near the truck. Deputy Griff

in related that the gravel road, which wou

ld requir e a four -wheel d rive veh icle to tr averse , led to the

back of t he prope rty be longing to the appellant’s brother. Deputy Griffin acknowledged that, beca use the road was “fairl y narrow,” it would be

necessa ry to park a vehicle off the r oad and in

to the woods in order to allow other ve hicles to p ass.

Based upon the foregoing testimony , the trial court denied the appe llant’s mo tion to suppress. The trial court found:

[T]he officers in this case . . . kn ew [the property] was B owater propert y and that it had no connection to either of these vehi cle s. [The ATV] was a stolen vehicle from someplace else. And the of ficers

. . . could logically draw the conclusion that this truck was stolen. . . . [T]his is not a

parking lot, this is n ot the side

of a publi c highway [frequented by] the

public . . . [where] one would normally pull over and

park and

go off with a frie

nd. . . . [D]ue to the remoteness of this area, the c our t finds that these officers had probable cause a nd that it was an automobile. It was mobile and the court does find that . . . this search was reasonable.

There after, the appellant pled guilty to two counts of theft of property ove r on e thousand dollars ($1000) and three counts of theft of property over ten thousand dollars ($10,000). 1 The trial court sentenced the appellant to an effective senten ce of eight ye ars incarceration in the Tennessee Depart ment of Co rrection. The trial court then suspended the appellant’s se ntence, ordering the appellant to serve 104 day s in the Cumberland County Jail on consecutive wee kends and the remainder of the sentence in a community corrections program. Purs u ant to the plea agree ment, the appellant reserved the right to appeal certified

questions of law challenging the trial court’s denial of

his motion to

suppress. See

Tenn. R. Cr

im. P. 37(b)(2)(i). The questions before this court are (1) “Whether the seizure of marijuana from inside a drill box located inside a compartment

of the bed of the [appellant’s] parked and unoccupied vehicle violated the [appellant’s] rights as guaranteed to him by the Fourth Amendment to the U.S. Constitution and Article 1, section 7 of the Tennessee Constitution” and (2) “Whether the remaining ev idence obtained

by t he State agains tthe [appellant] . . . qu alifie[d] a s ‘fruit o f the pois onous tre e’ in viola tion of the

Fourth Amendment to the U.S. Constitution and Article 1, section 7 of the Tennessee Constitution.”-5- II. Analysis The trial court’s findings of fact in a suppression hear ing will be upheld on appeal unless the evide

nce pre pondera tes aga inst those findings. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions of credibility of the witnesse s, the weight and value of the evidence, and res olution of conflicts in the evidence are matters entrustedto the trial judge as the trier of fact . The par

ty prevailing in the trial court is entitled to the stron ges t legitimate view of the evidence adduced at

the suppression hearing as well as all reas onable and legitimate inferences that may be drawn from that evidence. Id. H owever , the appl

ication o f the law

to the tria

l court’sfinding s of fac t is a ques tion of la w subject to de novo review. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

Both the Fourth Amendment to the United States Constitution and Artic le 1, section 7 of the Tennessee Constitution p rohibit unreasonable searches and seizures by law enforcement office rs. The purpose of

the Four th Amendme

nt and Ar ticle 1, section 7 is to “‘safeguard the privacy and security

of individ

uals ag ainst

arbitrary invasions of government officials.’” State v. Munn , 56 S.W.3d 486, 494 (Tenn. 2001) (quot ing State v. Bridges , 963 S.W.2d 4 87, 490 (T enn. 1997 )); see also State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997) . Under b oth constitutions, “‘a wa rrantle ss 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 s eizure w as condu cted pur suant to
one of the narrowly

defined exceptions to the warrant requirement.’” State v. B inette , 33 S.W.3d 215, 218 (T enn. 2 000) ( quot ing Yeargan , 958 S.W.2d at 629); see also Coolidge v. New Hampshire
, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971).

One such exception to the war rant re quireme

nt is the “a

utomobile

exception” which allows police to search a vehicle without a warra nt if the officers have probable cause to believe that the vehicle contains contraband. Carroll v. United States
, 267 U.S. 132, 149, 45 S. Ct. 280, 283-84 (1925); St at e v . Le ve ye , 796 S.W.2d 948 (Tenn. 1990). If the police have pr obable cause to believe that an automobile contains contraband, the officers may either se ize the vehicle and then obtain a warrant or they may search the vehic le immediately. Chambers v. Maroney , 399 U.S. 42, 52 , 90 S. Ct. 1975, 1981 (1970). “ Given pr obable c ause tosearch, either course i s reason able unde r the Fou rth Amendment.” Id. Moreover, if there is probable cause to sea rch the vehicle, theoffice

r’s auth ority to search extends to

the opening of closed containers within the vehicle. United States v. Ross , 456 U.S. 798, 821, 102 S. Ct. 2157, 2171 (1982). T he scope of a war rantlesssearch

of an aut omobile “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Id. at 824, 102 S. Ct. at 2172.

The rationale for the automobile exception is two-f old: (1) t he impracticability of obtaining a sear ch warr ant in light of the inherent mobility of a n automobile; and (2) the reduced2 An in divi dual’ s re duced ex pecta ti on of privac y i n a veh icl e st ems f rom the “pervas ive re gulation of v ehicl es cap able of trave ling on th e pub lic highw ays.” Carney , 471 U .S. at 392, 105 S. Ct. at 2069 (citing Cady v. Dom browski
, 413 U .S. 433, 440-41, 93 S. Ct. 252 3, 2527-28 (1 973)).

-6- expectation of privacy

with respect

to one’s automobile. 2 Californ ia v. Carney , 471 U.S. 386, 390- 93, 105 S. Ct. 206 6, 2069-7 0 (1985); South Dakota v. Opperman , 428 U.S. 364, 367, 96 S. Ct. 3092, 3096 (1976). In Lev eye , 796 S.W.2d at 952, our supre me court noted tha t the Unite d States Sup

reme Court in Carney , 471 U.S. at 392-93, 105 S. Ct. at 2069-70,

equate[d] a lawfully parked vehicle with a vehicle that

is stopped

in transit on a public highway

and relie[d] upon the inherent mobility of

a vehicle to create a conclusive presumption of exigency

. . . . [A]t the very least Carney

authorizes a warrantless search of a ve hicle parked in a public place, after a rece nt crime, providing proba ble caus e to believe the vehi cle contain s contraband, without any actual likelihood that the risk of delay to obtain a warrant is high.

In t he instant case, the appellant’s truck was discovere d on property owned by the Bowater Corporation, which property was open to the public. The area was nota residential area, butwas a wooded area

frequented by

hunters and off-road drivers. Moreover , although the ATV was stolen the previous month, the discovery and subsequent search of the appellant’s truck occurred shortly after the officers discovered the stolen ATV on the Bowater property . Accordingly , we are left to determine whether Deputy Gri ff in and Deputy B olin had probable cause to believe that the appellant’s truck contained contraband.

“Probab le cause ha s been de fined asa reasona ble ground for suspicion, supported by circumstances indicative of an illegal act.” State v. Henning , 975 S.W.2d 290, 294 (Tenn. 1998). In the instantcase, at approximately 9:45 p.m., the officers were investigating the report of a stolen ATV and backhoe

allege dly located on the Bowater property . Within twenty-five y ards of the stolen ATV, the officers discover ed an una ttended f lat-bed pickup tr uck. Be cause

the truck’s engine “was st ill hot,” the

office rs deter mined tha t the truc k had bee n parked there r ecently . The off

icers a lso observed that the truck’s bed contained a var iety of tools a

nd small ma

chinery , includin g an air compressor, a fuel tank, and “some cutting torch hoses.” Based upon the proximity of the truck to the stolen ATV and the fact that the truck had only rec ently been

parked at this location, the officers concluded that the truck and the items located therein wer e stolen.

We conclude

that, bas ed upon these cir cumstanc es, the of

ficers h ad proba

ble caus e to believe not only that the tr

uck conta ined cont raband, but that the

truck i tself was contraband. Therefore, the officers were justified in conducting a warrantless search of the appellant’ s truck. Moreover, because the officers had proba ble cause to search the truck, their authority extended to any closed container within the truck in which the officers believed they may find contra

band. Ross
, 456 U.S. at 821, 102 S. Ct. at 2171. Deputy Griffin testified that he and Deputy B olin believed that the to ol s i n t he be d o f t he tr uc k w er e s to le n. Ac co rd in gl y, the search of the drill box in the side compart ment of the

truck be d was not u

nreason able. Th

is issue is without mer

it.-7- Having conclud ed t hat the search of the appellant’s truck and the drill box were justified, we likewise conclude that the re is no mer it to the appellant’s complaints regarding the search of his property a

nd property be

longing to his father and brother. M oreover , the coun ts to which the appellant pled guilty were based upon stolen items found on the Bowa ter prop erty

and in the bed of the pickup truck, not on property belonging to the appellant, his father, or his brother

.
III. Conclusion For the f orego ing rea sons, we a

ffirm the judgmen ts of the tr

ial cour t.

___________________________________ NORMA McGEE OGLE, JUDGE