### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E May 12, 2 00 9 S es si on

STATE OF TENNESS EE v . MELVI N JERO ME REED, J R.

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2007-B-1696 Steve R. Dozie r, Judge

No. M2008- 01850-CCA -R3-C D - F iled Septem ber 17, 2009

The defe ndant, Melvin J erome Reed, J r., pled g uilty to p o s s essi on of 300 g rams or more of a Schedule I controlled substance with intent to sell or deliver, a Class A felony
, in exchang e for a Rang e I sentenc e of twenty y ear s, to be serve d consec utively to two other sentenc es. As a condition of his g u i l t y p l ea, the defe ndant rese rved three cer tified questions of law pursuant to Rule 37(b)( 2)(A) of the Tenne ssee Rules of Criminal Procedur e reg arding the leg ality of the traff ic stop, detention, and sear ch of his vehicle on Marc h 16, 2007. We conclude that the questions are proper ly

cer tified and that the tria l court ruled c orre ctly in deny ing the motion to s uppress.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L A N E. G L E N N , J
., delivere d the opinion of the court, in which T H O M A S T. W O O D A L L and R O B E R T W. W E D E M E Y E R , J J ., joined.

Richard L

. Holcomb, Knoxvi lle, Tenne s s ee (o n appea l); and J im Todd and Dumaka Shabazz, Nashville, Tenne ssee ( at trial), f or the a ppellant, Melvin J erome Reed, Jr.

Robert E. Cooper, J r., Attorney Gene ral and Rep o r ter; Melissa Roberg e, Assistant Attorney Gene ral; Victor S. J ohnson, I I I
, District Attorney Gene ral; and Amy H. Eisenbec k and J ennifer M cM i llen, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP INION

F ACTS

Following the defe ndant’s indictment for possession of 300 g rams or more of a Schedule I controlled substance with intent to sell or deliver, he filed a motion to suppress, arg uing that the stop, detention, and K- 9 swee p of his car violated his constitutional rights.State’ s P roof

At the Fe bruar

y 28, 2008, suppression hear ing, Offic er Meli s s a Sc h u lt z w it h th e M e tr o p olitan Nashville Police Depa

rtment testified that on Marc h 16, 2007, she was working routine patrol on the midnight shift. As she was leaving Dellway Villa Apar tments a fter assisting an office r on another call, Offic er Schultz noticed the defe ndant sitti ng in his vehicle in the parking lot. She only noticed the defendant because the parking lot was d ar k ex cept for his vehicle, which had its lights on and
appea red to be leaving

. Offic er Schultz left the apar tment complex and was trave ling on Dicker son Road when she spotted the defe ndant’s car ahea d of her. She acknow ledg ed that she intentionally followed the de fenda

nt and may

have e x cee ded the spe ed limit in an attempt to catch up with him
to “run tag s

. . . and do [her] job pro-a ctively .” Asked if there was a police policy requiring that she activate her blue lights when trave ling more than ten miles an hour ove r the posted spe ed, Of fice r Schultz said, “When y ou ar e responding to emer g ency calls, there is. I was not responding to an

emer g ency

call; so, there fore , no.”

Offic er Schultz testified that when the defe ndant rea ched the intersec tion with Trinity L ane, he slowed down but did not come to a complete stop befor e making a rig ht-hand turn. At that point, Offi ce r S ch u ltz activate d her emer g ency equipment and initiated a traff ic stop of the defe ndant’s vehicle. The defe ndant pulled over immediately
, and Offic er Schultz approa ched his car , informed him of the rea son he was stopped, and asked for his license, reg istration, and insurance information. The offense report lis ted t he ti me of the incident as 2:25 a .m. Asked if any thing ha ppened during her encounte r with the defe ndant that provided her with rea sonable suspicion or probable cause that the defe ndant was committing or had committed a crime, Offic er Schultz stated that “in nine y ear s of experience in dealing with people and lear ning body lang uag e

. . . and lear ning rea ctions

. . . I felt that he was a littl e bit ne rvous[,] ” but acknow ledg ed that did not g ive her rea sonable suspicion.

Upon returning to her patrol car , Offic er Schultz radioe d for a K-9 unit to come to the scene , ran “the normal chec ks, validity of t h e l icense
, outstanding war rants,

. . . arr est history
, criminal history
, NCI C chec ks” and started to write out a ticket at 2:33 a.m. acc ording to the clock i n her patrol car

. Offic er Schultz acknow ledg ed that the only chec k requir ed by law is to chec k for outstanding war

rants but explained that “[she] like[d] to g o bey ond the traff ic stop” and not “do just what i s require d.” She stated that she had never timed how long it takes her to write out a ticket beca use, while doing so, she pulled up information on the computer and rec eived information from other office rs. She said that these wer e not stalling tactics. Offic er Schultz noted that the computer chec ks take long er w hen the pe rson has a n alias.

Offic er Schultz testified that she did not believe that she asked the defe ndant for consent to

sear ch his car befor e she called for the K-9 unit

. She stated that she m ay have noted in her report how long it took the K-9 unit to arr ive, but it did not s ee m like an unusual amount of time. She estimated that the units normally take any wher e from eig ht to twenty minutes to respond depending

on traff ic. The K-9 unit a

rrived “bef

ore [she] was finished doing what [she] neede d to do on [her]

en d .” After looking at her repor t, Offic er Schultz noted that the K-9 unit arr ived o n t h e s ce n e approximately

six to eig ht minutes after be ing dispa tched.

-2-Offic er Schultz testi fi ed that once the K-9 unit arr ived, she informed the office r that the

defe ndant had been stopped for running a red light and asked the office r “to run the dog around the

car [.] ” She also ha d the def endant step out of his ve hicle aw ay from the car “so as to not

. . . have
any acc idents with the dog or any t h i n g like that[.] ” The dog g ave a positive indication on the vehicle, and a probable -ca use sear ch reve aled “ninetee n individual bag s of what was believed to be Ecstasy at t he ti me, t otal of eightee n-hundre d-and- fifty pills.” S he elaborate d that the K-9 office r perf ormed a cursor

y sear ch of the car first and did not find any thing, t h en she sear ched and

u n c o v e r e d th e d

r u g s

. O f f ic e r Schultz explained that she alway s double-c hecke d the car s she stopped.

Offic er Schultz te stified that the ar rest re port indicated tha t it was written at 2:30 a.m., but it was actua lly written afte r the ticket. She explained that she had utiliz ed “seve ral differ ent clocks” during the encounte r, including her watch, the clock on her patrol car , the clock on the computer, and the clock on her cell phone. She said that the defe ndant’s name was listed as Melvin Reed with the alias of Me lvin Harding on the ar rest re port.

Offic er Mark Sy denstricke r with the Metropolitan Nashville Police Depa rtment K-9 Section testified t hat he rec eived the call from the di spatche r at 2:31 a.m. and ar rived on the scene at 2: 43 a.m. He c onducted the K -9 sniff at 2:48 a .m. Offic er Sy denstricke r testified that he did not reca ll whether he per sonally sear ched the vehicle afte r the dog indicated or whether Offic er Schultz was the only one to sea

rch.

Defendan t’s P roof

The defe ndant testified that Offic er Schultz activate d the blue lights on her patrol car “wa y befor e [he] even g ot to the light

. . .[,] [r] ight when [he] g ot in the turning lane.” He went ahea d and made the rig ht turn, t h en pulled over. Offic er Schultz reque sted his license, reg istration, and insurance car d and asked if he was drunk. The defe ndant rec alled that he told Offic er Schultz to g ive him a brea thaly

zer test beca

use he did not drink “and then she tried to say that [he] ran a red light.” Offic er Schultz returne d to her pa trol car , while the defenda nt waited in his car

. He did not know how long it took the K-9 unit to arrive, but he smoked two to three c iga rettes a s he wa ited.

On cross-e x amination, the def endant testified tha t his real name is Melvin Harding , but he had g one by Melvin Reed for twenty -five or twenty -six y ear s. He admitted that he was on probation for a drug offe nse wh en h e was stopped in this case

. He also acknow ledg ed that he had another felony conviction for posse ssion of coca ine for r esale

. Bobby Br own, a private investiga tor and para leg al, testified that he revie wed Automatic Vehicle L ocator (“A VL ”) documents at the defe ndant’s reque st. Acc ording to the rec ords, there was

a call from car 237 at 2:25 a .m. At that time, the repor t show ed an initial spee d of zero-miles-per

hour, b u t during that same minute, the repor t indicated a speed of six ty -miles-per -hour. Br own attempted to map the latitude and long itude taken f rom the AVL

for both of the speeds on Goog le Earth; howeve r, the court disallowed such testimony beca use Br own could not testify to the acc urac y of the infor

mation on Goog le Ear

th.

-3-Richard Vaug hn, Direc tor of I nformation Tec hnology for the Metropolitan Nashville Police

Depa rtment, testified that all of the metro patrol vehicles are equipped with a n AVL that transmits data to a c entra l location controlled by the Emerg ency

Communi cations Center . The AV L for c ar 237 showed that it arr ived at the corne r of Trinity L ane and Dicker son Pike at 2:27 a.m. The AVL showed that the car was at the 2700 block of Dicker son Pike and not moving at 2:25 a.m., and was at the 2300 block of Dicker son Pike at 2:27 a.m. and trave ling six ty -miles-per -hour. Stil l during the 2:27 minute, the car slowed to twenty -two-miles-pe r-hour and was at the 2200 block of Dicker son Pike. The car finally stopped at the 100 block of Trinity L ane, still during the 2:27 minute. Car 237 started to move a g ain ar ound 3:38 a.m.

Vaug hn testified that the audit trail of the computer rec ord chec ks showed that at 2:31 a.m., Offic er Schultz rec eived information from a local war rant chec k, a driver’ s license query , and two

war rant sear ches through NC I C. Offic er Schultz reque sted an arr est chec k at 2:31 and a juvenile criminal history chec k at 2:33 a.m., and both results wer e returne d immediately

. Offic er Schultz did not make anothe r inquiry until 4:19 a.m.

On cross-e x amination, Vaug hn testified that althoug h the repor ts wer e returne d at the same time, it was not likely an office r would have the various repor ts open at the same time. Vaug hn said that the time ref

lected on the AVL runs off a differ ent clock than the time ref lected on the computer

rec ords, and the times we re not ne cessa rily sy nchronized.

I n deny ing the defe ndant’s motion to suppre ss, the trial court acc redited Offic er Schultz ’s testimony an d found that she “validly stopped the defe ndant for running throug h a traff ic control signa l.” The c ourt noted that Off icer Schultz “almost immediately ” called for a K- 9 unit and then pursued her investiga tion to deter mine the defe ndant’s identity and l ega l status for citation. The
court observe d t h at Officer Schultz conducte d her last computer inquiry at 2:33 a.m. and beg an writing the ticket at 2:33 a.m., but noted that she still had to proce ss the multipl e information scre ens and phy sically write the ticket. The court noted that the information Offic er Schultz had to r eview “wa s not quickly and rea dily available for her to rush throug h.” The court acc redited Offic er Schultz ’s testimony that the K-9 office r arr ived on the scene prior to the ticket being completed. The
court conclude d that “the stop was valid, and was not prolong ed nor extended to the point of being

unrea sonable.”

There afte r, the defe ndant pled g uilty to possession of 300 g rams or more of a Schedule I controll ed substance with intent to sell or deliver while proper ly rese rving the following cer tified questions of law pursuant to Tenne ssee Rule of Criminal Procedur e 37(b)( 2)(A) that are dispositi ve of this case :

I

. Whether the traff ic stop of [ t h e defe ndant] was supported by rea sonable suspicion to eff

ectua te the traff

ic stop as require d by the Four th Amendment of the United State s C o n s t i tution and Article 1 § 7 of the Tenne ssee Constit ution.

-4-I I

. Whether t he scope of t he detention following the traffic stop was ex cee ded by Offic er Schultz
, without rea sonable suspicion or p robable cause , in

v i o l ati on of the [d] efe ndant’s rig hts under the Four th Amendment of the United States Constit ution and Article 1 § 7 of the Tenne ssee Constitution.

I I I

. Whether the evidenc e obtained as a result of the war rantless sear ch and seizure of [t he defe ndant] should have been suppressed when the State failed
to car ry its burden in demonstrating that the war rantless seizure and detention of [the defe ndant] was rea sonable.

ANALYSIS

When this court revie ws a trial court’s ruling on a motion to suppress evidenc e, “[q] uestions of credibility of t he witnesses, the weight and va lue of the e vidence , and resolution of conflicts in the evidenc e are matters entrusted to the trial judge as the trier of fac t.” State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996). The party preva iling at the suppression hear ing is aff orded the “st ro n g est leg itimate view of the evidenc e and all rea sonable and leg itimate infere nces that may be draw n from that evidenc e.” State v. Keith, 978 S.W .2d 861, 864 (Tenn. 1998). The finding s of a trial court in

a suppression hear ing are upheld unless the evidenc e preponde rate s ag ainst those finding s. See id. Howeve r, the a

pplication of the lawto the fac ts found by the trial cour

t is a question of law a

nd is revie wed de novo

. See State v. Yea rg an, 958 S.W .2d 626, 629 (Tenn. 1997). Both proof prese nted
at the suppression hear ing and proof prese nted at trial may be considere d by an appellate court in deciding the propriety of the trial court’s ruling on a motion to sup p re s s

. S t at e v. Henning
, 975 S.W .2d 290, 299 (Tenn. 1998) ; State v. Perry , 13 S.W .3d 724, 737 (Tenn. Crim. App. 1999)

.

I. Initial Traff

ic Stop

Both the Four

th Amendment to the United States Constit ution and article I
, section 7 of the Tenne ssee Constit ution protec t individuals ag ainst unrea sonable sear ches and seizures. See U.S. Const. amend. I V; Tenn. Const. art. I
, § 7. “The se constitutional p ro v i s ions are desig ned to ‘saf eg uard the privac y and secur ity of individuals against arbitra ry invasions of g overnme nt officia ls.’” Keith, 978 S.W .2d at 865 (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967)). A sear ch or seizure conducte d without a war rant is presumed

unrea sonable, and evidenc e obtained as a result will be suppressed “unless the prosec ution demonstrates by a preponde ranc e of the evidenc e that the sear ch or seizure was conducte d pursuant to an exception to the war rant re quirement.” I d. (citations omitted).

One of those exceptions is when an office r makes an investiga tory stop based on rea sonable suspicion, supported by specific and articula ble fac ts, that a criminal offe nse has been or is about to be comm i t t ed

. T err

y v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Bine tte, 33 S.W .3d 215, 219 (Tenn. 2000). Reasonable suspicion is an objective standard and must be deter mined from the totality

of the c ircumstance s. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1 9 8 1 ); s ee Or n elas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,

-5-1661-62 (1996). I f an office r observe s a violation of a traff ic law, the office r has an objective basis for stopping the vehicle . See, e.g ., State v. Viney ard, 958 S.W.2d 730, 734 (Tenn. 1997); State v. L evitt, 73 S.W .3d 159, 173 (Tenn. Crim. App. 2001)

. Our supreme cour

t noted in State v. Daniel, 12 S.W .3d 420, 424 (Tenn. 2000), that not all police-c itiz en encounte rs involve “seizures” of p e r s o n s

. A “ s e izure” occur s “[o] nly when the office r, by means of phy sical forc e or show of authority
, has in some way restrai n ed the liberty of a citizen[ .]” I d. (quoting Terr y , 392 U.S. at 19 n.16). The Daniel court explained that in deter mining “‘w hether a par ticular encounter constitutes a seiz ure, a court must consider all the circ umstances surrounding the encounter to deter mine whether police conduct would have communicated to a

rea sonable person that the person was not fre e to decline the office r’s reque st or otherwise terminate the encounte r.’” 12 S.W .3d at 425 (quoting Florida v. Bostick, 501 U.S. 429, 440, 111 S. Ct. 2382, 2389 (1991))

.

I n making this determination,

[s] ome of the fac tors which are rele vant and should be considered by courts when apply ing this totality of the circ umstances test include the time, place and purpose of the encounte r; the words used by the office r; the office r’s tone of voice and g ener al demea nor; the office r’s statements to others who wer e prese nt during the encounte r; the thr ea t ening prese nce of sever al office rs; the display of a wea pon by an office r; and the phy sical touching of the pe rson of the c itiz en.

I d. at 425-26.

The Daniel court noted that cour t s h av e t y pically held that an encounte r constitutes a “seizure” when an office r: (1) pursues an individual who has attempted to terminate the contac t by depar ting; (2) continues to interrog ate a person who has clea rly expressed a desire not to cooper ate; (3) rene ws interrog ation of a person who has ear lier responde d fully to police inquiries; (4) verba lly order s a citizen to stop and answe r questions; (5) reta ins a citizen’s identification or other proper ty ; (6) phy sically restra ins a citizen or blocks the citizen’s path; or (7) display s a wea pon during the
encounte r. I d. at 426. Moreove r, a defe ndant i s clea rl y s eized when a police officer activate s the blue lights on his or her p at rol car and initiates a traff ic stop. Bine tte, 33 S.W .3d at 218; State v. Pulley , 863 S.W .2d 29, 30 (Tenn. 1993)

.

The defe ndant prese nts the arg ument that he was seized o n c e O f f ic e r Sc h u lt z beg an following him, rathe r than when she activate d her blue lights. As s u pport for this asser tion, he points to, among other things, Of

fi cer Schultz ’s observing him at the apar tment complex, intentionally following him on Dicker son Pike, speeding to catc h up to him, and failing to activate her blue lights while speeding to c atch up to him in violation of “a police mandate or policy that require s office rs

-6-to activate their blue lights when exceeding the speed limit .” He assert s t h at he rea sonably 1
perc eived that these actions by Offic er Schultz wer e an order for him to stop and that his “tra ffic infrac tion” was his “a ttempt to pull over a t a safe place .”

We are unpersua ded by the defe ndant’s arg ument. We simply fail to see how the defe ndant could have rea sonably believed that he was n o t fr ee t o continue his course of t rave l when Office r Schultz abruptly pulled in behind him without h e r patrol lights activate d. Contrary to the defe ndant’s

asser tion, there is no indication that the defe ndant was even aw ar e t h at the office r who pulled in behind him was the same office r who had been at the apar tment complex ear lier. The defe ndant also makes the broad statement that Offic er Schultz left her “pre vious police activity ” to follow him, y et Offic er Schultz testified that she did not follow the defe ndant out of the ap ar tment complex but
actua lly left befor e he did. Offic er Schultz acknow ledg ed that she sped up to rea d the def endant’ s license plate when she caug ht sight of him on Dicker son Pike. Howeve r, an office r’s following a

car to chec k its license plate does not raise constitutional conce rns. See State v. David M. Whit man, J r., No. M2004-03063-CCA-R3-CD, 2005 WL 3299817, at *3 (Tenn. Crim. App. Dec. 5
, 2 0 0 5 ),
perm. to appea l denied (Tenn. May 1, 2006). Moreove r, one main circ umstance the defe ndant relied

on as a show of authority was Offic er Schultz ’s speeding to catc h up to him, bu t i n t er es t ingly he

never testified at the suppression hear ing that he was awa re of her speeding

. The totality of the circ umstances fails to prove that the defe ndant was seized any time prior to the activation of Offic er Schultz ’s patrol lig hts.

The defe ndant’s arg

ument that he would have fac ed char g es of evading or flee i ng from a police off icer had he c ontinued about his c ourse is equa lly unviable. Of

fice r Schultz t estified that she caug ht up to the defe ndant to run his license plate and that, until he ran the red light, she had no leg al rea son to pull him over. The trial court acc redited Offic er Schultz ’s testimony that the defe ndant’s running a red light was the fac tual basis for the stop. We conclude from the totality of the circumstances that no rea sonable person would have believed that he had a leg al obl iga tion to stop and was thus “seized,” prior to the office r’s activating her blue lights or exhibi ting some other show of author ity

.
Reg ardle ss of whethe r Offic er Schultz had some prete x tual motivation for following the defe ndant, sh e h ad a valid leg al rea son for initiating a traff ic stop of the defe ndant when she witnessed him run a re d l i gh t

. T h ere is no constitutional violation if there is a valid rea son for a traff ic stop even if the office r may have o t h er motives as a prete x t for the stop. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996). Fur thermore
, the defe ndant’s asser tion that he did not run the red light but instead was attempting to y ield to Offic er Schultz ’s order to stop was discredited by the trial court. At the suppression hear ing, the defe ndant maintained that he did not

run the red light but stopped on the corne r beca use Offic er Schultz ’s blue lights wer e on. Howeve r,

as noted above, the trial court acc redited Offic er Schultz ’s testimony that she stopped the defe ndant beca use he r an a r ed lig ht.

O f f i c e r S c h u l t z e x p l a i n e d a t t h e s u p p r e s s i o n h e a r i n g t h a t t h e p o l i c y a p p l i e s w h e n t h e o f f i c e r i s r e s p o n d i n g t o 1

a n e m e r g e n c y c a l l a n d s h e w a s n o t r e s p o n d i n g t o a n e m e r g e n c y c a l l

.
-7-II. Dete ntion

I n c o n d ucting an investiga tive stop, the office r’s actions must be “re asonably rela ted in s c o p e to the circumstances which justified the i nterfe renc e in the first place ,” Terry
, 392 U.S. at 20, and the detention “must be temporary and last no longe r t han is nece ssary to eff ectua te t he purpose of the s top.” Flor ida v. R oy er, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983). A t raf fic stop may be deemed “u n re as o n able” if the “‘time, manner or scope of the investiga tion exceeds the proper para meters.’ ” State v. Troxell, 78 S.W .3d 866, 871 (Tenn. 2002) (quoting United States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001), and citing State v. Morelock, 851 S.W .2d 838, 840 (Tenn. Crim. App. 1992)). The rele vant in q u i ry is whether an office r’s actions wer e rea sonably rela ted to the traff ic stop. Terr

y , 392 U.S. at 20; State v

. S i m p s o n , 9 6 8 S.W .2d 776, 783 (Tenn. 1998). Reasonable ness turns on the fac ts and circ umstances of eac h case

. United States v. Mendenha ll, 446 U.S. 544, 561, 100 S. Ct. 1870, 1881 (1980). The United States Supreme Court has held that a dog sniff perf ormed on the exterior of a defe ndant ’s ca r “w h i l e he was lawfully seized for a traff ic violati o n ” d i d n ot “rise to the level of a constitutionally cog nizable infring ement.” I llinois v. Caballes, 543 U.S. 405, 409, 125 S. Ct. 834, 838 (2005). Howeve r, an otherwise lawful can i ne

swee p that is ancillar

y to a legitimate traffic stop m ay constitute an unlawful sear ch if the s uspect is de tained bey ond the time nece ssary to complete the traff ic stop. See United States v. Place, 462 U.S. 696, 709, 103 S. C t. 2637, 2645-46 (1983); Tr ox ell, 78 S.W .3d at 871.

The def e n d a n t a r g ues that the lawful para

meters of the traff

ic stop wer e exceede d in this case

. He arg ues that running a red light “fa lls within the purview of Tenne ssee’ s ‘cite and rele ase’ statute”

an d t h at Officer Schultz ran computer chec ks outside what was nece ssary for a traff ic stop. He

asser ts t h at t h es e additional chec ks wer e in violation of the “cite and rele ase” statute and outside constitutional paramete rs.

Offic er Schultz ’s computer rec ords enter ed as an exhibi t at the hear ing showthat she ran a local war rant chec k at 2:31 a.m., an arr est rec ord query at 2:31, a driver’ s license chec k at 2:31, two kinds of NCI C war

rant chec ks at 2:31, an d a cr i m i n al history query at 2:33. At the suppression hear ing, there was some indication that the query at 2:33 was a juvenile rec ords chec k; howeve r, the computer rec ords indicate that the juvenile rec ords chec k was conducte d at 4:01 a.m. by Br ian Br o wn

. I n his reply brief, the defe ndant asser ts that if the 2:33 chec k was not a juvenile rec ords chec k, it was an unne cessa ry duplicitous criminal history chec k.

Tenne ssee Code A nnotated sec tions 40-7-118 and 55-10-207 provide that when a n office r observe s the commission of cer tain misdemeanors, t h e office r is require d to cite and rele ase the offe nder in lieu of eff

ecting a cu s t o d ial arr est. Tenn. Code Ann. §§ 40-7-118( b)(1) ; 55-10-207 (2006). We note that while the cite and rele ase statute d i ct at es the situations under which an offe nder must be cited instead of arr ested, by its terms, i t does n o t d i ct ate or l imit the s cope of an office r’s investig ation.

I n the context of deter

mining whether investiga tive methods run afoul of t h e Fo urth Amendment and article 1, section 7, this court has stated that “re quests for d ri v er ’s licenses and

-8-vehicle reg istration documents, inquiries conce rning trave l plans and vehicle owner ship, computer

chec ks, and the issuance of citations are investiga tive metho ds or activities consistent with the lawful
scope of any traff

ic stop.” State v. Gonzalo Moran Gar cia, No. M2000-01760-CCA-R3-CD, 2002 WL 242358, at *21 (Tenn. Crim. App. Fe b. 20, 2002) (citing United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000); Un i t ed S t at es v. Hill, 195 F.3d 258, 268 (6th Cir. 1999); United States v. L y ton, 161 F.3d 1168, 1170 (8th Cir. 1998)), overr uled on other g rounds by State v

. Ga rc i a, 123 S.W .3d 335 (Tenn. 2003). Our rese arc h has reve aled situations in Tennes s ee wher e an office r verba lly inquired into an offe nder’ s criminal history during the course of a traff i c stop. See, e.g ., State v. Robert L ee Hammonds, No. M2005-01352-CCA-R3CD, 2006 WL 3431923, at *9 (Tenn. Crim. App. Nov. 29, 2006); State v. Orson Wendell Hudson, No. M2004-00077-CCA-R3CD, 2005 WL 639129, at *4 (Tenn. Crim. App. Mar. 15, 2005). Other jurisdictions also allow the inquiry into

an offe nder’ s criminal history during the course of a traff ic stop. See, e.g ., United States v. Olivera

Mendez, 484 F.3d 505, 509 (8th Cir. 2007) (“When police stop a motorist for a traff ic violation, an office r may detain the occupa nts of the vehicle while the office r ‘complete s a number of routine but somewhat time-consuming tasks rela t ed t o t he traff ic violation.’ These may include a chec k of driver’ s license, vehicle reg istration, and criminal history

. . . .”) (interna l citation omitted); United States v. Holt, 264 F.3d 1215, 1221-22 (10th Cir. 2001) (en banc) (“[T]he motorist may be detained for a short period while the office r ru n s a backg round chec k to see if there are any outstanding

war rants or criminal history

. . . . The justification for detaining a motorist to ob t ai n a criminal history chec k is, in part, office r saf ety .”); United States v. Purc ell, 236 F.3d 1274, 1278 ( 11th Cir. 2001) (“The reque st for criminal histories as part of a routine computer chec k is justified for office r safe ty .”); L aime v. State, 60 S.W .3d 464, 474-75 (Ark. 2001); State v. Wil liams, 590 S.E.2d 151, 154 (Ga . Ct. App. 2003).

I n our view, it was not unrea sonable for Offic er Schultz to make an inquiry into the defe ndant’s crim i n al h i s t o ry as a part of her computer chec ks beca use her doing so did not

unrea sonably prolong the def endant’ s detention, and the information could have been pertinent t o her continued safe ty

. Alo n g the same lines, the sear ch at 2:33 a.m., whether a juvenile history or other c riminal history

inquiry , did not unreasona bly expand the scope of

the stop.

The defe ndant arg ues that Offic er Schultz detained him longe r than nece ssary to issue a traff ic citation. I t appea

rs that Offic er Schultz stopped the defe ndant at 2:27 a.m. and started running the computer chec ks at 2:31. The K-9 unit rec eived the call to repor t at 2:31. Of

fi ce r S chult z testified that she was still working on her citation duties when the K-9 unit arr ived at 2:43, and the trial court acc redited this testimony

. The K-9 sniff occur red at 2:4 8

. Although Offic er Schultz

rec eived the results of t he computer chec ks instantaneously
, as determined by the t rial court, “she had to proce ss the information from her computer involving the multipl e informational scre ens and phy sically write the ticket. The fact that the t icket was begun at 2:33 am does not re flec t the t ime i t wa s completed.” Vaug hn testified at the suppression hear ing that it was not likely the vario u s repor ts would be viewed on the same scre en and the office r would have to scroll throug h the multipl e

scre ens. The evidence shows that the defendant had a mul ti-pag e criminal h i s t o ry ; there fore
, it is

rea sonable to conclude that it took Offic er Schultz time to analy ze and proce ss it. We cannot

-9-conclude that the defe ndant has proven that the ev i d en ce preponde rate s ag ainst the trial court’s

finding s.

The defe ndant arg

ues that Offic er Schultz abandone d any activity rela ted to the citation once the K-9 unit ar

rived. On this point, we note that neither Offic er Schultz nor Off icer Sy denstricke r

nor the defe ndant ever testified that Offic er Schultz stopped what she was doing when the K-9 unit

arr ived. The testimony was that Offic er Schultz told Offic er Sy denstricke r why she had pulled the defe ndant over, asked him to “run the dog around the car ,” and asked the defe ndant to exit the car

. 2 Howeve r, it is an overr eac hing assumption from that testimony to say that she abandone d the citation
proce ss. I t is appar ent that she stopped the citation proce ss once the dog aler ted on the car , but she had probable cause to sear ch th e d ef en d an t ’s car once that occur red. See State v. Eng land, 19 S

. W

. 3 d 7 6 2
, 769 (Tenn. 2000) (conc luding that a positive rea ction to a vehicle by a trained drug detec tion dog pr ovides probable cause to searc h the inside of the ve hicle).

We acknow ledg e that traff ic stops simil ar in leng th to the one at hand have been found to be

unrea sonable in time, manner , or scope, see, e.g ., United S t at es v

. Bl air, 524 F.3d 740 (6th Cir. 2008); State v. J ustin Paul Br uce, No. E2004-02325-C C A- R 3-CD, 2005 WL 2007215, at **4-5 (Tenn. Crim. App. Aug . 22, 2005); howeve r, it is a fac t-intensive inquiry and “‘[n]o har d-and- fast time limi t exi sts bey ond which a [t raf fic stop] detention i s automatically considere d too long a nd, there by unrea sonable.’” State v. Eric Be rrios, No. W2005-01179-CCA-R9-CD, 2006 WL 525959,
at *13 (Tenn. Crim. App. Mar. 3, 2006) (quoting J ustin Paul Br uce, 2005 WL 2007215, at *6), aff ’d, 235 S.W .3d 99 (Tenn. 2007). Moreove r, in J ustin Paul Br uce, 2005 WL 2007215, heavily relied on by the defe ndant, the deter mination favor ing the defe ndant was made in the trial court; wher eas, the trial court here ruled that the stop “wa s not prolong ed nor extended to the point of being

unrea sonable.” There fore
, the defe ndant had the burden of proving that the evidenc e preponde rate s ag ainst the trial cour

t’s finding s – a burde n he has not c arr ied.

III. State’s Burden of

P roving Reasonableness

The defe ndant’s final asser tion is that bec ause O ffice r Schultz admit ted that no re asonable suspicion arose dur ing the traff ic stop, the State had to prove that Offic er Schultz’s actions during the traff ic stop and the time of the defe ndant’s detention wer e no longe r than nece ssary to eff ectua te the stop. Howeve r, this que stion is essentially a rew orking of the de fenda nt’s first two questions. I t is true that the State had to prove at t h e suppression hear ing that its actions wer e in confor mity with an exception to the war rant require ment. The trial court found that the stop was valid and not prolong ed or extended to the point of being unrea sonable. On appea l, it was the defe ndant’s burden to pr ove that the evidenc e preponde rate s ag ainst the trial court’s finding s. As we have deter mined above, the defe ndant has not met this burden.

T h e r e c o r d i n d i c a t e s t h a t t h e d o g w a s c r o s s

- t r a i n e d i n a p p r e h e n s i o n a n d O f f i c e r S c h u l t z w a n t e d t o p r e v e n t 2

a n y a c c i d e n t s w i t h t h e d o g d u r i n g t h e s n i f f

.
-10-CONCLUSION

Ba sed on the fore g oing authorities and rea soning, we aff irm the trial court’ s d enial of the defe ndant’s motion to suppress.

___________________________________ AL AN E. GL ENN, JUDGE

-11-