# FILED
April 16, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

CARLOS L. A

CEVEDO, ) ) C.C.A. NO. 01C 01-9711-CR-00541 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP One Public Square, Suite 321 Attorney General & Repor ter Clarksville, TN 37

040 TIM OTH Y BEH AN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JON SEABORG Asst. District Attor

ney General 222 Second Ave., North, Suit e 500 Nashville, TN 37201

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

In April 1994, the petitioner was charged by indictment w ith possession of cocaine and possession of marijuana after a searchof his person revealed dru gs and money. He filed a motion to suppress the drugs and money, which was denied. He then enter ed a plea of nolo contendere and attempted to pr eserve his right t

o appeal the suppression issue. On appeal, however, this Court determined that because the petitioner’s judgment did not refer to a certified question of law for appeal, the petitioner had waived his rig ht to appeal. See State v. Carlos L. Acev edo , 01C01-9602-CR-00061, Davidson County (Tenn. Crim. App. fil ed November 22, 1996, at Nashville). This Court did not address the merits of the s uppression issue. See id.

The petitioner filed a petition for post-conviction rel ief, asking for a delayed appeal because counsel’s err or in failing to preserve his right to appeal prejudicially prevented him from appealing the merit s o f the suppression issue. In an a greed order signed by the post-conviction judge, the petitioner and the State stipulated that petitioner
was entitled to a delayed appeal because he was prejudiced by his counsel’s error. This
case is now before this Court by delayed appeal, the sole issue being whether th e trial court properly denied the petitioner’s motion to suppress.

In its brief, the State argues that this case should bedismissed because a delayed appeal is inappropriate a nd can not resurrect an issue pr eviously waiv

ed. The State al so argues t hat this case should be dismi ssed because the petitioner’s counsel
was not inef fective for failing to properly preserve the

suppression issue for appeal.The State’s arguments must fail because by agr eed order, the State stipulated “that Petitioner ’s peti tion for post-conviction relief, which reques

ts a delayed appeal on a3

reserved issue of appellat e review, should be g ranted.”

As stated in this Court’s previous opinion, the facts of this case are as follows: On July 9, 1993, Agent Gary Luther of the Twenty-First Judicial Task Force telephoned Officer Per ryBuck, who was assi gned to the Federal Drug Ta sk Fo rce at the Nashville International Airport. Luther informed Buck that he was "working" the Defendant, a d rug courier who w as about to fly from Nashville to Texas. Luther stated that he was at tempting to arrive at the airport before the Defendant's plane departed but was unsure as to whether he would be able to do so. As a result, Luther asked Buck to "surveil" and "int erview" the Defendant.He gave B uck the name of the Defendant and a physical descr iption. Buckand three other officers began l ooking for the Defendant. As they walked toward the

gate of the Defendant's departing flight, they identified a man fitting the descri ption given by Ag ent Luther sitting at a restaurant

in the concourse. They approa ched him, identified themselves, and asked if they could speak with him, to which the Defendant responded af firmati vely. The officers asked the Defendant where he was going an d other "preliminary" matters, and th en re quested his plane ticket. They informed the Defendant that they suspe cted him of carrying dr ugs and asked him for consent to searc h his person. According to Buck, the Defendant willfully consent ed. They subsequently as ked the Defendant if he wanted to go to a more pri vate location for the searc h. According to Buck, the Defendant responded affirmatively , and they all went to a men's restroom adjacent to the resta urant. The office rs conduc ted a pat -down search of the Defendant which revealed no contraband. They then asked the Defend ant to remove his boots. As the Defendant removed one of his b oots , a quantity

of United States currency fell onto the floor. The Defendant fled the scene but was apprehended in the concourse after a short chase. The officers discovered a quantity of both cocaine and marijuana in the Defen dant's socks. The defendant wassubsequently indicted for possession of cocaine with intentto deliver and for possess ion of marijuana with intent to deliver. On Jun e 8, 1994, he filed a motion to suppres s the drugs and currenc y discovered duri n g the search at the airpor t. He argued that the law enforcementofficers h ad no t had a reasonable suspicion to detain him under the Aguilar-Spinelli pr inci ples set forth in State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989). The trial court denied the motion to suppress, ruling that the discovery of the drug s and currency occurred p ursuant to a lawful consent search. Carlos L. Acevedo , 01C01-9602-CR-00061.4 The petitioner cites

the unpu blished

case of State v. Norman L. Wilson , No. 01C01-9207-CR-00219, Davidson County (Tenn. Crim. App. filed October 14, 1993, at Nashville), in his issue statement, appar ently relying u pon Wilson as authority fo r his proposition that the trial court’s denial of his motion to suppress should be rever sed. In Wilson , the defendant was stopped in an airport by a police office r ac ting upon information received from a telephone dispatcher. Thedefendant was asked to produce his pla ne ticket, but he did not. When asked to consent t o a search, he agreed, an d a controlled substance was found in his pocket. A panel of this Court decided th at because “neither the informant’s reliability nor his/her basis for knowledge was s uffic iently demonstrated,”the police were not justi fied in seizing the defendant. To use the Wilson court’s terminology, the initial encounter betw een t he defendant and the police was tainted. The Wilson court further determined that si nce the initial encounter bet ween the defendant and the police was tainted, the defendant’s purported consent to be searched
was irrel evant. Thus, the Wilson court’s decision to affirm the trial court’s suppressio n of evidence turned on whether the State had establ ished the reliability of the informant and his or her b asis for k nowledge i n accorda nce wi th Aguilar v. Texas , 378 U.S. 108 (1964), Spinelli v. United States , 393 U.S. 410 (1969), and State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989)(adopting the Aguilar-Spinelli requirements in Tennessee).

In the instant cas e, the petition er does not chal lenge the rel iability or the basis of the information given to Officer Buck and th e other police officers. Thus, the petitioner’s reliance on Wilson is misplaced.

Th e petitioner argues that his consent to be searched was not voluntarily given because it resulted from “official intimidation or ha rassment.” The petitione r claims he was “coerced” and “intimidated into submission” because four police of ficers5

approached him, identified themselves, and “surrounded” him in a bathroom while they
sea rched him. According to the petitioner, the officers retained his plane ticke t throughout

the interview and search, even though his plane was “r eady to fly.” He characterizes

his encounter with the p olice officers as one in which “an y attempt to decline the search was was ted effort” and for th is reason, contends that the co nsent search was not vali d.

The record does not support the petitioner’s version of the facts. According to the record, Office r Buck a nd the other officers approached the peti tioner, identified themselves, and asked if they could speak with him. After discussing several “preliminary matters,”they asked the petitioner if he would consent to a sear ch. The petitioner

said yes. The officers then asked him if he wou ld prefer to condu ct the sear ch in the bathroom forprivacy’s sake.Again, the petitioner agreed. According to the record, only tw o officers accompanied the petitioner into the bathroom where he was se arched, s o contraryto the petitioner’s asserti on, he was not “surrounded” by “several officers” when he was searched. Moreov er, while the record indicates that at some p oin t (the record does not specify when) the pol ice officers asked to look at the peti tioner’s plane ticket, there is no indication that the officer s retained the plane ticket. There is also no evidence that the interview and initial search of the petit ioner detained him while his fli ght was boarding.

Given these circumstances delinea ted and uncontroverted in th e record, nothing supports the petitioner’s conclusion that his consent was obtained by coerc ion. Rather, the record reveals a c onsensual encounter between pol ice of fice rs and the petitioner, and even though the petitione r was not obliged to even talk to the

officers, let alone consent to the search, see Florida v. Royer, 460 U.S. 491, 497-98 (1983), he did1 W hen desc ribing his st rugg le with the p etition er af ter ch asin g him , Off icer B uck testifie d, “Bu t he continued t

o struggle,untilhe got a sock off; and then he -- apparently -- I di dn’t see hi m sling the sock but, apparent ly, he -- . . . .” At this poi nt, Offi cer Buck’s test imony was interrupted by a defense objectio n because Officer Buck was begi nning to “ testif y to somethin g he has no personal knowledge of.” B efor e the trial jud ge co uld ru le, the pros ecu tor vo lunta rily aba ndo ned this line of qu estio ning, but it was never establ ished, either by the State or the defense, exact ly how t he drugs were di scovered in t he petitioner’s socks. 6 so voluntarily. Because a seizure does not occur---and thus, the Fourth Amendment is not implicated---by a pol ice officer merely talkin g to or questioning an individual in a public place, the petitioner’s argument must fail. See Royer , 460 U.S. at 497; State v. Moore , 776 S.W.2d 933, 938 (Tenn. 1989).

We r e cognize that there is an interesting twi st to the facts in the instant
case. Although the record show s that the petitioner

validly consented t

o the search when asked, it is not so clear whether the petitioner’s act in fleeing from the officers after the search had already commenced somehow vitiated the consent gi ven. Unf ort unately, neither party addresses this issue. In fact, it is questionable that the recor d, sparse as it is, would even suppor t such an argument. The record reflects that

once the petitioner fled, the police officers chased him, w restled him to the grou nd , and somehow subsequently discovered drugs i n his socks, but it is u nclear whether the police officers discovered the drugs by continui ng their se arch or whether they discovered it because the petitioner removed

his socks in an attempt to abandon the contraband. 1 At any rate, since the petitioner

does not argue that he withdrew consent and rightfully terminated the search once he fled from the bathroom, and that the officer s did not have either articulable suspicion or probable cause to further detain or arrest him--- let alone cite
cases for this argument---w e deem any argument in this vein to be waived.Rule of the Court of Criminal Appeals of Tennessee 10(b).

The petitioner also briefly pr o poses that the search “should have ended aftera ‘Terry Tap’ reveal ed no reason to continue or expand the search.” Because the7

petitioner

does not direct any arg ument or citations to authority on this point , it too is deemed waived. Rule of the Court of Criminal Appeals of Te nnessee 10(b).

The trial court’s order denying the petitioner’s mot ion to suppress is affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ NORMA McGEE OGLE, Judge