FILED

March 15, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804-CC-00181

)

Appellant, )

)

) WILLIAMSON COUNTY

VS. )

) HON. DONALD P. HARRIS

CHARLES SCOTT ASHWORTH,) JUDGE

)

Appellee. ) (Direct Appeal - Possession of 

) Controlled Substance with Intent

) to Sell)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN KNOX WALKUP ERIC L. DAVIS

Attorney General and Reporter 317 Main Street, Ste. 208

Franklin, TN 37064

LISA A. NAYLOR

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

JOE D. BAUGH, JR.

District Attorney General

LEE E. DRYER

Assistant District Attorney

P. O. Box 937

Franklin, TN 37064

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

On November 10, 1997, Appellee Charles Scott Ashworth was indicted by

the Williamson County Grand Jury for one count of possession of a controlled

substance with intent to sell. On December 2, 1997, Appellee filed a motion to

suppress the marijuana that was discovered during a search of his vehicle and

a subsequent written statement that he gave to police. By orders dated March

16 and 19, 1998, the trial court granted Appellee’s motion to suppress. The State

challenges the trial court’s suppression of the evidence. After a review of the

record, we reverse the judgment of the trial court and remand this matter for

further findings of fact.

I. FACTS

Officer Collin Consiglio of the Brentwood, Tennessee Police Department

testified that on September 22, 1997, he saw Appellee driving his vehicle at a

speed of 52–53 miles per hour in a 45 mile per hour zone. Consiglio then asked

the police dispatcher to check on the validity of Appellee’s license plate and he

initiated a traffic stop. As Consiglio approached Appellee, the dispatcher

reported that the license plate did not match Appellee’s vehicle. Consiglio

believed that Appellee was agitated and very nervous at this point.

Consiglio testified that when he asked Appellee for his driver’s license and

registration, Appellee provided a license, but said that he did not have his

registration. Consiglio then asked Appellee to exit his vehicle and join him in

standing between the two parked vehicles so that he would not be hit by another
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car while standing next to Appellee’s vehicle. Consiglio then ran a check of the

driver’s license on his portable radio. When the dispatcher reported that the

driver’s license was valid, Consiglio told Appellee that he would let him go with

a warning. Consiglio testified that he then asked Appellee whether he was

transporting any contraband and Appellee said no. Consiglio then asked for

consent to search the vehicle, and Appellee agreed to the search. 

Consiglio testified that after Appellee consented to the search, Consiglio

patted him down for weapons, told him that he was not under arrest, and asked

him to sit in the patrol car so that Consiglio could search the vehicle without

worrying about what Appellee was doing. After Consiglio found three packages

of marijuana in the vehicle, he arrested Appellee and took him to the police

station. At the station, Consiglio gave Appellee the Miranda warnings and

Appellee then signed a written waiver of his rights. Appellee then prepared a

written statement in which he admitted that he had purchased the marijuana for

resale. Appellee then asked whether he could work for the drug task force.

Consiglio told Appellee that it was up to him to decide what to do. 

Appellee testified that he had been watching his speedometer before he

was stopped and he had not driven faster than 45 miles per hour. When

Consiglio asked for his license and registration, Appellee gave him the license

and stated that he did not have his registration with him. Appellee testified that

Consiglio then ordered him out of the vehicle, ordered him to place his hands on

the trunk of the vehicle, and then patted him down for weapons. 
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Appellee testified that he then heard the dispatcher report that his license

was valid. Consiglio then told Appellee that he would let him go with a warning,

but before he left, Consiglio asked whether he was transporting any contraband

such as drugs, guns, knives, or hand grenades. When Appellee said no,

Consiglio asked whether he could search the vehicle. Appellee testified that

when he asked whether he had to agree to the search, Consiglio said he didn’t

have to agree, but if he didn’t, Consiglio would get a warrant and search the

vehicle anyway. Appellee then told Consiglio that he could search his vehicle

and Consiglio then placed Appellee in the back of his locked patrol car. 

Appellee testified that after he was arrested and taken to the police station,

he asked Consiglio if there was anything he could do to get himself out of trouble.

Consiglio and Sergeant Ricky Knight then told Appellee to write down a

statement that they could give to the drug task force. When Appellee wrote a

simple statement, Knight said that it was not good enough and told Appellee to

tear it up. Consiglio and Knight then helped Appellee prepare another written

statement in which he admitted purchasing the marijuana for resale. Appellee

testified that he signed the waiver of rights form after he gave the written

confession. Appellee claimed that he did not know that what he wrote in the

statement could be used against him in court. Appellee also testified that he did

not understand the Miranda warnings. 

Consiglio testified in rebuttal that he never told Appellee that he would

obtain a warrant if Appellee did not consent to the search. Consiglio also testified

that he did not perform a weapons frisk on Appellee until after Appellee had

consented to the search. 
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II. ANALYSIS

The State contends that the trial court erred when it granted the motion to

suppress the marijuana that was discovered during the search of Appellee’s

vehicle and the written statement that Appellee subsequently made at the police

station. 

A. Search of Appellee’s Vehicle

The Fourth Amendment to the United States Constitution provides, “The

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause . . . .” U.S. Const. amend IV.

Similarly, Article I, Section 7 of the Tennessee Constitution guarantees, “That the

people shall be secure in their persons, houses, papers and possessions, from

unreasonable searches and seizures . . . .” Tenn. Const. art. I, § 7. Unless it

falls within a specifically established and well-delineated exception, a search

conducted without a warrant is per se unreasonable. Schneckloth v.

Bustam onte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973)

(citations omitted). “One of the specifically established exceptions to both a

warrant and probable cause is a search that is conducted pursuant to a

voluntarily given consent.” Id. 412 U.S. at 219, 93 S.Ct. at 2043–44 (citations

omitted); see also State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). The

burden of proof rests upon the State to show, by a preponderance of the

evidence, that the consent to a warrantless search was given freely and

voluntarily. Schneckloth, 412 U.S. at 248–49, 93 S.Ct. at 2059; Bumper v. North
1

The trial court failed to make any factual findings about whether Appellee was stopped because

he was speeding o r, as h e claim s, m erely b ecause he loo ked suspiciou s. Th e trial c ourt c onc luded that it

was not necessary to make these findings in order to resolve this matter. However, the general rule is that

a police of ficer m ust have a reaso nable su spicion, s upporte d by spec ific and articu lable facts , that a

criminal offense has been or is about to be committed before the officer may make an investigatory stop

of a m otor vehic le. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citing Terry v. Ohio, 392 U.S. 1,

21, 88 S.C t. 186 8, 1880, 20 L.Ed.2d 889, 906 ( 1968)). T hus , unless C ons iglio ac tually had a r easonable

articulable suspicion that Appellee had been speeding, the initial stop of Appellee was unlawful under the

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Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968);

Bartram, 925 S.W .2d at 230. The question of whether an accused voluntarily

consented to the search is a question of fact which focuses upon the totality of

the circumstances. Schneckloth, 412 U.S. at 248–49, 93 S.Ct. at 2059. “In order

to pass constitutional muster, consent to search must be unequivocal, specific,

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

836 S.W .2d 530, 547 (Tenn. 1992).

This Court is obliged to uphold the trial court’s findings of fact in a

suppression hearing unless the evidence preponderates against them. State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “The existence of consent and whether

it was voluntarily given are questions of fact.” State v. McMahan, 650 S.W.2d

383, 386 (Tenn. Crim. App. 1983). In this case, the trial court neglected to make

any factual findings concerning the voluntariness or validity of Appellee’s consent.

 The trial court also failed to make findings of fact sufficient for this Court to

determine whether Appellee voluntarily consented to the search. The trial court

apparently concluded that it was not necessary to make these findings in order

to resolve the issues in this case. Instead, the trial court ruled that the motion to

suppress should be granted because once Consiglio told Appellee that he could

proceed with only a warning, Consiglio had no authority to continue to detain

Appellee for further questioning and thus, Consiglio’s actions were improper and

unreasonable under the Fourth Amendment and Article I, Section 7.1
Fourth Amendment and Article I, Section 7.

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We conclude that the trial court erred when it determined that Appellee was

subjected to continued detention simply because Consiglio asked him whether

he was transporting any contraband. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889 (1968), the United States Suprem e Court stated that not every

encounter between a policeman and a citizen is a seizure. 392 U.S. at 19 n.16,

88 S.Ct. at 1878 n.16. “Only when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of a citizen may we

conclude that a ‘seizure’ has occurred.” Id. Further, the Supreme Court stated

in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984):

What is apparent from [Florida v.] Royer, [460 U.S. 491, 103 S.Ct. 1319,

75 L.Ed.2d 229 (1983)] and Brown [v. Texas, 443 U.S. 47, 99 S.Ct. 2637,

61 L.Ed.2d 357 (1979)] is that police questioning, by itself, is unlikely to

result in a Fourth Amendment violation. While most citizens will respond

to a police request, the fact that people do so, and do so without being told

they are free not to respond, hardly eliminates the consensual nature of

the response. Unless the circumstances of the encounter are so

intimidating as to demonstrate that a reasonable person would have

believed he was not free to leave if he had not responded, one cannot say

that the questioning resulted in a detention under the Fourth Amendment.

466 U.S. at 216–17, 104 S.Ct. at 1762–63 (citations omitted). Thus, Consiglio

did not continue to detain Appellee by merely asking him a question about

whether he was transporting contraband. When a traffic stop ceases to be a

detention and the driver voluntarily consents to additional questioning, no further

seizure occurs. See United States v. Sullivan, 138 F.3d 126, 133 (4th Cir. 1998)

(holding that detention ended when police officer returned driver’s license and

registration and driver voluntarily consented to additional questioning); United

States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997) (holding that traffic

stop ceases to become a detention and becomes a consensual encounter when
2We note that the trial court found that Consiglio improperly removed Appellee from his vehicle

and frisked him for weapons before asking for consent to search the vehicle. Although we disagree that

having Appellee ex it his vehicle w as imp roper, see Ohio v. R obinette, 519 U.S. 33, , 117 S.Ct. 417, 421,

136 L.Ed.2d 347 (1996), we do agree that the weapons frisk was improper because there is no indication

that Con siglio had a reason able articu lable sus picion that Appellee w as arm ed, see Terry, 392 U.S. at 27,

88 S.Ct. at 1883. Being subjected to an improper weapons frisk certainly could have an effect on a

reasonable person’s belief that he or she was free to leave, but this fact alone is not determinative.

3

There is nothing in the record that indicates that Consiglio had probable cause to believe that

Appellee’s vehicle actually contained contraband. Thus, it appears that any threat to obtain a warrant

would have been baseless.

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police officer returns license and registration unless driver has “objectively

reasonable” cause to believe that he or she is not free to leave). Rather than

concluding that Appellee was subjected to an illegal detention merely by being

asked a question, the trial court should have made findings regarding whether a

reasonable person in Appellee’s position would have felt free to leave without

responding to the question.2

Of course, even if Appellee was not illegally detained when Consiglio

asked the question about contraband, the search of Appellee’s vehicle was still

not valid unless Appellee had given voluntary consent that was untainted by

duress or coercion. Brown, 836 S.W.2d at 547. This determination can only be

made by examining the “totality of the circumstances” surrounding the giving of

consent. Schneckloth, 412 U.S. at 248–49, 93 S.Ct. at 2059. Although an

examination of the “totality of the circumstances” involves many factors, it is clear

that a determination of whether Appellee’s consent was voluntary simply cannot

be made without findings of fact as to whether or not Consiglio actually

threatened to obtain a warrant if Appellee did not consent to the search. See

United States v. White, 979 F.2d 539, 542 (7th Cir. 1992) (“Baseless threats to

obtain a search warrant may render consent involuntary.”).3 Unfortunately, the

trial court neglected to make any factual findings about whether Consiglio made

the alleged threat.
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In short, because the trial court erroneously determined that Consiglio

unlawfully detained Appellee merely by asking him a question, this matter must

be remanded for additional findings of fact regarding the voluntariness of

Appellee’s consent to search his vehicle.

B. Appellee’s Written Statement

The Fifth Amendment to the United States Constitution provides in part that

“no person . . . shall be com pelled in any criminal case to be a witness against

himself.” U.S. Const. Amend. V. Similarly, Article I, Section 9 of the Tennessee

Constitution states that “in all criminal prosecutions, the accused . . . shall not be

compelled to give evidence against himself.” Tenn. Const. art. I, § 9. However,

an accused may waive this right against self-incrimination. Miranda v. Arizona,

384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In Miranda, the

United States Supreme Court held that a suspect

must be warned prior to any questioning that he has the right to remain

silent, that anything he says can be used against him in a court of law, that

he has the right to the presence of an attorney, and that if he cannot afford

an attorney one will be appointed for him prior to any questioning if he so

desires. 

384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a suspect may

knowingly and intelligently waive the right against self-incrimination only after

being apprised of his or her Miranda rights. Id. Accordingly, a constitutional

waiver of the right against self-incrimination requires the accused to make an

intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id.

384 U.S. at 444, 86 S.Ct. at 1612.
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In this case, the trial court neglected to make any findings about whether

Appellee was given his Miranda warnings before or after he made the written

statement. The trial court also failed to make any findings about whether

Appellee voluntarily waived his Miranda rights or whether his waiver was coerced

by the police. The trial court apparently concluded that these findings were

unnecessary because the written statement was “fruit of the poisonous tree” that

should be suppressed because it was obtained only because of the prior unlawful

search of Appellee’s vehicle. See Brown v. Illinois, 422 U.S. 590, 602–04, 95

S.Ct. 2254, 2261–62, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371

U.S. 471, 484–86, 83 S.Ct. 407, 415–16, 9 L.Ed.2d 441 (1963); see also State

v. Huddleston, 924 S.W .2d 666, 674 (Tenn. 1996). 

We agree with the trial court that if the search of Appellee’s vehicle was

unlawful, the confession would have to be suppressed because it is unlikely that

the confession resulted from “an intervening independent act of a free will”

sufficient to “purge the primary taint of the unlawful invasion.” Wong Sun, 371

U.S. at 486, 83 S.Ct. at 416–17; Brown, 422 U.S. at 603–04, 95 S.Ct. 2261–62.

However, if the trial court determines on remand that the search of Appellee’s

vehicle was conducted pursuant to voluntary consent, the trial court must also

make findings of fact about whether Appellee was given his Miranda warnings

before he made his written statement, and if so, whether the waiver of those

rights was valid.

III. CONCLUSION
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Because we hold that the trial court based its decision to grant the motion

to suppress on erroneous grounds, and pretermitted making additional findings

of fact necessary for a determination as to the validity of the search and

interrogation of Appellant, we reverse the judgment of the trial court and we

remand this matter for further factual findings consistent with this opinion.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOHN H. PEAY, JUDGE