# FILED
March 15, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804- CC-00181 ) Appe llant, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS CHARLES SCOTT ASHWORTH ,) JUDGE ) Appellee. ) (Direct Appe al - Posses sion of ) Controll ed Substance with I ntent ) to Sell)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN KNOX WALKUP ERIC L. DAV IS Attorney Generaland Reporter 317 Main Street , Ste. 208 Franklin, TN 37064 LISA A. NAY LOR Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JOE D. BA UGH, JR. Distri ct Attorney General LEE E. DRYER Assistant Distri ct Attorney P. O. Box 937 Franklin, TN 37064 OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

# OPINION

On November 10, 1997, Appel lee Charles Scott Ashworth was indicted by the Williamson County Grand Jur y for one cou nt ofpossession of a controll ed substance wit h intent to sell . On December 2, 1997, Appelle e filed a m otion to suppress the marijua na that was di scovered during a search of his vehi cle and
a subse quent w ritten statem ent that he gave to p olice. B y o rders dated March 16 and 19, 1998, the trial court gra nted Ap pellee’s m otion to su ppress . The S tate challengesthe trial court’s suppres sion of the eviden ce. After a r eview of t he record, we reverse t he judgment of the tri al court an d remand this matter for further findin gs of fact.

I. FA CTS

Officer Col lin Consigl io of the Brentwood, Tennessee Pol ice Department testif ied that on September 22, 1997, he saw Appellee drivi ng his vehi cle at a speed of 52–53 miles per hour in a 45 mil e per hour zone. Consiglio then asked the police dispatch er to check on the vali dity of Appellee’s

license pl ate and he initi ated a traff ic stop. As Consiglio approached Appelle e, t he dispatcher reported that the licen se plate d id not ma tch App ellee’s veh icle. C ons iglio believed that App ellee was agitated a nd very ne rvous at th is point.

Con siglio testified that when he asked Appellee f or his driver’s l icense and registr ation, Appellee pro vided a license, bu t said that he did no t have h is registr ation. Consiglio then asked Appell ee to exit his vehic le and join h im in standing between the two p arked vehicl es so that he woul d not be hit by another-3-

carwhile standing n ext to Appellee’ s vehicl e. Consigli o then ran a check of the driver’s license on hi s portabl e ra dio. When the dispatcher reported that the driver’s license was v al id, Cons iglio told Ap pellee tha t he wou ld let him g o with
a warning. Consi gl io testif ied that h e then asked Appell ee whether he was transport ing any contraband and Appellee sai d no. Consigl io then asked f or conse nt to searc h the veh icle, and A ppellee a greed to the sear ch.

Con siglio testi fie d that a fter Ap pellee cons ented to the s earch , Con siglio patted him do wn for we apons , told him th at he wa s not und er arrest, and asked him to si t in the patrolcar so that Consiglio could search t he vehicle without worryingabout w hat App ellee was doing. After Consi glio fou nd three packages of marijua na in the ve hicle, he a rrested A ppellee a nd took him to the po lic e sta tion. At the stat ion, Consigl io gave Appell ee the Mirandawarnings an d Appellee then s igned a written waiv er of his ri ghts. Appell ee then prepared a written statementin which he admit ted that he had purchased the marijua na for resale. Appelle e then a sked w hether h e could w ork for the d rug task fo r ce. Cons iglio told Ap pellee tha t it was up to him to de cide wh at to do.
Appellee testif ied that he had been watching hi s speedometer befor e he
was stopped and he had not driven faster t han 45 miles per hour . When Con siglio asked for his licens e and re gistration, A ppellee g ave him the license and stated t hat he did not have his registrati on with hi m. Appellee testifi ed that Con siglio then ordered hi m out of the vehi cle, order ed him to place hi s hands on the trunk of the veh icle, and th en patte d him d own for w eapon s.-4- Appellee testified that he then h eard th e disp atche r repor t that his license
was valid. Consiglio then told Ap pellee that he would let him go with a warni ng, but before he left, Consiglio asked whether he wastransport ing any contr aband such as d rugs, guns, knives, or hand grenades. When Appellee sai d no, Con siglio asked whether he coul d sea rch th e vehicle. Appellee te stifi ed that when he as ked w hethe r he ha d to ag ree to th e sea rch, C onsig lio said he didn’t have to agree, but

if he di dn’t, Consi glio woul d get a warrant and sea r ch the vehicle anyway. Appel lee then told C onsiglio th at he c ould s earch his veh icle and C onsiglio the n placed Appelle e in the ba ck of his loc ked pa trol car.
Appellee testified that after he was arrested and taken to t he police station, he asked C onsiglio if there was anything hecould do to get hi mself out of trouble. Con sigli o and Sergeant Ricky Knight then t

old Appellee to write dow n a statementthat they

could give to t he drug ta sk force. When Appellee wrote a simp le state men t, Knigh t said th at it was not goo d enou gh and told App ellee to tearit up. Consiglio and Knight then h elped App ellee prepare a nother w ritten statementin which he admitted purchasing the marijuana for r esale. Appel lee testif ied that he signe d the w aiv er ofrights f orm after he gave the writ ten confession. Appelle e claime d that he d id not kno w th at what he wrote in t he statementcould be used a gainst him in court. Appellee al so testi fied that he did not understand the Mirandawarning s.

Con siglio testified in reb uttal that he never told Appelle e that he wou ld obtain a warrant i f Appellee di d not consent to t he search. Consi glio al so testi fied thathe did no t perfo rm a wea pons fris k on Appellee unt il after Appellee had
conse nted to the search
.-5- II. ANALYS IS

The State contends that the trial cour t erred wh en it grante d the m otion to suppress the marijua na that was di scovered duri ng the search of App elle e’s vehicle and the writ

ten statement

that Appell ee subsequently made at the police station.

A. Searc h of App ellee’s V ehicle

The Fourth A mend ment to the Unite d States Consti tution pr ovides, “

The right of the people to be secure in t heir persons, houses, papers, and effects, against unreas onable search es and seizures , shall not be vi olated, and no warran ts shall i ssue, butupon p robabl e cause . . . . ” U.S. Const. amend IV. Similarly, Article I, Secti on 7 of the TennesseeConstitut ion guarantees , “That the people shallbe secure in their pers ons, house s, papers and possessions, from
unrea sona ble searches an d s eizure s . . . .” Ten n. Co nst. art. I, § 7. Unle ss it falls within a spec ific ally established and well-del ineated exception, a search
c onducted without a w arrant is pe r se unre asona ble. Schnec kloth v. Bustam onte , 412 U. S. 218 , 219 , 93 S. Ct . 2041 , 2043, 36 L. Ed.2d 854 (1973) (citat ions omitted). “One of the speci fically establish ed exceptions t o both a warrantand proba ble cause is a s earc h that is conducted pur suant to a volunta rily given conse nt.” Id. 412 U.S. at 219, 93 S.Ct. at 204 3–44 (citat ions omitted); see also State v. Bartram , 925 S.W.2d 227, 230 (Tenn. 19 96). The burden of proof r

ests upon the State to sho w, by a preponder ance of the evid ence, that the consent to a warr antless sear

ch was given f reely and voluntarily. Schne ckloth , 412 U.S. at 248–49, 93 S.C t. at 2059; Bum per v. No rth1 The trialcourt fai led to make any factual fi ndings about whether Appell ee was stopped because he w as s pee ding o r, as h e claim s, m erely b eca use he loo ked sus piciou s. Th e trial c ourt c onc luded that it was not necessary

to make these findi ngs in order to resolv e this matter. However, the general ru le 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 of

fense has been or i s about to be committed b efore the of ficer may make an investigatory stop of a m otor vehic le. State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1 992) (citing Ter ry v. O hio , 392 U.S. 1, 21, 8 8 S.C t. 186 8, 18 80, 2 0 L.E d.2d 889, 906 ( 196 8)). T hus , unle ss C ons iglio ac tually h ad a r eas ona ble articulable suspicion that Appel lee had been speedi ng, the i niti al stop of Appellee was unlawful under the -6- Carolina , 391 U.S. 543, 548, 88 S.Ct. 178 8, 179 2, 20 L.Ed.2d 797 (1968 ); Bartram , 925 S.W

. 2d at 230 . The q uestio n of wh ether a n acc used volunta rily consented to the searc h is a questi on of fact which focus es upo n the total ity of the circums tances
. Schne ckloth , 412 U.S. at 248–49, 93 S.Ct. at 2059. “I n order to pass con stitutional muster, consent to search must be unequivocal, specif ic, intellige ntly given, and unco ntaminated by duress or co ercion.” State v. Brown , 836 S.W .2d 530, 547 (Tenn. 199 2).

T his Court is o bliged to u phold the trial court’s findin gs of fact in a suppression hearing unl ess the evi dence prepon derate s ag ain st t hem. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). “The existence of consent and whet her it was voluntarily given are questions of fact.” State v. McMahan , 650 S.W.2d 383, 386 (Tenn. Cri m. App. 1983). In this case, the trialcourt neglected to make any factual fi ndings concerning the voluntari ness or validity of Appe llee’s cons ent. The trialcour t also failed to mak e findings of fact sufficien t for this Cou rt to determine wheth er Ap pellee volunta rily consented to t he search. The trial court apparently

concluded that it

was not necessary to make these fi ndings in or der to resolve the issues in th is case. Ins tead, the tria l court ruled that the m otion to suppress should be granted because once Consigli o told Appell ee that he could proceed with only

a warning, Consi glio had no aut hority to c ontinue to detain Appellee forfurther questioning and thus, Co nsiglio’s actions were improper and unreasonable under

the Fourth Amendment and Art icle I , Section 7. 1Fourth Amendment and Articl e I, Section 7. -7- We conclude that

the tri al court erred when it det ermined that Appel lee was sub jected to conti nued detenti on simply because Consi glio asked hi m whet he r he was transport ing any con traband
. In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 2 0 L.Ed.2 d 889 (196 8), the United S tates Suprem e Court stated that not every encounter

between a policeman and a ci tizen is a seizur e. 392 U.S. at

19 n.16, 88 S .Ct. at 1 878 n .16. “O nly whe n the o fficer, by mea ns of p hysica l f orce o r show of au thority, has in some way restr ained t he lib erty of a cit izen may we conclude that a ‘seizure’ has o ccurred.” Id. Fur the r, theSupr

eme Court stated in INS v. Delgado , 466 U.S. 21 0, 104 S.C t. 1758, 80 L.Ed .2d 247 (198 4): W hat is appa ren t f rom [ 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 (19 79)] is that p olice que stioning, b y itself, i s unlikely to result in a Fo urth A men dme nt violatio n. W hile most citi zens will respond to a police request, t he fact tha t peop le do s o, and do so withou t being told theyare free not

to respond, hardly el iminates t he consensual natur e of the respon se. Unle ss the circ umsta nces o f the enco unte r are so intimid ating as to demonstrate that a reasonab le person wo uld have believed he was not free to leave if he had not responded, one cannot say thatthe questioni ng resulted in a detent ion under the Fou rth Am endm ent. 466 U.S. at 216–17, 104 S.Ct. at 1762–6 3 (citat ion s om itted). T hus, C onsig lio did not conti nu e to det ain Appellee by merely aski ng him a question abo ut whetherhe was t ransp ortin g contraband. When a traffic stop ceases to be a detention and th e drive r volun tarily consents to additional q uestioni ng, no further seizure occurs. See United States v. Sull ivan , 138 F.3d 126, 133 (4th Cir. 1998) (holdingthat det enti on ended when police of ficer r eturned driver’s l icense and registr ation and dri ver volunta rily consen ted to add itional que stioning); United States v. Anderson , 114 F.3d 10 59, 1064 (10 th Cir. 1997) (h o lding th at traffic stop ceases to become a detent ion and becomes a consensual encounter when2 We note that the trial cour t found that

Consigli o improperly removed Appellee f rom his vehicl e and frisked hi m for weapons before asking f or consent to search the vehi cle. Although we disagr ee that having A ppellee 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 i mproper because there i s no indication that Con siglio had a reason able articu lable sus picion that A ppellee w as arm ed, see Terry , 392 U.S. at 27, 88 S.Ct. at

1883. Being subj ected to an i mproper weapons frisk cert ainly could have an ef

fect on a reasonable perso n’s beli ef that he or she was free to leave, but this fact alone is not det erminative.
3 There is nothi ng in the r ecord that i ndicates that Consigl io had probabl e cause to believe that Appellee’s vehicle actually contai ned contraband. Thus, it ap pears that any threat t o obtain a warrant would have been baseless. -8- police officer re turns lic ense and re gistratio n unle ss drive r has “o bjective ly
reaso nable” cause to beli eve that he or she is not f ree to leav e). Rather t han concluding that Appell ee was subjected t o an illega l de tention merely by being asked a question, the trial cou rt should have made fi ndings regarding wh ether a
reaso nable person i n Appell ee’s position wou ld have f elt f ree to l eave wi thou t responding to

the questi on. 2

Of c ourse, even if A ppelle e was not illeg ally deta ined w hen C onsig lio asked the questi on about contra band, the searc h of Ap pellee ’s vehic le was still not vali d unle ss Appellee had given voluntary consent t hat was untai nted by duress or coerc ion. Brown , 836 S.W .2d at 5 47. Th is dete rmina tion ca n only be made by examining the “total ity of the circ umstances” surro unding thegiving of
conse nt. Schne ckloth , 412 U.S. at 248–49, 93 S.Ct. at 2059. Altho ugh an examination of the “totality of the ci rcumstances” i nvolves many factors, it is

clear thata determinati on of whether Appell ee’s consent was v oluntary simply cannot be made without f indings o f fact as to whe ther or not Co nsiglio actua lly threate ned to ob tain a war rant if App ellee did n ot conse nt to the se arch. See United S tates v. W hite , 979 F.2 d 539, 5 42 (7th Cir. 1992 ) (“Base less threa ts to obtain a search wa rrant may r e nder cons ent involuntary.”). 3 Unfortunately, t he trialcourt negl ected to make any factual finding s about whether Consi glio made the allege d threat.-9- In s hort, be caus e the tria l court e rrone ously d eterm ined th at Co nsiglio unlaw fully detain ed Ap pel leemere ly by a ski ng hi m a question, this matter must be rema nded for add itional fin din gs of fact regardi ng the voluntariness of Appellee’s consent to sear ch his vehi cle.
B. Appel lee’s Wri tten Stat ement

The Fifth Amendment to the United States Cons titution prov ides in par t that “no perso n . . . sha ll be com pell ed in any criminal case to be a wit ness against himse lf.” U.S. Co nst. Amend. V. Similarly, Art icle I , Section 9 of the Tennessee Constitut ion states t hat “in al l crimi nal prosecut ions, th e accused . . . shall not be compelled to give evidenc e again st himse lf.” Tenn. C onst. art. I, § 9. However,
an accu sed m ay waiv e this right against self-incrim ination. Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 160 2, 1612, 16 L .Ed.2d 694 (1966). In Miranda , the United States Supreme Court held that a suspect must be warned prior to any questi on ing that he has th e right to rema in silent, that anyt hing he says can be us ed against hi m in a court of law, that he has the ri ght to the p resence of an attorne y, and th at if he canno t afford an attorne y one w ill be ap pointe d for him prior to any questi oning if he so desires. 384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a suspect may know ingly and intel ligently waive t he right agai nst self-incri mination onl y after being apprised of his o r her Mirandarights. Id. Acc ordingly , a consti tutional waiver of the ri ght against self-i ncriminati on requires t he accused to make an intell igent, knowing, and vol untary wai ver of t he rights afforded by Miranda
. Id. 384 U.S. at 444, 86 S.Ct. at 1612.-10- In this case, the trial court neglected to make any findi ngs about whether Appellee was given his Miranda warnings befor e orafte r he made the writ ten statem ent. The trialcourt als o f ailed to make any findi ngs about whether Appellee voluntarily waived his Miranda rights o r wheth er his waiver was coerced by the poli ce. The tri al court ap pa re ntly concluded th at these findings w ere unneces sary because the written statement was “ fruit of the poi sonous tree” t hat shou ld be suppressed because it wasobtained onl y because of t he prior unl awful search of Appellee’ s vehicle. See Brow n v. Illinois , 422 U.S. 590, 602–04, 95 S.Ct. 2254, 2261–62, 45 L. Ed.2d 416 (1975 ); W ong Sun v. UnitedStates , 371 U.S. 471, 48 4–86, 8 3 S.Ct. 4 07, 415 –16, 9 L .Ed.2d 4 41 (196 3); see also State v. Huddleston , 924 S.W .2d 666 , 674 (T enn. 19 96).

W e agree with t he trialcourt that if the search of Appell ee’s vehic le wa s unlaw ful, the confe ssion would have to be suppressed because it i s unlikel y that the confession r

esulted f rom “an inter vening inde pen dent a ct of a fre e will”
s uffici ent to “purge the prim ary taint of the unlawful invas ion.” Wong Sun , 371 U.S. at 486, 83 S.C t. at 416–1 7; Brown , 422 U. S. at 603–04, 95 S.Ct . 2261–62. Howeve r, if the trialcourt d eterm ines o n rem and th at the s earch of App ellee’s vehicle was conducted pursuant to v ol untary consent, the t rial court must al so make finding s of factabout whether Appellee was given his Miranda warnings before he made his written statement, and i f so, whether the waiver of those rights was valid.

II I. CONCLUSI ON-11- Because we hold that the trialcourt based i ts decisi on to grant t he motion to suppress on erroneous grounds, and pretermit ted making addit ional fi ndings of fact necessar

y for a determina t ion as to t he validity of t he search and interr ogation of Ap pel lant, we rever se the j udgment of t he tri al cour t and we remand this matter for f urther factual f indings consi stent wit h this opi nion.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOHN H. PEAY, JUDGE