# FILED May 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1995

STATE OF TENNESSEE ) ) APPELLEE ) NO. 02C01-9410-CC-00209 ) ) HAYWOOD COUNTY VS. ) ) HON. DICK JERMAN, JR. ) JUDGE DEREK MANNS ) ) (Certified Question of Law) APPELLANT )

FOR THE APPE LLANT: FOR THE APPELLEE: Frank Deslauriers Charles W. Burson Attorney at Law Attorney General P. O. Box 1156 Covington, TN 38019 Rebecca L. Gundt Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Larry Hardister District Attorney General 109 E. First Street Trenton, TN 38382

OPINION FILED: ____________________
AFFIRMED JERRY SCOTT, SPECIAL JUD GE- 2 - 

## O P I N I O N

This is an appeal of a certified question of l aw pursuant to Tenn. R. App. P. 37 (b)(2)(i).
Pursuantto his guilty plea,the appellant was conv icted of possession of cocaine with intent to sell o r deliver for which he received a sentence of eight years in the state penit entiary as a Range I, standard offender. The question rese rved on appeal is framed as whether the search and seizure of a brown paper sack containing ten individually wrapped packages of cocaine was in viol ation of the Fourth Amendment to the United States Con stitution a nd Article 1, § 7 of the Tennessee Constitution.
On December 15, 1993 at appro x imately 6:50 p.m., Daniel Z artman of the Brownsville Police Department was on his way home. He saw a car in a s tall ofa car wash with its hood up and no one ar ound it. The re was a black pickup truck with a trailer parked fifteen to twenty feet from the vehicle in the stall. A person w hom the officer could not identify ran from the pickup truck to the car in the stall, opened the door on the driver’s side, leaned inside, then ran back to the truck. After a few seconds, the person ran back to the car, closed its hood and drove away. The truck drove away at the same time, passing the officer’s car.
Mr. Zartman followed the car and, upon seeing the dr iver turn left without giving any sort of signal, he stopped the car formaking an improper turn. As they talked, the officer saw a small sandw ich type paper sack sti cking out of the seat on the driver’s side. The appellant refused to consent to a sea rch of his car.
As the officer was writi ng the appellant a traffic citation, another officer arriv ed with a drug dog and the dog alerted on the driver’s side of the car.- 3 - Mr. Zartman testified that he was initially

suspicious of the appellant because there had been previous b urglaries at the car wash. Further, the appellant said he was checking his oil at the car wash, b ut he never saw the appel lant doing anything under his hood. In addition, the appel lant would not acknowl edge the presence of the truck at the car wash or the sack in his car when asked about it. He act ed ver y nervous and would not stand stil l , but walked back and forth around the back of his car. When Mr. Zartman asked if he could look in the sack, the appellant said “ yeah” but jumped in front of the door and stopped the officer before he could do so.
The appellant does not contest the initial st op for the traffic violation. He concedes that the sniffingby the drug dog w as not a search. The main thrust of his argumentseems to be the length of time he was detained at the sc ene awaiting the arrival of the dog.
Invest igative stops are authorized by our courts, State v. Oody , 8 23 S. W. 2 d 554, 561 (Tenn. Crim. App. 1991), if the officer can point to specific an d articu lable facts which , taken t

ogether with r ational infe r ences from those facts, reasonably warrant the detention. State v. Pulley , 863 S.W.2d 29, 30-31 (Tenn. 1993) citing Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Here, the officer cites

nume rous specific and articulable facts which, taken together with rational inferences from those facts, clearl y warrantedthe detention of the appellant until the drug dog arrived. His suspici ous actions at the car w ash by going back and forth to the truck, the presence of which he would not acknowledge, followed by his refusal to acknowledge the pres ence of the bag and his nervous and agitated state, taken with all the other circumstances, cle arly justified the stop. A defendant’s furtive conduct can be consi dered by an officer to justify an investigat ive stop. State v. Banner

, 685 S.W.2d 298, 30 0 (Tenn. Crim. App. 1984).- 4 - The trial judge f ound that the officers had probable caus e to search the appellant’s car based on the dr ug dog’s having al erted on the car and based on the appellant’s actions and responses. Of cour se, a trial judge’ s findings of fact on a motion to suppress are co nc lusive on appeal unless the evidence preponderates against those findings. State v. Turnbill , 640 S.W.2d 40, 45-46 (Tenn. Crim. App. 1982). The evidence here certainly does not preponderate against tho se findings. The judgment overruling the motion to suppress is affirmed.

_______________________________ JERRY SCOTT, SPECIAL JUD GE
CONCUR:

_______________________________ JOSEPH M. TIPTON, JUDGE

_______________________________ DAVID H. WELLES, JUDGE