### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE Februar y 5, 20 02 Session
STATE OF TENN ESSEE v. DAVID WALTER TROXELL
Appeal by pe rmissio n from the Court of Cr

iminal App eals Circuit Court for Dickson County No. CR- 4933 Hon. Robert Burch, Judge

No. M2000-01100-SC-R11-CD - Filed May 28, 2002

The defenda

nt, David Walter Tr

oxell, was c

harge d with

possessio n with inte

nt to sell and/or deliver a controlled substance after officer s discovered approximately 300 g rams of cocaine in the gas tank of

his pickup truck. The trial court suppressed the evidence a fter finding that the search of the undercarriage and g as tank of the defendant’s vehicl e exceeded the scope of the defendant’s consent to search. The Court of C riminal Appeals reversed the judgment of the trial c ourt and remanded the case for further proceedings. After carefully considering therecord and the relevant authoriti es, we conclude that the officer’s search of the undercarria ge and gas tank

of the defendant’s vehicle violated the Four th Amendme

nt to the Un

ited State s Constit

ution and a

rtic le I, § 7 of the Tennessee Constitution

because it exceeded the scope of the defendant’s consent and re sulted in the pr ol on ge d a nd un re as on ab le de te nt io n o f t he de fe nd an t. Ac co rd in gl y, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Appeals R

eversed; Judgment

of the Trial

Court Re

instated.

E. R ILEY A NDERSON , J., delivered the opinion of the court, in which A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined. F RANK F. D ROWOT A , III, C.J., filed a dissenting opinion.

William B. (Jake) Locker t, III, D istrict Public Defender, Twenty -Third Judicial District, for the appella nt, David Walter Tr

oxell.

Paul G. Summers, Attorney Gene ral & Reporter; Michael Moore, Solicitor General; Dary l J. Brand, Associat e Solicitor General; Marvin E. Clements, Jr., Assistant Attorney Gen eral ; Dan Mitchum Alsobrooks, District Attorney General; and Kim G. Menke, Assistant District Attorney Gene ral, for the appellee, State of Tennessee.1 The evi dence c onsi dered by the tri al c ourt at t he su ppress ion h eari ng i nclu ded th e te sti mony of Tr oop er N orro d and the de fenda nt, as well a s a vide otap e of the e nco unter.

2 Although Troop er Norrod testified that he requested consent prior to the i ssuance of the ci tation, the videot ape of

the encoun ter

cle arl y re veal s t hat he re quest ed cons ent aft er the ci tation w as i ssu ed.

3 Th e fuel tank also co ntained gaso line. Ap pare ntly, a pro tective w rap w as used to avo id contamina tin g the cocai ne.
-2- OPINION Background

The evidence presented at the suppression hear ing revealed that

on November 11, 1999, the defenda nt, David Walter Troxell, was stopped for speeding on I nterstate 40 by Tr

ooper Mark Norrod of the Tennessee H

ighway Patrol. 1 Troxell, who was tra veling 7 8 to 80 miles per hour in a 70 miles per hour zone, admitted that he had accelerated to pass a tra ctor-trailer truck. Troxell produce d his driv er’s license and said that he was driving a company truck registered in the n ame of hi s employer’s wif

e. Trooper Norrod issued a warning citation to the defenda nt and explained that

it would not require a court appearanc e or a fine. Trooper Norrod then aske d the defendant, “Do y ou have any
we apons in the vehicle?” Troxell responded, “No, nothing.” When Trooper Norrod asked if he could “ta ke a look, ” Troxell

answered, “Yeah, go a

head.” 2 Trooper Norrod conducted a pat down search of the defendant

and then searched the interior compartment of the pickup truck and all of

the luggage inside. During

the sear ch, Troxell was led to the side of the roadway by another of

ficer who had arrived at the scene, Trooper Ferrell.

Af ter completing an extensive search of the interior of the pickup tr uck and the l uggag e therein that lasted nearly

20 minutes, Trooper

Norrod then examined the underside of the vehicle. He observed that the bolts and hoses to the gas tank appeared to have been

recently r

emoved, and when he tappe d on the g as tank, in his opinio n it did not “ resonat e” as it would if it

held only fuel. After obtaining a mirror and

a flashlight from his patrol car, Trooper Nor rod again looked

under the truck and observed silicone sealant on and around the gas tank, which he believe d was “not normal.” Based on these observations and his experience in interdiction, Trooper Norrod concluded that there
was somet hing i n side the tank other than fuel and that “it could have been [wea pons].” Trooper Norrodinstructed the defendant to drive to a service station so the gas tank could be removed. After asking that the owners o f the veh icle be n otified a s to what w as occur ring, th e defen dant drov e to the service station whe re the gas tank was removed a nd 300 grams of cocaine were discovered inside. 3
Trooper

Norrod admitted duri ng the suppression hearing tha t although he asked the defendant specifically a

bout weapons and not drugs, a K-9 unit arrived at the scene and a drug detection dog-3-

conducted

a sweep of

the v ehicle, which was negative. He te stified that “in his mind,” the defendant’s consent meant that he could search “any where” and that Troxell never objected to the search at any time. Trooper

Norrod c oncede d, howeve r, that “ most peopl e might reasonably think that would mean [he was] going to look inside the cab of their truck.” Troxell testified during the suppression hearing that he believed the office r was going to search the inter ior c a b of the pickup truck and that h

e did not object or attempt to limit the search because he had been led to the side of the road by

Trooper Ferre ll. Trooper Norrod testified that Troxell was moved out of the way so that the events could be videotaped and for safety and security r

easons.
After considering the testimony and viewing the videotape of the encounter, the trial court found that the search exceeded the scope of the de fendant’s consent

and suppressed the evidence. The tria l court sta ted:

If the officer had asked for a c o nsent to se arch for drugs in the vehicl e, I thin

k this would

have be en a vali d consen t, becau se tha t would be one of the places that could be searc hed for drugs. But for weapons , I tend to agree with . . . the Defense . . . . One would n’t
nor mally think about weapons under the underside or secre ted i n some concealed fashion.

The Courtof Criminal Appeals reversed, however, conc luding that Trooper Norrod’s belief that the defendant’s consent to searc h “in the vehicle” encompassed the underca rriage and gas tank of

the truck wa s “objec tively

reasona ble.” The appell ate cour

t remand ed the ca se for tr

ial. We granted the defendant’s applica tion for permission to appeal.

Standard of Review

A trial court’s findings of fact in a suppression hear ing will be upheld

on appeal unless the evidence prepond

erates agains t those findin gs. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Where the issue involves an application of law to un dis puted facts, a question of law is presented which will be subject to de novo review. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000); State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). Because the mater ial facts in this case are not in dispute, our revie

w of the le gal issu es is de novo

.

Search and Seizure

Th e Four th Amendment to the United States Constitution provides that “[t]he right of the people to be secure . . . a

gainst u nreason able sea

rches a nd seizure s, shall no t be violated, and no
warran ts shall issue, but upon probable cause.” Article I, § 7 of the Te

nnessee Constitution

similarly prohibits unreasonable searches and seizur es and is i dentica

l in intent an d purpose

with the F

ourth-4-

Amendmen

t. State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997). “‘Consequently, unde r both the federal and state constitutions, a warrantless search or seizure is presumed unr easonable, and evidence discover

ed as a r esult thereof is subject to suppression unless the State demonstrates that the search

or seizure

was cond

ucted pur suant to one of the n arrowly defined exce ptions to the warrant requirement.’” State v. B inette , 33 S.W.3d 215, 218 (Tenn. 2000) (quot ing State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997)).

The federal and state constitutional prohibitions against unreasonable se arches and seizures also apply to vehicles. See Statev. Keith , 978 S.W.2d 861, 865 (Tenn. 1998). A law enforcement offi cer’s stop of a vehi cle ther efore r equiresthat the o fficer

have pro bable ca use, or r easonab le suspicion supported by specif ic and articulable facts, to believe that an offense has been or is about to be committed. State v. England , 19 S.W.3d 762, 765 (Tenn. 2000).

Becau se a traffic sto p is an inves tiga tive s top, the of ficer’ s actions must be “r easonab ly related in scope t

o the cir cumstanc es which

ju stified the interference in the first place,” Terry v. Ohio , 39 2 U .S . 1 , 2 0, 88 S. Ct . 1 86 8, 18 79 (1 96 8) , a nd th e d et en ti on “m us t b e t em po ra ry a nd last
no longer than necessary

to effectuate the purpose of the stop,” Florida v. Royer , 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); State v. England , 19 S.W.3d at 767-68. Moreover, the offic er should employ the leas t intrusive

means re asonably

availab le to inve stigate

his or her suspicion s in a short period of time. Florida v. Royer 460 U.S. at 500, 103 S. Ct. at 1326. As this Court has said, “the proper inquiry is whether during

the detention, the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” State v. Simpson , 968 S.W.2d at 783 (citation omitted). Otherwise a reasonable traffic stop c an beco me unrea sonable a nd constit utionally invalid “if the time, manner or scope of the investigation exceeds the prope r parameters.” United States v. Childs , 256 F.3d559, 564 ( 7th Cir. 200 1); see also State v. Morelock , 851 S.W.2d 838, 840 (Tenn. Crim. App. 1992)

. Consent

When evidence is seized as a result of a warrantless sea rch o f a vehic le, the Sta

te must establish that the search was conducted pursuant to one of the exceptions to the warrant require ment. Statev. Keith , 978 S.W.2d at 865 . One exception is a search conducted pursuant to an individual’s consent. Schneck

loth v. Bu stamonte , 41 2 U. S. 218 , 24 8, 9 3 S . C t. 204 1, 3 6 L. Ed. 2d 854 (1973). To satisfy the

constitutional reasonableness standard, the consent must be “‘unequivoca l, specific, intellig ently

given, and

uncontaminated by

duress or coercion.’” State v. Simpson , 968 S.W.2d at 784 (quot ing State v. Brown , 836 S.W.2d 530, 547 ( Tenn.199 2)). Mor eover, e ven if the consent i s vo lu nt ar y, evidenc e seized in the search will not be admissible if the search exceeds the scope of the consent given. See gener ally 3 Wayne R. L

aFave, Search and Seizure § 8.1(c) (3d ed. 1996).

In determining the scope of consent, the releva nt considerations includ e any express or implied limitation s regarding the time, d uration, area, o

r intensit y of police a ctivity necessa ry to accompl ish the stated purpose of the search, se e id. , as well as the expressed object of the search, Florida v. Jimeno , 500 U.S. 248, 251, 111 S. Ct. 1801, 1 803-04 (1 991) (“A reasona ble person may4 See also People v. Najjar , 984 P. 2d 592, 596 ( Colo. 1999) (“Office rs who receiv e con sent to

searc h for a sto len wid e-scree n televisio n set . . . wou ld act u nreas ona bly by e xpa nding their sea rch to in clude small
con tainers o r draw ers whe re such an item could not po ssibly be locate d.”); State v. McCrary , 45 S. W.3d 36, 44 (Tenn. Crim. App. 2000) (W hen a m otor ist conse nts to a se arch fo r alco hol, na rcotic s, and w eap ons, it is ob jective ly
reas onable forthe off

icer to con clude tha t the se arch encompas ses the “cove red, but e asi ly acces sibl e, cargo ar ea of the vehicle and any unl ocked containers or luggage insi de the vehicle” that may contain these i tems.).
-5- be expected to know that narcotics are gene rally car ried in some form of a container.”). 4 The scope of con sent is not based on the subjective intentions of the consenting party or the subjective interpre tations of the sear ching o fficer . Ins tead the standar d is “that of

‘object ive’ re asonable

ness

–what woul d the ty

pical re asonable

person have understood by the exchange between the officer and the suspect.” Florida v. Jimeno , 500 U.S. at 251, 111 S. Ct. at 1803-04.

Analysis Turning to the pre sent cas e, the defendant argue s that his c onsent to s earch f or “wea pons in the vehicle” was limited

in scope to the interior compartment of the pickup truck and that the search of the undercarriage a

nd gas tank of the vehicle exceeded the sc ope of the consent. The State argues that the defendant consented to the initial search, that the defe ndant did not objec t to or l imit the search, and tha t Trooper No rrod’s search of the underca rriage and gas tank of

the vehicle did not exceed th e scope o f the con sent.

In determining the scope of the consent to searc h, we first exam ine th e verba l exc hange betweenTrooper Norrod and the defendant. Af ter issuing a warning citation for speeding, Trooper Norrodasked wh

ether the defendant had “ any weapons in the vehicle.” When the defenda nt said “no, not hin g, ” t he of fic er sa id, “O ka y if w e t ak e a loo k?” The ver

bal excha nge the refore expressly indicatedthat the officer intended to searchonly for “we apons” that were “in the vehicle,” and the re was noth ing to in dicate that the search would encompass more than just the vehic le’s interior. Indeed, Trooper Norrod adm itt ed that “most people might reasonably think that would mean [he was] going to look inside the cab of their truck .” Accor dingly , apply ing a co mmon sense interpretation to the ver

bal excha nge, it was objectively r

easonable to conclude

that the c onsent to search included only the interior of the vehicle and any

containers that may

have contained

weapons
. The dissent disputes this interpretation and insteadconcludes that “in the ve

hicle” n ot only meant “under the vehicle” but also “in the ga s tank.” We simply disagree that the wor d “in ” may be so broadly stretched, particularly g iven that the burden o f establi shing tha t a warrantless search
was lawful rests with the State, not the defendant. Moreover, of the c ases cited by the dissent from other jurisdict ions, only two involve

search es of ga s tanks; in

each, the stated exchange rega rding the scope of consent is easily distinguished from the present case. See United States v. Anderson , 114 F.3d 1059 (10th Cir. 1997) (search including the underca rriage and the ga s tank did not exceed the scope of consent where the defe ndant said officer could “scout around” and search the “carpet
or whateve r”); State v. Jones , 59 2 So.2d 363 (Fla. Ct. App. 1992) (holding that search of the-6-

under carria ge of a car and fuel tank did not exceed the scope of consent and

distinguishing “search the vehicle” from a search of the “interior” of the vehicle).

It follows f

rom our c onclusion

that it wa s not objectivel y reasona ble to believe that the consent to search

“in the vehicle” would permit Trooper Norrod to examine the underc arriage and gas tank of the vehicle while continuing and prolonging the detention of the defendant. It is w orth emphasizing that at

this stag e of eve

nts, the defendant had been stopped only for speeding and that the officer completed his investigation into this traffic offense by issuing only a wa

rning citation

. After issuing t he citati on, howev er, Troo per Nor rod requ ested the

defenda nt’s cons ent to sea

rch in the vehicle

for weapons, then conducted an extensive, nearly 20-minute search

of the interior of the vehicle and its contents and conducted a sweep of the ve hicle by using a d rug det ectio n dog. Despite finding no evidence of weapons or drug s, Trooper Norrod nonetheless exceeded the scope of the defendant’s consent and continued the detention of the defendant by the n cra wling under and examining the underside and gas tank of the vehic le.

We reject the dissent’s arguments that Trooper Norrod’s belief that the consent included any and all areas in or under the vehicle was objectively reasona ble in light of the officer’s experience and knowledge that weapons may be concealed in a vehic le ’s gas tank. While an officer’s experience and subje cti ve k nowledge may be relevant to the analy sis, it is no more dispositive of what is “objectively re asonable” than is the defendant’s subjective expectation. Indeed, give n that the burden of establishing the legality of a warrantless search r ests with the State, it would be objectiv ely

reasona ble to expect that an educated and experienced law enforcement off icer has the verbal capacity

to say “under

the car” and “gas tank” when in fact those areas are within the parameters of the requested consent. See United States v. Coburn , 876 F.2d 372 (5th Cir. 1989) (officer requesting consent

specifically me

ntioned search

of fuel ta nk). Such

words wou

ld hardly amount to the imposition of an overly burdensome “ high leve l of spec ificity” as fe ared by the dissent.

F in al ly, we reje ct the Sta te’s arg ument tha t the def endant’ s failure

to object to or lim it th e continued search in and of itself supported the conclusion that Trooper Norrod’s view of the scope of the consent was objectively reasonable or that the resulting prolong ed period of de tention was permissible. Troxell had been led to the side of the road by another officer

for the purpose of getting him out of the way a s the search progressed, w hich Troxell described as “irritating” and a “nuisance.” Although a defendant’s later expressed l anguage, coupled with silence , may be evide nce of an expansion of the scope of the consent, a defendant’s silence alone cannot expand the scope of the initial consent or allow a prolonged and continued de tention. C ompare United States v. Anderson , 114 F.3d at 1065 (the defendant’s responses broa dened the initial scope of consent).

Conclusion

Af ter carefully considering the record and the re levant authorities, we conclude t hat th e officer’s search of the under carria ge and ga s tank o f the def endant’ s vehicle

violated the Four th-7-

Amendm en tto the United States Constitution and article I, § 7 of the Tennessee Constitution because it exceeded the scope of the defendant’s conse nt and res ulted in t he prolonged and
unreaso nable

detentio n of th e defen dant. Accordingly , we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial cour t. Costs of

this appe al are ta

xed to the State.

____________________________________ E. RIL EY ANDER SON, JUSTI CE