### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Fe br ua ry 24, 200 4 S es sio n

STA TE OF TEN NES SEE v. CH AR LES K EITH

Direc t Appeal from the Cr im inal Cou rt for Sulli van Coun ty

No. S44,822 P hylli s H. Miller, Judge

No. E2003-01721-CC A-R3- CD - F iled Jun e 30, 2004

The a ppellant, Charles Keith, was convicted by a jury in the Sulli van County Criminal Court of one count of possession of m arijuana and one count of possession of drug para pherna lia. The trial c ourt sentenc ed the a

ppellant to consec utive sentenc es of e leven mo n th s an d tw e n ty

- n in ed ay s c o n f

inement in the county jail, to be served at seventy -five perc ent. On appeal, the appe llant challeng es the trial

c ou rt ’s de nia l of

his mot ion to su pp res s evi dence se ize d a s a re su lt o f an in ve sti g a tory sto p o f h is

ve hic le . U po n r e vie w o f the re c or d a ndthe pa rt ie s’ brie fs , w e a ff

ir m the jud g me nts of the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t a r e Affir m e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which G A R Y R. W ADE , P.J ., and A L AN E. G L EN N , J ., joined.

J ulie A. Rice, Knoxvill e, Te nnessee(on appe al), a nd L eslie S. Ha le, Blountville, Tenne ssee (at trial)
, for the a ppellant, Charles K eith.

Paul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Da vid H. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; H. Gre eley

Wells, J r., District Attorney Gene ral; and Wil liam B

. Har per, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I. F ac tu al B ac kgr ound

At 12:36 a.m. on Aug ust 3, 2000, Bristol Police Offic ers Danny Fa rmer and J ason Thompson responde d to a call reg arding a suspi cious “white ve hicle” be hind Marley ’s Molding on Industrial Drive. Ma

rley ’s Molding w as under construction at the time, as were many buildings in the ar ea. Moreove r, there had bee n sever al burg laries at construction sites in the are a and theft of tools and oth e r i te ms.-2-

At the suppression hearing
, Offic er Farmer testified that while Officer Thompson looked for

e vid e nc e of

a bu rg lary a t Ma rl e y ’s Mo ldi ng , he dr ov e to Mo de rn De sig n, a ne arb y bu sin e ss. Whil e investigating at Modern De sign, O ffice r Fa rmer observe d the brake lig hts of a vehic le par ked nea r
an elec trical plant on the hill behind Marley ’s Molding. Offic er Fa rmer drove up the one-la ne g rave l all ey t h at provided a cce ss to the electrical plant. As Of fice r F arme r appr oache d the vehicle , the

ve hic le be g a n to ba c k u p. F or sa fe ty re a so ns a ndbe c a us e he did no t kn ow if the ve hic le ’s oc c up a nts had par ked on the hill behind Marley ’s Molding in or der to break into the rea r of the store , Offic er Fa rmer turned his patrol ca

r to approa ch the ve hicle fr om the rea r and not “ meet it head- on.” The vehicle the n “bac ked out re al quick and he aded dow n the hill real fa st.” Offic er F arme r obser ved Of fi c e r T ho mps on ’s patr ol j e e p tu rn ing on to the g ra ve l a ll ey and ra dio e d O ff ic e r T ho mps on to advise him that the vehic le was c oming down the hill. Offic er Thompson stoppe d in the middle of t h e al l ey an d activate d the blue lig hts. Unable to pass, the ve hicle, a w hite van drive n by the appellant, stopped ne ar O ffice r Thompson’s patrol jee p.

Of fi c e r F arm e r a

pp ro a c hed th e van on the drive r’ s si de a nda sk e d th e app e lla nt f or his driver’ s license. While talking with the appellant, Offic er Fa rmer observe d a “bag g ie” on the bac k

se a t o f t h e v a n a n d a s k e d t h e ap p e l l a n t t o h a n d i t t o h i m

. A s t h e ap p e l l a n t h a nd e d th e ba g g ie to Offic er F arme r, he claimed t hat t he bagg ie di d not belong to him. He sa id “that he’ d just picked up the van.” The ba g g ie contained a gre en plant-like substance which “ha d an odor of marijuana

about it.” Offic er F arme r aske d the appe llant to step from the vehic le. As t h e ap p ell ant g ot out of the vehicle, he immediately

put his hand into his l eft pa nts pocket. Of fi cer Fa rmer g rabbe d the appellant’ s hand and felt a marijuana pi pe. Offic er Farmer ordere d the appellant to remove the pipe from his pocke t and the appe llant complied. Offic er F arme r t estified that the pi pe also “had an odor of marijuana

about it.”

Offic er F arme r then patted down the appe llant’s rig ht pants pocket a nd felt anothe r bag g ie. Offic er F arme r said, “Why don’t y ou pull the bag g ie of marijuana out of y our pocke t.” The a ppellant complied, claiming that “he’ d just bought it and had [driven up the hi ll] to smoke one before he went to w or k. ” Of fi c e r F arm e r i ssu e d th e app e lla nt a mis de me a no r c itatio n a ndthe n r e le a se d h im.

On cr oss-examination, Office r F arme r stated that the C ity of Bristol owned the property on which the e lectric al plant was loc ated and that the pl ant was “the onlything at the dead e nd of [the g ra ve l a lle y ].” Th e re we re “ no tr e sp a ssi ng ” sig ns po ste d ne ar the e le c tr ic a l pl a nt t o p re ve nt p e op le from ente ring the fe nced a rea , but there w ere not any signs at the bottom of the hill. He admitted that in his e xpe ri e nc e a s a

po lic e of fi c e r, he ha d n e ve r h e ardof a ny on e br e akin g int o a n e le c tr ic a l pl a nt. Moreove r, it would be dang erous for a person who was not a n elec trician to ente r or va ndalize the plant. Howeve r, Off

icer Fa rmer be lieved that the appellant had “[p] arke d there and was at the bac k of Mar ley ’s Molding.” He e x plained that the police de partment ha d previously investigated “se vera l bu rg lari e s u p th e re , h a d c a lls wh e re so me bo dy ha d s tol e [n] to ols fr om Ma rl e y ’s Mo ldi ng , h a d c a lls wher e they ’d broke into TVA stuff that wa s moving the dirt up there , broke into their stuff , and we ’d hadp a tr o l c h e c k s to b e u p th e r e to o

. . . . ” N e v e r th e le s s , O f f ic e r F ar me r c o n c e d e d th a t u p on investigating Marley ’s Molding and Modern Desig n, neither he nor Off icer Thompson detecte d any

e vid e nc e of a bu rg lary or va nd a lis m. Of fi c e r F arm e r re la te d tha t app ro xima te ly on e mon th p ri or

to-3-

stopping the appellant, he and TVA office rs had discovere d persons behind a buil ding to the left of Marley ’s Molding, c utting the locks of f the building . Howeve r, whe n t h e o ff i cers arrived at the

scene , the individuals escape d on a motorcy cle.

Of fi c e r F arm e r a c kn ow le dg e d that the de sc ri pti on pr ov ide d by the c a lle r w a s a wh ite ve hic le and that the ve hicle drive n by the appe llant was a w hite van. He further acknow ledg ed that whe n he ra dioed Off

icer Thom p s o n t h at t h e van was coming down the hill, he did not tell Office r Thompson to stop the vehicle. He wa s simplywar ning O ffice r Thompson bec ause the g rave l alley was only one-la ne and he did not know whether the driver was flee ing. Howeve r, Off icer Fa rmer
conce ded that he intende d to stop the van to interview the driver and determine the driver ’s re ason for be ing a t th e e le c tr ic a l pl a nt. Of fi c e r F arm e r s ta te d th a t he a lso int e nd e d to c omp le te a F ie ld I nterview Report, which is “ a report that .

. . shows that [t he appe llant] was at that location at that time and then if something [ was] broke[n] i nto or if something happene d then y ou’re awa re of who was in that ar ea.” Offic er F arme r conce ded that the g rave l alley was only seventy -five to a

hundred y ard s lo ng , s o th e app e lla nt w a s n ot a ble to b uil d u p mu c h s pe e d a s h e le ft the e le c tr ic a l pl a nt.

Of fice r Jason Thompson t estified at the suppr ession hearing that on Aug ust 3, 2000, he responde d to a ca ll reg ard i n g a suspicious white vehic le par ked next to Marley ’s Molding on I ndustrial Drive. He proce eded to the Marley ’s Molding to investig ate. He drove to the pa rking lot in f ront of Marley ’s Molding, but disc overe d no evidenc e of a c rime. At that time, Off icer Fa rmer radioe d to a dvise him that he had observe d a vehicle’ s brake lights “up next to the utilit y station.” Offic er Thompson proc eede d to the electrica l plant. As he turned onto the g rave l alley that provided

acc ess to the plant, Off

icer Fa rmer a dvised him that the vehicle w as driving down t he hill. Office r Thompson observed a

white van driving towa

rds him and stopped his vehicle in the middle of the road. H e then activate d his blue lights for safe ty rea sons and to stop the van to investigate. Off icer Th omp so n te sti fi e d th a t w he n th e va n sto pp e d, Of fi c e r F arm e r s po ke to the drive r w hil e he we nt t o the opposite side of the ve hicle as a “cove r off

icer .”

On cr os s -e x ami nation, Offic er Thompson c oncede d that when he investigated Marle y ’s Mo ldi ng , h e dis c ov e re d “n oth ing wr on g .” Ho we ve r, he ma int a ine d tha t it wa s dif fi c ult to a sc e rt a in whether anything ha d been disturbe d beca u s e t h e building wa s under c onstruction. Moreove r, he did not walk to the rear of the bui lding prior to Offic er Farmer ra dioing him about the ve hicle on the hill; t here fore , he wa s unable to dete rmine whe ther ther e had be en a br eak- in at the re ar of the building. Of

fice r Thompson stated that no businesses in the are a wer e open at that hour, nor we re any construction wor

kers in the a

rea

.

B a se d upo n t he fo regoi ng tes ti mo ny , t he t ri al c ou rtden ied th e app ell ant ’s m ot io n t o s up press

. The trial c ourt found:

Now, here y ou have buildings under construction. You ha ve re cent pr e vio us bu rg lari e s a nd the ft s in the are a

. . . . I t’ s h a lf pa st m idn ig ht. There ’s no business open. The re’ s no work being done. You have a

c a ll, a wh iteve hic le be hin d M arl e y Mo ldi ng , a su sp ici ou s w hit e-4- vehicle. O ffice r F arme r g oes

. . . around Modern Desig n . . . and he sees tail lig hts . . . behind Marley Molding, they ’re up the hill behind Marley Molding. Now, every burg lar doesn’t g o and par k at the fr ont d o o r ju s t li k e a r e g u la

r b u s in e s s c u s to me r a n d g o in a p la c e

. . . . [S ]o y ou have [Off

icer Fa rmer] seeing th[ ese] suspicious tail lights behind Marley Molding, up the hill ar ound a powe r plant whe re it’s not ob se rv able fr om the ma in r oa d. Th e n [O ff ic e r T ho mps on ] . . .g oe s to the front of

Marley Molding, whic h [w] as the only acc ess by vehicle. He doe sn’t s ee an y t hing at the front but he doe sn’t g et out . . . and prowl ar ound beca

use about that ti m e h e gets a c all there ’s a c ar up there behind Marle y

Molding. He g oes ar o u n d , turns up a . . . one lane g rave l road a nd he [ o b s erve s] . . . t his vehicle c oming down. Now, . . . [the appellant] doesn’t jus t drive on down in a slow manner down a g r a v e l r o a d
, h e ta

k e s o u t s o r t o f

ab ru p tl y , s o I

f in d th a t [ the of fi c e rs ] ha d r e a so na

ble su sp ic ion ba se d o n a

rticu lable fa c ts .

. . to believe that c riminal activity had been or was g oing to be committed when they

stopped [the appellant’s] vehicle.

Following a jury trial, the appellant was convicted of one count of possession of marijuana and one c ount of possession of drug para pherna lia. There afte r, the trial court sente nced the appellant to consec utive s en t en ce s of ele ven months and twenty -nine da y s confineme nt, to be serve d at

se ve nty -f ive pe rc e nt. On app e a l, the app e lla nt c ha lle ng e s th e tr ia l c ou rt ’s den ia l of his mot ion to

su pp re ss.

II. Ana lys is

On app e a l, “ a

tr ia l c ou rt ’s fi nd ing s o f f a c t in a su pp re ssi on he ari ng wi ll b e up he ld unless the evidenc e pre ponderates otherwise .” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

Questions of credibility of t he witnesses, the weight and value of the evidenc e, and r esolution of conflicts in t he evide nce a re matters

e ntr us te d to the tr ia l judg e a s the tr ie r of fa c t. T he pa

rt y pr e va ili ng in the trial court is entitl ed to the strong est leg itimate view of the

e vid e nc e a dd uc e d at the su pp re ssi on he ari ng a s we ll as a ll r e a so na ble and leg itimate infere nces that may be dra wn from that e vidence

.

I d. Ho w e v e r , th e ap p li c a ti o n o f th e la w to th e tria l c o u r t’ s f in d in g s o f

f a c t i s a q u e s ti o n o f

la w subject to de novo re view. State v. Ye arg an, 958 S.W.2d 626, 629 (Tenn. 1997).

Both the F ourth Amendment to the United States Constit ution and Article 1, se ction 7 o f th e T e n n e s s e e Co n s ti tu ti o n p r o h ib it u n r e a s o n ab le s e ar c h e s a n d s e iz u r e s b y la w e n f o r c e me nt office rs. The pur

pose of the Fourth Amendment and Article 1, section 7 i s to “‘saf eg uard the privac y and sec urity

of individuals ag ainst arbitra ry invasions of g overnme nt of ficials.’” State v. Munn, 56-5-

S.W .3d 486, 494 (Tenn. 2001) (quoting State v. Bridge s, 963 S.W .2d 487, 490 (Tenn. 1997) ); see also State v. Downey
, 945 S.W .2d 102, 106 (Tenn. 1997). Consequently , “‘a war rantless sea

rch or

se izur e is p re su me d u nr e a so na ble , a nde vid e nc e dis c ov e re d a s a re su lt the reof is su bj e c t to suppression unless the State demonstrates that the sea rch or seizure was conducte d pursuant to one of the na rrowly define d exceptions to the warr ant re quirement.’” State v. Bine tte, 33 S.W .3d 215, 218 (Tenn. 2000) (quoting Yea rg an, 958 S.W.2d at 629); Coolidge v. N ew Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971).

The United States Supre me Court ann o unced one such exception to the war rant require ment in Terry

v. Ohio, 39 2 U.S . 1, 21, 88 S. Ct . 1868, 1880 (1968), holding that a law enfor ceme nt office r may

conduct a

brief inve stigatory

stop if the office r has a re asonable suspicion based upon specific and articula ble fac ts that a criminal offe nse has be en, is being , or is about to be committed. See also State v. Keith, 978 S .W.2d 861, 865 (Tenn. 1998). In determining whe ther a n office r has a rea sonable suspicion ba sed upon specific and articula ble fa cts, a c ourt should consider the totality

of the c ircumstance s, including, but not limited to, “the officer ’s p ersonal objective observations, information obtained from other police off icer s or a g e n c ie s , in f

o rma ti on obtained fr om citizens, and the pattern of operation of certain offe nders. A c ourt must a lso c onsider the r ational infere nces a nd deductions that a trained offic er ma y draw from the facts and c ircumstance s known to him .” Y e ar g a n , 9 5 8 S

. W

. 2 d a t6 3 2 ; U n i t e d S t a t e s v

. C o r t e z , 4 4 9 U

. S

. 4 1 1
, 4 1 7

- 1 8
, 1 0 1 S

. C t. 690, 695 (1981). The office r “‘ must be able to articulate s omething mor e than a n inchoate and unparticula

rized suspicion or hunch.’” Keith, 978 S.W.2d at 867 (quoting United States v. Sokolow, 490 U.S. 1, 7-8, 109 S. Ct. 1581, 1585 (1989)).

The a ppellant contends that Office rs Farmer and Thompson lacke d a reasonable suspicion ba se d u po n s pe c if

ic a ndart ic ula

ble fa c ts t o s top his ve hic le . T he app ell ant ass e rt s th a t prior to sto pp ing the va n th e of

fi c e rs didno t ob se rv e him e ng a g e in any ill e g a l a c tiv ity or c omm it a tr a ff ic violation. The appel l an t further asserts that his mere pre sence late at nig ht in an are a whe re the re had bee n sever al re cent bur g laries did not g ive rise to rea sonable suspicion. More over, the appellant arg ues that t he caller provided only a gene ric description of a white ve hicle in the ar ea and alluded to no illega l activit y , only that the vehicle was “ suspicious.” Thus, the appe llant contends that be c a us e the of

fi c e rs la c ke d th e ne cess ary re a so na ble su sp ic ion , th e tr ia l c ou rt e rr e d b y re fu sin g to suppress the e vidence seized as a r esult of the illeg al stop.

Th e appellant corr ectly

notes that neither of

fice r testified that they

observe d any

illega l activity or traf fic violation committed by the appe lla n t. M o r eover , this court has pre viouslyobserve d that a vehic le’s mer e pre sence in a hig h crime area late at nig ht was not sufficie nt rea son to stop the vehicle. See State v. L awson, 929 S.W .2d 406, 408 (Tenn. Crim. App. 1996). Howe ver, c onsidering the to ta li ty o f th e c ir c u ms tan c e s in th e in s tan t c a s e , w e c o n c lu d e th a t th e o f f ic e r s p o s s e s s ed a

rea sonable suspicion supported by specific and ar t i cu l able facts to stop the van drive n by the

app e lla nt.

S h o rt l y af t er1 2 : 3 0 a. m

. , Of

fi ce rs Fa rm eran d T h o m p s o n re s p o n d ed t o a c al l re gar d i n g a suspicious white vehicle be hind Marley ’s Moldin g, a building that was under construction. The-6-

building wa s located in a n are a that had r ece ntly experience d sever al burglaries and thef ts at construction sites, including Marley ’s Molding. The office rs testified that no busi nesses in t he ar ea
wer e open at t hat time of nig ht. Office r Thompson investigated Marle y ’s Molding, w hile Offic er Fa rmer dr ove to Modern D esig n, a nearby business. Although neither off icer discovere d evidenc e of a bur g lary , Offic er Thompson testified that the rea r of M ar l ey ’s M olding wa s inacc essible by

ve hicle and befo re he wa s a ble to w a lk t o th e re ar o f the bu sin e ss, Of fi c e r F arm e r r a dio e d h im

re gar d i n g a v eh i cl e o n t h e h i l l b eh i n d M ar l ey ’s M o l d i n g.

As Off icer Fa rmer c ircled Mode rn Design, he observe d the brake l ights of a vehic le par ked by an ele ctrica l plant on the hill behind Marley ’s Moldin g. Of fi cer Fa rmer te stified at the suppression hea

ring that the prope rty

on which the e lectric al plant was locat ed was owned by the city . He f urther stated that the g rave l alley behind Marley ’s Molding provided the only acc ess to the plant and the plant wa s “the only thing at the dead e nd of [the gr avel a lley ].” Although Offi cer Fa rmer c oncede d that he had ne ver he ard of any one bre aking into an elec trical plant, he believed that the appe llant had par

ked ther e in orde r to ac cess the r ear of Mar ley ’s Molding. A s Offic er F arme r drove up the g rave l alley

toward the elec trical plant to inve stigate, the vehicle , a white va n, “bac ked out rea l quick and heade d down t he hil l rea l fast.” Offic er Farmer radioed Officer Thompson, who had alr eady

turned onto the g rave l a lley

. Offic er Thompson a ctivated his blue lig hts and stopped the van. Considering the totality of t h e ci rc u mstances, we conclude that the offic ers possesse d a

rea sonable suspicion to stop the van drive n by the appe llant. See State v. Scar lett, 880 S.W .2d 707 (Tenn. Crim. App. 1993). Acc ording ly
, the t rial court committed no error by deny ing the appellant’ s mot ion to s up pr e ss.

III. Conclusi on

F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nts of

the tr ia l c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE