### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Ja nua ry 30, 200 7

STATE OF TENNESS EE v . TOMMY LEE HENRY

Appeal f rom the Cr im inal Cou rt for Sulli van Coun ty No. S50,301 R. Jerr y Beck, Judge

No. E2006-00466-CC A-R3- CD - F iled March 22, 2007

Th e de fe nd a nt, To mmy

L e e He nr

y , w a s c on vic te d b y

a Sul liv an Co un ty

jur y of tampe ri ngwi th evidenc e, a C l as s C felony , and a third of fense of possession of coc aine, a Class E felony . The defe ndant was se ntence d as a Rang e I , standard offende r t o four y ear s for the tampering conviction

an d tw o y e ar s f

o r th e p o s s e s s io n c o n v ic ti o n to b e s e r v e d c o n c u r

r e n tl y in th e D e p artment of Cor re c tio n. I n th is a

pp e a l, t he de fe nd ant c la ims that th e tr ia l c ourt e rr e d in de nyinghis mot ion to suppress. He claims that the police illeg ally detained him whe n they found him insi de a pa rked c ar wi th t wo oth e r i nd ivi du a ls i n a hig h- c ri me area at a

pp ro xima te ly

3:0 0 a .m. a

nd that th e y ill e g a lly seized evidenc e duringthe detention. We hold that the trial court proper ly denied the motion, and

we a ff ir m it s ju dg me nts

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , P

. J

. , d elivere d the opinion of the cour t, in which J ER R Y L. S MI TH and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

Stephen M. Wallace, District Public Def ender , and Te rry

L . J ordan, A ssistant P ublic Def ender , for
t h e a p p e l l an t , T o m m y L e e H e n r y.
Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; C ameron L . Hy der, A ssistant Attorney Gene ral; H. Gr eele y

Wells, J r., District Attorney Gene ral; and Joseph Eug ene Per rin, Assistant District Attorney

Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

At the hea

ring on the def

endant’ s motion t o suppress, Of fice r S t ev e Summey

of the King sport Police Depa

rtment testified that he w as p at ro lling a housingprojec t, Riverview Ap ar t m en t s , at ap p ro x i m at el y 3 : 0 0 a. m

. o nNo v em b er 2 6
, 2 0 0 4

. He d es cr i b ed R i v er v i ew as a “ h i gh drug are a” a

nd said that narc otics were commonly sold on the streets. He said that he notice d a truc k pa rk e d in the c ourt y ard and that th e e ng ine and

lig hts we re tur

ne d off

. He sa id he saw thr e e pe op le in the truck, whic h he appr oache d. He sa id he saw the defe ndant, who is black, a nd a woman a

nd-2-

another man, both white, in the truck. H e said that the neighborhood was comprised of eig hty -five to ninety perc ent Afr ican- Americ an re sidents and that he would have investigated the truck without reg ard to the rac e of the oc cupants. He rec og nized the defe ndant, who wa s seated on the passeng er sid e of the tr uc k, bu t he did

no t r e c og nize the man in th e dr ive r’ s se a t or the wo man in

the mid dle as individuals he had se en bef ore in the River

view community . Offic er Summey s aid he wa s familiar with the de fenda nt f rom a prior case involving the def endant se lling drug s in Riverview.

Offic er Summey

spoke with the man on the driver’ s side of the truc k, who told the office r he wa s in Riverview because he was visiti ng a friend. Offic er Summey said, howeve r, that the man could not ide ntify his f

riend by name or g ive his f riend’s apar

tment numbe r. He sa id that as he wa s speakingwith the m an, Officer Tom Way t arr ived and approa ched the defe ndant on the passe ng er side of the truck. Offic er Summey said that he obtained consent to se arc h the truck from the driver and that the de fenda

nt got out of the passeng er side of the t ruck and had a disc ussion with Officer W a yt

. O f f i c e r S u m m e y s a i d

t h a th e c o u l d

n o th e ar a l l t h e d i s c u s s i o nb u tt h a th e h e ar d O f f i c e r W a yt

a sk the de fe nd ant w hy

he wa s so ne rv ou s.

Of fi cer Summey

said that he wa s familiar with the pra ctice of individuals in R iverview storing c oca i n e in their mouths and that he ha d been involved in a prior situation in which he suspected that the defe n d an t h ad cocaine in his mouth. He said that a s the defe ndant and Of fice r Way t were talking, he asked the defe ndant if he ha d any thing in his mouth. He said on dire ct examination that the defenda nt answer ed, “N o,” but he testified later that he did not reca ll how the defe ndant had a

nswere d. He sa id that he as k ed t h e d efe ndant if he c ould chec k and that the defe ndant tilted his he ad back a nd opened his mouth. He sa id he could not see inside the defe ndant’s mouth because of the wa

y the def endant wa s positioned. He sai d t h e d efendant broug ht his head back to a normal position and bega n chew ing rapidly

. He said that he suspec ted the def endant wa s de str oyingdr

ug s th a t w e re in h is m ou th a nd that he or de re d th e de fe nd ant t o s top c he wi ng

. He sa id that Offic er Way

t placed his ha

nds on the defe ndant’ s neck a nd that the def

endant spit out a cle ar cellophane bagwhich had “ a tra ce of small white residue” that was c onsistent with cocaine. O ffice r Summey testified that he also saw “a small w hite rock like substance on [t he defe ndant’s ] t o n g ue and lips” which w as consistent with coc aine.

Offic er Thoma s Way

t testified that he arrived to assist Offic er Sum mey . He a pproac hed the passeng er side of

the truck w here the def

endant wa s seated. H e testified that t h e d ef en d ant was fi dg e tin g , to ssi ng a packa g e of M& M c and

y ba c k a nd fo rt h, and a pp e are d to be ne rv ou s. He sa id that th e de fe nd ant d

ro pp e d th e c and

y , pic ke d it u

p, and sa id, “ Al l I

did wa s a sk fo r a ri de . A ll I

did

wa s a sk fo r a ri de ,” de sp ite the fa c t that ne ith e r Of fi c e r Wa y t no r O ff ic e r S umm e y

we re sp e a kin g to the def endant at the time. Offic er Way t said that he aske d the def endant to step out of the tr uck but de nie d th a t he ha d d eta in e d th e de fe nd ant. He sa id t hat th e de fe nd ant m a de so me state me nts

a lth ou g h h e did

no t re c a ll the ir c on te nt and that a t so me po int , O ff

ic e r S umm e y

a pp ro a c he d th e m. He sa id Office r Summey

asked the defe ndant if he ha d any thing in his mouth. He testified on dir ect examinatio nth a t t

h e d e f e n d an t r e s p o n d e d
, “ N o , ” an d h e te s ti f ie d o nc r o s s

- e xa mi n a ti o nth a t t he defe ndant said, “G um wrappe r.” H e sa i d t h at Officer Summey asked if he could look into the d e f e n d an t ’ s m o u t h an d

t h a tt h e d e f

e n d an tt i l t e d h i s h e a d b a c k an d o p e n e d h i s m o u t h

. O f

f i c e r W a yt-3-

said he wa s not able to see in the de fenda nt’s mouth. He said the de fenda nt broug ht his head for

war d and b ega n ex ag g erated che wing . He sa id that at that point, he could see what appe are d to be a

c e llo ph ane wr a

pp e r in the de fe nd ant’ s mout h. He sa id t

his ty pe of pa c ka g ingwa s c on sis te nt w ith

c ra c k c oc a ine . He sa id that he put his ri g ht h and on the de fe nd ant’ s n e c k b ut t hat he did no t a pp ly

any pr e ssu re

. He sa id that the de fe nd ant wa s to ld t o s pit ou t w ha t w a s in his mouth b ut t

hat he did

no t im me diate ly

c omp ly

. He sa id the de fe nd ant did e ve ntu a lly sp it out a pla sti c ba g g ie wi th w hit e

re sid ue on it.

The de fenda

nt testified that there wer e three officers, although he could not identify the third office r. He said that the off icer who was outside the pa sseng er side of t he truck asked him to g et out of the truc k. He sa id that the office r asked him what was in his hand and that he showe d the offic er

s o m e ca n d y . He sa id that he was standingat the bac k of the truc k and that Of fice r Summey

said, “Mr. He nry , y ou know that

. . . three simple posse ssions is a felony .” He said that he stood there for approximately

fiftee n to thirty

seconds a nd that all of a sudden, an off icer g rabbe d his arm and jer

ked it behind his back and y elled for him to spit out what was in his mouth. He said he tol d the offic er he had c andy , which he spit out of his mouth. He said a nother off icer came over a

nd picked up what “wa s supposed to be [ his] candy” but he could not see what was happe ning be cause it was dark. H e said that an off

icer never touched his throat. The defe ndant said th at h e did not fee l free to leave during the enc ounter a

nd that he wa s just doing what the of fice r aske d of him. He said that the office rs neve r told him he could leave

.

The de fenda

nt acknowle dg ed on cr oss-ex am i n at ion that he had se vera l convictions for pa ssi ngwo rt

hle ss c he c ks . H e sa id t

hat he did no t kn ow the dr ive r of the tr uc k a nd that he ha d ju st met the woman, whom he identified only as “A ng ela.”

At t h e c o n cl u s i o no f t h e h ea ri n g, t h e c o u rt fo u n d t h at t h e R i v er v i ew ar eawa s kn o wn as a h i gh drug use ar ea to the police and that Of fice r Summey d i d not eng ag e in ra cial prof iling. The court

a c c re dit e d th e te sti mony

of the of fi c e rs ov e r t

hat of the de fe nd ant.

At t h e t ri al
, t h e o ff

i ce rs ’ t es t i m o n y

m i rr o re d t h at wh i ch t h ey

gav e a t t h e s u

p p re s s i o nh ea ri n g. Th e de fe nd ant d id n ot t e sti fy a t th e tr ia l.

W h en re v i ew i n g t h e d en i al o f a m o t i o nt o s u p p re s s , we m u s taf

fo rdt h e t ri al co u rt ’s fi n d i n gs of fa ct the we ight of

a jury verdic t an d af

fi rm the denia l unless the evidenc e in the re cord preponde rate s ag ainst the finding s of fa ct or a rule of la w h as b ee n err oneously

applied. State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996)

. Howeve r, the application of law to the fac ts found by the trial court is a que stion of law, which we re view de novo. State v. D aniel, 12 S.W.3d 420, 423 (Tenn. 2000) (citing State v. Yea rg an, 958 S.W.2d 626, 629 (Tenn. 1997)). We consider both the evidenc e adduc ed at the suppr ession hear ing a nd that prese nted at trial. State v

. He n n i n g, 975 S.W .2d 290, 299 (Tenn. 1998)

.

Th e F ourt

h A me ndme nt t o th e Un ite d St a te s Co ns tit uti on pr ote c ts a g a ins t unre a so na ble

sear ches a nd seizures, and “ Article 1, Sec tion 7 of t he Tennessee Constit ution is i dentical in intent-4-

and purpose with the Four th Amendmen t

. ” S t at e v . Downey , 945 S.W .2d 102, 106 (Tenn. 1997) (citation omitted). The F ourth Amendment re quires off icer s to have re asonable susp i cion before seizing a c itiz en. Da

niel, 12 S.W .3d at 424

. Ho we v er , “not all per sonal intercour se betwe en policemen a

nd citizens invol ves ‘se izures’ of per sons. Only when the office r, by means of phy sical forc e or show of authority , has in some way restra ined the liberty

of a c itiz en” ha s a seizure oc curr ed. I d. I n deter

mining whe ther a

seizure has oc curr ed, “a

court m u s t co n s i d er all the circ umstances surrounding the enc ount er to de termine whe ther police conduct would have communicated to a

re a so na ble pe rs on

that th e pe rs on wa s n ot f

re e to d e c lin e the of

fi c e r’ s r e qu e st o r o the rw ise te rm inate the enc ounter.” I d. at 425 (c i t i n g Florida v. Bostick, 501 U.S. 429, 440, 111 S. Ct. 2382, 2389 (1991)) . I f the police -citizen encounte r constitutes a seizure, then, to be valid, the office r must have “a r easona

ble suspicion, supported by specific and ar

ticulable fa cts, that a c riminal offe nse has be en,

or is a bout to be, committed.” State v. Moore, 775 S.W .2d 372, 377 (Tenn. Crim. App. 1989) (citing Terr y v. Ohio, 3 9 2 U. S

. 1
, 2 1 -22, 88 S. Ct. 1868, 1879-80 (1968)). In deter mining whe ther a

n office r’s reasona

ble s uspicion is supported by specific and ar ticulable fa cts, “a

court should consider the totality

of the circ umstances – the entire picture.” Moore, 775 S.W.2d at 377 (citations omitted).

Withre sp e c t to pr ob a

ble c a us e to m a ke an a

rr e st, our s up re me c ou

rt ha s sa id:

An offic er may make a war rantless arre st “[w]hen a felony has in fac t been c ommitt ed, and the office r has r easona ble ca use for believing the per son arr ested to have committed it.” Tenn. Code Ann. § 40-7-103( a)( 3) (2003). Simpl y stated, the office r mu s t h ave “pro b able cause to be lieve the pe rson to be ar rested ha s committed the cr ime.” State v. Lew i s, 36 S.W .3d 88, 98 (Tenn. Crim. App. 2000)

. Pr o b a

b le c a u s e d e p e n d s o n w h e th e r th e f a c ts and circ umstances a

nd reliable information known to the off icer at the tim e of a rr e st w e re “ ‘suffi cie nt t o w arr ant a pr ud e nt [p e rs on ] in believing that the [ individual] had committed or wa s committi ng an offe nse.’” State v. Br idge s, 963 S.W .2d 487, 491 (Ten n

. 1997) (quoting Be ck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 22 3
, 1 3 L .Ed.2d 142 (1964); State v

. M elson, 638 S.W .2d 342, 350 (Tenn. 1982) ). Probable c ause must be more than a m er e s uspicion. Melson, 638 S.W .2d at 350.

State v. L awr ence , 154 S.W .3d 71, 75-76 (Te nn. 2005).

Turning to the fac ts of the ca se at ba r, the e ncounter

beg an whe n Offic er Summey ap proac hed the par ked truc k in which the def endant wa s seated. It i s n o t n ece ssary for a n office r to have

rea sonable suspicion of criminal activity to a pproac h a vehicle pa

rked in a public place and ask f

or driver ide ntification and proof of re g istration. State v

. P u l l ey , 863 S.W .2d 29, 30 (Tenn. 1993)

. Thus, the initial approac h was prope r.-5-

The re maining que stion is whether the intera ction bey ond the initial appr o a c h w a s justifiable. We h old that it wa s bec a

us e a s the sit

uatio n de ve lop e d, the of

fi c e rs ha d s pe c if

ic , a rt ic ula ble fa c ts, to which they

testified at the suppre ssion hear i n g and trial, to support a c onclusion that criminal activity was a foot. As Off

icer Summey was que stioning the drive r, Off icer Way t had ar rived a nd was standingoutside the passeng er side door near the def endant. Of

fice r Way

t said that the defe ndant’s beha

vior was suspicious in that he wa s acting nervous, tossing a packa g e of candy back and for th, and making spontaneous stateme nts about what he had been doing. F urther, the defe ndant had a history

of a pr ior drugarr est in the same a rea, o f wh i ch Of

fice r Summey

was a war e. The defe ndant was sitting in a parke d truck at 3:00 in the m orning in an area known for a high level of drug activity . Offic er Summey wa s familiar with the a rea , and he kne w neither

the driver

nor the woman in the truc k. The drive r could not name the person he claimed he wa s to visit , nor could he identify the individual’s apar

tment number.

Given the de veloping fac ts, the office rs had r easona ble suspicion to d et ai n the def endant bri ef l y as Offic er Summey

beg an a c onsent sear ch of the truck. Dur ing the course of that brief de te nti on , O ff

ic e r S umm e y

de ve lop e d a

re a so na ble su sp ic ion that th e de fe nd ant h a d d ru g s in his mouth based upon the de fenda nt’s ac t i o n s , a prior e ncounter with the defe ndant in which he suspected the defe ndant had dr ug s in his mouth, and the pr actice of conc ealingdrug s in this m anner in the community

. The office rs wer e entitled to c onduct further investigation, a nd upon doing so, the office rs observe d the defe ndant chew ing r apidly and suspec ted that the def endant wa s attempting
to dispose of drugs. Offic er W ay t saw a c ellophane w rappe r in the def endant’ s mouth, which was

c on sis te nt w iththe ty

pe of pa c ka g ingus e d for dr

ug s in the c omm

un ity . The of

fi c e rs ha d p ro ba

ble

cause to believe the defe ndant was c ommitt ing the crime of tamperingwith evidence . See State v. Robert L ee Ma llard, No. M2000-00351- CCA-R3-CD, Rutherford County (Tenn. Crim. App. F eb. 23 , 2 00 1) (o ff

ic e r h a d p ro ba

ble c a us e to b e lie ve de fe nd ant w a s c omm itt ing c ri me of tampe ri ngwi th evidenc e whe n defe ndant ra ised clenc hed fist and inser ted somethi ng into his m outh). Thus, the office rs could lawf

ully order the def endant to spit out what was in his mouth. When the defe ndant did so, he produced a ce llophane bag g ie of the ty pe commonly

used to pac kag e drug s. Furthe r, Offic er Summey

observe d white re sidue on the bagand a w hite rock- like subs tance on the de fe nd ant’ s mo uth . T he se de ve lop me nts on ly a dd e d f ur the r j ustif ic a tio n to the of

fi c e rs ’ p ro ba

ble

c a us e to a rr e st the de fe nd ant.

For these reasons, the tria l court cor rec tly denied the de fenda

nt’s motion to s uppress. B ased upon the fore g oing a

nd the re cord a s a whole, the judgme nts of the trial cour t are aff irmed.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE