Nix v. State

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtOLIVER; DWYER; GALBREATH; GALBREATH
PartiesJohn NIX, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
Decision Date18 March 1975

Page 524

530 S.W.2d 524
John NIX, Plaintiff-in-Error,
v.
STATE of Tennessee, Defendant-in-Error.
Court of Criminal Appeals of Tennessee.
March 18, 1975.
Certiorari Denied by Supreme Court June 30, 1975.
Certiorari Denied Oct. 20, 1975. See 96 S.Ct. 218.

Robt. W. Ritchie and Joseph M. Tipton, Knoxville, for plaintiff in error.

Milton P. Rice, Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, for defendant in error.

OPINION

OLIVER, Judge.

Represented by retained counsel, Nix was convicted of possessing more than one-half ounce of marijuana with the intent to sell it, for which he was sentenced to imprisonment in the penitentiary for not less than one nor more than five years and to pay a fine of $3,000. (TCA § 52--1422, Schedule VI; TCA § 52--1432(a)(1)(F)). He has perfected an appeal in the nature of a writ of error to this Court.

We address first the defendant's second, third, fourth and fifth Assignments of Error which, collectively, charge that he was illegally arrested without probable cause, that he was interrogated without being advised of his constitutional rights, and that the trial court erred in failing to suppress the defendant's pre-trial custodial statements and evidence obtained by a warrantless search of his apartment to which he did not freely and voluntarily consent. All of these questions were properly raised by defense motions to suppress evidence, which were heard and overruled by the trial court before selection of the jury.

We summarize the material evidence adduced in the suppression hearing, which consumed two days and occupies 292 pages of this record. It was developed that information reached the Knoxville FBI office that a young white man driving a blue Volkswagen bus, bearing Texas license plates, had exchanged a number of small denomination bills for larger bills at several banks; and that about 2:00 p.m. on February 1, 1973, as the defendant parked his Volkswagen bus on the University of Tennessee campus, three FBI agents approached the bus on the driver's side and identified themselves to the defendant.

FBI Agent Phillips testified that the defendant was not placed under arrest; that he was advised of all of his Miranda rights with the exception of the right to have the court appoint a lawyer for him if he could not afford one; that he was asked to sit in

Page 526

the FBI car (it was raining slightly) and talk with them about the money; that in the car the defendant explained that he had won the money gambling and felt he would have a better chance to exchange it for larger bills if he went to several banks rather than just one; that he did not reply when asked why he did not do that at the place he won the money gambling; that he said some of the money was in his apartment; that he told the agents he was a senior at UT majoring in psychology, and that he had been dropped from the football squad because he admitted to Coach Battle that he had smoked marijuana; that he was then asked whether he had any contraband or any illegal narcotics at his residence, and he replied he only had a margarine butter dish of marijuana for his personal use, and said he also had there a .22 caliber derringer; that the agents explained to him they would like to check the serial numbers on the bills and asked him if he would consent to a search of his apartment and he agreed; that, after dismissing the defendant's wife to go to her classes at the university, they went to the defendant's apartment, the defendant driving his bus and accompanied by one agent and the other two agents following in the FBI car; that enroute to the apartment, the defendant stopped at a filling station and bought gasoline, and that he was under no restraint and was not under arrest or being held in custody; that it is FBI procedure to always place a suspect in handcuffs after arresting him, and that the defendant was never handcuffed or searched or restrained in any way by the FBI agents and he was never arrested by any of them; that when they got to the apartment and entered the living room Agent Phillips read to the defendant a consent-to-search form and asked him to sign it, and the defendant read the form himself and inquired what would happen if he did not sign it and Agent Phillips replied that a request would be made for a search warrant; that the defendant asked the agents to step outside for a few minutes and when he was told they could not do so he signed the form; that the agents then asked him for the marijuana and he produced a very small amount of it which he said was for his own use, and he showed them where the derringer was when they asked about it; and that when they asked him for the money he produced it and counted it in their presence, the aggregate amount being $9290.

While they were counting the money, Knoxville Police Officers arrived. Agent Phillips explained to them what had happened and showed them the consent-to-search form signed by the defendant. Lieutenant Norman, of the Knoxville Police Department Narcotics Division, testified they were there as a result of a call from their dispatcher to meet the FBI at the apartment; that he shook hands with the defendant and advised him orally of his rights and asked him if the narcotics division officers could search his apartment and the defendant agreed; that during the search eight one-pound bricks of marijuana were found; that the defendant was under no restraint until he was taken into custody and placed in the police car; and that he was again advised of his rights enroute to the police station.

The defendant testified in the suppression hearing that he spent the morning of February 1, 1973 going to several Knoxville branch banks exchanging small bills for larger ones, and then he and his wife started to their classes at UT; that the FBI agents identified themselves but did not inform him of his rights and asked him a few questions about changing the money; that they told him to get in the FBI car and he did so, but was not threatened or forced, and they still did not advise him of his rights; that they told him they wanted to see the money and said nothing about wanting to search his apartment; that one of the agents went with him when he went back to his bus to talk to his wife, and then she was released to go to her classes; that he drove his bus to his apartment with one agent accompanying him and the others following in the FBI car; that when they

Page 527

reached the apartment he asked the agents if they wanted to see the money, and Agent Phillips presented a consent-to-search form and said they would like for him to sign it, and he read it over and told them he wasn't going to sign anything like that; that they told him he would have to sign the form, and that they could get a search warrant by simply making a telephone call; that when he asked the agents to step outside they laughed at him and told him they could not do so, and laughed again and told him to sign the form when he asked them if they were not going to leave, and that he then signed the form, feeling that he had no other choice although he realized the document stated he could refuse to permit a search; that the agents then asked to see the marijuana and the gun and the money; that he was a psychology major at the university at the time; that he turned over the money, $9290, to the FBI and that this money was his and he had other funds at his disposal and he was not indigent and had hired his attorney; that he lied to the agents when he told them he won that money gambling; that as he and the agents went to his apartment it was on his mind that he had marijuana and $9290 there and that he had acquired that money by selling marijuana, and the reason he wanted the officers to leave before he signed the consent form was that he did not want them to find the money and marijuana; that the marijuana found in his apartment was his; and that the FBI agents never informed him that he was under arrest or told him he could not go outside if he wanted to and permitted him to use the telephone, and the bathroom with the door open; that the agents told him he was only making trouble and he would be bringing his wife into the trouble if he did not cooperate; and that when the Knoxville Police arrived he did not consent to their searching his apartment and the first time he was advised of his rights was enroute to the city jail in the police car.

A clinical psychologist testified as a defense witness that he found the defendant to be passive, introverted and indecisive and that he would tend to give in easily in a crisis situation and to become flustered and easily intimidated before authority figures.

At the conclusion of the suppression hearing, the trial judge carefully reviewed the testimony and found as fact (1) that the defendant was never arrested by the FBI agents, although they had probable cause for doing so, and (2) that the defendant was an intelligent and educated young man and understandingly and voluntarily signed the consent form and consented to the search of his apartment. Accordingly, the court overruled the motion to suppress 'as to each and every ground.'

We are bound to adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court's judgment. Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754. The Supreme Court of this State has held repeatedly that the findings of a trial judge in an oral hearing after seeing and hearing the witnesses testify and hearing and considering conflicting testimony, will be given the weight of a jury verdict. Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403; Atlas Powder...

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