State v. Berrios
| Citation | 235 S.W.3d 99 |
| Decision Date | 17 August 2007 |
| Docket Number | No. W2005-01179-SC-R11-CD.,W2005-01179-SC-R11-CD. |
| Parties | STATE of Tennessee v. Eric BERRIOS. |
| Court | Supreme Court of Tennessee |
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; William L. Gibbons, District Attorney General; and Valerie Smith, Assistant District Attorney General, for the appellant, State of Tennessee.
William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellee, Eric Berrios.
GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER and CORNELIA A. CLARK, JJ., joined.
The defendant, Eric Berrios, was charged with one count of possession with intent to sell or deliver more than three hundred grams of cocaine. After the trial court granted the defendant's motion to suppress the cocaine seized during the traffic stop, the State was granted an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Criminal Appeals affirmed the suppression of the evidence. We granted the State's application for permission to appeal to determine whether the officer's actions amounted to an unconstitutional seizure and, if so, whether the defendant's consent to search the vehicle was sufficiently attenuated from that illegal act. Because the seizure violated constitutional safeguards and because the consent to search was not sufficiently attenuated from the violation, we affirm the suppression of the evidence. The judgment of the Court of Criminal Appeals is, therefore, affirmed.
On February 25, 2004, Officer Kelly Nichols of the West Tennessee Drug Task Force observed Eric Berrios ("the Defendant") driving fifty-three miles per hour in a construction zone on Interstate 40 in Shelby County. The posted speed limit for the area was forty-five miles per hour. When Officer Nichols activated his emergency equipment, the Defendant stopped his vehicle on the shoulder of the highway. The officer then approached the vehicle on the driver's side, asked the Defendant for his license and vehicle registration, and directed him out of the vehicle. After glancing at the license and registration, Officer Nichols frisked the Defendant and led him to the backseat of the patrol car. The Defendant was questioned and ultimately agreed to the officer's request for consent to search the vehicle. A large amount of cocaine was hidden in the fender area of the vehicle.
At the hearing on the motion to suppress, Officer Nichols, testifying for the State, stated that he directed the Defendant outside of the vehicle for safety reasons. He explained that "police officers working on highways happen to be more likely to be run over by vehicles than shot and killed by a suspect." Later in his direct testimony, he added that the cold and rainy weather was another reason to place the Defendant in the patrol car. Officer Nichols performed a pat-down search for weapons before putting the Defendant in the patrol car but found none. At the hearing, he pointed out that it was his practice to frisk every person he placed in the back of his vehicle.
While inside the patrol car, the Defendant was asked a number of questions about his automobile, his travel plans, and his business. Officer Nichols also telephoned the United States Customs Service to verify the validity of the Defendant's driver's license and registration and to determine whether the vehicle had recently crossed the border from Mexico. While awaiting the results of his inquiry, the officer asked for and received consent to search the vehicle.
As he looked under the hood of the vehicle, Officer Nichols discovered that the bolts holding the fender in place had been removed and replaced. After unsuccessfully attempting to remove the fender, he called for Sergeant Mike McCord to assist in the search, explaining that Sergeant McCord "had a narcotics detecting canine and also . . . had experience in searching vehicles." The dog alerted to the front fender area, and the two officers drilled into the fender, discovering more than three hundred grams of cocaine hidden in the firewall of the fender.
During cross-examination, Officer Nichols conceded that the Defendant was cooperative during the stop. He also acknowledged that he had seen nothing in the interior of the car that caused him to fear for his safety or led him to suspect any criminal activity other than speeding. The officer admitted that he did not believe that the Defendant was either armed or dangerous. Upon further questioning, Officer Nichols explained that because the Defendant appeared nervous during the initial encounter, his purpose in placing the Defendant in the back of the patrol car was to determine whether the anxiety level of the Defendant would increase.
At the conclusion of the hearing, the trial court took the motion under advisement and later issued a written memorandum and order granting the motion to suppress. The trial court concluded that because the Defendant was driving in excess of the speed limit, the initial stop "was not unreasonable" but also ruled that detaining the Defendant in the police vehicle and asking questions "unrelated to speeding" or "officer safety" violated constitutional limits. Further findings by the trial court as summarized by the Court of Criminal Appeals, were as follows:
[The officer] did not initiate the computer check on the [D]efendant's license and registration until approximately two minutes after placing the [D]efendant in the back of the squad car and four minutes after initiating the traffic stop. After the call to U.S. Customs, [the officer] continued for four minutes to ask questions unrelated to the speeding offense.
[The officer's] questions exceeded both the duration and subject matter of the stop.
Contrary to the state's argument, the [D]efendant's responses to the officer's questions were an insufficient basis for extending the detention.
The only possible indicator of criminal activity . . . was the [D]efendant's nervousness. Nervousness alone is seldom sufficient for finding reasonable suspicion, and although it could suffice under certain circumstances, those circumstances are not present in this case.
From numerous viewings of the video tape of the traffic stop, the court cannot [ac]credit [the officer's] testimony that the [D]efendant appeared nervous at the beginning of the stop and that the nervousness escalated. Nothing about the [D]efendant's appearance on camera suggested that he was nervous enough to raise a reasonable suspicion of criminal activity . . . .
Any nervousness that the [D]efendant did exhibit was likely a result of being locked in the backseat of a police car while Nichols retained his driver's license. The [D]efendant not only did not feel free to leave, but he was physically unable to do so . . . .
In a supplemental order, the trial court also ruled that even though the Defendant voluntarily consented to the vehicle search, the consent was not sufficiently attenuated from the unlawful detention so as to allow the admission of the illegal drugs. The Court of Criminal Appeals affirmed the order of suppression, concluding that the officer's conduct, patting down the Defendant and placing him in the back of the patrol car, amounted to an illegal "frisk and sit." The intermediate court also ruled that the consent to search was not sufficiently attenuated from the illegal conduct.
In this appeal, the State contends that both the trial court and the Court of Criminal Appeals erred by suppressing the cocaine discovered in the vehicle. In the alternative, the State asserts that the consent to search was voluntary and so unrelated to the unlawful seizure as to permit the admission of the evidence.
The standard of review applicable to suppression issues is well established. When the trial court makes findings of fact at the conclusion of a suppression hearing, the findings are binding upon this Court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). "Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." Id. "The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence." Id. Our review of a trial court's application of law to the facts is de novo, with no presumption of correctness. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997)). When the trial court's findings of fact are based entirely on evidence that does not involve issues of witness credibility, however, appellate courts are as capable as trial courts of reviewing the evidence and drawing conclusions and the trial court's findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn.2000).
Both the state and federal constitutions offer protection from unreasonable searches and seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any evidence discovered subject to suppression. See U.S. Const. amend. IV (); Tenn. Const. art. I, § 7 (). "[T]he most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or...
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... ... See, e.g., State v. Berrios, 235 S.W.3d 99, 103 (Tenn.2007) ("When the trial court makes findings of fact at the conclusion of a suppression hearing, [for instance,] the findings are binding upon [the appellate court] unless the evidence in the record preponderates against them."); State v. Odom, 928 S.W.2d 18, 23 ... ...