State v. Brown, No. E2006-01038-CCA-R3-CD (Tenn. Crim. App. 3/31/2008)
| Decision Date | 31 March 2008 |
| Docket Number | No. E2006-01038-CCA-R3-CD.,E2006-01038-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE, v. MARON DONTA BROWN. |
| Court | Tennessee Court of Criminal Appeals |
M. Jeffrey Whitt, Knoxville, Tennessee, for the appellant, Maron Donta Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Joseph Hoffer and Andrew Freiberg, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The appellant, Maron Donta Brown, pled guilty in the Bradley County Criminal Court to one count of possession of more than .5 grams of cocaine with the intent to sell or deliver and one count of speeding.1 The appellant received a total sentence of fifteen years as a Range II multiple offender. As part of the plea agreement, the appellant properly reserved a certified question of law, challenging the stop and subsequent search of his vehicle during which the cocaine was discovered. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.
On June 18, 2001, Trooper Keven Hoppe stopped the appellant for speeding and conducted a search of the appellant's vehicle, discovering a taped package containing over 300 grams of cocaine. Subsequently, the appellant filed a motion to suppress the cocaine, alleging that the scope of the traffic stop was exceeded; he did not knowingly and voluntarily consent to the search; the scope of his consent, if any, was exceeded; and the consent, if any, was the result of the unlawful stop.
At the suppression hearing, Trooper Hoppe testified that on June 18, 2001, he was parked about one mile inside the Bradley County line near mile marker 17 on Interstate 75. His vehicle, a 1998 Crown Victoria, was clearly marked as a K-9 unit. Trooper Gibson was also parked at that location, albeit in a separate police cruiser. The troopers were observing northbound traffic on the interstate. At approximately 5:00 p.m., Trooper Hoppe saw a Cadillac being followed closely by a dark Chevrolet Impala. Trooper Hoppe recalled that the Impala was traveling at a speed of seventy-eight miles per hour in a seventy-mile-per-hour zone, and the Cadillac was traveling at a similar speed. The Cadillac had a Texas license plate. Trooper Hoppe believed that the Cadillac and the Impala were traveling too closely for that rate of speed. Additionally, Trooper Hoppe testified that based upon his training in drug interdiction, he knew that "[d]rug cartels, mule drug haulers" often use a decoy vehicle to purposely draw an officer's attention from another vehicle by speeding or driving erratically. Trooper Hoppe noted that usually the decoy vehicle will purposely have a license plate from a high drug area such as Texas. Trooper Hoppe believed that one of the vehicles was a decoy vehicle.
Based upon the speeding and his suspicion that one of the vehicles was a decoy vehicle, Trooper Hoppe began pursuing the Impala, and Trooper Gibson began pursuing the Cadillac. The troopers employed the blue lights located on top of their vehicles. After pursuit was initiated, the Cadillac's speed increased to approximately 100 miles per hour. Trooper Hoppe recalled that after the initiation of pursuit, the driver of the Impala "failed to maintain his lane of travel," drifted, and reduced the vehicle's speed.
After several miles of pursuit, the Impala stopped on the side of the interstate. Trooper Hoppe said that the Impala had dark, tinted windows, but he was able to see the driver of the vehicle move around quite a bit in the vehicle. Because the Impala was parked close to interstate traffic, Trooper Hoppe approached the Impala on the passenger side. The appellant was alone in the vehicle.
Trooper Hoppe looked in the front passenger side window and told the appellant that he had "clocked" the appellant driving seventy-eight miles per hour. The appellant denied that he had been speeding. Trooper Hoppe noticed two or three cellular telephones in the front seat of the vehicle. He also noticed several air fresheners in the vehicle. He asked the appellant why he had been moving around so much in the vehicle after the stop. The appellant responded that he was moving because he had spilled a cup of water; however, Trooper Hoppe saw no evidence of spilled water. Trooper Hoppe observed that the appellant was acting very suspiciously, explaining that he was "nervous," "shaking," and had a concerned expression on his face.
Trooper Hoppe asked the appellant to step out of the vehicle on the passenger side and to produce his driver's license. When the appellant stepped out of the vehicle, Trooper Hoppe noticed a "bulge" in the appellant's pocket; therefore, he patted down the appellant for weapons. The appellant possessed no weapons but had a large ring of keys and a lighter in his front pants pocket. Trooper Hoppe asked the appellant who owned the vehicle. The appellant responded that the Impala belonged to his stepfather. Trooper Hoppe asked the appellant from where he was traveling, and the appellant replied that he had just left his girlfriend at the University of Tennessee at Chattanooga. The trooper testified that he usually asks these types of questions of people he stops "to gauge what kind of person they are." Trooper Hoppe took the appellant's driver's license to the police cruiser and called dispatch to check the driver's license and the vehicle's license plate. He learned that the local computers were not working, so he had to call "Block High Watch Center" in New Orleans, Louisiana, to run the driver's license and license plate. While speaking with the trooper, the appellant crossed his arms several times and would not make eye contact with the trooper. Trooper Hoppe stated that he found the appellant's "body language . . . very suspicious in nature."
While awaiting a response from "Block High Watch Center," Trooper Hoppe asked the appellant if he had ever been in trouble and if there were illegal items in the vehicle. The appellant answered no. Trooper Hoppe next asked the appellant if he could "take a quick look," gesturing toward the vehicle. Trooper Hoppe testified that the appellant said, "Yeah, go ahead." The trooper inquired if there was anything in the vehicle such as marijuana, cocaine, methamphetamine, or heroin. The appellant replied in the negative. Trooper Hoppe asked the appellant if he was a "straight up guy," and the appellant responded affirmatively.
Trooper Hoppe began searching the vehicle while the appellant stood in front of a guardrail ten or twelve feet away. Trooper Hoppe immediately picked up an item that had previously attracted his attention: a brown cardboard box that looked like something in which an air filter for a vehicle would be packaged. The box was "oddly taped . . . with non-standard tape which said `GM' on it." The trooper asked the appellant to explain what was in the box. Initially, the appellant said that he did not know what it was; the box had been in the vehicle when he got it. Then, the appellant said that he believed it was a present from his sister to his mother. Trooper Hoppe testified, "I knew at that point probably it was contraband." At the suppression hearing, the following colloquy occurred:
[Trooper Hoppe:] I felt it first and I could feel like a brick, just one big brick in it, and then there's a broke down zip-lock bag. I felt the brick in there.
[The court:] So you were feeling before you ever tore it open.
[Trooper Hoppe:] I felt the brick in it. You could feel it.
After feeling the box, Trooper Hoppe peeled up a corner of the tape, smelled the box, and detected the odor of cocaine. Trooper Hoppe told the appellant to get down on the ground, and the appellant complied. Trooper Hoppe then handcuffed the appellant and attempted to convince the appellant to participate in a controlled delivery. The appellant refused.
Trooper Hoppe returned to his police cruiser and placed the package inside. "Block High Watch Center" called Trooper Hoppe, and he informed them that he "had a seizure." He finished opening the box and found a big zip-lock ba[g] with rock cocaine . . . just the way it's chunked up cut off a kilo. And the other one was a perfect kilo, what you would think a kilo would look like, and it looked like it was green material but it's got some kind of gel or like axle grease or something around it I guess to mask the odor of it, or that's what it looked like.
Trooper Hoppe acknowledged that he had a drug detection dog in his police cruiser, but he explained that he did not have an opportunity to use the dog. He also stated that he usually relies on verbal consent instead of using consent to search forms because a fellow officer had been shot and killed while returning to his police cruiser to obtain a consent form.
A videotape of the stop was played for the trial court. At the conclusion of the suppression hearing, the court said, "I don't see anything wrong at all with the stop." The court said that after listening to the videotape, he thought he heard the appellant say "okay" or "yes" to indicate that Trooper Hoppe could search the vehicle. The court stated:
I'm going to be as frank as I can with you all. I don't know, I think this is a very close question no matter how the Court rules, and my feeling is that the close question is not whether they exceeded the scope of the consent. I don't have any problem with an appeal on that part at all because that's part of the question, but I feel like if the consent was valid that the officer did not exceed the scope, even if...
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