State v. McCrary, 99-00001

• Decision Date: 19 May 2000
• Docket Number: 99-00001
• Parties: STATE OF TENNESSEE v. ROGER D. MCCRARY, ET AL.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v ROGER D. MCCRARY, ET AL.

No.01C01-9906-CR-00202

No. M1999-00001-CCA-R9-CD

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

Decided May 19, 2000

Interlocutory Appeal from the Criminal Court for Smith County Nos. 99-12 and 99-13

J. O. Bond, Judge

On April 5, 1999, a Smith County Grand Jury indicted the appellees, Roger D. McCrary and Vernice A. Logan, on one count of possessing with intent to sell more than seventy (70) pounds of marijuana. The indictment resulted from a traffic stop of the appellees' vehicle and the consequent seizure by police of one hundred and forty-five point six (145.6) pounds of marijuana. The appellees filed motions to suppress the State's use of the marijuana at trial. Following a suppression hearing on May 10, 1999, the Smith County Criminal Court granted the appellees' motions. From the trial court's orders, the State of Tennessee now brings this interlocutory appeal. Following a review of the record and the parties' briefs, we reverse the orders suppressing the evidence and remand these cases to the trial court for further proceedings consistent with this opinion.

Tenn. R. App. P. 9; Judgment of the Criminal Court is Reversed and Remanded.

Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, David Earl Durham, Assistant District Attorney General, for the appellant, State of Tennessee.

Thomas H. Bilbrey, Assistant Public Defender, Lebanon, Tennessee, for the appellee, Roger D. McCrary.

J. Branden Bellar, Carthage, Tennessee, for the appellee, Vernice A. Logan.

OGLE, J., delivered the opinion of the court, in which WADE, P.J., and PEAY, J., joined.

OPINION

I. Factual Background

On December 19, 1998, at approximately 10:00 a.m., Shannon Brinkley, a trooper with the Tennessee Highway Patrol, observed a white Chevrolet Blazer traveling in the right, eastbound lane of Interstate 40 at a speed of approximately sixty (60) or seventy (70) miles per hour. The Blazer was following closely behind another vehicle. Because it had been raining and the roads were wet, Trooper Brinkley decided that the proximity of the Blazer to the other vehicle posed a danger and, accordingly, conducted a traffic stop.

Upon approaching the Blazer, Trooper Brinkley observed appellee McCrary in the driver's seat and appellee Logan in the front passenger's seat. The trooper instructed McCrary to get out of the vehicle and also requested McCrary's driver's license. McCrary provided an Arizona driver's license and, in response to the trooper's request for proof of vehicle registration, stated that Logan had rented the Blazer. McCrary further informed Trooper Brinkley that he and Logan were en route to Detroit, Michigan from Phoenix, Arizona and intended to visit family in Detroit during the Christmas holidays. Trooper Brinkley then approached Logan and obtained both her driver's license and the car rental agreement. Logan confirmed that she had rented the Blazer and also confirmed the appellees' origin and destination. She explained that she intended to visit her grandchildren in Detroit.

Trooper Brinkley returned to his patrol car, ran a computer check on McCrary's driver's license, and completed a "warning citation." He additionally read the car rental agreement provided by Logan and noted that Logan was listed as the sole authorized driver of the Blazer. Finally, he returned to the Blazer, where he issued the warning citation to McCrary and returned McCrary's driver's license. He also asked Logan to get out of the Blazer and advised her that, according to the car rental agreement, McCrary was not authorized to drive the Blazer. He indicated that neither she nor McCrary had violated any law but noted that she might encounter difficulties if McCrary were to have an accident while he was driving the Blazer. Trooper Brinkley then returned to Logan both her driver's license and the car rental agreement. During the preliminary hearing in the appellees' cases, Trooper Brinkley testified that when I gave [McCrary] the warning and his license and I gave [Logan] her license and the rental agreement, at that point, they were free to leave because that ended the traffic infraction there.

Upon returning Logan's driver's license and car rental agreement, Trooper Brinkley initiated another conversation with Logan, during which he commented upon the high incidence of transportation of alcohol, narcotics, and weapons upon the interstate highways and requested permission to search the Blazer. He stated to Logan that his request "was nothing personal against her . . . ." At the preliminary hearing, Trooper Brinkley recounted that

[Logan] was a little skeptical at first. She said, sir, I'm just going to visit my grandchildren. I said I understand. I said, if you tell me yes, I'll search your vehicle and be very quick about it. I said, but if you tell me no, I will not search your vehicle. And she said, you want to search my truck? And I said, yes, ma'am. She hesitated, and I said, tell me. I said, if you have any objections, please tell me, I said, because if you tell me not to search it, I'm not going to search it. And she said, well, okay. Go ahead and search it. She said, but make it quick. And I was, like, yes, ma'am, I'll be as quick as possible.

When he received Logan's consent, Trooper Brinkley requested that both appellees stand outside the vehicle during the search. The appellees complied, standing at the rear of the Blazer. Trooper Brinkley then began his search, initially examining the area around the front passenger's seat. The trooper also unfastened several bags located in the rear passenger seat, unsuccessfully feeling inside for any contraband. Finally, the trooper directed his attention toward the cargo area of the Blazer.

The cargo area was concealed from open view by a "factory cargo cover," which was fastened with a hook to the rear door of the vehicle. From the rear passenger seat of the Blazer, Trooper Brinkley felt inside the cargo area. He then moved to the rear of the Blazer, opened the rear window, reached inside the vehicle, and released the cover, revealing one green and two black duffel bags. The trooper opened the rear door of the Blazer and attempted to open one of the duffel bags but noticed that the bag was secured with a "small luggage lock." The trooper felt the outside of the bag and perceived two large, square objects. Trooper Brinkley testified at the suppression hearing that the objects were "really hard . . . compressed." Trooper Brinkley additionally felt the outside of one of the other two bags and again perceived two large, square objects. He inquired whether either Logan or McCrary had the key to the lock on the first bag. When the appellees denied having a key, Trooper Brinkley lifted the bag in order to feel its weight. He noted that the bag was very heavy and, placing the bag on the ground, inquired concerning its contents. Logan responded that the bag contained "reefer." Trooper Brinkley testified both at the preliminary hearing and at the suppression hearing that "reefer" is a term commonly used to refer to marijuana.

As a result of Logan's statement, Trooper Brinkley arrested the appellees, placing both McCrary and Logan in handcuffs and advising them concerning their Miranda rights. He additionally called a dispatcher on his radio and requested assistance from the Smith County Sheriff's Department. Finally, he used a knife to cut open the duffel bags. Each bag contained two square objects covered in Christmas wrapping paper. Trooper Brinkley cut through the wrapping paper on one of the objects and confirmed the presence of a substance that appeared to be marijuana. The police ultimately determined that the three duffel bags found in the cargo area of the Blazer contained a total amount of one hundred and forty-five point six (145.6) pounds of marijuana.

At the hearing on the appellees' motions to suppress, Trooper Brinkley testified that, after the appellees' arrest and the discovery of the marijuana, Logan asked what the trooper would have done had she refused to consent to the search of the Blazer. The trooper recalled that I told her that . . . if she had said no to the consent that they were still free to go, and that I'd probably, if I could have gotten the canine there in a reasonable amount of time, I would have asked for a drug dog to come to the scene.

In granting the appellees' motions to suppress the State's use at trial of the marijuana, the trial court entered the following findings:

1.) Trooper Shannon Brinkley did have reasonable suspicion to stop the subject vehicle which was the object of the search in question.

2.) The consent to search the vehicle given to Trooper Brinkley by the co-defendant in this case to wit: Vernice Logan was voluntary.

3.) The Trooper did not have probable cause or reasonable suspicion to request consent to search the vehicle after the warning citation had been issued to the defendant Roger D. McCrary.

4.) The consent to search the vehicle given by Vernice Logan to Trooper Brinkley did not extend to the closed duffel bags in the rear compartment of the vehicle.

5.) The evidence in this case to wit: approximately one hundred forty five (145) pounds of marijuana, and all other items taken from the subject vehicle were therefore unlawfully seized.

On June 3, 1999, the State filed in the Smith County Criminal Court a motion requesting permission to appeal the trial court's orders pursuant to Tenn. R. App. P. 9, which motion the trial court granted. The State then filed in this court an application for permission to appeal pursuant to Tenn. R. App. P. 9. This court granted the State's application on July 7, 1999.

II. Issues

The State's claim of error is predicated upon the following grounds:

(1) Trooper Brinkley required neither reasonable suspicion nor probable cause to believe that the appellees were engaged in criminal activity in order to...