State v. Moore
| Decision Date | 24 July 1989 |
| Citation | 776 S.W.2d 933 |
| Parties | STATE of Tennessee, Appellant, v. Eddie Michael MOORE, Appellee. 776 S.W.2d 933 |
| Court | Tennessee Supreme Court |
Charles W. Burson, Atty. Gen. & Reporter, Norma Crippen Ballard, Asst. Atty. Gen., Nashville, for appellant.
D.D. Maddox, Maddox & Maddox, Huntingdon, for appellee.
Appellee appealed his conviction on two counts of possession of controlled substances and one count of possessing a firearm. The Court of Criminal Appeals reversed the conviction and dismissed the charges, holding that the trial judge had erred when he overruled appellee's pre-trial motion to suppress the evidence. The Court of Criminal Appeals pretermitted other issues raised by appellee pertaining to the trial. We granted the State's application for permission to appeal. After careful consideration of the record, we are of the opinion that the trial judge correctly overruled the motion to suppress. Accordingly we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for consideration of the pretermitted issues.
The sheriff of Weakley County, Mike Wilson, was driving a patrol car shortly after noon on December 6, 1985. He was accompanied by Investigator Ron Powers. They had been investigating a burglary unrelated to the present case. They were driving south on a two-lane bypass near the City of Martin when they observed a car bearing Kentucky license plates parked on an unpaved road which intersected the bypass from their left. Because of reflection of the sunlight on the back window of the parked vehicle, they could not determine whether anyone was inside. The sheriff stopped behind the parked vehicle, and Powers got out to investigate. The sheriff radioed to request a check of the license plate registration. At first he thought that the vehicle might be abandoned, and he considered that it was unusual to see such a vehicle parked on what he described as a deserted gravel road.
When the officers approached the vehicle they found appellee, Eddie Michael Moore, sitting inside alone. He told the officers that he had received a telephone message to meet one Leslie Hill in this location. Both Moore and Hill were known by the officers to have been involved in illicit drug transactions. Moore appeared to be normal in all respects, and the officers did not at that time detain him in any way. Instead they drove their vehicle further on the unpaved road in the same direction in which they had been proceeding. They turned around at a point about one-quarter mile past the appellee's vehicle and drove back to the paved bypass. Appellee was still parked in the same place when the officers returned to the bypass.
The suspicion of the officers was aroused by the circumstances. They knew that Moore and Hill were business partners and that Moore was renting a mobile home from Hill at a different location. They decided to keep the Moore vehicle under surveillance. Accordingly they drove on the bypass a short distance, turned around and then parked at a point opposite the entrance to the road on which appellee was parked. From this point they could observe his automobile, and after a short time they saw him turn his vehicle around, return to the bypass and proceed to the north thereon. They trailed appellee at a distance of from one-quarter mile to one mile. A tractor-trailer unit was between the two vehicles.
The officers observed another automobile coming toward them, or south, on the bypass. Powers recognized the driver of this vehicle as Leslie Hill. The Hill vehicle made a U-turn in the highway and began to proceed north, following the tractor-trailer unit which was behind the vehicle being driven by Moore. The officers followed at some distance. After a short while they observed that Moore and Hill had pulled their respective vehicles off onto the right-hand shoulder of the road where they were stopped. The officers pulled their vehicle to a stop behind the Hill car. They exited and approached the two men.
The only testimony as to what occurred was that of the sheriff and Powers, both of whom said that they told appellee and Hill that the officers suspected that a drug transaction might have occurred and requested permission to search the two vehicles. Both officers testified that permission was given.
The sheriff searched Hill's vehicle and found nothing therein, but Hill did hand him an empty vial which was later found to contain a powdery residue identified as cocaine. Inside the Moore vehicle, under the front seat, Powers found a can containing packages of white powder later identified to be controlled substances. Inside the locked glove compartment, which Powers opened, was found a loaded revolver. Moore was carrying nearly seven thousand dollars in cash on his person. Upon discovery of the contraband and the revolver, the officers arrested both Moore and Hill.
It is important in this case, as in all others, to note that our decision is limited to the facts contained in the record. Those facts were very briefly developed. The appellee himself did not testify or call any witnesses. The only testimony at the suppression hearing was that of the sheriff and his investigator, both of whom testified that consent was freely given by appellee to the search of the vehicle which he was driving. The search produced the incriminating evidence which led to the convictions. There was no countervailing testimony. There was not any impeachment of the witnesses or any reflection upon or challenge to their credibility. The thrust of the motion to suppress was that the sheriff and his investigator did not have probable cause to arrest the accused prior to the search, nor did they have sufficient articulable facts or information to justify the stop and seizure of appellee prior to the search.
Appellee was driving a borrowed car on the date of the search, December 6, 1985. At trial he offered a witness who testified that appellee had had possession of the car for only one day. Another defense witness at trial testified that appellee's own personal vehicle was in a repair shop operated by the witness on the date in question. Appellee did not testify at the trial, but throughout the pre-trial motions and the trial itself it was his insistence that any contraband in the vehicle which he was operating did not belong to him, was not placed there by him and was situated there entirely without his knowledge or consent.
At trial appellee offered evidence that the actual owner of the vehicle was then in prison in Kentucky on drug-related charges, but there was no development of the nature of those charges or of any connection between them and the incident involved in this case.
Appellee has never challenged the testimony of the police officers that he did consent to the search. At trial it was his theory that he consented because he was entirely innocent of any possession of illegal contraband and had no knowledge that it was in the borrowed vehicle. This was the principal issue ultimately put to the jury, and they resolved it against appellee. It is sufficient for present purposes to note that that issue involved questions of credibility of the various witnesses. The State, at trial, offered some contrary evidence as to the length of time appellee had possessed the car.
The case, therefore, clearly involved a search by consent. There is no claim of fraud, deceit, misrepresentation or the like. The sheriff and his investigator knew the appellee, and they testified that he also knew each of them. They were not in uniform at the time of their encounter with him on December 6, 1985, but the testimony is uncontradicted that he knew both of them to be police officers. The sheriff was unarmed, and his investigator at no time drew or displayed a firearm in any threatening or menacing manner, although the sheriff testified that his investigator probably did have a sidearm on his person.
The issue in this case, therefore, ultimately distills into a question of whether there was in fact any stop or seizure of appellee at all prior to his giving consent to the search so as to invoke Fourth Amendment considerations. As stated previously, we are confined to such evidence as was adduced at the hearing. There is no basis in the record for not accepting the trial judge's accrediting of the testimony presented at the hearing on the motion to suppress. Viewed in that light, we are of the opinion that the evidence does not preponderate against the finding by the trial judge that the search in this case was based upon consent of appellee freely and voluntarily given.
Further, there is no question in the case but that there never was a "stop" of appellee's vehicle by the investigating officers. At no time did they use blue lights, sirens or hand signals to direct appellee to pull to the shoulder of the road or stop his vehicle. The evidence is uncontradicted that before the officers ever approached appellee and Hill, his companion in the transaction, the two men had stopped their vehicles on the side or shoulder of a heavily travelled and congested public highway and were there conversing. The police officers did not block the path of either vehicle, but drove up behind the two parked cars and approached the drivers who were standing between the vehicles conversing. The officers knew appellee's companion, and he knew them. The officers also knew that both of the individuals had a reputation for dealing in contraband, and they knew that appellee had had one prior conviction for possession of contraband. They knew that that prior conviction had been the result of a plea bargain of more serious charges of selling and delivering. Appellee's companion had never been convicted, insofar as the officers knew, but through informants they knew that the companion, who was not a co-defendant in the present case...
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