State v. Richards

• Citation: 286 S.W.3d 873
• Decision Date: 10 July 2009
• Docket Number: No. M2006-02179-SC-R11-CD,M2006-02179-SC-R11-CD
• Parties: STATE of Tennessee v. Marcus RICHARDS.
• Court: Supreme Court of Tennessee

286 S.W.3d 873

STATE of Tennessee v. Marcus RICHARDS.

No. M2006-02179-SC-R11-CD

Supreme Court of Tennessee, at Nashville.

February 6, 2009 Session Heard in Columbia.¹

July 10, 2009.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Fulks, Senior Counsel, for the appellant, State of Tennessee.

Venus Niner, Franklin, Tennessee, for the appellee, Marcus Richards.

OPINION

SHARON G. LEE, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, and GARY R. WADE, JJ., joined. WILLIAM C. KOCH, JR., J., filed a dissenting opinion.

The issue presented in this case is whether evidence seized from the Defendant's person following a warrantless search should have been suppressed or, conversely, whether the search was justified as a search incident to lawful arrest. After receiving a tip from a citizen informant that three individuals were involved in drug activity around a picnic table in the back yard of a house, police officers were dispatched to the scene and found the three identified persons plus a fourth person—the Defendant—seated around the picnic table. As the officers approached, they observed one participant sweep the table with his arm and drop a corner baggie to the ground, and they subsequently discovered that this person held a rolled dollar bill containing a white powdery residue. The officers also saw a white powdery residue on the surface of the table that field-tested positive for cocaine. Although the Defendant was seated at the picnic table where the police officers observed evidence of cocaine use, they did not see the Defendant engaged in any illegal or suspicious activity. An initial "pat down" search of the Defendant revealed no drugs or weapons. After a consensual search of one of the participants at the table revealed white powder on the seat of his wheelchair, the officers searched the Defendant a second time and found a bag of marijuana and a bag of cocaine in his pocket. The Defendant was indicted for misdemeanor possession of marijuana and cocaine. The trial court found that the search was proper due to exigent circumstances supported by probable cause, but the Court of Criminal Appeals reversed, finding that the circumstances did not support the existence of probable cause. After review, we conclude that the search of the Defendant cannot be justified as a search incident to an arrest because, at the time of the search, the officers did not have probable cause to arrest the Defendant. The judgment of the Court of Criminal Appeals is affirmed.

Background

On June 3, 2005, Lieutenant Chris Clausi of the Franklin Police Department received a phone call from a concerned citizen who reported "drug activity" and an "actual drug transaction" at 144 Acton Street in Franklin, a house known by the Franklin Police to have a history of drug activity. Lieutenant Clausi knew the citizen informant's identity and had received similar information from this informant for years. Although Lieutenant Clausi could not recall if any of the previous tips had resulted in arrests or prosecutions, he testified that the information had always been reliable. Furthermore, Lieutenant Clausi stated that he had no reason to believe that the informant was of the criminal milieu but that he had not done a criminal background check to confirm it.

Specifically, Lieutenant Clausi was advised by the citizen informant that the informant had seen a "drug deal going down between Trent and the guy in the purple truck," that the drug activity was occurring at a picnic table behind the house at 144 Acton Street in Franklin, and that the participants were drinking beer. The informant also provided information as to the identity of the three participants: Trent Covington, "the girl from drug court," and someone who drove a "maroon-colored Bronco/Blazer type SUV," which Lieutenant Clausi knew from prior experience was likely Maurice Head. The informant did not identify the Defendant by name or by description of any sort, nor did the informant indicate that there was a fourth participant.

Upon receiving the informant's tip, Lieutenant Clausi notified Officers Rose and Davis, who were on patrol in the area, that he had received a phone call concerning "drug activity possibly going on behind Trent's house at the picnic table with Trent and one of the girls from drug court." Officer Davis testified that they interpreted the information to mean that drug use was occurring, because in the officers' experience, drug sales usually occurred in front of the house while drug use occurred behind the house.

In a strategic decision to prevent the destruction of evidence, the officers left their patrol car out of sight and walked to the wooden picnic table from a neighbor's backyard. As the officers approached, all of the suspects were visible to them, and although the record is not entirely clear, it appears that Head was seated to the officers' left, Covington in his wheelchair in the middle, the Defendant to the officers' right, and the female was seated across from the Defendant. When the officers were approximately 15 to 20 yards from the table, Head became aware of their approach and responded by sweeping off the table with his arm and dropping an object, later identified as an empty corner baggie, to the ground. Officer Davis testified that the suspects all had "that look" about them, characteristic of suspects who have been caught in an illegal act. The officers instructed the suspects not to move, and they complied.

Officer Rose approached Head and asked him what was in his hand. Head gave Officer Rose a rolled-up dollar bill with white residue on it, which, in the officers' experience, was indicative of cocaine use. In addition, the officers noticed a white powder on the surface and in the cracks of the picnic table and dusting the ground. The powder on the table, according to Officer Davis, "was a very small amount, it wasn't enough to send to the lab" and "it was in the cracks and everything and you couldn't—there was no way to successfully collect it, that's why we field tested it there." The officers field-tested the powder by placing a testing substance on the table. The test was positive for cocaine.

Officer Rose searched Head but found no drugs on him. After the powdery residue field-tested positive for cocaine, however the officers briefly handcuffed Head but ultimately released him with a citation. After Head was searched, Officer Davis performed a "pat down" search of the Defendant. Officer Davis testified that the "pat down" was simply a check for weapons, but Officer Rose testified that they had no reason to believe that any of the suspects had weapons. The initial "pat down" revealed no drugs or weapons.

Covington consented to a search of his person and wheelchair. The officers lifted him from his chair and placed him on the table, revealing a white powder on the seat of his chair. Officer Davis testified that the powder in Covington's wheelchair also field-tested positive for cocaine. Covington's search revealed no other drugs. Covington was cited for, and pled guilty to, misdemeanor possession of cocaine.

Following Covington's search, Lieutenant Clausi instructed Officer Davis to search the Defendant again, this time for drugs. Although the officers had not observed the Defendant participating in any illegal activity, Officer Davis testified that this search was premised on the Defendant's proximity to the cocaine on the table and the officers' hunch that "if there's some drugs there ... there's a good possibility that there's other narcotics there." The Defendant is paralyzed on one side of his body, so Officer Davis obtained the assistance of another officer who had arrived on the scene to help the Defendant stand up during the search. This full search was more intrusive than the initial "pat down," and Officer Davis discovered a bag of cocaine and a bag of marijuana in the Defendant's pocket. The Defendant was arrested and later indicted for possession of cocaine and marijuana, each a Class A misdemeanor.

In the trial court, the Defendant moved to suppress the evidence found during the second search, but his motion was denied. The trial court concluded that the Defendant's proximity to the cocaine supported probable cause to search and "the possibility that the Defendant might flee from their presence or destroy vital evidence" was an exigency that justified the warrantless search. After the trial court denied the Defendant's motion to suppress, the Defendant pled guilty to possession of cocaine, but preserved the following certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2):

Whether the evidence seized from the defendant should have been suppressed because the continued seizure and search of the person of the defendant by the police was not supported by probable cause or reasonable suspicion in violation of the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution.

The Court of Criminal Appeals held that the evidence should have been suppressed because the officers lacked probable cause for the second search. State v. Richards, No. M2006-02179-CCA-R3-CD, 2008 WL 343150, at *5 (Tenn.Crim.App. Feb.6, 2008). The intermediate appellate court reasoned that nothing had changed during the time between the first and second searches that justified a second, more intrusive search, and cited Ybarra v. Illinois, 444 U.S. 85, 91, 100, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) for the proposition that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Richards, 2008 WL 343150, at *5. The Court of Criminal Appeals emphasized that the citizen informant did not specifically identify the Defendant, and that the officers did not witness the...