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State v. Mencer

May 04, 1999

STATE OF TENNESSEE, APPELLEE,
v.
CHARLES R. MENCER, APPELLANT.



The opinion of the court was delivered by: John H. Peay, Judge

DAVIDSON COUNTY HON. ANN LACY JOHNS, JUDGE

(Suppression of Evidence)

AFFIRMED

OPINION

The defendant was charged in the indictment with possession with intent to sell or deliver ten to seventy pounds of marijuana. He filed a motion to suppress the marijuana, which was denied. The defendant then entered a guilty plea, properly preserving for appeal two certified questions that the parties and the trial court agreed were dispositive of this case. He now presents one of those issues on appeal, that is, whether a search warrant affidavit that relies upon positive "alerts" to drugs by two trained drug dogs must include specific statements regarding the drug dogs' training, past performance, and experience in order to establish probable cause. We affirm the trial court's order denying his motion to suppress.

According to the evidence at the suppression hearing, Drug Enforcement Agent (DEA) Mark Lockwood, who was on duty at the Nashville International Airport, received a call from an agent at the Houston airport. Agent Lockwood testified the Houston agent had told him that a drug detection dog had positively "alerted" for narcotics in the suitcase of a passenger flying to Nashville. The tag on the suitcase reflected the name "Ricky Miller," who had flown from Nashville to Houston earlier that same day and had been scheduled to return to Nashville on a 4:35 p.m. flight but had changed his flight to 5:45 p.m.

Agent Lockwood testified he first saw the defendant arrive at the incoming flight's gate in Nashville at 7:40 p.m., while at the same time in the baggage tunnel, a second drug detection dog indicated the presence of narcotics in the suspected suitcase. Agent Lockwood testified he and other agents followed the defendant from the gate to the baggage carousel, where the defendant retrieved the suspected suitcase. According to Agent Lockwood, he and the other agents approached the defendant, identified themselves, and asked to see the defendant's personal identification, which reflected the last name "Mencer." When asked whether the suitcase he was carrying was his, the defendant looked puzzled, said "Well, maybe it isn't," and put down the bag. The names on the luggage tag and the defendant's identification were different, but the address on the luggage tag and the address on the identification were the same.

Agent Lockwood testified he asked the defendant if he would consent to a search of his suitcase and the defendant replied, "No. I'd like to speak to my attorney." The defendant agreed, however, to accompany the agents to the airport drug interdiction office. On the way there, the defendant asked for his Miranda rights to be read to him, and an agent complied. Once at the office, Agent Lockwood again asked the defendant to consent to a search of his suitcase, and again the defendant declined, asking to speak to his attorney. Within five minutes, the defendant was allowed to call his attorney. In the meantime, however, a NCIC computer check revealed an outstanding arrest warrant for the defendant issued by the Nashville Metro Police Department in an unrelated case. The defendant was placed under arrest on this unrelated arrest warrant.

Agent Lockwood testified that because they were investigating whether the defendant was transporting narcotics, they decided to delay transporting the defendant for processing on the unrelated arrest warrant until they could execute a search warrant to search the defendant's suitcase. While the defendant waited at the airport drug interdiction office, the agents prepared the ...


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