Court of Criminal Appeals of Tennessee, Nashville
Session May 13, 2014
Appeal from the Circuit Court for Robertson County No. 2013-CR-241 John H. Gasaway, III, Judge
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Jason White, Assistant District Attorney General, for the appellant, State of Tennessee.
Gregory D. Smith (on appeal), Clarksville, Tennessee; and William Kroeger (at motion hearing), Springfield, Tennessee, for the appellee, Terry Odell Lucas
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and John Everett Williams, JJ., joined.
ROGER A. PAGE, JUDGE
This case involves the sale of crack cocaine between two individuals in Springfield, Tennessee, on October 9, 2012. On July 17, 2013, Appellee filed a motion to suppress the evidence recovered on the day in question: cocaine, drug paraphernalia, and an ice pick. The trial court held a hearing on the motion on August 5, 2013.
At the suppression hearing, Eddie Stewart, a narcotics agent for the City of Springfield Police Department, testified that in 2009 and 2010, he was the primary investigator in a case where a confidential informant ("CI") bought cocaine from appellee. The purchases took place between Wendy's and the Western Market building in Springfield. Agent Stewart testified that during these transactions, appellee consistently parked near a large post with a billboard-type sign on it. Agent Stewart stated that a couple of years later in 2012, the narcotics division was using a CI named Jason Lindsey, whose code name was Reefer. Agent Stewart estimated that they had been using Mr. Lindsey since mid to late 2009 but clarified that Mr. Lindsey was not the CI who had participated in the controlled buys with appellee in 2009.
On October 9, 2012, Agent Stewart and Detective Jonathan Koulan were on patrol near the Wendy's and Western Market parking lots. Detective Wayne Carlisle and Agent Charles Consiglio were also on patrol in the area. Agent Stewart testified that he and Detective Koulan saw appellee park beside the aforementioned post, the same place where he had parked during the controlled buys in the prior investigation. He asserted that he was still familiar with appellee and the black Cadillac that appellee normally drove. The officers parked and began observing appellee's actions. Detective Carlisle and Agent Consiglio also set up surveillance across the street from appellee. Within a few minutes, Mr. Lindsey, who was not working as a CI that day, arrived and parked next to appellee. Mr. Lindsey got out of his vehicle and approached the passenger side of appellee's car. Agent Stewart asserted that he saw the two men engage in a "hand-to-hand" transaction that was "consistent with a narcotics transaction." Mr. Lindsey returned to his vehicle and left. Agent Stewart and Detective Koulan then drove to the area in which appellee was parked. Detective Koulan approached appellee while Agent Stewart walked away and called Mr. Lindsey. Agent Stewart testified that he told Mr. Lindsey that the officers had observed the transaction and that Mr. Lindsey needed to return. When Agent Stewart asked what Mr. Lindsey had bought, Mr. Lindsey responded that he had purchased "a twenty rock of crack cocaine." Agent Stewart said that while he was talking to Mr. Lindsey, Detective Koulan, Detective Carlisle, and Agent Consiglio were with appellee. Mr. Lindsey returned to the scene three to five minutes later. Mr. Lindsey gave Agent Stewart "a white rock-like substance that appeared to be crack cocaine" that was consistent with a "twenty rock." Agent Stewart testified that he told the other officers that he had the crack cocaine. Agent Stewart explained that he did not participate in the search of appellee's vehicle.
During cross-examination, Agent Stewart agreed that from his vantage point, he could see the passenger side of appellee's car and that when Mr. Lindsey parked, Mr. Lindsey's vehicle was between appellee's car and Agent Stewart. Agent Stewart stated that although there may have been cars in the surrounding parking lots, the officers had a clear view of the area in question. Agent Stewart said that he observed the incident using binoculars. Agent Stewart agreed that at the time, the narcotics division was using Mr. Lindsey as a CI, that CIs were required to refrain from drug use, and that Mr. Lindsey was not directed to act as a CI in this case. Agent Stewart conceded that from what he saw, the object passed between Mr. Lindsey and appellee "could have been anything" and that he "couldn't actually see it." He could only see "that something was going on between both of them, a transaction." Agent Stewart agreed that it was possible that the men could have been "bumping knuckles" because they knew each other. Agent Stewart stated that Mr. Lindsey was not present when the officers stopped appellee but that appellee was still at the scene when Mr. Lindsey returned. Agent Stewart stated that the other three officers were with appellee when Mr. Lindsey returned, but he was unsure whether they had searched appellee or his vehicle at that point. Agent Stewart stated that after his call to Mr. Lindsey, he told the other officers that they had "a twenty rock of crack cocaine and a statement." The other officers also "mentioned something about [appellee's] claiming that he had something in his crotch area and they made an agreement that [appellee] would give it to them at the jail."
Wayne Carlisle, a narcotics detective with the Robertson County Sheriff's Department, testified next that on October 9, 2012, he was on patrol with Agent Consiglio when they received a call from Agent Stewart and Detective Koulan about appellee's participation in a possible drug deal. Detective Carlisle stated that he was familiar with appellee and the black Cadillac that appellee normally drove. He stated that after the telephone call, he and Agent Consiglio parked across the street from Western Market to observe appellee's actions. Detective Carlisle stated that while he was watching, he saw Mr. Lindsey and appellee meet and engage in what looked like a "hand-to-hand transaction." Mr. Lindsey then left. Detective Carlisle explained that they then, following Agent Stewart and Detective Koulan's instructions, went to appellee's location and parked about ten feet away from appellee's rear bumper. Detective Carlisle stated that while Agent Stewart was on the telephone with Mr. Lindsey, he and the other officers conducted a patdown search of appellee and placed appellee in restraints. After Mr. Lindsey told Agent Stewart that he had purchased narcotics, Detective Carlisle began to search appellee's vehicle. Inside the car, he found an ice pick and scales in the driver's floorboard. Detective Carlisle testified that on two or three previous occasions when police officers interacted with appellee, appellee had possession of an ice pick. Detective Carlisle said that during the search, Agent Stewart was meeting with Mr. Lindsey. After the meeting, Agent Stewart told Detective Carlisle that he had recovered the crack cocaine that had been purchased. Detective Carlisle testified that he then informed appellee that Mr. Lindsey had returned the cocaine and asked appellee if he had any more narcotics with him. Appellee told Detective Carlisle that he had some in his pants, but he refused to tell the officers the amount or location. Detective Carlisle told appellee that they were going to take him to jail and recover the suspected drugs there. Detective Carlisle confirmed that the sequence of events were that they stopped appellee, Mr. Lindsey told Agent Stewart that he bought crack cocaine, Detective Carlisle searched appellee's vehicle, Agent Stewart got possession of the cocaine that had been purchased, and Detective Carlisle then spoke with appellee about the drugs on his person. The officers then took appellee to the Robertson County jail. At the jail, appellee removed his clothing and handed Detective Carlisle a bag of cocaine that had been hidden in his "crotch."
During cross-examination, Detective Carlisle stated that both appellee and Mr. Lindsey were standing outside Mr. Lindsey's vehicle when "[i]t looked like they exchanged something." Detective Carlisle explained that he was not using binoculars when observing the men's actions. He conceded that he could not see what was in either man's hands during the interaction but asserted that he saw them make contact and that "[i]t was no lengthy visit." He also stated that Mr. Lindsey was an active CI but was not working on the day in question. Detective Carlisle testified that both Agent Stewart and Detective Koulan had their guns pointed at appellee when Detective Carlisle arrived. Detective Carlisle explained that the scales and ice pick were found under a floor mat in appellee's car and were not in plain view. He also confirmed that appellee did not consent to the search and that there was not a search warrant for the vehicle.
Agent Charles Consiglio, a narcotics agent for the Springfield Police Department, testified that on October 9, 2012, he and Detective Carlisle received a call from Agent Stewart and Detective Koulan, telling them that appellee was parked at the Western Market. Agent Consiglio explained that he was familiar with appellee and the black Cadillac that appellee normally drove. Agent Consiglio stated that they parked on Driveway Avenue across from the Western Market and that they had a clear view of appellee's car. Agent Consiglio used binoculars to observe Mr. Lindsey park, approach the passenger side of appellee's car, and engage in a hand-to-hand transaction with appellee. Agent Consiglio described the transaction saying, "[Appellee] gave something to Mr. Lindsey [who then] gave money to [appellee] in return and [appellee] then in turn put that money into his . . . left front pocket." He stated that the transaction took place within "twenty seconds, thirty seconds at the most." Mr. Lindsey then drove away in his vehicle. Agent Consiglio explained that he and the other three officers then drove to appellee's location and detained appellee. He stated that Agent Stewart called Mr. Lindsey and then went to meet Mr. Lindsey to retrieve the crack cocaine. After Agent Stewart obtained the evidence, the officers confronted appellee with the information, and appellee admitted he had drugs on his person, indicating his "crotch area." Agent Consiglio testified that after this conversation, Detective Koulan advised appellee that ...