Assigned on Briefs August 5, 2014
Appeal from the Circuit Court for Weakley County No. 2013-CR8 William B. Acree, Jr., Judge
Joseph P. Atnip, District Public Defender (on appeal), Dresden, Tennessee; and James T. Powell (at trial), Union City, Tennessee, for the appellant, Frederic A. Crosby.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.
ROGER A. PAGE, JUDGE
This case concerns the discovery of marijuana and cocaine in the possession of appellant after the police responded to a call involving a verbal altercation between appellant and another individual. Appellant was indicted on two counts of possession of 0.5 grams or more of cocaine with the intent to deliver and two counts of simple possession of marijuana based on two incidents occurring on November 16 and 21, 2012. However, following the State's case-in-chief in which it presented no evidence regarding the November 21, 2012 incident, the State moved to dismiss the two counts of the indictment relating to the November 21 incident, which was granted. Therefore, the evidence at trial only pertained to one count of possession of 0.5 grams or more of cocaine with the intent to deliver and one count of simple possession of marijuana. Appellant's trial began on September 18, 2013, and he was convicted as charged.
A. Facts from the Motion to Suppress Hearing
The trial court held a suppression hearing on April 4, 2013. Officer Patrick Dilday, a police officer with the Martin Police Department, testified that he responded to a call reporting a domestic disturbance at 9:39 p.m. on November 16, 2012. After arriving, Officer Dilday observed appellant and a woman arguing in a parking lot on North Lindell Street, so he and another officer separated the two individuals. Officer Dilday explained that when he began speaking with appellant, he smelled the odor of marijuana emanating from appellant's person. Officer Dilday then asked appellant if he had any marijuana. Appellant responded that he did not but that he had been around other people who had been smoking marijuana. Officer Dilday explained that he then searched appellant's pockets and found a marijuana cigarette in appellant's right pants pocket and more marijuana in appellant's jacket pocket. Officer Dilday arrested appellant and transported appellant in Officer Dilday's patrol car to the police department for booking. After completing the booking procedures, the officers released appellant with a citation, and Officer Dilday went back to his patrol car. Officer Dilday found 5.5 grams of crack cocaine in the seat where appellant had been sitting. Officer Dilday explained that he searches his patrol car before his shift begins and after each transport. Officer Dilday informed his sergeant of the discovery, took pictures of the cocaine before moving it, and filed warrants for appellant's arrest.
During cross-examination, Officer Dilday stated that when he initially separated appellant from the woman, he did not have probable cause to arrest appellant but that appellant was not free to leave because the officers were investigating the domestic disturbance. Officer Dilday explained that while speaking with appellant, he smelled fresh marijuana, rather than burned marijuana. Officer Dilday affirmed that he searched appellant immediately after appellant stated that he had been around other people who had been smoking marijuana, based on the smell of marijuana. He recognized the smell of marijuana from his training and experience. Officer Dilday confirmed that he was not concerned about appellant's having a weapon and that he did not feel he was in danger. Officer Dilday stated that he searched appellant even though he had no proof that appellant's assertion that he had been around other people smoking marijuana was incorrect. Officer Dilday explained that he had been working as an officer for approximately four months prior to appellant's arrest and that although he could not remember the exact number, he had made prior marijuana-related arrests. Officer Dilday also stated that his wife was riding with him on the night of appellant's arrest, which was permitted by the police department. Officer Dilday testified that he searched appellant thoroughly before placing him in the patrol car. Appellant was handcuffed while in the patrol car. Officer Dilday was inside the police station during appellant's booking, which took thirty-five to forty-five minutes, and searched his patrol car immediately thereafter. The car was locked while Officer Dilday was inside. Officer Dilday conceded that while at the police academy, he was not taught to detect the smell of raw marijuana; however, he explained that he had "assisted [the police department's] canine officer, Carl Jackson, [while] training [Officer Jackson's] dog" and that he had participated in "several" cases where there were arrests for possession of drug paraphernalia and marijuana, although he could not remember the exact number of prior arrests.
Investigator Eric Smith testified next that he worked for the Weakley County Sheriff's Department and that he had worked in law enforcement for approximately thirteen years. Investigator Smith explained that he had made undercover drug purchases and drug arrests and that he was familiar with the smell of marijuana. Investigator Smith asserted that raw marijuana emitted an odor, even in small amounts. He described it, saying, "Marijuana gives off an extreme odor. I mean, there's no other smell like it. . . . But, yes, the smallest amount of marijuana does give off a very strong odor." Investigator Smith asserted that even if an individual had a gram or two of marijuana in a coat pocket, an officer could still smell it.
During cross-examination, Investigator Smith testified that based on his experience, if a person had marijuana in a small bag in a pocket, "most of the time" he would be able to smell the marijuana. However, Investigator Smith conceded that he was not present when appellant was arrested.
Defense counsel recalled Officer Dilday, who testified that the marijuana he found in appellant's jacket pocket was in a cellophane plastic bag that was twisted and tied closed.
The trial court took the matter under advisement and continued the case until April 18, 2013, at which time the trial court stated:
I think, under all the circumstances, the Court finds as a matter of fact that the officer could smell the marijuana. I think he had the right, under the circumstances [of] there being a domestic disturbance, to go on with questioning the defendant, and after smelling the marijuana, he had the right to search him for drugs, the probable cause having been established. Therefore, the motion is denied.
B. Facts from Trial
The State's first witness was Michael Wenz, a sergeant with the Martin Police Department. Sergeant Wenz explained that on November 16, 2012, he met appellant after he was flagged down by Robin Jones due to a verbal altercation that was occurring between Ms. Jones and appellant. Officer Patrick Dilday arrived to help Sergeant Wenz. Sergeant Wenz explained that he spoke to Ms. Jones while Officer Dilday talked to appellant.
Officer Dilday's trial testimony was substantially similar to his testimony at the motion to suppress hearing. However, Officer Dilday further explained that the Martin Police Department's policy regarding marijuana arrests with a small amount of marijuana was to arrest the offender, transport them to the police department, issue a criminal summons, write an incident report, tag any evidence, fingerprint the arrestee, and then release the individual. Officer Dilday agreed that the arrestee would not be given a bond and would not be placed in jail. Therefore, Officer Dilday arrested appellant and took him to the police station. Officer Dilday handcuffed appellant and performed a weapons search of appellant's person prior to placing him in the patrol car. Officer Dilday further elaborated that at the time of this incident, he left his car at the police station at night. He stated that the proper procedure regarding his patrol car at the beginning of each shift was to search the entire car, "the back seat, the front seats, just do a thorough check of [his] car before each shift" to ensure there was nothing in the car. Officer Dilday affirmed that on the day of appellant's arrest, he checked his car prior to beginning his shift and stated that no one else had been in the back of his car prior to appellant's arrest. Officer Dilday then explained that after each transport and before going back on patrol, he checked his patrol car to "make sure nothing was left in the back that may belong to any person that [he] may transport." Officer Dilday testified that when he arrived at the police station with appellant, he took appellant out of the car, shut and locked the doors of the car, and walked appellant inside. Following the booking procedures and during the post-transport search, Officer Dilday found a bag of cocaine next to the seat belt buckle where appellant had been sitting.
During cross-examination, Officer Dilday testified that his wife rode with him on the night in question and that she sat in the front passenger seat. When they arrived at the police department with appellant, she exited the car and entered the station before he locked the car. Officer Dilday explained that there was a solid metal divider between the front and back seats in his patrol car and that there was a window that could be opened. Officer Dilday testified that prior to placing appellant in the car, he searched all of appellant's pockets and patted down appellant's arms, legs, and torso. Officer Dilday explained that there was a video taken by a camera in his car and that the video did not show appellant placing anything in the seat. Officer Dilday conceded that after he found the marijuana, he never saw appellant acting in a suspicious manner to indicate that he was in possession of more drugs, such as trying to conceal things under his clothing or making unusual movements in the police car.
During redirect examination, Officer Dilday clarified that the video recording of appellant while inside the police car did not show the bottom of the backseat where appellant's hands were. The video only showed the area from the arrestee's mid-stomach and above. He also testified that based on his initial search, appellant could have still had drugs on his person when he was placed in the patrol car. ...