Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 23, 2014
Direct Appeal from the Criminal Court for Knox County No. 100681 Steven Sword, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Roderick Jermaine McAlpin.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Philip Morton and Hector Sanchez, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
THOMAS T. WOODALL, JUDGE
Officer Joel Ascencio of the Knoxville Police Department testified that on September 11, 2012, he was patrolling the area of the Western Heights housing project. At around 3:30 a.m., he observed Defendant walking between some buildings. Officer Ascencio approached Defendant to ask if he lived there. Officer Ascencio testified that the area is a "high crime" area and that the housing project maintains a "no trespass list" to keep non-residents from being on the property. As Officer Ascencio approached Defendant, he saw Defendant make a throwing motion with his hand. Officer Ascencio asked Defendant if he lived there. Defendant had a strong odor of alcohol on his breath. Officer Ascencio discovered that Defendant was on the no trespass list and had already been "served" with notice not to trespass. Officer Ascencio told Defendant to sit on the curb in front of his cruiser while Officer Ascencio waited for another officer to arrive. Officer Ascencio walked over to the area where Defendant had been standing and found a bag of crack cocaine lying in the grass. He testified that the bag was on top of the grass and was "not embedded at all." Officer Ascencio testified that less than ten minutes had elapsed between the time he saw Defendant make the throwing motion and the time he found the crack cocaine. Officer Ascencio did not see any other pedestrians or motorists in the area at the time. Defendant did not have any drug paraphernalia on his person. Officer Ascencio used a field test kit to weigh the crack cocaine, which weighed 2.8 grams. Officer Ascencio testified that the consistency and size of the individual rocks indicated to him that they were intended to be sold or delivered.
Sergeant Joshua Shaffer was qualified by the trial court to testify as an expert in the area of drug investigation. Sergeant Shaffer examined the crack cocaine found by Officer Ascencio. He determined that the crack cocaine was "probably freshly cooked" because there was "still quite a bit of what appears to be particles sticking probably from the moisture." Sergeant Shaffer testified that the bag contained one "larger chunk" and "some smaller individual pieces that ha[d] been broken off." Sergeant Shaffer testified that an individual "rock, " weighing .1 to .2 grams would be worth $20. He estimated the value of the crack cocaine found by Officer Ascencio, once broken into individual rocks, would be worth between $280 and $560, depending on the size and number of individual rocks. Sergeant Shaffer opined that based on his examination of the evidence, the crack cocaine was intended for sale or delivery.
Motion to suppress
Defendant contends that the trial court erred by denying his motion to suppress the bag of crack cocaine. Defendant argues that Officer Ascencio had no objective reason to suspect Defendant was engaged in any unlawful activity when Officer Ascencio initially stopped to investigate why Defendant was in the Western Heights housing project.
An appellate court may consider the proof presented at the suppression hearing and at the trial when determining whether the trial court properly granted or denied a motion to suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established that "a trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this court's review of a trial court's application of the law to the facts is de novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the evidence preponderates against the trial court's findings. Odom, 928 S.W.2d at 23; Yeargan, 958 S.W.2d at 629.
The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution protect against unreasonable searches and seizures. A warrantless search or seizure "is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly ...