Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Appeal from the Circuit Court for Bedford County No. 17678 Lee Russell, Judge.
Donna Orr Hargrove, District Public Defender; Andrew Jackson Dearing III (on appeal, at trial, and at sentencing), Assistant District Public Defender; Jennifer Lenore Fiola (at motion for new trial hearing), Assistant District Public Defender; and Alicia Nicole Napier (at suppression hearing), Shelbyville, Tennessee, for the appellant, Bobby Daniel Pettie.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Robert Carter, District Attorney General; and Richard A. Cawley (at trial and suppression hearing) and Michael D. Randles (at motion for new trial hearing), Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
This case arises from a traffic stop of the Defendant by Shelbyville Police Officer Shane George on June 26, 2012. At the trial, Officer George testified that he was assigned to the drug task force and was stopped at a traffic light when he saw a Harley-Davidson motorcycle. The driver of the motorcycle was wearing a chrome helmet, a bandana, and a black jacket. Although it was dark outside, the driver was wearing dark-colored sunglasses. The driver's description matched that of a person who had been observed by a Dollar General Market employee making suspicious purchases earlier in the day. When the traffic light turned green, Officer George followed the motorcycle but was unable to obtain a license plate number because the tag was vertical.
Officer George testified that as he followed the motorcycle, he saw it weave within its lane of travel, speed up, and abruptly slow down. He continued following the motorcycle, and he saw it abruptly move from the "fast lane" to the "slow lane." He said another vehicle in the slow lane had to apply its brakes to "make a safe distance from the motorcycle." Based on the motorcycle's movements, he initiated a traffic stop. He identified the Defendant as the driver.
Officer George testified that the Defendant did not have a driver's license in his possession, although the Defendant claimed to have a valid license. He noted that not having a license in one's possession when operating a motor vehicle was an offense and that an officer had discretion to arrest the driver. The Defendant explained that he thought he left his license at his mother's house. Officer George told the Defendant that they could resolve the issue if the Defendant was willing to drive to his mother's house to retrieve his license while Officer George followed him. Officer George wanted to ensure the Defendant was who he claimed to be, had a valid license, and did not have any outstanding arrest warrants. He told the Defendant that he was not free to leave and that any deviation from the route to his mother's house would result in his arrest. Another officer arrived at the scene to assist Officer George, and all three men drove to the Defendant's mother's house.
Officer George testified that after arriving at the Defendant's mother's house, he and the Defendant walked to the door, but the Defendant did not enter the house. The Defendant said he might have left his driver's license inside his truck, which was parked nearby. As the Defendant searched the truck from the driver's side door, Officer George used his flashlight to look through the passenger-side window to help search and to "keep an eye" on the Defendant. The Defendant did not find his license. Officer George did not recall if the Defendant used a key to enter the truck.
Officer George testified that he saw a box in the truck's backseat containing a gallon-size metal container of Coleman camping fuel and that he considered the item suspicious in light of the Defendant's ammonium nitrate purchase earlier that day from the Dollar General Market. He said the two items were used to manufacture methamphetamine. The Defendant walked toward his mother's house to look for his driver's license, and Officer George told the Defendant that he would permit the Defendant to look inside the house on the condition that the Defendant permit Officer George to enter the house. As the Defendant opened the door and stood in the threshold, he told Officer George that he could not permit him to enter the house because it belonged to his mother. At that time, Officer George smelled the odors of camping fuel and acid coming from inside the house, which he associated with the manufacture of methamphetamine based on his experience and training.
Officer George testified that he grabbed the Defendant's arm, told him to step outside the house, and told him to sit on the steps. The Defendant complied. Officer George read the Defendant his Miranda rights while in the presence of Officer Shelton. Upon questioning, the Defendant denied any methamphetamine manufacture inside the house. The Defendant consented to a search of his truck. Although the truck was now locked, Officer George used his flashlight to look inside the truck and inside the truck bed. He saw two clear plastic garbage bags. He saw that one of the garbage bags contained a green-colored bottle, which "was pressed somewhat flat." He saw the "remnants of the lab in the bottom of the bottle." He also saw a twenty-ounce drink bottle, which contained the remnants of a "gasser" and sulfuric acid. He said that in this instance, the gasser was rock salt.
Officer George testified that the green bottle contained everything used to manufacture methamphetamine and that the bottle was called "a one pot." He identified coffee filters inside the trash bags that were used to separate the methamphetamine from the oil and said the filters contained a residue from the filtering process. He also identified a hole in the cap of the bottle, which he said was used to move the gas from the container with the rock salt and acid to the container with the camping fuel oil. He said the gas caused the methamphetamine to crystalize in the oil and to settle to the bottom of the container.
Officer George testified that he smelled sulfuric acid coming from the twenty-ounce bottle. He said the bottle could be reused with additional rock salt and sulfuric acid to make more methamphetamine and agreed the bottle was ready for use. He identified "pink balls of junk" in the bottom of the bottle and said that the balls contained sodium hydroxide, ammonium nitrate, and pseudoephedrine, which were used to make methamphetamine. He said the "dark specks" in the bottom were lithium from batteries used in the manufacture process. He identified the one-quarter-inch tube used to connect the two containers. He concluded that he had found a one-pot or shake-and-bake methamphetamine laboratory.
Officer George testified that he explained to the Defendant what he had found inside the bed of the Defendant's truck and that he was under arrest. The Defendant stated that he had been in town a couple of weeks and had been staying with his mother while he finished moving from Alabama to Tennessee. He owned the motorcycle and the truck. The Defendant admitted to Officer George that he used the items in the truck to manufacture methamphetamine while in Alabama and that he transported the items to Tennessee. Officer George did not believe that the Defendant transported the materials from Alabama, and he asked if the Defendant had anything inside the house. The Defendant told him to look inside the toolbox. The Defendant and Officer George entered the house together to obtain the toolbox, which contained items commonly used in the manufacture process. Officer George identified black latex gloves, coffee filters, sulfuric acid, a coffee/spice grinder containing pseudoephedrine residue, a Thermos, a funnel, two jars containing sodium hydroxide, cutters, a pair of pliers wrapped in electrical tape, two sets of digital scales, a bag containing small Ziploc bags, and an unopened pack of lithium batteries.
Officer George testified that the pliers were probably used to manipulate the hose or pull the lithium from the batteries. He said the scales had residue on them, and the Defendant stated that the scales were used to weigh the materials used in the manufacture process and to weigh the finished product. He said the small Ziploc bags were the size of jewelry bags and were indicative of someone packaging drugs for redistribution. He said the grinder was used to break down the pseudoephedrine before adding it to the mixture in order to quicken the manufacture process, and he noted the grinder contained pseudoephedrine residue. He said the Defendant admitted he owned the toolbox and its contents.
Officer George testified that the Defendant also told him about a few jars inside the house that were related to the manufacture process. The Defendant pointed to a pint-sized Mason jar, which contained Coleman camping fuel, and to a larger Mason jar, which contained methamphetamine residue. The Defendant admitted to using the methamphetamine in the larger jar and said he last used it the previous day. Officer George said the jar he identified as Coleman camping fuel might have been meth oil, which contained methamphetamine before it crystalized. He said the field test he used was for dry materials, not liquids, and as a result, he could not determine whether the jar contained fuel or meth oil. He said the material was not sent to the Tennessee Bureau of Investigation (TBI) Crime Laboratory because the laboratory discouraged submission of volatile, flammable, and corrosive substances. He said the Defendant seemed to have left the jar in plain view without thinking.
Officer George testified that the Mason jar found inside the house containing the methamphetamine residue was used to filter the Coleman fuel because methamphetamine was found at the bottom of the jar. He said a Mason jar was not a storage container because it was difficult to obtain the finished product from the bottom of the jar. He took a sample from the jar and sent it to the TBI laboratory for analysis. He said the Defendant also directed him toward a black nylon case inside the house, which contained a brown glass vial containing methamphetamine. He obtained a sample and sent it to the TBI laboratory for analysis.
Officer George testified that he found a loaded twelve-gauge shotgun under the rear passenger seat of the Defendant's truck. Latex gloves were also found inside the truck. He identified a bucket placed just outside the house that contained clear tubing under a yellow bag. He also saw unopened cold packs containing ammonium nitrate with the Dollar General logo.
Officer George testified that he interviewed the Defendant after he collected the evidence and seized the Defendant's vehicles. Although portions of the recorded interview were played for the jury, the recordings submitted with the appellate record are from pretrial court appearances and do not include Officer George's interview of the Defendant. Officer George testified that he and the Defendant discussed the digital scales and plastic bags found at the scene. He told the Defendant that the scales and bags were indicative of someone selling drugs, and the Defendant denied selling drugs. The Defendant claimed he was "producing" drugs for his personal use. They discussed whether the Defendant was trading finished methamphetamine for boxes of Sudafed because the State limited the amount that could be purchased within a thirty-day period and because of the national registry of people who purchased it. The Defendant claimed that he had not obtained any Sudafed in about one year and that the three boxes his girlfriend purchased every thirty days were enough for him to "get by" just for himself.
Officer George testified that the Defendant told him that he had been in Tennessee for about two weeks and that his mother had lived in Tennessee for about one year. The Defendant admitted to using methamphetamine the previous day. The Defendant stated that he moved from Alabama to get away from methamphetamine but that he was still using drugs.
Officer George testified that they discussed whether methamphetamine was made inside the Defendant's mother's house and that he told the Defendant that he thought drugs were "cooked" inside the house. Officer George stated that all the evidence found at the scene, including the trash inside the truck bed, the open container of camping fuel inside the house, the finished methamphetamine inside the house, the ammonium nitrate and tubing in the trash can at the door, and the "fresh" odor inside the house suggested to him that methamphetamine was made inside the house. He asked the Defendant about the fuel in the Mason jar. The Defendant explained that the jar had a lid when it was inside his toolbox but that he removed the lid and the finished methamphetamine when he entered the house. The Defendant claimed he was "sloppy" for leaving the jar open.
Officer George testified that the Defendant admitted to using methamphetamine the day of his arrest. Officer George asked the Defendant to tell him how many times he made methamphetamine within a thirty-day period, and the Defendant said fifteen times because he was "cooking" only for himself. The Defendant then stated that he probably made methamphetamine about thirty times when he and his girlfriend used the drugs. He was paying non-drug users about $30 and drug users about $20 per box of Sudafed.
Officer George testified that the Defendant denied selling methamphetamine and giving away the drugs. The Defendant later said, though, that he did not give away the drugs. Officer George testified that the Defendant never denied making methamphetamine in Alabama. He did not believe the Defendant transported the trash from Alabama and said he thought the "actual production process" occurred at the Defendant's mother's house. He said that the most important item the person who made methamphetamine wanted to dispose of quickly was the one-pot gasser because possessing that item usually resulted in criminal liability. He thought that the Defendant intended to dispose of the evidence quickly but had not yet done so. He also noted the wet coffee filters in the garbage bag inside the truck bed, the smell coming from the house, and the materials found inside the house, including the open jar of Coleman camping fuel and the finished methamphetamine.
On cross-examination, Officer George testified that the items in the garbage bags inside the truck bed showed an initiation of the manufacture process. He noted, though, that once the chemicals combined, the reaction continued. He equated the combining of the materials in the one-pot gasser to the process of making bread from dough. He denied the items in the garbage bags had been thrown away but agreed the garbage bags also contained french fries and hamburger wrappers. He also said the mixed chemicals that had been used to manufacture methamphetamine could be used again in another process.
Officer George testified that he did not write the Defendant a citation during the traffic stop because he gave the Defendant an opportunity to provide his driver's license and because he did not know whose name to place on a citation. He read the Defendant his Miranda rights in the presence of Officer Shelton after smelling the odors coming from the house. He agreed that the Defendant claimed the methamphetamine was made in Alabama, that the Defendant had an Alabama driver's license, and that the Defendant's truck and motorcycle were registered in Alabama.
Officer George testified that he did not tell the Defendant that he would "help him out" if the Defendant permitted him to search the toolbox and that he told the Defendant that he would talk to the prosecutor about his cooperation. He noted the prosecutor might have taken the Defendant's cooperating into consideration relative to any plea offers. He said he told the Defendant that he could not make promises to help the Defendant. He said the Defendant opened the toolbox and agreed the coffee filters inside were unused. He denied the items inside the toolbox were more indicative of promotion of methamphetamine manufacture rather than initiation because the white residue in the grinder was indicative of grinding pseudoephedrine pills for the extraction process. He said the toolbox contained partial bottles of sulfuric ...