Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Circuit Court for Rutherford County No. F70116 David M. Bragg, Judge
Kelly Young, Nashville, Tennessee, for the appellant, Michael Crockett.
Herbert H. Slatery III, Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Jennings Jones and Shawn Puckett, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Motion to suppress
A. Preliminary hearing testimony
At a hearing on Defendant's motion to suppress, the parties agreed to make the transcript of Defendant's preliminary hearing an exhibit to the hearing. At the preliminary hearing, Officer Chris Phillips, of the Murfreesboro Police Department, testified that on January 30, 2013, at approximately 2:00 p.m., he stopped Defendant's vehicle on Park Avenue after he observed that Defendant was not wearing a seatbelt in violation of Tennessee Code Annotated section 55-9-603(a)(1), and there was a black cover over one of Defendant's taillights in violation of Murfreesboro city code section 32-1005. Officer Phillips testified that he approached Defendant's vehicle and asked for his driver's license, proof of insurance, and registration. Officer Phillips observed that Defendant's license stated that it was for identification only. Officer Phillips testified that Defendant appeared nervous, and "[Defendant] was breathing very rapidly, and also when he handed [Officer Phillips] his ID his hand was shaking." Officer Phillips asked if Defendant had any illegal items in his vehicle. Officer Phillips testified that Defendant "eventually" told him that if he had any illegal items, they would be under the hood of his vehicle. Defendant opened the hood of his vehicle, and Officer Phillips observed an empty box. Officer Phillips testified that Defendant told him "that's where he usually kept a firearm and marijuana."
Officer Phillips asked Defendant for his consent to search the vehicle, and Defendant denied consent. Officer Phillips then called for officer assistance. Other officers, including canine officer Mark Moghaddam, arrived on the scene within approximately two minutes. Officer Moghaddam used his canine to conduct an "air sniff" of Defendant's vehicle. The canine alerted to the odor of narcotics by scratching the passenger side of the vehicle. Officers then searched the vehicle and found a loaded Glock 27 handgun inside the vehicle. Defendant told Officer Phillips that he had the gun for his protection. Officer Phillips ran a check on Defendant's driver's license and learned that it was suspended. He also learned that Defendant had a prior conviction for facilitation of first degree murder.
B. Motion to suppress hearing testimony
At the suppression hearing, a video recording of Officer Phillips' stop of Defendant's vehicle was also admitted as evidence. At the hearing, Officer Phillips testified that he activated his blue lights to initiate the stop of Defendant's vehicle at 14:57:50. At 15:00:30, Officer Phillips "call[ed] out the stop" to dispatch. He testified that he gave the dispatcher his badge number and location, and he believed he also gave the dispatcher Defendant's tag number. Officer Phillips testified that at 15:03:43, Defendant told Officer Phillips that Defendant had a gun under the hood of his car, and at 15:04:09, Officer Phillips called for backup officers "because [he] had a possible person with a weapon." Backup officers arrived with their weapons drawn at 15:05:35.
Officer Phillips testified that Defendant "displayed several signs of nervousness, " and Officer Phillips asked Defendant to exit the vehicle. Officer Phillips testified that he asked Defendant whether he had any illegal items, and Defendant denied having each item Officer Phillips listed, but Officer Phillips testified, "whenever I sa[id] gun, his head rolls and he begins to walk back and forth, and he doesn't say anything. Which was completely different from his answer on every other item I mentioned." Officer Phillips looked under the hood of Defendant's car and did not find a gun. At 15:07, Officer Phillips called for a canine unit. At 15:08, Officer Phillips ran a check on Defendant's driver's license. A canine unit arrived at 15:09. Officer Phillips asked Defendant for consent to search the vehicle, and Defendant denied consent. Officer Phillips testified on redirect examination that when he approached Defendant's vehicle at the beginning of the traffic stop, Defendant told him that his license was suspended.
Officer Mark Moghaddam, a certified canine handler with the Murfreesboro Police Department, testified that his dog, Tucker, is "an aggressive alert dog" and will "put his nose on where he believes the source of the odor – narcotic odor is coming from, and he will scratch." Officer Moghaddam testified that he responded to a call from Officer Phillips on January 30, 2013. When he arrived at the scene, Officer Phillips briefed him on the situation. Officer Moghaddam then confirmed with Defendant that Defendant did not want to consent to a search of his vehicle, and he explained to Defendant what his dog would do. Defendant told Officer Moghaddam that "a gun and marijuana [were] normally kept under the vehicle, and that he had kept marijuana in his vehicle as recent as a week ago." Officer Moghaddam then conducted a "free air search" of the vehicle with the dog. The dog alerted to the area of the passenger side of the vehicle.
Officer Moghaddam testified that Tucker had been certified for one year and that he had been Tucker's only handler. He testified that every time Tucker had alerted to the presence of a narcotic odor, there was independent proof that a narcotic was present. Officer Moghaddam did not participate in the search of Defendant's vehicle, but he testified that a Cigarillo, which is ...