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State v. Bourrage

Court of Criminal Appeals of Tennessee, Nashville

May 26, 2015

STATE OF TENNESSEE
v.
ORLANDO E. BOURRAGE

Session March 10, 2015.

Appeal from the Circuit Court for Williamson County No. II-CR096708 Timothy L. Easter, Judge[1]

Doug Thurman (on appeal), Jim Todd (on appeal), and Edward Stephen Ryan (at plea hearing), Nashville, Tennessee, for the appellant, Orlando E. Bourrage.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Kim R. Helper, District Attorney General; and Carlin Charles Hess, Assistant District Attorney General, for the appellee, State of Tennessee.

Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.

OPINION

ROGER A. PAGE, JUDGE.

I. Facts

This case began as a traffic stop on Interstate 65 in Williamson County and resulted in appellant's being charged with driving under the influence, driving under the influence/child endangerment, and simple possession of marijuana. Appellant moved to suppress the evidence seized on the basis that the detention was unreasonable in duration. The trial court ruled in favor of the State. Subsequently, appellant pleaded guilty to simple possession of marijuana, a Class A misdemeanor, and the other two counts were dismissed. As part of his plea, he reserved a certified question of law. Appellant requested judicial diversion, but the trial court denied his request and sentenced him to eleven months, twenty-nine days, suspended to probation.

A. Motion to Suppress Hearing

At the suppression hearing, Williamson[2] County Sheriff's Deputy David Borden testified that he was patrolling on Interstate 65 on May 28, 2012, when a Chevrolet Impala passed him on the left. He followed the vehicle and observed that it did not have a license plate. He continued following the vehicle through a construction zone and noticed that the vehicle crossed over the lane divider lines "a couple of times." Deputy Borden initiated a traffic stop after the vehicle left the construction area. He testified that the "main reason" he stopped the vehicle was because of the missing license plate. Deputy Borden said that when he approached the vehicle, he realized that a license plate was on the vehicle but had been folded down. He stated that he moved the license plate to its proper position. Deputy Borden then approached the driver, appellant. Deputy Borden testified that appellant "had some slurred speech, some bloodshot watery eyes[, and he] was having some real difficulty trying to find his paperwork." Deputy Borden said that he obtained appellant's Mississippi driver's license, returned to his patrol car, and processed the license through the National Crime Information Center ("NCIC"). He learned that the license was valid, and he returned to appellant's car. He testified that he had considered asking appellant to perform field sobriety tasks, and when asked whether anything made him "more sure [about the tasks] when [he] approached the vehicle again, " he stated, "The second time I could smell what appeared to be unburnt marijuana coming from the vehicle." Deputy Borden further testified that he had encountered unburnt marijuana more than fifty times in his career. Deputy Borden said that he asked for appellant's consent to search the vehicle. He agreed that obtaining consent generally "help[s] to alleviate any potential conflict." Deputy Borden testified that appellant consented to the search and that he had both appellant and appellant's twelve-year-old son exit the vehicle. Deputy Borden searched the vehicle and found two packs of cigarillos "placed behind the glove box[, ] in a crack behind it." He said that some of the cigarillos were "wrapped up with some marijuana." Deputy Borden asked appellant whether the marijuana was his, and he admitted that it was. Deputy Borden testified that he found $3, 907 in appellant's trunk but found nothing else in the vehicle.

On cross-examination, Deputy Borden testified that during the five-minute period that he followed appellant, he saw appellant touch or cross the center line twice. He agreed that the movement was not "pronounced or exaggerated." Deputy Borden said that he noticed the absence of a license plate before he "noticed the failure to maintain a lane." He further said that failure to maintain a lane indicated to him that the driver was possibly impaired. Deputy Borden testified that he was able to understand appellant "some of the time" but that he could not recall the exact words he was unable to understand. Deputy Borden agreed that he did not smell alcohol at any point in his encounter with appellant and that he did not smell unburnt marijuana when he first approached the vehicle. Deputy Borden also agreed that the second time he talked to appellant, he asked whether appellant had anything illegal in his vehicle, and he explained that he asked the question because he had smelled marijuana. Deputy Borden testified that he asked for appellant's consent to search the vehicle without telling him that he had smelled marijuana or that he had probable cause to search. Deputy Borden said that appellant originally denied consent to search but that he gave his consent after Deputy Borden told him that he would just take a "quick look." Deputy Borden explained that in the process of searching the vehicle, he did not find the marijuana immediately and stopped searching so that he could ask appellant where the marijuana was located. He agreed that he also told appellant that he would ask for a dog to come search appellant's vehicle. Appellant's counsel played the video in court of the traffic stop from time marker 1:50:36 to 2:03:16. Deputy Borden agreed that there was no exaggerated weaving shown in the video. He further agreed that he stopped appellant's vehicle at 1:55:38 and walked back to his patrol car after speaking with appellant at 2:03:11. On re-direct examination, Deputy Borden said that during half of his initial conversation with appellant, appellant was "fooling around with paperwork in the car." Having reviewed the video, we note that during this initial conversation, Deputy Borden and appellant discussed appellant's reason for traveling, whether a particular football team had won its game, and the fact that appellant could not find his registration.

Because neither party explicitly provided an exact timeline through Deputy Borden's testimony, we include the following table to illustrate the timing of events shown in the traffic stop video through Deputy Borden's finding the marijuana:

Event

Time on Video

Time Elapsed from First Event

Blue lights activated

1:55:35

First approach of appellant‘s car

1:57:29

1 minute, 54 seconds

Discussion about purpose of stop, request for driver‘s license and paperwork, appellant‘s search for

1:57:40

2 minutes, 5 seconds

registration

Deputy returns to patrol car

2:03:11

7 minutes, 36 seconds

Second approach of appellant‘s car

2:09:45

14 minutes, 10 seconds

Deputy asks for consent to search car

2:10:23

14 minutes, 38 seconds

Search begins

2:11:49

16 minutes, 14 seconds

Deputy pauses search to ask appellant where his marijuana is; appellant attempts to explain why the deputy has smelled marijuana

2:16:15

20 minutes, 26 seconds

Deputy resumes search and finds marijuana within the following three minutes

2:23:05

27 minutes, 30 seconds

The trial court took the matter under advisement and later issued a detailed ruling denying appellant's motion to suppress. In its order, the trial court stated that after reviewing the video of the traffic stop, it concluded that the only legitimate basis for the stop was the absence of the license plate. The trial court questioned the credibility of Deputy Borden because the deputy gave differing accounts of appellant's driving prior to the stop; however, the trial court explicitly found that Deputy Borden was credible when he testified that he smelled green, unburnt marijuana upon his second approach of appellant's vehicle. The trial court stated, "The odor of green, unburnt marijuana, however, gave Deputy Borden reasonable suspicion, based upon specific and articulable ...


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