Court of Criminal Appeals of Tennessee, Knoxville
Session Date January 22, 2015
Appeal from the Criminal Court for Knox County No. 101617A Bob R. McGee, Judge
Joshua Hedrick, Knoxville, Tennessee, for the appellant, Malik Hardin.
Herbert H. Slatery III, Attorney General & Reporter; Lacy Wilber, Senior Counsel; Charme P. Allen, District Attorney General; and Philip H. Mortin and Jennifer Hoffmesiter Welch, Assistant District Attorneys General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., J., joined. D. Kelly Thomas, Jr. J., filed a separate dissenting opinion.
J. CURWOOD WITT, JR., JUDGE
On March 22, 2011, the defendant was indicted for possession with intent to sell or deliver cocaine, possession of a firearm during a dangerous felony, unlawful possession of a weapon, simple possession of a controlled substance, and criminal trespass. Thereafter, the defendant filed a motion to suppress any evidence gathered as a result of his arrest and the subsequent seizure of his automobile. A suppression hearing was held on April 26, 2012.
In the hearing, the evidence showed that, on May 5, 2010, Knoxville Police Department ("KPD") Officers Brandon Wardlaw and Sergeant Christopher Bell were on a "walking patrol" on West New Street in the Austin Homes Housing Development ("Austin Homes"). The area the officers were patrolling was property of Knoxville Community Development Corporation ("KCDC"). Officer Wardlaw saw a Chevrolet Impala enter Austin Homes and recognized the passenger in the car, Chancey Johnson. Officer Wardlaw knew that Johnson was on a "no trespass" list for KCDC property and informed Sergeant Bell of the situation. Sergeant Bell got in his vehicle and followed the Impala to a parking lot while Officer Wardlaw went to the lot on foot. Sergeant Bell informed Officer Wardlaw that the defendant had walked to the back of a nearby building and instructed Officer Wardlaw to "[g]o around there and talk to him." Officer Wardlaw met the defendant behind the building and asked the defendant for identification. According to Officer Wardlaw, the defendant told him that he did not have identification, that he was on parole, and that he was "on KCDC trespass."
Officer Wardlaw asked to search the defendant, and the defendant consented. The search of the defendant's person revealed two cell phones and "a large bundle of money . . . in a stack" with "rubber bands on it." Officer Wardlaw "left everything in [the defendant's] pockets" and walked with the defendant to the front of the building.
At some point, Officer Wardlaw asked the defendant whether he had keys to the vehicle, and the defendant responded that he did not. Officer Wardlaw then looked in the vehicle but could see nothing in the car at the time. Sergeant Bell looked inside the vehicle and said, "If you look right there you can see the butt of a handgun." Officer Wardlaw again looked inside the car, and this time he saw the butt of a handgun.
According to Officer Wardlaw, the Impala's doors were locked, and the defendant denied having keys to the car. At that time, the officer requested a police dog, and when the dog was brought to the scene he reacted positively to the car. The officers then began the process to obtain a search warrant for the vehicle.
Officer Wardlaw testified that he had discretion to arrest the defendant rather than issue a citation and release him and that in this particular case, he relied upon the statutory exception that allows for an arrest when it is likely that the offense, in this case criminal trespass, will continue. Additionally, Officer Wardlaw testified that while he and the other officers were discussing what to do about the car, a female, later identified as Latonya Bowman, approached them and asked to take possession of the car. Officer Wardlaw testified that he told Ms. Bowman to "[s]tep back" and that he would "get back with her." He did not talk to her again, however, because he was busy. He agreed that at the time, the police were unwilling to release the vehicle to anyone because it was under investigation. Officer Wardlaw could not recall whether Ms. Bowman asked to take the car before or after Sergeant Bell saw the gun.
Contrary to his earlier testimony, Officer Wardlaw admitted on cross-examination that he had previously testified that the defendant did in fact have his driver's license with him when the officer first approached the defendant. Officer Wardlaw agreed that his prior testimony was correct because the incident "was probably fresher on [his] mind" at the time. He further admitted that in his prior testimony he stated that he did not see the dog react positively on the car, and he agreed that his earlier testimony differed from his testimony on direct examination.
On redirect examination, Officer Wardlaw testified that the Impala was registered to a rental car company and that generally when a person wants a rental car "released, " officers are "only supposed to release it to the owner of the vehicle, whoever's name it's in unless you have written permission from that person." He testified that the police could confirm the name of the person who rented the car by either looking at a copy of the rental contract or by contacting the rental company. Officer Wardlaw also testified that he was not aware that Ms. Bowman was the person who had rented the vehicle. He admitted that he could have been mistaken about his testimony about the dog's reaction because "it's been over two years, and a lot has happened between that." He clarified that it was his "understanding" that the dog reacted because "[the dog] was given a reward and positive affirmation from the handler, and that's what led me to believe [the dog] . . . did his job."
KPD Sergeant Josh Shaffer testified that on May 5, 2010, Sergeant Bell contacted him and apprised him of the situation at Austin Homes. Sergeant Shaffer then went to the Austin Homes to assist with the investigation of the vehicle. When he arrived at the scene, the Impala was parked in a parking space "at the dead end of West New." Sergeant Shaffer spoke with the other officers at the scene and then looked in the front windshield of the car where he saw "the handgrip and butt end of a semiautomatic handgun and an extended magazine as well." Sergeant Shaffer was familiar with the defendant and knew that he was on parole for a drug crime. After further discussion with the officers, Sergeant Shaffer ascertained that Officer Sean Peoples had already responded to the scene with his police dog. Sergeant Shaffer spoke with Officer Peoples who informed him that his dog had conducted a sniff of the exterior of the vehicle and that the dog had reacted positively.
At that time, Sergeant Shaffer decided to apply for a search warrant. He testified that even if the defendant had been issued a citation rather than arrested, he still would have retained the car in order to get a search warrant. Sergeant Shaffer said even if he had not been applying for a search warrant, he would not have allowed anyone to take the car from the scene.
Sergeant Shaffer obtained a search warrant, and an officer sealed the car doors with evidence tape at the scene to ensure the vehicle was not tampered with during its transport to the city impound lot, where the search was eventually conducted. The search of the Impala revealed a loaded Ruger pistol, a Tupperware container that contained marijuana, crack and powder cocaine, and a computer case containing a laptop and approximately $20, 000 in cash. The officers discovered the defendant's fingerprint on the Tupperware container holding the drugs.
On cross-examination, Sergeant Shaffer agreed that the officers on the scene relayed the following timeline of events to him: the officers saw the Impala and called for a drug dog; the dog arrived and reacted to the car; and an officer then noticed the handgun inside the car. Shaffer testified that when a person is arrested, generally the arrestee's car may be released to someone else with the owner's permission. With respect to a rental car, Sergeant Shaffer testified that, in the past, he has contacted the rental company and asked what they would like the police to do with the car, and he would allow he renter to take the car "[u]nless there's some type of evidentiary value, obviously . . . ." Sergeant Shaffer testified that he did not know whether anyone contacted the rental company in this particular case, that he was not sure whether the officers at the scene even knew that the vehicle was a rental car at the time, and that he did not know the car was a rental until he searched the vehicle. When he arrived at the scene, no one told him the car was a rental.
Sergeant Shaffer testified that the car was registered to E.A.N. Holdings and stated that "only are you [sic] familiar with rental cars do you understand what that company is." Sergeant Shaffer testified that the rental agreement was found in the glove box and that, until then, no one had seen the agreement to verify whether the defendant's name was on the agreement. Additionally, ...