Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kelley

Court of Criminal Appeals of Tennessee, Nashville

August 28, 2017

STATE OF TENNESSEE
v.
ROBERT LAMAR KELLEY

          Assigned on Briefs April 19, 2017

         Appeal from the Criminal Court for Wilson County No. 13-CR-339 Brody N. Kane, Judge

         Following the trial court's denial of his motion to suppress, the Defendant-Appellant, Robert Lamar Kelley, entered a guilty plea in the Wilson County Criminal Court to the charged offense of possession of more than ten pounds of marijuana, a Class D felony, for which he received a sentence of four years, with service of six months in confinement and the remainder on supervised probation. See T.C.A. §§ 39-17-417(a)(4), (g)(2). As a condition of his guilty plea, Kelley properly reserved two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) regarding the stop and search of his vehicle. After reviewing the record, we find no error in the denial of the motion to suppress and affirm the judgment of the trial court.

          Comer L. Donnell, District Public Defender; Kelly A. Skeen (on appeal and at trial) and Shelley Thompson (at trial), Assistant Public Defenders, for the Defendant-Appellant, Robert Lamar Kelley.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason L. Lawson, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and John Everett Williams, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         Factual Background. After receiving a tip from a confidential informant, police stopped a truck driven by Kelley and found eleven pounds of marijuana. Following his indictment, Kelley filed a motion to suppress the drugs found in his vehicle.

         At the suppression hearing, Kenneth Powers, a narcotics detective for the Lebanon Police Department who was assigned to the Drug Enforcement Administration (DEA) Drug Task Force in Nashville, testified that he received information from a confidential informant that Kelley and Timothy Haddock were trafficking marijuana. Detective Powers explained that in addition to the DEA, the Tennessee Bureau of Investigation (TBI), as well as the Nashville and Lebanon Police Departments were investigating Kelley for drug trafficking.

         Detective Powers' criminal informant told him that Kelley and Haddock were driving to the Smithville, Tennessee area to receive a load of 50 to 100 pounds of marijuana from some Hispanic individuals.[1] He stated that this particular informant had provided reliable information in the past that had been independently corroborated by police. In addition, this informant had made several controlled drug buys from other defendants in unrelated cases.

         When Detective Powers asked the informant how he became aware of Kelley's and Haddock's marijuana trafficking, the informant said that he lived with Kelley and Haddock, which allowed him to have first-hand knowledge of their drug activities. The informant told Detective Powers that Kelley would often travel to his "stash house" in Dowelltown, Tennessee, where he would pick up a shipment of marijuana that Hispanic drug couriers had delivered. Detective Powers acknowledged that he had no information showing that the informant had ever been to Kelley's home in Dowelltown.

         Thereafter, in October 2011, Investigator Mike Galluzzi[2] of the Nashville Police Department executed a search warrant on Kelley and Haddock's residence in Old Hickory, Tennessee, and found 44 to 47 pounds of marijuana. Detective Powers said the same confidential informant involved in the current case against Kelley informed him that the Nashville Police Department had just discovered a substantial amount of marijuana at Kelley and Haddock's Old Hickory residence, and Detective Powers contacted Investigator Galluzzi to discuss the details regarding the discovery of this marijuana. Detective Powers said the discovery of the marijuana at the Old Hickory residence further corroborated what the informant had told him about Kelley and Haddock's trafficking marijuana.

         On May 22, 2012, this informant told Detective Powers that Dennis Anderson was going to meet Haddock that afternoon to pick up a half-pound of marijuana at Kelley and Haddock's Old Hickory residence. The police conducted surveillance at the Old Hickory address, and at around 2:00 p.m., they observed Haddock entering and exiting the house and going to a home across the street. Then Haddock left his home and drove to a tobacco shop, where he met Anderson in the parking lot. The officers saw Haddock and Anderson exchange a plastic bag while looking under the hood of one of their vehicles. The police later stopped Anderson in Lebanon for a speeding violation and found a half-pound of marijuana in a yellow plastic bag, which also corroborated the information the confidential informant had given to Detective Powers.

         On June 6, 2012, Detective Powers obtained a warrant to install a Global Position System (GPS) tracking device on Kelley's Ford Ranger truck. He stated that the probable cause for the tracking order was based on the information the informant had given him regarding Kelley's pattern of drug activities with Haddock as well as his interviews with other detectives, including Investigator Galluzzi. Detective Powers acknowledged that there was no mention of Kelley's home in Dowelltown in the warrant or affidavit for the GPS device. After obtaining the warrant, police installed the tracking device on the truck on June 8, 2012, and began tracking Kelley's movements. Sometime prior to the suppression hearing, the company that provided the GPS tracking service for Kelley's vehicle was purchased by another company, and the GPS records showing Kelley's movements were destroyed.

         On June 13, 2012, Detective Powers observed a controlled drug buy by the TBI, wherein Powers' confidential informant and an undercover agent purchased more than an ounce of marijuana from Haddock at the same tobacco shop where the May 22, 2012 drug transaction between Anderson and Haddock took place. After this controlled buy, the informant told Detective Powers that Haddock was Kelley's "right hand man, " that Kelley was Haddock's supplier, and that Kelley "called the shots." Detective Powers said he spoke with his criminal informant on a weekly basis prior to Kelley's stop, although he did not recall speaking to him on June 20, 2012, the day of Kelley's stop in this case. He said his informant told him several times that Kelley was using his home in Dowelltown as a "stash house."

         On June 20, 2012, Detective Powers monitored the tracking device on Kelley's vehicle and discovered that Kelley was driving east on Interstate 40 past Wilson County in the direction of his home in Dowelltown. Detective Powers immediately informed TBI agents in the area regarding Kelley's movement and began following Kelley's vehicle, a Ford Ranger truck, to establish surveillance. Because Detective Powers was afraid he would be seen, he conducted surveillance from a safe distance and continued to monitor Kelley's movements through the GPS device. Detective Powers saw Kelley pull into an area near Kelley's residence in Dowelltown, which made him believe his criminal informant had given reliable information about Kelley picking up a shipment of marijuana there.

         Kelley subsequently left his Dowelltown residence, and Detective Powers and the TBI agents followed him from a distance. As Kelley returned to Lebanon, Tennessee, Detective Powers contacted Detective Eric Brockman of the Lebanon Narcotics Unit and asked him to wait at mile marker 245 so Detective Brockman could take over physical surveillance of Kelley's vehicle and conduct a "wall off stop, " meaning a traffic stop where officers have reasonable suspicion or probable cause to believe that a narcotics transaction has occurred. Detective Powers believed, at the point when he contacted Detective Brockman, that he had reasonable suspicion to stop Kelley and to conduct a narcotics investigation on the basis that Kelley's vehicle contained marijuana. This reasonable suspicion was based on the information regarding Kelley's drug trafficking activities and his "stash house" in Dowelltown that he had learned from his informant as well as Kelley's actions in going to the house in Dowelltown.

         At the time of this call, Detectives Brockman and Rickles were travelling behind Kelley, and Detective Powers was following behind these detectives. Detective Powers continued to monitor the tracking device on Kelley's vehicle, which told him Kelley's speed and location. When Kelley's truck reached mile marker 239, Detective Powers observed, via his monitoring of the tracking device, that Kelley's vehicle was travelling 78 miles per hour, 8 miles per hour over the posted speed limit. The officers, who were in unmarked cars, continued to follow Kelley into Wilson County, and Detective Powers contacted Officer Jason Toporowski of the Lebanon Police Department to tell him that they were following Kelley's Ford Ranger and that they wanted him to stop Kelley. Detective Powers told Officer Toporowski that Kelley's vehicle was speeding, travelling seventy-eight miles per hour in a seventy-mile-per-hour zone, and asked Officer Toporowski to "[t]ry to develop any of his own probable cause that he could."

         Officer Toporowski testified that when he received the telephone call from Detective Powers, he suspected that the stop of Kelley's vehicle involved narcotics because Detective Powers was a narcotics detective. Shortly after receiving this call, at approximately 4:40 p.m., Officer Toporowski activated his blue lights and conducted a stop of Kelley's vehicle at mile marker 235. Officer Toporowski admitted that he did not personally observe Kelley speeding or engaging in illegal activity prior to the stop. He said he never wrote Kelley a ticket for speeding because Detective Powers had observed the speeding violation. Officer Toporowski stated that he stopped Kelley because he had received a call from Detective Powers asking him to conduct the stop. He confirmed that a video recording was taken of the stop and that the recording accurately depicted what occurred during the stop.

         Officer Toporowski said that when he stopped Kelley's truck, he walked to the driver's side of the vehicle and observed Kelley in the driver's seat and Haddock in the passenger seat. He asked both men for identification and then returned to his patrol car to have the dispatcher conduct a license check for both men. Officer Toporowski said that Trooper Russell Peters, who was passing by, stopped to provide assistance, although he had not specifically asked Trooper Peters to stop. After giving Kelley's and Haddock's license numbers to the dispatcher, Officer Toporowski said he approached Kelley's truck again and asked for Kelley to exit the vehicle.

         Officer Toporowski said Kelley exited his vehicle and, at his request, walked to the front of Officer Toporowski's patrol car. For his own safety, Officer Toporowski patted down Kelley to ensure that he did not have any weapons on his person, though he admitted no one had told him Kelley was armed. Because Kelley's pockets were bulging, he asked Kelley to remove the contents of his pockets, and Kelley took out nearly $6000 cash from his pockets and placed it on the hood of the patrol car.

         Officer Toporowski said that in response to his questioning, Kelley said he did not have anything illegal in his vehicle. When Officer Toporowski asked Kelley if he would mind if he took a look in his truck, Kelley questioned why this was necessary, and Officer Toporowski said it was his job to ask. During this conversation, Officer Toporowski's supervisor called to check on him, and he replied that he was fine. Officer Toporowski returned to his conversation with Kelley and asked him a second time if he could search the truck because Kelley had not given him a direct answer the first time, and Kelley replied, "I don't mind, " which Officer Toporowski interpreted as Kelley's consenting to a search of his vehicle. He added that Kelley never limited his consent to search his vehicle in any way. He said that just after Kelley consented to the search of his truck, the dispatcher informed him that Kelley and Haddock did not have any outstanding arrest warrants. He then conducted a search of Kelley's truck. At that point, the audio portion of the recording malfunctioned, although Officer Toporowski asserted that he had not turned off the audio.

         When Officer Toporowski started to search the truck, Officer Bates arrived to help him. Nothing was found during the search of the inside of the truck. However, during the search, Officer Toporowski observed "an odd lock" on the toolbox attached to the bed of the truck. After finishing the initial search, Officer Toporowski returned to Kelley and asked him what was in the toolbox, and Kelley said it contained "tools and stuff" because he did "construction." When Officer Toporowski asked if he could "take a look, " Kelley replied, "I can't get it open, I don't have the key" because he had "lost it or didn't have it." Officer Toporowski, who had Kelley's keys in his hand at the time, asked if one particular key fit the lock, and Kelley responded, "I don't know." When Officer Toporowski asked if he would mind if he tried this key, Kelley said, "[G]o ahead." Officer Bates immediately got into the back of the truck, and Officer Toporowski gave him Kelley's keys before going back to his patrol car to return a phone call from Detective Powers.

         During this phone call, Officer Toporowski told Detective Powers that they had gotten Kelley's consent to search the truck but had not found anything yet. When he added that they were trying to gain access to the tool box, Detective Powers told him they were sending a K9 unit to the scene. Seconds later, Officer Bates turned around, and Officer Toporowski could tell that "something wasn't right." Officer Toporowski ended his telephone conversation and exited his patrol car. He said when Officer Bates used one of Kelley's keys, he was able to open the lock on the tool box and discovered the marijuana, which weighed approximately 11 pounds. Officer Toporowski asserted that the lock on the tool box was never forced open or broken in order to gain access to its contents. After Officer Bates found the marijuana, Officer Toporowski told Detective Powers about the drugs, and Kelley and Haddock were taken into custody and brought to talk to the detectives. Officer Toporowski asserted that if Kelley had told him not to look in his truck, then he would not have searched it.

         Trooper Russell Peters also testified that Kelley consented to the search, stating that when Officer Toporowski asked him if they could search the truck the first time, Kelley replied, "I don't mind, " and then the second time, Kelley "shrugged like, yeah, go ahead." Trooper Peters said he did not recall what he discussed with Kelley after Officer Toporowski began searching the vehicle but stated, "I'm sure I was just doing pleasantries and small talk to keep him occupied." He said ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.