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State v. Smith

Court of Criminal Appeals of Tennessee, Knoxville

January 30, 2018

STATE OF TENNESSEE
v.
ANTONIO SMITH

          Assigned on Briefs May 17, 2017

         Appeal from the Criminal Court for Knox County No. 105486A Steven Wayne Sword, Judge

         Defendant, Antonio Smith, was indicted by the Knox County Grand Jury in a multi-count presentment with one count of sale of heroin in a drug-free zone, one count of delivery of heroin in a drug-free zone, three counts of possession of heroin with the intent to sell in a drug-free zone, three counts of possession of heroin with the intent to deliver in a drug-free zone, one count of possession of marijuana, two counts of possession of a firearm with the intent to go armed during the commission of a dangerous felony, two counts of felon in possession of a firearm with intent to go armed during the commission of a dangerous felony, three counts of felon in possession of a firearm, and four counts of criminal gang enhancement. A codefendant, Heather Montgomery, was also indicted for several offenses. The trial court dismissed the criminal gang enhancement counts prior to trial after the statute was found unconstitutional by this court in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016). Following a jury trial, Defendant was acquitted of the two counts of felon in possession of a firearm with intent to go armed during the commission of a dangerous felony but found guilty of all other counts as charged. The trial court merged several of the convictions and sentenced Defendant as a career offender to an effective sentence of 72 years. After the denial of a motion for new trial, Defendant initiated this appeal. On appeal Defendant challenges the denial of a pretrial motion to suppress evidence and the sufficiency of the evidence. Having carefully reviewed the record before us and the briefs of the parties, we find no error and affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Antonio Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, 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.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Facts

         Motion to Suppress

         Defendant filed a motion to suppress evidence prior to trial in which he sought to suppress "all evidence obtained from the illegal search of the Ford Explorer in which [Defendant] was a passenger." Specifically, Defendant sought to suppress a Glock .45 caliber pistol, eleven small bags of marijuana, seven small bags of heroin, and thirty dollars of prerecorded money which were seized during a traffic stop and subsequent search of Defendant's person.

         Lieutenant Tony Willis of the Knoxville Police Department ("KPD") received information from officers who were conducting surveillance on a controlled drug purchase that Defendant was seen leaving the apartment of codefendant Montgomery and getting into the passenger side of a red and silver Ford Explorer. Lieutenant Willis was given the tag number of the vehicle and located the vehicle shortly thereafter, in close proximity to the location where the drug transaction took place. Lieutenant Willis saw the vehicle "[d]isregarding a stop sign." At the time, Lieutenant Willis was in an unmarked car so he radioed for backup to arrive to "make the traffic stop." In the meantime, Lieutenant Willis "followed the vehicle as it went up to Hill Avenue, took that exit right by the police department, made a right onto . . . eastbound Hill, which is kind of discombobulated there. . . ." Another unmarked police vehicle picked up surveillance after that so that the officers could "try to avoid being detected." Lieutenant Willis picked up surveillance a few minutes later, following Defendant to the stop sign at Church and Hill. A marked police car made a "traffic stop."

         Defendant was instructed to step out of the vehicle. He complied. Lieutenant Willis walked up to the Ford Explorer and, in plain view on the passenger-side floor board, there was a gun. During a pat-down of Defendant, officers discovered "other contraband."

         At the conclusion of the hearing, the trial court determined that the motion to suppress was not timely filed and denied the motion solely on that basis. However, the trial court also determined that Defendant did not have a reasonable expectation of privacy in the vehicle in which he was merely a passenger. In other words, Defendant did not have standing to challenge the suppression of the gun. The trial court determined that the testimony of Lieutenant Willis was credible. Moreover, the trial court found that the officers had ...


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