Court of Criminal Appeals of Tennessee, Knoxville
Session Date: October 10, 2017
from the Criminal Court for Knox County No. 105374 Steven W.
defendant, Calvin Lyndell Dibrell, appeals his Knox County
Criminal Court jury convictions of possession of a controlled
substance with intent to sell or deliver within a prohibited
zone, claiming that the trial court erred by denying his
motion to suppress evidence obtained from the search of his
vehicle and that the trial court improperly admitted evidence
of the defendant's prior convictions. Because the
evidence obtained from the defendant's vehicle was the
result of an illegal search and seizure, the judgments of the
trial court are vacated, and the case is dismissed.
R. App. P. 3; Judgments of the Criminal Court Vacated; Case
Jonathan Harwell, Assitant District Public Defender (at
sentencing and on appeal), and Paul J. Springer, Memphis,
Tennessee (at trial), for the appellant, Calvin Lyndell
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Charme P.
Allen, District Attorney General; Hector Sanchez and Jason
Hunnicutt, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen, J., and Robert L. Holloway, Jr.,
J., filed a separate concurring opinion.
CURWOOD WITT, JR., JUDGE
April 2015, the Knox County Grand Jury charged the defendant,
in a 12-count indictment, with two alternative counts of
possession with intent to sell or deliver less than 200 grams
of oxycodone within 1, 000 feet of an elementary school; two
alternative counts of possession with intent to sell or
deliver dihydrocodeinone within 1, 000 feet of an elementary
school; two alternative counts of posession with intent to
sell or deliver alprazolam within 1, 000 feet of an
elementary school; two alternative counts of possession with
intent to sell or deliver less than 200 grams of oxycodone
within 1, 000 feet of a child care agency; two alternative
counts of possession with intent to sell or deliver
dihydrocodeinone within 1, 000 feet of a child care agency;
and two alternative counts of possession with intent to sell
or deliver alprazolam within 1, 000 feet of a child care
agency. Prior to trial, the defendant sought suppression of
the evidence obtained as a result of a warrantless search.
Following a hearing, the trial court denied the motion to
suppress, and the court conducted a jury trial in June 2016.
State's proof at trial showed that, on February 17, 2014,
Knoxville Police Department ("KPD") K-9 Officer
Joey Whitehead was approached at a car wash by a black male
driving a green Mitsubishi sedan. Officer Whitehead did not
know the man, never asked for his name, and did not record
his license plate number. The man informed Officer Whitehead
that a man by the name of Calvin Dibrell was selling drugs
outside the Walgreens at 2514 East Magnolia. Because Officer
Whitehead's patrol car was still in the process of being
washed, he contacted other officers to proceed to the scene.
Officer Thomas Turner received Officer Whitehead's call
about "an individual possibly selling narcotics"
who was driving "a black Chrysler 300 on rims"
which was "backed in by the Redbox" at the Magnolia
Walgreens. Officer Turner and his two beat partners, KPD
Officers White and Pickens, met a short distance from the
Walgreen's in their respective patrol cars and discussed
how they would approach the man in the Chrsyler. According to
Officer Turner, the three officers "decided that we were
all going to come in from each [of the three] entrance[s] so
that we could have all areas of the parking lot covered and
see if we could find him and just conduct a consensual
encounter, talk to him." Officer Turner and fellow KPD
Officer White arrived simultaneously at the Walgreens and
parked their patrol cars nose-to-nose perpendicularly to the
black Chrysler described by Officer Whitehead; the Chrysler
was backed into a parking space and facing the patrol cars.
The defendant was seated in the driver's seat of the
vehicle, and Officer Turner approached and began speaking
with the defendant. Officer Turner testified that the
defendant was free to leave at that time. Upon Officer
Turner's request, the defendant stepped out of his
vehicle and submitted to a weapons pat-down. Officer Turner
confirmed that the Magnolia Avenue area was a "high
drug/high crime area" where he had been involved with
"dozens of felony drug cases."
Officer Whitehead arrived at the scene, the defendant was
standing by a Redbox video rental machine talking to other
police officers. Officer Whitehead used his police dog to
conduct a "free-air sniff" of the defendant's
vehicle. According to Officer Whitehead, after walking the
dog around the defendant's vehicle "at least twice,
" the dog "showed a noticeable change of behavior
at the rear back passenger door." Officer Whitehead
conceded that, because of where the police cruisers were
parked in relation to the defendant's vehicle, no cruiser
video footage showed the dog's reaction to the rear
passenger door. Video footage obtained from the cruisers of
both Officer Whitehead and Officer Turner was admitted into
evidence and played for the jury.
cross-examination, Officer Whitehead confirmed that his dog
was trained to react to the smell of marijuana, cocaine,
methamphetamine, ecstasy, and heroin. Officer Whitehead
explained that the dog reacted to a "residual" or
"lingering" odor in the vehicle, but he
acknowledged that the dog could "have just been
wrong." Officer Whitehead conceded that the defendant,
at one point, stated to officers that he wished he "had
all the cocaine that everybody think[s]" he had. Officer
Whitehead agreed that two police cruisers were parked in a
perpendicular position to the defendant's vehicle but
denied that the defendant's vehicle was blocked in.
Officer Whitehead indicated to Officer Turner that the dog
had "positively" reacted to the presence of
narcotics, Officer Turner searched the defendant's
vehicle. Officer Turner located a "zippered pouch"
in the vehicle's backseat which contained three pill
bottles each containing a different narcotic. The label on
the first bottle indicated it contained medication prescribed
to the defendant in Mountain Home, Tennessee, in January
2013; the bottle contained 9 hydrocodone pills. The second
bottle contained 40 30-milligram oxycodone pills, and the
label indicated that it contained medication prescribed in
Knoxville to Paul Johnson on January 6, 2014. The label on
the third bottle indicated it contained medication prescribed
to the defendant in Daytona Beach, Florida, in 2010; the
bottle contained 42 one-milligram alprazolam pills. Officer
Turner testified that none of the pills contained in the
three pill bottles matched the descriptions on the
pharmacy-created bottle labels. When the defendant was
searched, officers found in his pockets $800 in cash and a
plastic bag containing 30 additional 30-milligram oxycodone
tablets, which tablets did not match those contained in the
second pill bottle.
cross-examination, Officer Turner conceded that Mr. Johnson
"arrived on the scene" of the defendant's
arrest and told Officer Turner that the oxycodone pills were
his and that they were in the vehicle because he had
possession of the defendant's vehicle earlier in the
week. When asked why he had parked in front of the
defendant's vehicle rather than pull into an available
parking space, Officer Turner stated that it was "an
officer safety issue."
Investigator Chris Jones testified as an expert in the field
of drug investigations. Investigator Jones testified that
prescription pill dealers typically have greater quantities
of pills than pill addicts because the addicts "run
through their source themselves" and that dealers often
carry large quantities of cash and a variety of narcotics.
Investigator Jones also stated that pill dealers often carry
narcotics in plastic bags to keep the pills "within
close proximity of their person." Based on his training
and experience, Investigator Jones opined that the
defendant's possession of the drugs in question, along
with the large amount of cash, the different pill bottles,
the plastic bag, and the area of town, indicated an intent to
sell the narcotics.
parties stipulated to the accuracy of a Tennessee Bureau of
Investigation laboratory report regarding an analysis of the
pills found in the defendant's possession. The report,
which was entered into evidence, indicated that a
confirmatory analysis was performed on one tablet from each
of the four sets of pills and that the defendant was found
with the following: 30 oxycodone tablets; 40 oxycodone
tablets; 9 dihydrocodeinone tablets; and 42 alprazolam
tablets. The parties also stipulated that the Walgreens at
issue was within 1, 000 feet of both an elementary school and
a childcare agency.
this evidence, the State rested. Following a Momon
colloquy and the trial court's denial of the
defendant's motion for judgment of acquittal, the
defendant elected to testify and to present proof.
Johnson, Sr., testified that he had been a friend of the
defendant's for nearly 30 years. In mid-February 2014,
Mr. Johnson had borrowed the defendant's vehicle for a
few days, and he returned the car to the defendant on
February 17. Approximately one hour later, Mr. Johnson
received a telephone call informing him that the defendant
had been placed under arrest at the Walgreens on Magnolia.
Mr. Johnson proceeded directly to the Walgreens, where he
discovered the defendant seated in the back of a patrol car.
Mr. Johnson informed one of the police officers that he had
"some personal things" in the defendant's car,
but the officers would not allow him to retrieve his
belongings. Mr. Johnson testified that he had left a
"bottle of Opanas and a bottle of" oxycodone in the
vehicle, explaining that he had "two artificial
knees" and a "slew of health problems" that
resulted in his need for those legally-prescribed pain
52-year-old defendant testified that he was sitting in his
car in the Walgreens parking lot on February 17 talking on
his cellular telephone and waiting for a woman and her child
to walk away from the Redbox so that he could rent a movie.
He also confirmed that a young lady he "was acquainted
with" had gone into the store and that he had intended
to give her a ride home. While he was waiting, he was
approached by several KPD officers, including Officer Turner,
who questioned him about selling cocaine in the parking lot.
The defendant denied selling any drugs and refused to permit
the officers to search his vehicle. The officers then
informed the defendant that a police dog was going to walk
around his vehicle. According to the defendant, the dog
circled his car twice but paid no attention to it and
"never even looked at" his car.
the officers informed the defendant that the dog had
"alerted" to his vehicle, they placed the defendant
under arrest "for having [his] medication." The
defendant stated that he recognized KPD Officer Baldwin at
the scene because the officer had arrested the defendant
"a couple of months earlier for pretty much the same
thing, going about [his] business, doing nothing, and all [of
a] sudden [he's] getting searched and thrown in
jail." With respect to the $786 in cash found by the
officers, the defendant stated that he thought the money
might have been inside his briefcase or generally in the car
because he does not "like having stuff in [his]
defendant explained the purpose of the narcotics found by the
officers as follows:
I'm a disabled veteran, United States Army field
artillery. My job used to be throwing hundred pound artillery
shells downrange anywhere from 15 to 20 miles obliterating
targets. That's the type of job that takes a toll on
guys' bodies. Shoulders, hips, knees, they go out after a
period of time.
What my situation was[, ] had a[n] accident. Blew up my knee,
and that caused this shoulder to have to be replaced with
titanium. I have plates in my jaw, titanium plates. I have to
eat something using the food processor. Cannot chew. So in -
in dealing with these conditions, which I'll deal with
till the day I die, I take prescription medication.
. . . .
I've had so many doctors down through the years I
can't recall them all. I've been seeing physicians
since 2003. Now, here it is 2016.
defendant denied ever selling any pills. When asked about the
discrepancy between the pill bottle labels and their
contents, the defendant stated that he had "no idea what
. . . that's all about" and that "everything
was in bottles where it was supposed to be."
cross-examination, the defendant had no explanation for the
plastic bag of oxycodone pills, but he denied that officers
found it in his pocket. The defendant agreed that the
prescription label on the bottle of hydrocodone pills
indicated that the pills were imprinted with "M363"
but that the pills found inside the bottle were not so
imprinted; that the label on Mr. Johnson's bottle of
oxycodone pills indicated that those pills were imprinted
with a "V" on the front and "4812" on the
back but that the included pills did not have those
identifiers; and that the label on the bottle of alprazolam
pills indicated that the bottle contained 30, tan,
two-milligram pills but that the bottle actually contained
42, blue, one-milligram pills. The defendant explained that
"[e]verything you have in your hands left my
possession" and that "[w]hat it may be after it
left my possession . . . I can't help you."
defendant admitted that, in the past, he had pleaded guilty
to aggravated burglary and had been convicted of attempted
second degree murder.
redirect examination, the defendant testified that he had
inherited $160, 000 in 2013 following the death of his
on this evidence, the jury convicted the defendant as charged
on all 12 counts. Following a sentencing hearing, the trial
court merged the alternative counts and sentenced the
defendant, on count one, as a multiple offender to a term of
12 years' incarceration to be served at 100 percent by
operation of law. On counts 3, 5, and 7, the trial court
sentenced the defendant to a term of six years'
incarceration, and on counts 9 and 11, the court imposed
four-year sentences, all to be served concurrently with the
defendant's sentence in count one for an effective
sentence of 12 years.
the denial of his timely motion for new trial, the defendant
filed a timely notice of appeal. In this appeal, the
defendant challenges the trial court's ruling denying his
motion to suppress and contends that the trial court erred by
permitting the State to impeach him with two prior felony
convictions. We will address each issue in turn.
Motion to Suppress
defendant first contends that the trial court erred by
refusing to suppress the evidence obtained from the
warrantless search of his vehicle because the officers did
not have reasonable suspicion to support their brief,
investigatory stop and the defendant's resulting illegal
hearing on the defendant's motion, Officer Whitehead
testified that, while he was having his patrol car washed on
February 17, he was "flagged down by an individual in a
green Mitsubishi Galant, black male." The man
"stated that there was a black Chrysler 300 driven by a
black male that was backed in at the Walgreens on Magnolia
selling narcotics." The man identified the black male in
the Chrysler as Calvin Dibrell. Because Officer Whitehead
could not yet retrieve his vehicle from the car wash, he
radioed the tip to KPD Officers Turner, White, and Pickens.
Officer Whitehead testified that he and his dog arrived at
the Walgreens approximately five minutes later and that he
"conducted an exterior vehicle sniff" with his dog.
Officer Whitehead recalled that the defendant was out of his
vehicle at the time he arrived and that he was behaving in a
confrontational manner and "did not want to be patted
down for weapons or anything like that." Officer
Whitehead testified that his dog "alerted on the
vehicle" and that he and his fellow officers then
conducted a search of the defendant's vehicle.
cross-examination, Officer Whitehead conceded that he had
obtained no personal information from the man who gave him
the tip; he had not asked whether the man had purchased any
narcotics from the defendant or how he had learned that the
defendant was selling drugs; he had never used the man as a
prior informant or known him to be someone who had worked
with the KPD in the past; and he had no independent basis for
determining whether the man was providing him with credible
information. Officer Whitehead was "pretty sure"
that Officer White and Officer Turner were in the process of
conducting a weapons pat-down on the defendant while Officer
Whitehead was arriving in the parking lot. Officer Whitehead
confirmed that his dog was trained to detect the odors of
marijuana, cocaine, methamphetamine, ecstasy, and heroin and
that none of those narcotics were located in the
defendant's vehicle. Officer Whitehead explained that the
dog could have detected a "previous odor" emanating
from the vehicle. When asked if the dog could have given a
false positive response, Officer Whitehead responded that it
was "possible, but there's no way, " stating
that his dog consistently maintained a proficiency rate of 95
percent or higher.
Turner testified that Officer Whitehead had radioed to him on
February 17 "about a possible drug dealing suspect"
and had described the suspect as a "black male sitting
in a black Chrysler 300, backed into the Walgreens on
Magnolia, right next to the Redbox." Officer Turner
estimated that he, Officer White, and Officer Pickens arrived
at the Walgreens within five to 10 minutes. Immedidately upon
his arrival, Officer Turner observed the defendant
"sitting in a black Chrysler 300, backed in right next
to the Redbox in front of Walgreens." Officer Turner
"just started a conversation with him, you know, hey,
what's going on? [H]ow you doing? [W]ould you mind
stepping out of the car for us, talk to us for just a
minute?" Officer Turner stated that the defendant
willingly stepped out of his vehicle, and he denied asking
the defendant for permission to search his vehicle prior to
the arrival of Officer Whitehead. Following the dog's
vehicle sniff, Officer Turner searched the defendant's
vehicle and recovered contraband in the back seat.
asked on cross-examination why Officers Turner, White, and
Pickens had all arrived at the scene at the same time,
Officer Turner responded that there was "[n]o particular
reason" and that the three officers "were just all
pretty close together and we all just went." According
to Officer Turner, the only conversation he had with the
defendant prior to asking him to step out of his vehicle was
"very basic . . . pleasantries." Officer Turner
explained that the defendant was asked to step out of the car
for "officer safety": "If we're going to
stand there and talk to somebody, we'd rather have them
out of the car" because "if there is a weapon in
the car, if there is any kind of - anything that could ...