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State v. Dibrell

Court of Criminal Appeals of Tennessee, Knoxville

March 26, 2018


          Session Date: October 10, 2017

          Appeal from the Criminal Court for Knox County No. 105374 Steven W. Sword, Judge

         The 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.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Vacated; Case Dismissed

          Jonathan Harwell, Assitant District Public Defender (at sentencing and on appeal), and Paul J. Springer, Memphis, Tennessee (at trial), for the appellant, Calvin Lyndell Dibrell.

          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.

          James 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.



         In 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[1] denied the motion to suppress, and the court conducted a jury trial in June 2016.

         The 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.

         KPD 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."

         When 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.

         On 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.

         After 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.

         On 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."

          KPD 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.

         The 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.

         With 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.

         Paul J. 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 medications.

         The 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.

         When 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] pocket."

         The 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.

         The 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."

         On 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."

         The defendant admitted that, in the past, he had pleaded guilty to aggravated burglary and had been convicted of attempted second degree murder.

         On redirect examination, the defendant testified that he had inherited $160, 000 in 2013 following the death of his mother.

         Based 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.

         Following 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.

         I. Motion to Suppress

         The 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 seizure.

         At the 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.

         On 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.

         Officer 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.

         When 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 ...

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