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State v. Bowden

Court of Criminal Appeals of Tennessee, Nashville

May 10, 2018


          October 17, 2017 Session

          Appeal from the Circuit Court for Williamson County No. II-CR057314 Deanna B. Johnson, Judge [1]

         The Defendant, Terry Lamont Bowden, appeals his jury conviction for possession of marijuana with the intent to sell or deliver. On appeal, the Defendant challenges the trial court's denial of his motion to suppress the evidence obtained during the search of his vehicle, arguing that the drug-sniffing dog's "body language changes, " as testified to by the officer handler, were insufficient to establish probable cause. He also argues that his absence at the initial suppression hearing violated Rule 43 of the Tennessee Rules of Criminal Procedure and his constitutional right to be present at trial. After a thorough review of the record and the applicable authorities, we conclude that the State failed to establish that the search of Defendant's vehicle was supported by probable cause and that the case should, therefore, be reversed. Accordingly, the Defendant's conviction is vacated, and the possession charge is dismissed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Conviction Vacated; Case Dismissed

          Eric M. Larsen (at motion for new trial hearing and on appeal), Franklin, Tennessee; and John P. Webb (at trial), Nashville, Tennessee, for the appellant, Terry Lamont Bowden.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which, Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         On November 20, 2012, the Defendant was under surveillance for possible drug dealings. After the Defendant left his job at Jiffy Lube that day, officers' pulled him over for a window tint violation, and the "tint-meter" subsequently confirmed a violation. The Defendant refused to consent to a search the vehicle, and an officer on the scene "requested an air-sniff of the vehicle." Thereafter, City of Franklin Police Department Officer and K-9 handler Bret Spivey was directed to the traffic stop involving the Defendant. Upon his arrival, Officer Spivey made sure there was no one inside the suspect vehicle and that "the area was clear . . . of any distractions from other parties" before retrieving his dog, Axel, from his patrol car. He then took Axel to the suspect vehicle and gave him the command to search. According to Officer Spivey, Axel "alerted through numerous body language changes around the . . . back driver['s] side door." Officer Spivey placed Axel back inside the patrol car and advised the other officers that Axel had given "a positive indication[.]" Officer Spivey explained that the odor of a narcotic can travel inside a vehicle and that it was "not uncommon . . . in the K-9 world for a dog to indicate on a vehicle, on one part of the vehicle and to locate contraband in another part of it, based upon air flow and . . . things of that sort." Officer Spivey estimated that "less than five minutes" had passed between his arrival on the scene and Axel's alert.

         Ultimately, 109.13 grams of marijuana were found in a large gallon-size bag under the front passenger seat of the vehicle, four cellular telephones were found inside the car, and an additional cellular telephone and $1, 739 in cash were found on the Defendant's person. On May 13, 2013, the Williamson County grand jury indicted the Defendant with possession of marijuana with the intent to sell, a Class E felony, and a violation of the window tint statute, a Class C misdemeanor. See Tenn. Code Ann. §§ 39-17-417, 55-9-107.

         The Defendant filed a motion to suppress on May 7, 2014, seeking to suppress "all evidence obtained as a result of the canine sniff and subsequent search of the Defendant's vehicle." He argued that "there [was] no factual basis to support the State's allegation that K-9 Officer [Bret Spivey's] dog, Axel, alerted on the vehicle." A hearing on the suppression motion was held on May 12, 2014. At the outset of the hearing, it was noted that the Defendant was not present. Defense counsel stated, "Your Honor, the [d]efense agrees to waive the presence of [the Defendant]." When the trial court asked if the Defendant "agree[d] to that, " defense counsel said,

He does, Your Honor. I have had . . . a conversation with him indicating that I suspected he would not be transported in due to the fact that he's only recently been taken into custody in Davidson County. I think that he would prefer that we go ahead and proceed with this rather than not have a hearing at all.

         With that, the trial court instructed the prosecutor to call his first witness, Officer Spivey.

         Officer Spivey began by detailing his training and experience as a K-9 officer, which began in November 2008 with his dog Axel. Officer Spivey said that he and Axel had worked exclusively with one another since that time and that neither had any prior involvement with a different dog or handler. According to Officer Spivey, he and Axel completed the initial twenty-two-week class offered by the City of Franklin. During those twenty-two weeks, they "spent the majority of the time doing field work and training"; however, they also did "classroom work that involved video[-]based training and then case law . . . as it pertained to K-9." Officer Spivey and Axel were certified at the conclusion of their training and had been recertified annually by the United States Police K-9 Association. Additionally, they maintained sixteen hours of training per month due to the "dual purpose of their work, " that being narcotics detection and patrol work. According to Officer Spivey, Axel was trained to detect five odors-marijuana, cocaine, crack cocaine, heroin, and methamphetamine.

         Officer Spivey testified that, during his training, he learned about "the movement of odor"-for example, "airflow from inside the vehicle to outside can increase or decrease with windows being raised and lowered" and "the wind, traffic flow in the area, . . . weather, many different things would create an air flow issue with the odor of a narcotic." Officer Spivey confirmed that it was "absolutely" possible that a K-9 might alert at the rear of a vehicle but that the drugs were ultimately located in the front of the vehicle. He explained why this phenomenon occurred: "[A]n odor that is inside the vehicle does take the path of least resistance to exit the vehicle."

         Officer Spivey's training also taught him to recognize when his dog smelled the odor of narcotics. According to Officer Spivey, a dog exhibits certain "body language changes" when it is "in odor, " and those body language changes range from, but are not limited to, "a change in ear posture, a change in breathing pattern, their mouth could go from being open to being closed once they get inside the odor[, ]" a change in tail position, or a change in head posture by starting "to lean forward." Officer Spivey described the process known as "bracketing": A dog begins "to bracket what we call the scent cone . . . . When he brackets the scent cone, he will get to the edge of it[, ] realize he is out of odor, and he will come back. If he gets out of it on the other side he will come back." Officer Spivey testified that these were "good indicators and good body language changes that [he] ha[d] seen through [his] training and experience with [his] dog that [Axel] [was] in odor." When asked about Axel's specific "behavioral changes" once inside the "scent cone, " Officer Spivey said that Axel exhibited a change in his hunting behavior, meaning that his "hunt pattern" slowed down because he was becoming "more methodical"; Axel's mouth would close; Axel's nose and head would "extend forward"; Axel's "ear set" would change by his ears "be[ing] on point"; Axel's tail would become erect; and Axel's "body posture stiffen[ed]." Officer Spivey continued, "[I]f there is an availability to the source of the odor, my dog will work his way through the scent cone. Once he gets to the source he is an aggressive alerting dog, or an active alerting dog, which means . . . he will scratch, bite, bark, whatever he can to try to attempt to achieve a reward."

         Officer Spivey explained that a "false positive" "is a situation in which a K-9 is deployed, gives a positive indication, and upon search and investigation there is no source of any odor nor . . . is there any corroborating evidence to say that there was odor that was present." According to Officer Spivey, Axel never gave a false positive during training. Officer Spivey then described a "false negative" as "a situation in which the dog is deployed. The dog sniffs an area. Does not give any indication to the odor of any narcotic. And upon completion of the search and later investigation it is determined that there . . . was an odor that was present." Axel had given a false negative during training, according to Officer Spivey. However, after a false negative, the dog is typically brought "back to the odor" for a second try because "[t]here are many different reasons that would cause the dog not to be in odor, " such as his head's being above or below the odor.

         Officer Spivey testified that he kept a log of Axel's performance while in the field, although only the "ultimate conclusion that an alert occurred, " and not the specific behaviors, was recorded. Officer Spivey agreed that, on occasion, Axel had given a false positive in the field. However, after a false positive, Officer Spivey would conduct "a follow-up investigation" speaking with the occupants of the vehicle and trying "to find out if there [was] an underlying cause for the dog alert." Officer Spivey exampled such underlying reasons-for instance, an occupant had "been around a narcotic and actually introduced a residual odor to the vehicle" or had "smoked in the vehicle prior to being stopped" and "had gotten rid of any evidence from that point"; or the vehicle's occupants were uncooperative and did not corroborate the presence of a residual odor; or the officers' inability to search ...

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