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State v. Morgan

Court of Criminal Appeals of Tennessee, Knoxville

July 25, 2019

STATE OF TENNESSEE
v.
DARRYL RENE MORGAN

         Session January 23, 2019

          Appeal from the Criminal Court for Knox County No. 111397 G. Scott Green, Judge

         The State of Tennessee appeals the Knox County Criminal Court's order granting the Defendant's motion to suppress, which resulted in the dismissal of the case. On appeal, the State contends that the trial court erred because the warrantless search of the Defendant was conducted pursuant to probable cause and exigent circumstances. We affirm the judgment of the trial court.

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

          Mark Stephens, District Public Defender; Jonathan Harwell and Chloe Akers, Assistant District Public Defenders, Knoxville, Tennessee, for the appellant, Darryl Rene Morgan.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Charme P. Allen, District Attorney General; Hector Sanchez and Brittany Sims, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., J., joined. James Curwood Witt, Jr., J., filed a dissenting opinion.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case relates to a December 10, 2015 traffic stop of a white Chevrolet Avalanche truck, which the Defendant drove but did not own. The Defendant was detained while a police dog and police officers searched the Avalanche. The Defendant was initially frisked for weapons, but none were found. Later during the stop, the Defendant was searched, and an officer retrieved marijuana from the Defendant's pants pocket. The Defendant was arrested, and heroin was discovered during a body cavity search at the jail.

         The Defendant was indicted for possession with the intent to sell fifteen grams or less of heroin within 1000 feet of a childcare agency, possession with the intent to deliver fifteen grams or less of heroin within 1000 feet of a childcare agency, introduction of drugs into a penal institution, and misdemeanor possession of marijuana. See T.C.A. §§ 39-17-417 (2014) (possession of fifteen grams or less of heroin with intent to sell and deliver), 39-17-432 (2014) (drug-free school zone), 39-16-201 (2014) (introduction of drugs into a penal institution), 39-17-418 (2014) (amended 2016, 2018) (misdemeanor possession of marijuana). The Defendant filed a motion to suppress the marijuana, arguing that the officer lacked probable cause and exigent circumstances to search the Defendant during the traffic stop.

         At the suppression hearing, Knoxville Police Investigator Phil Jinks testified that he had investigated an overdose death about one month before the traffic stop. Investigator Jinks stated that he reviewed a video recording from a convenience store surveillance camera related to the overdose and that the recording showed the victim speaking with someone who drove a white Avalanche. Investigator Jinks said that on the same day he reviewed the recording, he saw a white Avalanche parked at an apartment complex across the street from the store. He stated that he thought the Avalanche was the one he saw in the recording and that he noted the license plate number. He said that he conducted surveillance on the Avalanche for "quite some time" but never saw anyone approach it.

         Investigator Jinks testified that he saw the Avalanche parked at a motel on December 10, 2015, and that he verified it was the same Avalanche he had seen at the apartment complex about one month previously. Investigator Jinks stated that he contacted other officers in the area and that he and the officers conducted surveillance on the Avalanche for several hours. Investigator Jinks said that he ended the surveillance to work on another matter and that the Avalanche was gone when he returned.

         Investigator Jinks testified that after he returned, he resumed his surveillance and parked nearby waiting for the Avalanche to return. Investigator Jinks said that he saw the Avalanche park at a nearby convenience store. Investigator Jinks stated that he saw the Defendant get out of the Avalanche, walk inside the store, leave the store, and return to the Avalanche. Investigator Jinks said that the Avalanche drove past his patrol car and that he noticed an object partially covered the license plate.

         Investigator Jinks stated that he called Officer Marrero, a K-9 officer, and instructed him to conduct a traffic stop. Investigator Jinks said that he did not conduct the traffic stop because he was in plain clothes and driving an unmarked patrol car. Investigator Jinks testified that he parked behind Officer Marrero's patrol car and that he stayed for the duration of the stop. A video recording from Officer Marrero's patrol car was received as an exhibit.

         In the recording, the Avalanche stopped on the right side of a one-way street at 15:03:32. The last digit of the license plate was obstructed from view. Officer Marrero approached the driver's window at 15:03:48 and stated that he stopped the Defendant because the license plate was obstructed. The Defendant said he was unaware the license plate was obstructed, and Officer Marrero responded, "Step back here and see what I'm talking about." The Defendant got out of the Avalanche, left the driver's door open, and walked to the rear of the truck with Officer Marrero at 15:04:11. Officer Marrero showed the Defendant the license plate and asked for the Defendant's driver's license. Officer Marrero asked the Defendant whether he owned the Avalanche, and the Defendant stated that it belonged to a friend. Another officer, who was later identified as Investigator Holmes, walked to the front of Officer Marrero's patrol car.

         Officer Marrero instructed the Defendant to walk to the rear right side of the truck, and Investigator Jinks walked into the camera's view. Investigator Jinks asked the Defendant whether he possessed weapons, and the Defendant said he did not. The Defendant spread his arms, and Investigator Jinks frisked the Defendant for weapons at 15:04:36. As Investigator Jinks frisked the Defendant, Officer Marrero handed the Defendant's driver's license to Investigator Holmes. An unintelligible conversation occurred between Investigator Jinks and the Defendant. Officer Marrero walked out of the camera's view and reappeared with a police dog. The police dog did not alert to or interact with the Defendant. The frisk for weapons ended at 15:05:24.

         Investigator Jinks instructed the Defendant to sit on the curb between the patrol car and the Avalanche. Investigator Jinks briefly stood in front of the patrol car, and Investigator Holmes and the Defendant walked out of the camera's view. The Defendant asked an unintelligible question, and one of the officers responded, "We'll explain everything in just a second, okay?" Officer Marrero approached the Avalanche with the police dog at 15:05:27. The police dog briefly jumped and placed his paws on the tailgate, while the dog's hind legs remained on the ground. Officer Marrero and the police dog walked to the open driver's door. Investigator Jinks walked to the right of the patrol car and out of the camera's view. The police dog briefly stood in the opening of the driver's door, walked away, and circled back around to Officer Marrero. Officer Marrero moved into the opening of the door, and the police dog stood in the opening. Officer Marrero's left hand entered the Avalanche, and the police dog jumped inside. Investigator Holmes walked into the camera's view and stood between the Avalanche and the patrol car. The recording ended while the police dog was inside the Avalanche.

         Investigator Jinks testified that he smelled the odor of raw marijuana coming from inside the Avalanche and that after the Defendant got out of the truck, he recognized the Defendant from a previous investigation. Investigator Jinks stated that several months before the incident, he executed a search warrant at a home and found heroin and a firearm, that the Defendant was arrested, and that the Defendant had been released on bond for this incident at the time of the traffic stop in the present case. Investigator Jinks said that he smelled marijuana when he spoke to the Defendant and that he had probable cause to search the Avalanche because he smelled marijuana coming from the truck. Investigator Jinks said that he conducted a "pat down" on the Defendant but did not conduct a search. Investigator Jinks stated that Investigator Holmes searched the Defendant while Investigator Jinks searched the Avalanche. Investigator Jinks stated the Defendant was arrested after marijuana was found in his pants pocket. Investigator Jinks said that he did not find marijuana or any other controlled substance in the Avalanche.

         Upon questioning from the trial court, Investigator Jinks testified that he did not see the Defendant place the marijuana from his pants pocket on the hood of the patrol car and that the search was described to him after the Defendant was arrested. Investigator Jinks stated that the Defendant was the only person in the Avalanche and that he saw a "piece of paper wad[d]ed up with marijuana in it." Investigator Jinks said he and Investigator Holmes discussed the Defendant's smelling like marijuana before the search, that they agreed the Defendant "probably" had some marijuana in his pants pocket, and that Investigator Holmes searched the Defendant "or asked him to produce the items." Investigator Jinks said that heroin was found during the Defendant's body cavity search at the jail.

         On cross-examination, Investigator Jinks testified that he thought the Avalanche was connected with a heroin transaction which occurred before the traffic stop. When Investigator Jinks was asked whether the stop was "essentially a pretext - you were not actually investigating the license plate, you were investigating for some other purpose, but you believed he had violated the laws of the road[, ]" Investigator Jinks responded, "That's correct, yes." Investigator Jinks said four or five officers, three marked patrol cars, and one unmarked patrol car were at the scene.

         Investigator Jinks testified that Officer Marrero walked his police dog to the Avalanche and that the dog went inside. Investigator Jinks stated that he searched the Avalanche and that the Defendant sat "on the side of the road." Investigator Jinks said that the Defendant was briefly detained and was not free to leave "based on the totality of the circumstances with the smell of marijuana in the truck and on his person." Investigator Jinks did not recall what he said to the Defendant during the stop. Investigator Jinks acknowledged that, at the preliminary hearing, he testified that he asked the Defendant whether the Defendant possessed marijuana and that the Defendant denied possessing it.

         Investigator Jinks testified that, after he searched the Avalanche, he saw the Defendant's possessions on the hood of a patrol car, including a piece of paper containing marijuana. On redirect examination, Investigator Jinks testified that he smelled marijuana in the ...


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