Court of Criminal Appeals of Tennessee, Knoxville
January 23, 2019
from the Criminal Court for Knox County No. 111397 G. Scott
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.
R. App. P. 3 Appeal as of Right; Judgment if the Criminal
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.
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.
H. MONTGOMERY, JR., JUDGE
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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
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
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
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 ...