State of Tennessee v. Winford McLean

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 30, 2011 Session

STATE OF TENNESSEE v. WINFORD MCLEAN

Appeal from the Criminal Court for Bradley County

No. 08-23 Amy A. Reedy, Judge

No. E2010-02579-CCA-R3-CD - Filed October 28, 2011

A Bradley County Criminal Court jury convicted the defendant, Winford McLean, of one

count of facilitation of possession with intent to deliver 300 grams or more of cocaine. See

T.C.A. § 39-17-417 and §39-11-403(2006). He was sentenced as a Range II multiple

offender to fifteen years in prison. The defendant filed a pretrial motion to suppress

evidence, which the trial court denied following an evidentiary hearing. On appeal, he argues

that the trial court erred by denying his motion to suppress and by admitting evidence of his

prior convictions for use as impeachment at trial. Discerning no error, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.

T IPTON, P.J., and J OHN E VERETT W ILLIAMS, J., joined.

Randy R. Rogers, Athens, Tennessee, for the appellant, Winford McLean.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; R. Steven Bebb, District Attorney General; Paul Moyle and Dallas Scott, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

Tenth Judicial District Drug Task Force Agent Matt Bales testified at the

pretrial evidentiary hearing that on April 25, 2007, at approximately 11:00 p.m. he was

parked in the median of Interstate 75 near mile-marker 25 in Bradley County conducting

routine task force operations, which consisted of parking perpendicularly to the northbound

traffic lane and shining his headlights and a spotlight at a 45 degree angle toward vehicles

traveling northbound on the interstate. As one driver passed, Agent Bales noticed that the

driver “had a startled look on her face and pulled herself forward and looked behind her as

she passed.” Although the driver “passed below the speed limit,” Agent Bales pulled out to

catch up to the vehicle. Agent Bales said that he only saw the driver’s reaction for “a second,

maybe two seconds” before deciding to follow the vehicle. As he approached the vehicle,

Agent Bales noticed that the renewal tag on the Georgia license plate was obscured so that

he “couldn’t clearly see the expiration” date of the tag. At mile-marker 28, Agent Bales

“initiated a traffic stop.”

As Agent Bales approached the right side of the vehicle, he noticed a man, later

identified as the defendant, “laid flat back in the [passenger] seat” who “appeared like he was

sleeping.” He asked the driver, Nicole Harris, for her license and registration. Agent Bales

described Ms. Harris as “nervous in her hand movements” and said that her “hands were

jittery” as she handed Agent Bales her driver’s license. The defendant, who Agent Bales

described as “standoffish” and “guarded,” told Agent Bales that the car was his, so Agent

Bales asked the defendant to step out so that he could show the defendant that the renewal

tag was obscured by the dealer frame surrounding the license plate.1

Agent Bales “ran checks” and confirmed that both the defendant and Ms.

Harris had valid driver’s licenses and no outstanding warrants. His investigation also

revealed that the vehicle was not stolen. Nevertheless, Agent Bales contacted his supervisor,

Lieutenant Bobby Queen, to “back [him] up.” He asked the defendant whether the vehicle

contained any guns, drugs, or money. The defendant replied, “No.” Agent Bales then asked

the defendant for consent to search the vehicle and the defendant said, “Go ahead.”

A search of Ms. Harris’ purse uncovered a red pouch containing marijuana

residue. Inside the trunk of the car, Agent Bales discovered a Nabisco cracker box, taped

shut with packing tape, which contained over 400 grams of cocaine. The search of the glove

compartment revealed the proper registration documents for the vehicle. Agent Bales said

that the defendant never objected to or limited the search of the vehicle in any manner.

On cross-examination, Agent Bales testified that Ms. Harris did not commit

any moving violation at any time either during his observation from the median or during his

pursuit of the vehicle. Likewise, he admitted that he initially could not see the obstructed

renewal tag when he decided to follow the vehicle. He said that Ms. Harris’ “reaction to that

change in behavior” when he spotlighted her car, which he described as “abnormal,”

prompted him to follow the vehicle. Once he stopped and approached the vehicle, Agent

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Agent Bales testified that, initially, the defendant did not produce proper proof of registration

because the defendant accidentally handed him registration for another vehicle of similar make and model.

Agent Bales later found the proper vehicle registration document during the search of the vehicle.

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Bales determined that the renewal tag was up to date. He said that, although the obstructed

license plate and failure to produce proof of registration were both citable offenses, neither

the defendant nor Ms. Harris had committed any offense warranting placing them under

arrest prior to the discovery of the cocaine. Agent Bales testified that 17 minutes elapsed

while he completed “all [his] checks.” One inquiry to “‘Brock Hide’” alerted Agent Bales

that the defendant was a “known drug violator.” Agent Bales said, “I did suspect there was

something wrong and so that’s why I did ask for a consent to search.” He admitted, however,

that although “something didn’t seem right and something seemed awry,” Ms. Harris and the

defendant’s behavior could have been caused by “a multitude of things.”

The trial court denied the defendant’s motion to suppress, ruling that Agent

Bales stopped the vehicle based upon his reasonable suspicion that laws concerning an

obstructed license plate had been violated. The trial court also ruled that “the stop was not

any longer than was necessary to run information and determine the driver was in possession

of the valid registration” and that the warrantless search of the vehicle occurred via the

defendant’s consent.

At trial, Agent Bales testified consistently with his testimony at the evidentiary

hearing in most respects. Concerning Ms. Harris’ reaction to being spotlighted, he elaborated

that she “looked behind [her] and gave [him] the impression that she was expecting someone

to pull out behind her.” He testified that he did not realize the renewal tag on the vehicle was

obscured until “after [he] caught up” to Ms. Harris’ vehicle. When asked how many different

“checks” he ran, Agent Bales admitted that he ran “close to 12, 13, may[be] 14 checks” on

Ms. Harris and the defendant’s licenses and histories. On cross-examination, he testified that

he stopped the vehicle because he could not see the renewal tag. Upon further questioning,

Agent Bales agreed that he did not smell marijuana as he approached the vehicle and that he

“just asked” for consent to search. Agent Bales estimated the value of the 1.4 kilos of

cocaine recovered from the trunk of the car to be “roughly $25,000.”

The jury viewed a video recording taken from Agent Bales’s cruiser camera

of the entire pursuit, stop, questioning, search, and arrest of the defendant. The video

recording reveals that Agent Bales stopped the defendant’s vehicle approximately one minute

after the pursuit began. Within another minute, Agent Bales requested Ms. Harris’ driver’s

license and registration. When the defendant told Agent Bales that he was in the process of

purchasing the car from someone, Agent Bales asked the defendant to step out of the vehicle

so that he could show the defendant the obstructed tag. Approximately two and one-half

minutes after stopping the vehicle, Agent Bales obtained the defendant’s driver’s license and

asked several questions regarding the defendant’s destination, home address, and

employment.

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Approximately two minutes later, Agent Bales directed the defendant to return

to the defendant’s car for the defendant’s safety, and Agent Bales returned to his cruiser to

run checks on the driver’s licenses and registration. Agent Bales returned to the defendant’s

vehicle after running checks for approximately 17 minutes. He asked the defendant to step

out of the vehicle, and Agent Bales then conducted a pat-down frisk of the defendant. He

informed the defendant that the registration the defendant had provided was for a different

vehicle but that the ownership of the vehicle had “checked out.” Agent Bales advised the

defendant to make sure he had the proper documents in the future. Agent Bales did not issue

any citations for either the obstructed license plate or the failure to provide proof of

registration. Agent Bales then asked the defendant if the vehicle contained any weapons,

drugs, or large amounts of money, to which the defendant replied in the negative. Next,

Agent Bales asked the defendant for consent to search the vehicle, and the defendant

consented to the search. In less than one and one-half minutes, Agent Bales and Lieutenant

Queen discovered the cocaine in the trunk of the vehicle and arrested both the defendant and

Ms. Harris.

Based upon this evidence, the jury convicted the defendant of facilitation of

possession with intent to deliver 300 grams or more of cocaine, a Class B felony. The trial

court imposed a sentence of 15 years’ incarceration as a Range II, multiple offender. The

defendant argues on appeal that the stop of his vehicle was not based upon reasonable

suspicion and that the eventual consent to search was not sufficiently attenuated from the

illegality of the initial stop. He also argues that the trial court erred in allowing for use as

impeachment his prior convictions of financial transaction card fraud and forgery. The State

contends that Agent Bales had reasonable suspicion to stop the defendant’s vehicle and that

the consent to search was voluntary. The State also argues that the trial court properly ruled

admissible as impeachment evidence the defendant’s prior convictions of fraud and forgery.

Motion to Suppress

When reviewing a trial court’s findings of fact and conclusions of law on a

motion to suppress evidence, we are guided by the standard of review set forth in State v.

Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in

a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at

23. When the trial court does not set forth its findings of fact upon the record of the

proceedings, however, the appellate court must decide where the preponderance of the

evidence lies. Fields v. State, 40 S.W.3d 450, 457 n. 5 (Tenn. 2001). As in all cases on

appeal, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view of

the evidence and all reasonable and legitimate inferences that may be drawn from that

evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978

S.W.2d 861, 864 (Tenn. 1998)). We review the trial court’s conclusions of law under a de

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novo standard without according any presumption of correctness to those conclusions. See,

e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299

(Tenn. 1999).

Because stopping an automobile without a warrant and detaining its occupants

unquestionably constitutes a seizure, Delaware v. Prouse, 440 U.S. 648, 653 (1979), the

State in the present situation carried the burden of demonstrating the applicability of an

exception to the warrant requirement, see, e.g., State v. Cox, 171 S.W.3d 174, 179 (Tenn.

2005) (temporary detention of an individual during a traffic stop constitutes seizure that

implicates the protection of both the state and federal constitutions); State v. Keith, 978

S.W.2d at 865 (Tenn. 1998). The authority of a police officer to stop a citizen’s vehicle is

circumscribed by constitutional constraints. As is germane to the case at hand, police

officers are constitutionally permitted to conduct a brief investigatory stop when supported

by specific and articulable facts leading to reasonable suspicion that a criminal offense has

been or is about to be committed. Terry v. Ohio, 392 U.S. 1, 20-23 (1968); State v. Binette,

33 S.W.3d 215, 218 (Tenn. 2002). Whether reasonable suspicion existed in a particular case

is a fact-intensive, but objective analysis. State v. Garcia, 123 S.W.3d 335, 344 (Tenn.

2003). The likelihood of criminal activity required for reasonable suspicion is not as great

as that required for probable cause and is “considerably less” than would be needed to satisfy

a preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7 (1989).

A court must consider the totality of the circumstances in evaluating whether a police

officer’s reasonable suspicion is supported by specific and articulable facts. State v. Hord,

106 S.W.3d 68, 71 (Tenn. Crim. App. 2002). The totality of the circumstances embraces

considerations of the public interest served by the seizure, the nature and scope of the

intrusion, and the objective facts on which the law enforcement officer relied in light of his

experience. See State v. Pulley, 863 S.W.2d 29, 34 (Tenn. 1993). The objective facts on

which an officer relies may include his or her own observations, information obtained from

other officers or agencies, offenders’ patterns of operation, and information from informants.

State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

Agent Bales decided to pursue the defendant’s vehicle based upon what he

characterized as Ms. Harris’ “abnormal” and “startled” reaction to his surveillance

techniques. Soon thereafter, Agent Bales noticed that the renewal tag on the license plate

was obscured by the dealer frame. Within two to three miles of initiating the pursuit, Agent

Bales stopped the vehicle. Agent Bales’s observation of the obscured renewal tag provided

reasonable suspicion to stop the vehicle, and he was then in a position to conduct a brief

investigation. See also State v. Berrios, 235 S.W.3d 99, 105 (Tenn. 2007) (noting that a

vehicle stop is constitutionally reasonable “if the police have probable cause to believe a

traffic violation has occurred”).

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That being said, a reasonable traffic stop can become unreasonable and

constitutionally invalid if the time, manner, or scope of the investigation exceeds the proper

parameters. See Florida v. Royer, 460 U.S. 491, 500 (1983); State v. Troxell, 78 S.W.3d 866,

871 (Tenn. 2002); State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998). That is, the duration

of such a stop must be “temporary and last no longer than necessary to effectuate the purpose

of the stop.” Troxell, 78 S.W.3d at 871. Moreover, the officer’s conduct during an

investigative stop must be “reasonably related in scope to the circumstances which justified

the interference in the first place.” Terry, 392 U.S. at 20. “[T]he proper inquiry is whether

during the detention the police diligently pursued a means of investigation that was likely to

confirm or dispel their suspicions quickly.” Troxell, 78 S.W.3d at 871.

“[N]o hard-and-fast time limit exists beyond which a [traffic stop] detention

is automatically considered too long and, thereby unreasonable.” State v. Justin Paul Bruce,

No. E2004-02325-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, Aug. 22, 2005);

cf. United States v. Sharpe, 470 U.S. 675, 685 (1985) (“if an investigative stop continues

indefinitely, at some point it can no longer be justified as an investigative stop”). Simply put,

a law enforcement officer making a valid traffic stop must not prolong the stop for longer

than necessary to process the traffic violation without having some reasonable suspicion of

other criminal activity sufficient to warrant prolonging the stop. Likewise, no inflexible

constitutional guidelines dictate a law enforcement officer’s conduct during a traffic stop.

Instead, the inquiry is necessarily factually intensive and overlaid with the State’s burden of

proof regarding a warrantless search and seizure.

Upon initially approaching the vehicle, Agent Bales asked Ms. Harris for her

driver’s license. When the defendant claimed ownership of the vehicle, Agent Bales asked

the defendant to step out of the vehicle so that he could show the defendant the obstructed

license plate. Agent Bales then asked the defendant for his driver’s license and registration

for the vehicle. This initial questioning lasted less than five minutes. On the facts of the case

and in the context of the incremental pieces of information disclosed to him, Agent Bales’s

questions were reasonable and within the scope of the limited ambit of investigation

entrusted to an officer in that situation.

Next, while the defendant remained in his own vehicle, Agent Bales ran record

checks of both Ms. Harris and the defendant’s driver’s licenses, backgrounds, and the

vehicle. But see Berrios , 235 S.W.3d at 109 (holding officer’s placing defendant in squad

car while he ran checks exceeded the justified scope of conduct under the circumstances).

Although he admittedly made numerous checks, the checks elicited information that both the

defendant and Ms. Harris possessed valid driver’s licenses, had no outstanding warrants, and

that the car was not stolen. One check revealed, however, that the defendant was a “known

drug violator.” Agent Bales testified that throughout the detention he “suspect[ed] there was

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something wrong” based upon Ms. Harris and the defendant’s overall nervous demeanor.

This court has held that a defendant’s demeanor and reputation as a drug offender justified

a prolonged detention. State v. Robert Lee Hammonds, M2005-01352-CCA-R3-CD (Tenn.

Crim. App., Nashville, Nov. 29, 2005). In this case, however, the overall detention – from

Agent Bales’s stopping the vehicle to his requesting consent to search – lasted 26 minutes,

with the record checks accounting for approximately 17 minutes of that time. During that

time, it appears that Agent Bales did indeed “diligently pursue[] a means of investigation that

was likely to confirm or dispel [his] suspicions.” Troxell, 78 S.W.3d at 871. As noted in

Berrios, “[a]fter a traffic violation, a driver can generally expect ‘to spend a short period of

time answering questions and waiting while the officer checks his license and registration,

that he may then be given a citation, but that in the end he most likely will be allowed to

continue on his way.’” Berrios, 235 S.W.3d at 107 (citing Berkemer v. McCarty, 468 U.S.

420, 437(1984)). Therefore, we conclude that the evidence does not preponderate against

the trial court’s finding that the detention was “not any longer than was necessary to run

information.”

Agent Bales’s suspicions, however, were not dispelled by his investigation.

His investigation revealed that the defendant had provided improper proof of registration and

was a “known drug violator.” Agent Bales’s suspicions prompted him to ask the defendant

for consent to search. It is well-settled that a search conducted pursuant to a voluntary

consent is an exception to the requirement that searches and seizures be conducted pursuant

to a warrant. State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). That is, although the

Fourth Amendment and Article I, section 7 of the Tennessee Constitution condemn

unreasonable searches and seizures, they recognize the validity of voluntary cooperation.

Florida v. Bostick, 501 U.S. 429, 439 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 243

(1973) (holding that “there is nothing constitutionally suspect in a person’s voluntarily

allowing a search”). The sufficiency and validity of consent depend largely upon the facts

and circumstances presented by each particular case. State v. Jackson, 889 S.W.2d 219, 221

(Tenn. Crim. App. 1993). To satisfy the constitutional reasonableness standard, the consent

must be “‘unequivocal, specific, intelligently given, and uncontaminated by duress or

coercion.’” State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998) (quoting State v. Brown,

836 S.W.2d 530, 547 (Tenn. 1992)). “The existence of consent and whether it was

voluntarily given are questions of fact” involving an examination of the totality of the

circumstances in each case. State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999);

see State v. McCrary, 45 S.W.3d 36, 43 (Tenn. Crim. App. 2000).

In this case, Agent Bales testified that based upon the defendant’s demeanor

and after running the records checks, he “just asked” for consent to search. The defendant

told Agent Bales to “[g]o ahead.” The video recording reveals no duress or coercion. The

video recording, in fact, reflects the defendant’s voluntary cooperation. See Schneckloth, 412

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U.S. at 243. Having already deemed the initial stop legal and the subsequent detention

reasonable in duration and scope, we further conclude that the defendant consented freely

and voluntarily to the search. The trial court correctly denied the motion to suppress.

Admission of Convictions

Next, the defendant argues that the trial court erroneously deemed admissible

as impeachment two prior convictions – a 1992 financial transaction card fraud conviction

and a 2000 forgery conviction. He contends that the trial court’s erroneous ruling precluded

his testifying at trial. The State argues that the prior convictions were relevant to credibility

and admissible as impeachment.

On June 4, 2010, the State filed a notice of its intention to use the defendant’s

prior convictions to enhance his sentencing range and as impeachment should the defendant

testify at trial. The notice lists a 1987 drug conviction, 1988 robbery conviction, 1992

financial transaction card fraud conviction, 1995 drug conviction, two 1999 drug convictions,

and a 2000 forgery conviction. The defendant filed a pretrial motion to exclude the use of

the prior convictions, arguing that many of the convictions were over 10 years old.

We review the trial court’s determination concerning the admissibility of prior

convictions as impeachment via an abuse of discretion standard. State v. Thompson, 36

S.W.3d 102, 110 (Tenn. Crim. App. 2000); State v. Blanton, 926 S.W.2d 953, 960 (Tenn.

Crim. App. 1996).

Tennessee Rule of Evidence 609 allows the use of prior convictions as

impeachment to attack a witness’s credibility. Tenn. R. Evid. 609(a). The prior conviction

must be for a felony or a crime involving dishonesty or a false statement. Tenn. R. Evid.

609(a)(2). When the witness to be impeached is the defendant, the State must give notice

prior to trial of its intent to use prior convictions to attack the defendant’s credibility. Tenn.

R. Evid. 609(a)(3). Upon request, the trial court “must determine that the conviction’s

probative value on credibility outweighs its unfair prejudicial effect on the substantive

issues.” Tenn. R. Evid. 609(a)(3). In making this determination, “two criteria are especially

relevant.” State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). “A trial court should (a)

‘assess the similarity between the crime on trial and the crime underlying the impeaching

conviction’ and (b) ‘analyze the relevance the impeaching conviction has to the issue of

credibility.’” State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992) (quoting Neil

P. Cohen et al., Tennessee Law of Evidence § 609.9, at 288 (2d ed.1990)).

If, however, the prior conviction is remote, that is if more than 10 years have

elapsed from “the date of release from confinement and commencement of the action or

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prosecution,” the prior conviction is not admissible unless the State gives proper notice of

its intention to use the evidence and “the court determines in the interests of justice that the

probative value of the conviction, supported by specific facts and circumstances,

substantially outweighs its prejudicial effect.” Tenn. R. Evid. 609(b). Thus, “[u]nder the

evidentiary rules, the [S]tate bears a higher burden of establishing the admissibility of

convictions over ten years old.” Thompson, 36 S.W.3d at 110 (comparing Tenn. R. Evid.

609(a)(3) (for conviction less than ten years old, probative value must outweigh unfair

prejudicial effect) to Tenn. R .Evid. 609(b) (for conviction more than ten years old, probative

value must substantially outweigh unfair prejudicial effect)).

During a hearing on the morning of trial, the State sought admission of only

the robbery, fraud, and forgery convictions. The trial court excluded the robbery conviction

because it did not find it “as probative of credibility,” but the court deemed admissible the

fraud and forgery convictions because they involved “obvious[] dishonesty.” Although the

trial court noted that the fraud conviction occurred more than ten years ago, the court failed

to make any finding that the probative value of the conviction substantially outweighed the

danger of unfair prejudice. See Tenn. R. Evid. 609(b). That being said, we agree with the

trial court that both the fraud and forgery convictions involved “obvious dishonesty” and

were, therefore, highly probative of the defendant’s credibility. We conclude that the trial

court’s failure to make appropriate findings concerning the danger of unfair prejudice

presented by their admission was harmless. Furthermore, we conclude that the trial court did

not abuse its discretion by deeming admissible as impeachment evidence the defendant’s

convictions for fraud and forgery. To the extent that the defendant claims that he was denied

his right to testify by the trial court’s ruling, having determined the trial court committed no

abuse of discretion, it follows that the defendant was not denied his right to testify by the

ruling.

Conclusion

The evidence does not preponderate against the trial court’s ruling concerning

the motion to suppress evidence. The trial court did not abuse its discretion by deeming

admissible evidence of the defendant’s prior convictions as impeachment. Accordingly, the

judgment of the trial court is affirmed.

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JAMES CURWOOD WITT, JR., JUDGE

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