State of Tennessee v. Gonzalo Moran Garcia

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 15, 2001 Session

STATE OF TENNESSEE v. GONZALO MORAN GARCIA

Direct Appeal from the Criminal Court for Davidson County

No. 99-C-2220 Steve Dozier, Judge

No. M2000-01760-CCA-R3-CD - Filed February 20, 2002

The appellant, Gonzalo Moran Garcia, appeals his conviction by a jury in the Davidson County

Criminal Court of one count of possession of one thousand grams or more of methamphetamine with

intent to deliver, a class A felony. He raises the following issues for our review: (1) whether the trial

court erred in denying his pre-trial motion to suppress; (2) whether the trial court erred in admitting

at trial the testimony of Daniel A. Rosales, an officer employed by the Houston Police Department

in Texas; (3) whether the evidence underlying the appellant’s conviction is sufficient; and (4)

whether the trial court erred in rejecting his proposed jury instructions. Following a thorough review

of the record and the parties’ briefs, we reverse the judgment of the trial court and remand this case

to the trial court for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and

Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JERRY L. SMITH J., joined.

JOHN EVERETT WILLIAMS, J; filed a dissenting opinion.

Richard McGee, James Holt Walker, and Bobby Ballinger, Nashville, Tennessee, for the appellant,

Gonzalo Moran Garcia.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and John Zimmerman, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On September 24, 1999, a Davidson County Grand Jury returned an indictment

charging the appellant with one count of possession of one thousand grams or more of

methamphetamine with intent to deliver. The indictment arose from the traffic stop on May 9, 1999,

of the vehicle that the appellant was driving on Interstate Highway 24 in Davidson County and the

subsequent seizure by police of approximately 40.1 pounds, or more than eighteen thousand grams,

of methamphetamine. Following his indictment, the appellant filed a motion to suppress any

evidence obtained during or as a result of the traffic stop. The trial court conducted a hearing on the

appellant’s motion on December 10, 1999.

A. Suppression Hearing

At the suppression hearing, the State presented the testimony of Debra Kohl,1 an

officer with the Metropolitan Nashville Police Department. She testified that she had been employed

by the police department for eleven years and was currently assigned to the Highway Interdiction

Unit of the Twentieth Judicial District Drug Task Force. Prior to working with the Highway

Interdiction Unit, she was a patrol officer for several years, which position required training in the

investigation and apprehension of drunk drivers. She joined the Highway Interdiction Unit eight

months prior to the traffic stop in this case and, due to her new assignment, attended two conferences

on illegal drug interdiction that were organized by the United States Customs Service and the Drug

Enforcement Administration (hereinafter the DEA). Additionally, she worked with the United States

Customs Service in El Paso, Texas, for one week. Finally, she attended additional training

conferences in Nashville and Memphis on illegal drug interdiction.

Kohl related that, on May 9, 1999, at approximately 10:50 p.m., she was traveling

on Interstate Highways 40 and 24 in a marked patrol car when she noticed the appellant’s vehicle

traveling in the right lane. Her attention was drawn to the appellant’s vehicle because it swerved

onto the line demarcating the right boundary of its lane. Kohl slowed her patrol car and began to

monitor the appellant’s vehicle.

As the appellant’s vehicle proceeded on Interstate Highway 24 toward Chattanooga,

it continued to weave within its lane. Kohl opined that the driver of the vehicle was driving

carelessly, recalling:

The vehicle would drive in its lane - - it stayed in its lane of traffic;

but, as the vehicle was going in its lane of traffic, it would go to the

left-lane marker, then it would swerve over to the right-lane marker,

then it would swerve over to the left-lane marker.

And I became concerned for his safety, as well as the safety of other

motorists, and decided to stop the vehicle, at that point in time.

Kohl testified that she suspected, among other possibilities, that the driver of the vehicle was

intoxicated.

After stopping the appellant’s vehicle, Kohl approached the passenger’s side on foot.

Peering through the front, passenger’s side window, she motioned for the driver to open the window.

When the appellant complied, Kohl identified herself and asked the appellant to join her at the rear

of his vehicle. The appellant, however, did not respond, and Kohl inquired in English whether he

spoke Spanish. The appellant responded affirmatively, whereupon Kohl instructed him in Spanish

1

Officer K ohl’s first nam e is spelled “D ebo rah” in the trial transcript.

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to get out of his car and come to the rear of his vehicle. Kohl asserted at the suppression hearing that

she speaks Spanish with sufficient fluency to “get through a traffic stop.”

The appellant followed the officer’s instructions, and Kohl informed him in Spanish

that she was an officer with the Metropolitan Nashville Police Department and had stopped his

vehicle because he was weaving within his lane. The appellant repeated in English, “I was

weaving.” Accordingly, Kohl continued the conversation in English. She recalled at the suppression

hearing that the appellant was appropriately responsive to all her inquiries in English.

Although at this point during the traffic stop Kohl had not observed any signs that

the appellant was intoxicated, she was not yet satisfied that he was free of any impairment.

Accordingly, she inquired whether the appellant had been drinking alcohol and, upon his denial,

inquired if he was tired. The appellant conceded that he was tired, admitting that he had been

driving since he left Los Angeles, California, on the previous day, pausing only briefly at a “few rest

stops” to sleep. Kohl asked the appellant about his destination, and he indicated that he was

traveling to Georgia. Kohl recalled:

And I said, “Where in Georgia?”.

He said he didn’t know.

I said, “Well, how are you supposed to know where you supposed to

go in Georgia?”.

And he said, when he got close to the - - to the area, he had a pager

number he was supposed to call.

I asked him who the pager number belonged to.

And he said it was his cousin, Miguel’s.

I asked if he knew where Miguel lived.

And he said, “No.”

Then I asked him where he was going to stay at.

And he said he didn’t know where he was going to stay; he thought

a hotel, maybe.

Then I asked him if the vehicle was his vehicle.

And he said, no, that it belonged to his cousin.

I asked him what his cousin’s name was.

And he told me, “Well, he’s not really my cousin.”

So, then I said, “Well, who is he?”.

“He’s my friend.”

So, I said, “Well, is he your cousin or is he your friend?”.

He - - “Well” - - he said, “Well, he’s a friend who’s like a cousin.”

I said, “Okay. What’s your cousin’s name?”.

And he gave me a name.

And I said, “Well, that’s nice of him to let you borrow the car on this

trip.”

He said, Well, he’s not really my friend.”

I said, “Well, then who is he?”.

He said, “He’s a friend of my friend at work.”

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....

I said, “Well, what kind of work do you do?”.

And he said that he did hardwood-floor work.

At that point in time, I asked him if he had the registration, and he

went to the glove box and retrieved the registration for me.

Kohl further indicated at the suppression hearing that she requested the appellant’s

driver’s license after inquiring concerning the length of the appellant’s journey and prior to inquiring

concerning the ownership of the vehicle in which the appellant was driving. Upon observing the

appellant retrieve his driver’s license from his wallet, Kohl was satisfied that the appellant was not

intoxicated. As to her subsequent acquisition of the vehicle registration document, Kohl was unable

to recall at the suppression hearing whether the name recorded on the document was the same as the

name provided by the appellant and identified by him as belonging to the vehicle’s owner. Kohl

testified that she did, however, confirm that the registration matched the vehicle’s license plate.

Moreover, after obtaining both the appellant’s driver’s license and his vehicle registration document,

she asked the appellant about his driving record and his arrest record. With respect to the latter, the

appellant informed Kohl that he had once been arrested for driving under the influence.

Having examined the appellant’s driver’s licence and vehicle registration document,

Kohl explained to the appellant that she was going to issue him a warning citation. Additionally,

upon inquiry by the appellant, she provided him with directions to a location at which he could park

his car and sleep. Finally, she instructed the appellant to wait inside his car while she completed the

necessary paperwork.

Retaining the appellant’s driver’s license and vehicle registration document, Kohl

returned to her patrol car. Inside the patrol car, she radioed a fellow officer, Dean Hunter, and asked

that he transport a drug-detection dog to the scene of the traffic stop. She then filled out a warning

citation for violation of “lane restrictions.” She also prepared a “Consent to Search” form written

in Spanish before returning to the appellant’s vehicle.

Upon approaching the appellant once again, Kohl instructed him to get out of his

vehicle and, upon his compliance, returned to him his driver’s license and vehicle registration

document. She also gave to him the warning citation, thanked him, and informed him, “The stop’s

complete.” The appellant began walking back to his vehicle, and she turned to begin walking toward

her patrol car. She paused, however, and asked the appellant if she could ask him several questions.

The appellant returned to her location, and she asked him if he had any weapons in his vehicle. He

responded, “No.” She then asked him if he had any illegal drugs in the vehicle. Kohl recalled:

At that point in time, his demeanor changed. He gave me a - - a

nervous, laughing, “No.” And he - - he became fidgety. You could

see him scratching on his back. He was nervous, and you could

literally see his Adam (sic) apple, a nervous sign, bobbing up and

down, which I was talking to him, which, to me, is an indicator of

some type of deception.

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Following the above exchange, Kohl asked the appellant if she could search his

vehicle. He quickly offered to open his trunk for her inspection, but Kohl declined the appellant’s

offer and instead asked him if he was able to read in Spanish. Upon receiving an affirmative reply,

she asked him to read the Spanish “Consent to Search” form that she had prepared. Kohl testified,

“[A]s he read, you could follow his finger going along each sentence, which, to - - me, demonstrated

that he was actually reading the statement.” The consent form contained advice concerning the

appellant’s right to refuse consent to a search of his vehicle, his right to limit any consent to certain

areas of his vehicle, and his right to revoke his consent at any time. Nevertheless, the appellant

signed the consent form, agreeing to a search of his vehicle without imposing any limitations.

Meanwhile, Officer Dean Hunter had arrived at the scene of the traffic stop with a

drug-detection dog. Following the appellant’s consent to a search of his vehicle, Hunter permitted

the dog to sniff the vehicle. The dog signaled the presence of drugs in both the driver’s side and the

passenger’s side of the vehicle. Accordingly, Hunter, Kohl, and a third officer began a search of the

vehicle.

During the search, Hunter noticed that the vehicle’s rocker panels2 had been freshly

painted. He therefore procured a drill and used the tool to remove the screws “that hold the rubber

or plastic molding over the top of [one of] the rocker panels.” Upon removing the “rubber or plastic

molding,” Hunter inserted a small metal probe into pre-existing screw holes, meeting with some

resistance. He then drilled into the pre-existing holes “[a]nd . . . started coming up with some terry -

- white-terry-cloth material, like a bath-towel material.” At this point, Kohl retrieved a “buster” or

density meter from her patrol car and measured the density of the rocker panels, receiving unusually

high measurements. Due to the high measurements, the officers drilled new holes in the rocker

panels. In addition to the terry cloth material, “a pinkish-brown-type material . . . came out on the

drill bit.” Kohl recounted that they tested the substance for the presence of cocaine but received

negative results. Nevertheless, “we knew something was there that didn’t belong there.” Finally,

the officers broke the rocker panels, revealing “duct-taped bundles.” Kohl arrested the appellant,

and subsequent testing established that the bundles contained approximately twenty kilograms of

methamphetamine.

The State also introduced into evidence at the suppression hearing a videotape of

Kohl’s traffic stop of the appellant. The videotape does not contain an audio component. Kohl

explained that, following the traffic stop, she discovered that the battery powering the audio

equipment was dead.

In addition to Kohl’s testimony and the videotape of Kohl’s traffic stop of the

appellant, the State presented the testimony of Officer Dean Hunter of the Metropolitan Nashville

2

A rocker panel is “the portion of the body paneling of a vehicle that is situated below the doorsills of the

passenger compartment.” W EBSTER ’ S T H IR D N E W I NTERNATIONAL D ICTIONARY 1965 (19 93).

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Police Department.3 Hunter related that he had been a police officer for approximately twenty years

and had been a “canine officer” for approximately thirteen years. According to Hunter, he had been

assigned two different drug-detection dogs during the course of his career as a canine handler;

moreover, he was certified by the United States Police Canine Association (hereinafter UPCA) as

a trainer of drug-detection dogs. Hunter testified that he was currently assigned a drug-detection dog

named Lou. Prior to the traffic stop in this case and in accordance with the standards of the UPCA,

Lou had successfully completed a ten-week training course in drug detection. Additionally, Lou

underwent continuing training a minimum of eight hours each week.

Hunter further testified that he was currently assigned to the Highway Interdiction

Unit of the Twentieth Judicial District Drug Task Force and, on May 9, 1999, was patrolling the

interstates with Lou. Hunter confirmed that he and Lou assisted Kohl during the traffic stop of the

appellant’s vehicle and that Lou alerted the officers to the presence of illegal drugs in the vehicle

four times, three times on the driver’s side of the vehicle and once on the passenger’s side. During

the ensuing search of the appellant’s vehicle, Hunter noticed that the vehicle’s rocker panels had

been freshly painted. He explained at the suppression hearing that he noticed the freshly painted

rocker panels due to his past employment in an automobile body repair shop. Hunter carefully

examined the entire vehicle and did not see any other areas where the vehicle had been re-painted.

As a result of Hunter’s discovery, the officers removed the plastic molding covering

one of the rocker panels, and Hunter inserted a metal probe into pre-existing holes. Hunter recalled,

“I was meeting resistance; and, when I’d take the probe, because it was a sharp object on the end,

and push [further] . . . , I could go through the resistance and I could go to the bottom of the rocker

panel.” Hunter noted that a rocker panel is normally hollow. Accordingly, he concluded that

“something was in the rocker panel, that wasn’t necessarily supposed to be there.” Further

investigation revealed packages concealed inside the rocker panel.

Finally, the State introduced into evidence without objection a certified copy of

Metropolitan Nashville Code § 12.68.170, entitled “Careless driving.” See Tenn. R. Evid. 202(b).

The ordinance provides:

A. Every person operating a vehicle upon the streets within the

metropolitan government, or upon any private road or driveway or

parking area, shall drive the same in a careful and prudent manner,

having regard for the width, grade, curves, corners, traffic and use of

these streets and private areas, and all other attendant circumstances,

so as not to endanger the life, limb or property of any person. Failure

to drive in such manner shall constitute careless driving and a

violation of this chapter.

By means of an interpreter, the appellant testified at the suppression hearing for the

sole purpose of establishing his standing to contest the search of the vehicle in which he was driving

3

Officer H unter is identified as “Wilford Roden e Hunter” in the trial transcript.

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on the night of the traffic stop. He asserted that the owner of the vehicle had given him permission

to use the vehicle, providing him with the keys. The appellant explained that the owner was willing

to loan him the vehicle because the owner was on vacation in Mexico. According to the appellant,

the owner was aware of the appellant’s planned trip to Georgia. The appellant concluded that, prior

to the traffic stop at issue in this case, he had been in exclusive possession of the vehicle for three

days.

Following the suppression hearing, on February 8, 2000, the trial court denied the

appellant’s motion to suppress. As relevant to this appeal, the court concluded:

[T]he seizure involving the defendant was based upon reasonable

suspicion; the defendant has standing to challenge the subsequent

search of the vehicle; the initial search of the vehicle was based upon

consent; [and] the extended search of the vehicle’s exterior rocker

panels was based upon consent and further probable cause . . . .

B. Trial

The appellant’s case proceeded to trial on May 15, 2000. As at the suppression

hearing, the State presented the testimonies of both Officer Kohl and Officer Hunter. Hunter’s

testimony at trial was substantially identical to his testimony at the suppression hearing. Kohl also

reiterated much of her testimony at the suppression hearing but added a description of her duties as

a member of the Highway Interdiction Unit:

Basically, what we do is, we sit on the side of the interstate and

monitor the flow of traffic. And, we see traffic violations that occur,

we - - uh - - pull the violator and the vehicle over and issue them a

warning ticket, speeding ticket. And, uh - - from there, sometimes we

get stolen vehicles; we get fugitives from justice; we get people with

weapons; uh - - we get people with narcotics, just an array of different

things.

She related to the jury that the location of the traffic stop in this case “is one of the busiest []sections

of the interstate system in [Nashville].” She asserted that she stopped the appellant’s vehicle

because, in addition to suspecting the appellant of intoxication, she was concerned that “possibly he

was sleepy, was getting tired and maybe he’s gonna fall asleep at the wheel.”

Kohl also added at trial that she was unable to see inside the appellant’s vehicle prior

to making the traffic stop because the windows of the vehicle were tinted. Only when she stopped

the appellant’s vehicle and the appellant rolled down his window was she able to see both the

appellant and the condition of the interior of his vehicle. In particular, she noted that the interior was

littered with empty Coca-Cola cans, empty juice bottles, and half-eaten sandwiches. The appellant

explained to her that he had traveled almost nonstop from California and intended to visit his cousin

in Georgia for a couple of weeks. Kohl recalled that, notwithstanding the appellant’s claim that he

was pausing briefly at rest stops and napping in his vehicle, there were no blankets or pillows in the

vehicle.

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In addition to the appellant’s responses to her questions concerning his destination

and the ownership of his vehicle, the nonstop nature of the appellant’s journey, reflected by the

condition of the interior of his vehicle, suggested to Kohl the possibility that the appellant was

engaged in the transportation of illegal drugs. Moreover, a can of air freshener was located on the

center console of the vehicle, and Kohl could detect the odor of air freshener inside the vehicle,

albeit the odor was “very minute.” Kohl observed that air freshener is “commonly used by people

hauling drugs to mask the odor of the narcotic that they’re hauling.” According to Kohl, her

suspicion that the appellant was transporting illegal drugs prompted her radio call to Officer Hunter

and her preparation of a Spanish “Consent to Search” form.

Kohl emphasized at trial that, upon returning to the appellant his driver’s license and

vehicle registration document and issuing a warning citation, she “told him to have a safe trip and

the stop is complete”; she allowed him to begin walking toward his vehicle; and she turned to begin

walking toward her patrol car. Kohl recounted, “[A]fter he started back to his car and I had started

back to mine, then, I said, ‘Excuse me. Can I ask you a couple of questions?’ And, so, he walks

over to where I’m at, he shakes his head, and he says, ‘Yes.’”

During the ensuing encounter, Kohl’s suspicion of the appellant was heightened even

further when the appellant immediately offered to open his trunk in response to her request to search

his vehicle. She noted, “[I]n the past when I found drugs that weren’t in the trunk, people always

want you to look in the trunk. And, to me, they’re trying to divert my attention away from where

they are. They want me to look in the trunk.” That having been said, she also testified that, of the

several hundred traffic stops that she performed while working with the Twentieth Judicial District

Drug Task Force, approximately ten traffic stops resulted in the seizure of drugs.

Kohl also clarified at trial that Hunter and his drug-detection dog Lou arrived as she

was seated in her patrol car completing the appellant’s warning citation. Hunter and Lou remained

in their patrol car while Kohl requested and obtained the appellant’s consent to search his vehicle.

Kohl recalled that the appellant could see Hunter’s patrol car parked behind her own, but she was

uncertain if the appellant was aware of the presence of a drug-detection dog inside Hunter’s patrol

car. A third officer arrived after Lou had already signaled the presence of illegal drugs in the

appellant’s vehicle.

During the officers’ search, the appellant stood approximately fifteen feet away from

his vehicle and was able to observe their activities. Prior to examining the rocker panels, the officers

detached the seats and lifted carpeting inside the passenger compartment of the vehicle.

Additionally, the officers climbed inside the trunk, lifted the carpeting, and removed the spare tire.

Finally, the officers examined the vehicle’s engine, removing the top of the air filter. At no time

prior to the discovery of the bundles of methamphetamine did the appellant express any objection

to the scope of the officers’ search. The officers ultimately removed bundles of methamphetamine

from rocker panels on both the driver’s side and the passenger’s side of the appellant’s vehicle.

Following the appellant’s arrest, Kohl questioned him concerning his knowledge of

the drugs. Notwithstanding the appellant’s claim that he spoke “[a] little bit” of English and Kohl’s

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limited proficiency in Spanish, Kohl obtained the assistance of a Spanish-speaking officer in both

advising the appellant of his Miranda rights and questioning the appellant. By means of the

interpreter, the appellant denied any knowledge of the drugs. However, in contrast to his earlier

statements to Kohl, the appellant now acknowledged that he was traveling to “Forest Park” in

Georgia. The appellant also provided Kohl, from memory, the pager number belonging to his cousin

Miguel, whom he had intended to visit in Georgia. The appellant declined Kohl’s invitation to “roll

over, meaning, . . . do a control delivery, meaning . . . take the dope on to where it needed to go, as

if he hadn’t been intercepted or stopped.” Kohl noted that the appellant was not carrying large

amounts of currency or a pager at the time of his arrest. He did have in his possession an America

West Airlines ticket stub marked “IAH” and a business card belonging to the managers or owners

of a Super 8 Motel in Houston, Texas.

After questioning the appellant, Kohl telephoned the pager number provided by the

appellant. She discovered that the number was, in fact, assigned to a residence rather than a pager.

A woman answered the telephone and informed Kohl that there was no one named Miguel living at

that residence. Kohl also investigated the license plate number of the vehicle driven by the appellant

and the vehicle registration. She discovered that, although the vehicle registration number was

assigned to a Fernandez Orosco Efrain in Los Angeles, California, the license plate number was

assigned to a Manuel Gonzales in the same city.

In addition to the testimonies of Kohl and Hunter, the State presented the testimony

of Kathy Carman, a chemist employed by the Tennessee Bureau of Investigation (hereinafter the

TBI) at the TBI Crime Laboratory. She related that she performed testing on the substance contained

in each of the twenty-eight bundles seized by police from the vehicle driven by the appellant on May

9, 1999. She discovered that the bundles contained methamphetamine and weighed a total amount

of 40.1 pounds or a little more than eighteen thousand grams.

The State next presented the testimony of Daniel Rosales, an officer employed by the

Houston Police Department in Texas. He testified that he had been a police officer for seventeen

years and had participated in drug investigations for twelve years. He noted that he was currently

assigned to a federal DEA task force known as the “High Intensity Drug Trafficking Area Task

Force” (hereinafter the HIDTA) and had been so assigned for six years. He related that the mission

of HIDTA was to investigate criminal organizations dealing in illegal drugs. During the course of

his assignment to HIDTA, he had investigated approximately forty or fifty different criminal

organizations dealing in marijuana, cocaine, heroin, methamphetamine, and various other, synthetic

drugs. The investigations spanned many areas of the country, including Texas, Tennessee,

California, New York, New Jersey, Illinois, and Missouri.

As to his specific tasks, Rosales related that his job entailed working undercover on

one occasion as a buyer for an organization dealing in heroin and methamphetamine. He also

participated in the execution of more than five hundred search warrants. Additionally, he noted,

“I’ve interviewed people that were selling drugs on the corners; I’ve interviewed people that are

transporting drugs; I’ve interviewed the top of an organization. At one point or another, I’ve

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interviewed pretty well every level of an organization.” In particular, he had interviewed at least

fifty drug couriers.

Based upon his experience, Rosales testified concerning the care with which criminal

organizations select their drug couriers:

The transportation is - - is - - you’re gonna be getting someone that

is trusted within the organization. I mean, sometimes it’s family,

sometimes it’s a referral from a friend within the organization. If - -

if I recommend this lady right here and I’m in the organization and

she loses a load, then, I’m held responsible. So, there is never going

to be anybody that’s not trusted within the organization.

Rosales observed that, sometimes, organizations further ensure the delivery of drugs by threatening

the couriers and by requiring that couriers periodically call a cellular telephone or a pager, using

codes in order to communicate the progress of their journey. He noted that the most common mode

of transporting illegal drugs within the United States of America (hereinafter the USA) is automobile

or truck.

Rosales further related to the jury that the street value of methamphetamine in

Houston is one hundred dollars per gram, albeit he acknowledged that the street value in Houston

is “the higher retail end.” Accordingly, the street value of the methamphetamine seized from the

appellant would be approximately 1.8 million dollars. Rosales noted that a courier’s fee is based

upon the quantity of drugs transported. He remarked that the quantity of drugs at issue in this case

was even greater than the quantity generally transported by the organizations that he investigated.

Finally, Rosales examined the America West Airlines ticket stub found in the

appellant’s possession at the time of his arrest. He confirmed that America West Airlines operates

flights to and from Houston, Texas. Moreover, he testified that the initials “IAH” written on the

ticket stub signifies “Intercontinental Airport of Houston.”

The appellant testified on his own behalf through an interpreter. He informed the jury

that he was born in Guatemala, where he attended school through the sixth grade. He came to the

USA on February 22, 1989, when he was eighteen years old. His parents and five of his brothers

still resided in Guatemala, but one of his brothers and several uncles and cousins had immigrated,

like him, to the USA. The appellant’s native language is Spanish, although he understands “[s]ome

words” in English.

The appellant further informed the jury that he was currently married to a woman

from Mexico named Gurdaluepe Polideo and had three children, the youngest having been born only

two months before the instant offense. Prior to this offense, the appellant worked full-time installing

and re-finishing hardwood floors. He was an independent contractor and earned a net income of

approximately twenty-five thousand dollars each year. Nevertheless, he was able to save sufficient

funds to satisfy in cash hospital bills stemming from the birth of his youngest child. He noted that,

although his family did not possess health insurance, he “found a cheap program for the delivery.”

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As to the instant offense, the appellant related to the jury that he and his wife had also

saved funds in preparation for a trip to visit his cousin Miguel Avila in Georgia. Accordingly, the

appellant had five hundred dollars with him at the time of Kohl’s traffic stop of his vehicle, in

addition to funds in his bank account. The appellant asserted that both he and his wife had been

planning the trip for several months, but his wife ultimately decided that she would not accompany

him due to the recent birth of their youngest child. Nevertheless, the appellant decided to visit his

cousin as planned. He asserted that he knew his cousin well, although he denied that he had ever

used his cousin’s “pager” number, having memorized the number solely for the purpose of his trip

to Georgia. According to the appellant, he intended to stay in Georgia for approximately one and

one-half or two weeks.

The appellant additionally testified that a co-worker and friend named Efrain Orosco

loaned him a car three days prior to his trip. Specifically, Orosco asked the appellant to care for his

car while Orosco was on vacation for one month in Mexico. Orosco was also a friend of the

appellant’s cousin, Miguel, and was aware of the appellant’s planned trip to Georgia. Accordingly,

notwithstanding his ownership of a 1994 Chevrolet Suburban, the appellant decided to use Orosco’s

1990 Pontiac Bonneville for the lengthy trip. The appellant noted that he had exclusive control of

Orosco’s vehicle during Orosco’s absence. He denied that Orosco ever asked or required that the

appellant drive the Pontiac Bonneville to Georgia.

The appellant only partly disputed Kohl’s account of the traffic stop of his vehicle

on Interstate Highway 24 in Davidson County. He denied ever stating to Kohl that he did not know

his destination in Georgia. Moreover, he denied ever stating that a cousin owned the vehicle that

he was driving. Finally, he denied ever offering to open his trunk for Kohl’s inspection following

her request to search his vehicle. However, he conceded that Kohl only requested his permission

to search his vehicle after issuing him a warning citation and informing him that the stop was over

and that he was free to leave. He confirmed that, prior to obtaining his consent, Kohl showed him

the “Consent to Search” form written in Spanish. Finally, he acknowledged that he consented in

writing to the search of his vehicle with a full awareness of his right to refuse consent and his right

to revoke his consent at any time.

The appellant also presented the testimony of his wife, Gurdaluepe Moran Polideo

Garcia. She stated that her husband was an excellent worker, specializing in hardwood floors, and

that he was able to meet all the financial needs of his family. She noted that, other than his trip to

Georgia, the appellant had only taken vacations with her, driving with her to visit family in Bull

Head City, Arizona. She denied that she or her husband had ever flown to Arizona or to Houston,

Texas.

The appellant next presented the testimony of Miguel Bouquet. Bouquet testified that

he lived in Venice, California, and owned a business known as Bouquet Floors. Bouquet noted that

he had owned his business for approximately twelve or fourteen years, and the appellant had worked

for him approximately twenty or twenty-five times during the past four or five years. Bouquet

asserted that the quality of the appellant’s work was “very good,” and the appellant was reliable.

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Finally, the appellant presented the testimony of his nephew, Rubin Munez Palidio.

Palidio testified that he lived in Bull Head City, Arizona. He observed that his uncle was a good

man and had always treated others well. Palidio further related that he had previously worked with

his uncle, describing his uncle as a hard worker. Finally, he denied that his uncle maintained a

“luxurious” lifestyle, asserting that his uncle’s lifestyle was “normal.”

At the conclusion of the appellant’s trial, the jury found the appellant guilty of

possession of one thousand grams or more of methamphetamine with intent to deliver. The trial

court conducted a sentencing hearing on June 30, 2000, at the conclusion of which it imposed a

sentence of twenty years incarceration in the Tennessee Department of Correction. The appellant

challenges his conviction in this appeal.

II. Analysis

A. Trial Court’s Denial of Appellant’s Motion to Suppress

The appellant first contends that the trial court erred in denying his pre-trial motion

to suppress any evidence obtained during or as a result of Kohl’s traffic stop of his vehicle. His

argument is three-fold: First, relying largely upon our supreme court’s decision in State v. Binette,

33 S.W.3d 215 (Tenn. 2000), the appellant argues that Officer Kohl did not possess a reasonable

suspicion at the time of the traffic stop that he had committed, was committing, or was about to

commit a criminal offense. Second, the appellant argues that, even assuming the legality of the

traffic stop at its inception, the scope of the stop soon exceeded its justification. Third and finally,

the appellant argues that the search of his vehicle exceeded the scope of his consent.

In response, the State seeks to distinguish Binette from the instant case and broadly

argues that “Officer Kohl was justified in stopping the [appellant] to ascertain his condition, as a

matter of public safety.” Second, the State disputes the appellant’s argument that the scope of the

traffic stop exceeded its justification. Finally, the State argues that the police officers’ search of the

appellant’s vehicle was within the scope of the appellant’s unqualified consent and was further

warranted by the drug-detection dog’s positive indication of the presence of illegal drugs in the

vehicle.

i.

When reviewing a trial court’s ruling on a motion to suppress evidence obtained by

police pursuant to a warrantless search or seizure, this court is obliged to uphold the trial court's

findings of fact unless the evidence preponderates otherwise. State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Ashworth, 3 S.W.3d 25, 29

(Tenn. Crim. App. 1999). In this regard, our supreme court has observed:

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. The party prevailing in

the trial court is [therefore] entitled to the strongest legitimate view

of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that

evidence.

-12-

Odom, 928 S.W.2d at 23. The court has recently reaffirmed that “the standard of appellate review

for findings of fact at a suppression hearing is that articulated by this Court in Odom.” State v.

Walton, 41 S.W.3d 75, 81 n.3 (Tenn. 2001). However, it has also expressed the following

qualification: “[W]hen a trial court’s findings of fact at a suppression hearing are based on evidence

that does not involve issues of credibility, a reviewing court must examine the record de novo

without a presumption of correctness.” Binette, 33 S.W.3d at 217; see also State v. Munn, 56

S.W.3d 486, 494 (Tenn. 2001). In any event, an appellate court’s review is not limited to the

transcript of the suppression hearing but extends to the entire record of proceedings, including the

trial transcript. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). Moreover, an appellate court

will also review de novo the trial court’s application of the law to factual findings. State v. Crutcher,

989 S.W.2d 295, 299 (Tenn. 1999); Keith, 978 S.W.2d at 864.

ii.

Turning first to the legality of the traffic stop at its inception, both the Fourth

Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution

protect citizens against unreasonable searches and seizures conducted by law enforcement officers.

In essence, “[t]he purpose of the Fourth Amendment and article I, § 7 is to ‘safeguard the privacy

and security of individuals against arbitrary invasions of government officials.’” Munn, 56 S.W.3d

at 494; see also State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)(observing that “‘article I,

section 7 is identical in intent and purpose with the Fourth Amendment,’” and federal cases

interpreting the Fourth Amendment should be regarded as particularly persuasive). Accordingly,

under both the United States and Tennessee constitutions, searches and seizures conducted without

a warrant are presumptively unreasonable subject to a few carefully defined exceptions. See

Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 2032 (1971); Keith, 978

S.W.2d at 865; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Because stopping an

automobile and detaining its occupants unquestionably constitute a seizure, Wren v. United States,

517 U.S. 806, 809-810, 116 S. Ct. 1769, 1772 (1996); United States v. Sharpe, 470 U.S. 675, 682,

105 S. Ct. 1568, 1573 (1985); Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979);

Binette, 33 S.W.3d at 218; Yeargan, 958 S.W.2d at 630; State v. Pulley, 863 S.W.2d 29, 30

(Tenn.1993), it follows that, when the State seeks to introduce in a criminal trial evidence obtained

as a result of the warrantless stop of an automobile, the State carries the burden of demonstrating by

a preponderance of the evidence the applicability of an exception to the warrant requirement, Keith,

978 S.W.2d at 865; Yeargan, 958 S.W.2d at 629.

One exception to the warrant requirement is an arrest based upon probable cause to

believe that a crime has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,

225-226 (1964); Henning, 975 S.W.2d at 300; see also Tenn. Code Ann. § 40-7-103 (1997).

“Probable cause exists where ‘the facts and circumstances within the[] [officers’] knowledge and of

which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man

of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v.

United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1310-1311 (1949)(alterations in

original)(quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288 (1925)). Probable

cause will justify an arrest for even very minor criminal offenses committed in an officer’s presence.

Atwater v. City of Lago Vista, 532 U.S. 318, __, 121 S. Ct. 1536, 1557 (2001); State v. Walker, 12

-13-

S.W.3d 460, 464 (Tenn. 2000). However, in Tennessee, the constitutionality of such arrests will

depend upon the officer’s compliance with Tenn. Code Ann. § 40-7-118 (1997). Walker, 12 S.W.3d

at 464-468.

Additionally, in Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879-1880 (1968), the

United States Supreme Court indicated that a warrantless seizure short of an arrest might be justified

by something less than probable cause. This proposition was subsequently confirmed by the United

States Supreme Court in Adams v. Williams, 407 U.S. 143, 145-146, 92 S. Ct. 1921, 1923 (1972),

and extended to investigatory stops of automobiles in United States v. Brignoni-Ponce, 422 U.S.

873, 881, 95 S. Ct. 2574, 2580 (1975); see also United States v. Hensley, 469 U.S. 221, 226, 105 S.

Ct. 675, 679 (1985). Thus, a police officer may stop an automobile based upon reasonable

suspicion, supported by specific and articulable facts, that the occupants of the automobile have

committed, are committing, or are about to commit a criminal offense. Binette, 33 S.W.3d at 218;

State v. England, 19 S.W.3d 762, 766 (Tenn. 2000); Keith, 978 S.W.2d at 865 (citing, among other

authorities, United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694 (1981), and Prouse, 440

U.S. at 663, 99 S. Ct. at 1401). While requiring considerably less than proof of wrongdoing by a

preponderance of the evidence, a reasonable suspicion requires something more than the officer’s

inchoate and unparticularized suspicion or hunch. United States v. Sokolow, 490 U.S. 1, 7, 109 S.

Ct. 1581, 1585 (1989); Keith, 978 S.W.2d at 867.

Either probable cause or reasonable suspicion will justify a traffic stop under the

United States and Tennessee constitutions without regard to the subjective motivations of the police

officer involved. Wren, 517 U.S. at 813; 116 S. Ct. at 1774; United States v. Morales, 252 F.3d

1070, 1074 (9th Cir. 2001); United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997);

Vineyard, 958 S.W.2d at 736; cf. generally City of Indianapolis v. Edmond, 531 U.S. 32, 45-46, 121

S. Ct. 447, 456-457 (2000). In short, the touchstone is reasonableness, whether under the state or

federal constitution, State v. Jennette, 706 S.W.2d 614, 618 (Tenn. 1986), and “[r]easonableness, in

turn, is measured in objective terms by examining the totality of the circumstances,” Ohio v.

Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996).

The trial court in this case rejected any claim by the State that Officer Kohl possessed

probable cause to believe that the appellant was driving carelessly in violation of Metropolitan

Nashville Code § 12.68.170, noting that Kohl did not testify at the suppression hearing that “the

purpose of the stop was based on a violation of § 12.68.170 of the Metropolitan Traffic Code . . .

[and] the warning citation issued did not reference the cited section of the Metro Code, nor did it

state ‘careless driving.’” Instead, the trial court determined that Officer Kohl possessed a reasonable

suspicion that the appellant was driving under the influence in violation of Tenn. Code Ann. § 55-10-

401 (1998). In this regard, the court accredited Kohl’s testimony at the suppression hearing,

observing:

The Court has reviewed the video tape recorded by Officer Kohl and

finds that it does support her testimony. As she approaches the

defendant’s vehicle from two lanes over, it noticeably swerves to the

right side of the lane. The Court finds it significant that the officer

did not immediately stop the vehicle, but rather, began to monitor the

-14-

vehicle to determine whether the swerving would continue. In

reviewing the video, the Court noted two other times, approximately

20 and 65 seconds from the officer’s initial observation . . . , that the

defendant’s vehicle noticeably swerves from one side of the lane to

the other. Also significant, and in further support of the officer’s

testimony, is the fact that there were several other vehicles traveling

parallel to and in close proximity to the defendant’s vehicle. This

supports her testimony regarding the safety of the other motorists on

the road. In addition, the Court would note that for a short period of

time the defendant’s vehicle is not on the videotape and could only

have been observed by the officer. During this occasion and the

initial observations made at the time when the defendant’s vehicle

was several car lengths ahead of the officer, only the officer, not the

videotape, could accurately observe the defendant’s driving pattern.

While the Court would not necessarily classify the defendant’s

driving as “erratic,” it was clearly characteristic of a driver who was

either intoxicated or about to fall asleep at the wheel. The fact that

there were other vehicles in close proximity to the defendant

amplified the situation. As it turned out, the defendant admitted that

he was very tired and had been driving for a long period of time,

which confirmed the officer’s suspicion.

In reviewing the trial court’s determinations, we preliminarily note the following

observation by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 696-697,

116 S. Ct. 1657, 1661-1662 (1996)(alterations in original)(quoting Pullman-Standard v. Swint, 456

U.S. 273, 289 n.19, 102 S. Ct. 1781, 1791 n.19 (1982)):

The principal components of a determination of reasonable suspicion

or probable cause will be the events which occurred leading up to the

stop or search, and then the decision whether these historical facts,

viewed from the standpoint of an objectively reasonable police

officer, amount to reasonable suspicion or to probable cause. The

first part of the analysis involves only a determination of historical

facts, but the second is a mixed question of law and fact: “[T]he

historical facts are admitted or established, the rule of law is

undisputed, and the issue is whether the facts satisfy the [relevant]

statutory [or constitutional] standard, or to put it another way,

whether the rule of law as applied to the established facts is or is not

violated.”

Thus, we review de novo the trial court’s ultimate determination of whether the “historical facts” in

this case amount to probable cause or reasonable suspicion. State v. Burns, 6 S.W.3d 453, 461

(Tenn. 1999)(“Cases that involve mixed questions of law and fact are subject to de novo review.”).

But see State v. Long, 694 S.W.2d 337, 339 (Tenn. Crim. App. 1985)(“The trial court’s finding as

to probable cause is to be given the weight of a jury verdict and is conclusive in this court unless the

-15-

evidence preponderates against that judgment.”). The more difficult question is whether we should

accord the trial court’s findings of “historical facts” a presumption of correctness.

Relying upon Binette, 33 S.W.3d at 217, the appellant asserts that the recording of

the traffic stop on videotape precluded “the normal deference given to trial courts on the basis of

their unique position to observe the demeanor and conduct of witnesses,” warranting instead an

examination of the record de novo without a presumption of correctness. The State responds that,

in contrast to Binette, id. at 216, the trial court in this case relied upon Officer Kohl’s testimony in

addition to the videotape in making its findings of fact. The State emphasizes the trial court’s

observation that, at times, “only the officer, not the videotape, could accurately observe the

defendant’s driving pattern.” Accordingly, the State concludes that “the standard of review set forth

in [Odom, 928 S.W.2d at 23,] is more properly applicable” to the trial court’s findings of fact.

In Binette, 33 S.W.3d at 217, the supreme court explained that, when a trial court’s

findings of fact on a motion to suppress are based solely on evidence that does not involve issues of

credibility, an appellate court “is in the same position as the trial court and is just as capable of

reviewing the evidence.” Accordingly, we agree with the State that, if the trial court had based its

findings of fact on testimony by Kohl relating to the appellant’s driving during those moments on

the videotape recording when the appellant’s vehicle is obscured from view due to the relative

positions of the vehicle and Kohl’s patrol car, the lighting conditions on the interstate, and other

vehicles traveling on the interstate, this court would not be in the same position as the trial court in

reviewing the evidence, and the Odom standard would apply. However, in its order denying the

appellant’s motion to suppress, the trial court ultimately cites its own observations of the videotape

recording in support of its determination of reasonable suspicion. Indeed, the court could cite

nothing else as Kohl did not testify at the suppression hearing or at trial that the appellant’s vehicle

engaged in any additional weaving during those moments on the videotape recording when it is

obscured from view.

In any event, our de novo review of the videotape of the traffic stop in this case

substantiates the trial court’s findings that the appellant’s vehicle drifted to the right side of its lane

as Kohl began to drive past the vehicle, and the vehicle wove slowly from one side of its lane to

another and back again on at least two additional occasions. Our review of the videotape also

substantiates the trial court’s observation of the presence of other vehicles in close proximity to the

appellant’s. Accordingly, we proceed to a determination of “whether these historical facts, viewed

from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or

to probable cause.” Ornelas, 517 U.S. at 696, 116 S. Ct. at 1661-1662.

The State effectively conceded in the trial court and now concedes on appeal that the

appellant was driving in compliance with Tenn. Code Ann. § 55-8-123(1) (1998), which statutory

provision states:

Whenever any roadway has been divided into two (2) or more clearly

marked lanes for traffic . . . [a] vehicle shall be driven as nearly as

practicable entirely within a single lane and shall not be moved from

-16-

such lane until the driver has first ascertained that such movement can

be made with safety . . . .

The State did, however, attempt to argue at the suppression hearing that the appellant was driving

his vehicle in violation of Metropolitan Nashville Code § 12.68.170, which section proscribes

driving carelessly “so as . . . to endanger the life, limb or property of any person.” As noted by the

trial court, Officer Kohl at no time claimed reliance upon or even knowledge of this metropolitan

code section in stopping the appellant’s vehicle. Nevertheless, “an arrest is not rendered unlawful

by the fact that an officer who has authority to make an arrest for a particular offense erroneously

states he is making an arrest for some other offense, or even for a cause which is not in fact an

offense, or states the offense inaccurately.” State v. Robinson, 622 S.W.2d 62, 68 (Tenn. Crim. App.

1980).4 Notably, the State does not include this argument in its brief on appeal. In any event, as we

conclude during our discussion below, the record simply does not reflect that, at the time of the

traffic stop, the appellant was currently endangering “the life, limb or property of any person.”

Metropolitan Nashville Code § 12.68.170.

Our supreme court has acknowledged in the past that one of the first indications of

drunk driving is “zigzagging down the road or driving in an unnatural fashion.” Ervin v. State, 268

S.W.2d 351, 353 (Tenn. 1954). Yet, more recently, in Binette, 33 S.W.3d at 219, our supreme court

refused to conclude that the weaving of an automobile within its own lane that is neither

“pronounced” nor “exaggerated” affords an officer reasonable suspicion of the driver’s intoxication.

Similarly, this court has noted its reluctance

to conclude that a person driving in a manner that an officer deems

“improper,” when the driving is not erratic or haphazard and does not

create a dangerous situation, is subject to seizure while proceeding

along a highway in a lawful manner. Only the hypothetical “perfect”

driver would not be subject to seizure if we were to hold that minor

driving “errors,” which neither violate our traffic code nor create a

hazard, indicate that a person might be intoxicated.”

4

See also United States v. Lester, 647 F.2d 8 69, 873 (8 th Cir. 1981)(holding that the “the va lidity of the arrest

should be judged by whether the arresting officers actually had probable cause for the arrest, rather than by whether the

officers gave the arrested person th e righ t reason for the arrest”); United States v. Saunders, 476 F.2d 5, 7 (5 th Cir.

1973)(holding that, “[w]hen an officer makes an arrest, which is properly supported by pro bable cause to arrest for a

certain offense, neither his subjective reliance on an offense for which no probable cause exists nor his verbal

announcement of the w rong offense vitiates the arrest”); State v. Munoz, 965 P.2d 349, 352 (N.M. Ct. App.

1998)(holding that “[t]he subjective belief of the officer does not in itself affect the validity of the [traffic] stop; it is the

evidence known to the officer that counts, not the officer’s view of the gov ernin g law ”); W AYNE R. L A F AVE , 1 S EARCH

A N D S E IZ U R E , § 1.4(d), at 110-11 1 (3d ed. 199 6)(o bserv ing that the exclusio n of evidenc e solely d ue to an officer’s

mistaken statement of the grounds for an arrest is unjustified “because such situations are often attributable to

complicated legal distinctions b etween offenses or an officer’s failure to record all the bases or the strongest basis upon

which the arrest was made”); cf. Florida v. Royer, 460 U.S. 491, 507, 103 S. Ct. 1319, 1329 (1983)(observing that “the

fact that the officers did not believe there was probable cause and proceed ed on a con sensual or Terry-stop rationale

wou ld not foreclose the State from justifying [defendan t’s] custody by proving p robable cause”).

-17-

State v. Smith, 21 S.W.3d 251, 258 (Tenn. Crim. App. 1999); see also State v. Don Palmer Black,

No. 03C01-9812-CR-00424, 1999 WL 1273510, at *5 (Tenn. Crim. App. at Knoxville, December

29, 1999).5

In Binette, 33 S.W.3d at 218 & 218 n. 2, the supreme court distinguished several

cases in which the “police observed the defendant weave in a pronounced manner to the outside and

inside boundaries of the lane.” In particular, we note that the court distinguished the case of State

v. Tompkins, 507 N.W.2d 736, 737 & 740 (Iowa Ct. App. 1993), in which the Iowa court found

reasonable suspicion of a defendant’s intoxication when the police officer followed the defendant’s

automobile for one mile and, during this distance, observed the defendant’s car weave in its own lane

of traffic between the center line and the right side boundary line four or five times. We have

difficulty distinguishing Tompkins from the instant case. Nevertheless, two members of the panel

of judges reviewing the instant case, including both the author of this opinion and Judge Smith,

participated in State v. Guy Binette, No. 03C01-9802-CR-00075, 1999 WL 427606 (Tenn. Crim.

App. at Knoxville, June 28, 1999), reversed by Binette, 33 S.W.3d at 220.6 Recollecting the

videotape of Binette’s traffic stop, we must conclude that the appellant’s vehicle in this case was

weaving in neither a pronounced nor exaggerated manner.

That having been said, the supreme court in Binette, 33 S.W.3d at 219, cautioned that

“[t]he number of times that a vehicle touches the center line or drifts within . . . a lane is not

dispositive . . . . Rather, . . . a court must consider the totality of the circumstances in determining

whether reasonable suspicion was present at the time a stop was initiated.” See generally Cortez,

449 U.S. at 417-418, 101 S. Ct. at 695. The totality of circumstances “includes, but is not limited

to, objective observations, information obtained from other police officers or agencies, information

obtained from citizens, and the rational inferences and deductions that a trained police officer may

draw from the facts and circumstances.” State v. Harper, 31 S.W.3d 267, 271 (Tenn. Crim. App.

2000); see also State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998).

5

Cf. People v. Perez, 221 Cal. Rptr. 776, 778 (Cal. App. Dep’t Super. Ct. 1985)(“[P]ronounced weaving within

a lane p rovides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such

weaving continu es for a sub stantial d istance ”); Roberts v . State, 732 So.2d 1127, 1128 (Fla. Dist. Ct. App.

1999)(“[C]ontinuous weaving, even if only within [a motorist’s own] lane, during the time that she was being followed

presented an objective basis for suspecting that she was und er the influence.”); State v. Bailey, 624 P.2d 66 3, 664 (Or.

Ct. App. 1981)(“[T]he observation of a vehicle weaving within its own lane for a substantial distance gives rise to

probab le cause to b elieve that the d river is driving under the influence of intoxicants and justifies a stop for further

investigation.”); Comm onwealth v. Baumgardner, 767 A.2d 106 5, 10 68 (Pa. Supe r. Ct. 200 1)(h oldin g that, in ord er to

provide an officer with reasonable suspicion to stop a motorist on suspicion of driving under the influence, the weaving

of an automobile within its own lane must be “‘excessive,’” “‘pronounced,’” or “‘exaggerated’” as opposed to “‘slight,’”

“‘minim um,’” or “‘su btle’”); Neal v. Com mo nw ealth, 498 S.E.2d 422, 425 (Va. Ct. App. 1998)(“An isolated instance

of mild weav ing within a lane is not sufficiently erratic to justify an investigatory stop [of an autom obile]. The test is

one of reasonab leness under ‘the totality of circumstances.’”).

6

Judge Smith filed a dissenting opinion.

-18-

Viewing the totality of circumstances in this case, we note that, in contrast to the

defendant in Binette, 33 S.W.3d at 219, the appellant did not successfully negotiate intersections,

stop lights, and winding roads immediately prior to Kohl’s traffic stop of his vehicle. Rather, he was

traveling on an interstate highway and was confronted with only occasional and gradual curves.

Moreover, in contrast to Binette, id. at 218, there was considerable traffic on the highway,

heightening the potential danger to other motorists. Certainly, an officer is not required to postpone

an investigative seizure until a motorist has a wreck. Cf. Ervin, 268 S.W.2d at 353. As noted by the

United States Supreme Court in Terry, 392 U.S. at 20-21, 88 S. Ct. at 1879 (quoting Camara v.

Municipal Court, 387 U.S. 523, 534-535 & 536-537, 87 S. Ct. 1727, 1735 (1967)), when assessing

the reasonableness of an investigatory seizure, “it is necessary ‘first to focus upon the governmental

interest which allegedly justifies official intrusion upon the constitutionally protected interests of the

private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing

the need to . . . seize . . . against the invasion which the . . . seizure . . . entails.’” See also Pulley, 863

S.W.2d at 33 (observing that “the gravity of the perceived harm is a crucial element in assessing the

reasonableness of an investigative Terry stop”). Nevertheless, even when viewed in the context of

the totality of circumstances, the weaving of the appellant’s vehicle in this case was simply

insufficient to justify Kohl’s stop of the appellant’s vehicle based upon a reasonable suspicion of the

appellant’s intoxication.

Underscoring our conclusion, we also reject any contention that the officer’s

suspicion that the appellant was falling asleep afforded her an independent basis for the seizure. In

Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978)(quoting Wayne v. United States,

318 F.2d 205, 212 (D.C. Cir. 1963)), the Supreme Court observed, “‘The need to protect or preserve

life or avoid serious injury is justification for what would be otherwise illegal absent an exigency

or emergency.’” Correspondingly, the Court has noted:

Because of the extensive regulation of motor vehicles and traffic, and

also because of the frequency with which a vehicle can become

disabled or involved in an accident on public highways, the extent of

police-citizen contact involving automobiles will be substantially

greater than police-citizen contact in a home or office. Some such

contacts will occur because the officer may believe the operator has

violated a criminal statute, but many more will not be of that nature.

Local police officers . . . frequently investigate vehicle accidents in

which there is no claim of criminal liability and engage in what, for

want of a better term, may be described as community caretaking

functions, totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute.

Cady v. Dombrowki, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973). Whether relying upon a

theory of exigency, a “community caretaking functions” doctrine, or both, several courts have

acknowledged that probable cause to believe or reasonable suspicion of criminal activity may not

be a necessary prerequisite to an officer’s investigative stop of an automobile or other seizure. See,

e.g., United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996); Russoli v. Salisbury Township, 126

F. Supp.2d 821, 846-848 (E.D. Penn. 2000); State v. Field, 847 P.2d 1280, 1283-1284 (Kan. 1993);

Rowe v. State, 769 A.2d 879, 890-891 (Md. Ct. App. 2001); State v. Pinkham, 565 A.2d 318, 319

-19-

(Me. 1989); Barrett v. Commonwealth, 462 S.E.2d 109, 111-112 (Va. 1995). However, as noted

previously, the appellant’s driving in this case did not constitute an imminent threat of injury or

death to himself or others, and Kohl herself conceded that her stop of the appellant’s automobile was

not “divorced from the detection, investigation, or acquisition of evidence relating to the violation

of a criminal statute.” Dombrowki, 413 U.S. at 441, 93 S. Ct. at 2528.7

iii.

Assuming in anticipation of further appellate proceedings that the traffic stop of the

appellant’s vehicle was lawful at its inception, an investigative detention may violate the Fourth

Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution

“by virtue of its intolerable intensity and scope.” Terry, 392 U.S. at 18-20, 88 S. Ct. at 1878-1879;

see also Simpson, 968 S.W.2d at 783. In other words, the officer’s interference with a person’s

constitutionally protected liberty interests must be both justified at its inception and reasonably

related in scope to those circumstances justifying the interference. Terry, 392 U.S. at 19-20, 88 S.

Ct. at 1879. With respect to the lawful scope of an investigative detention, a plurality of the United

States Supreme Court has elaborated that

an investigative detention must be temporary and last no longer than

is necessary to effectuate the purpose of the stop. Similarly, the

investigative methods employed should be the least intrusive means

reasonably available to verify or dispel the officer’s suspicion in a

short period of time.

Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-1326 (1983); see also Sharpe, 470 U.S.

at 686, 105 S. Ct. at 1575 (observing that, when assessing whether a detention is too long to be

justified as an investigative stop, the proper inquiry is whether the police “diligently pursued a means

of investigation that was likely to confirm or dispel their suspicions quickly, during which time it

was necessary to detain the defendant”); Simpson, 968 S.W.2d at 783 (citing Sharpe, 470 U.S. at

686, 105 S. Ct. at 1575).8 The reasonableness of the scope of a traffic stop, like the reasonableness

7

In State v. Jennifer Gale McC lure, No. W2000-01822-CCA-R3-CD, 2001 WL 720649, at *10 n. 2 (Tenn.

Crim. App. at Jackson, June 27 , 2001), we ack now ledged that, outside the context of an officer’s probable cause to

believe or reasonable suspicion of crim inal ac tivity, whether an intrusion upon an individual’s privacy or personal

security is completely pretextual may indeed be relevan t. Cf. also Edmond, 531 U.S. at 45-46, 121 S. Ct. at 456-457.

That said, we emph asize that we are referring here to Kohl’s belief that the appellant was intoxicated and not to the

app ellant’s contention that K ohl’s traffic sto p of his autom obile was otherwise pretextual.

8

Some courts have distinguished for analytical purposes between the “scope” of an investigative detention and

the “duration” of an investigative detention, the former term evidently referring exclusively to the investigative methods

employed by p olice d uring the deten tion. See, e.g., Un ited States v. Purcell, 236 F.3d 1274, 1277-1280 (11 th Cir. 2001).

W hile purely a matter of semantics, we find it more useful to consider both the duration of the traffic sto p an d the

investigative methods employed by police during the stop to be interrelated facets of the detention’s scope. Concededly,

the Supreme Court has indicated that, “if an investigative stop continues indefinitely, at some point it can no longer be

justified as an investigative stop,” regardless of the efficiency of investigative methods employed by the police. Sharpe,

470 U.S. at 685, 105 S. Ct. at 1575. Conversely, some courts have suggested that certain police investigative methods

may violate con stitutional pro scriptio ns reg ardless of their impact upon the duration of the traffic stop. Cf. United States

v. Ho lt, 264 F.3d 1215, 1228-1229 (10 th Cir. 2001)(en banc ), and United States v. Shabazz, 993 F.2d 43 1, 436 (5 th Cir.

(con tinued...)

-20-

of its justification, will be measured in objective terms without regard to the subjective intentions

of the officer. Robinette, 519 U.S. at 38, 117 S. Ct. at 420-421.

In this case, the appellant contends that Kohl’s inquiries concerning the appellant’s

destination, the ownership of his vehicle, his occupation, and his record of traffic violations and

arrests were unrelated to the justification for or purpose of the traffic stop, i.e., ascertaining whether

the appellant was intoxicated or falling asleep at the wheel. Similarly, he contends that Kohl’s

subsequent radio call to Officer Hunter requesting the presence of a drug-detection dog at the scene

of the traffic stop and her preparation of a Spanish “Consent to Search” form exceeded the lawful

scope of the traffic stop. Finally, the appellant contends that Kohl’s request to search his vehicle

additionally and unreasonably expanded his detention beyond its lawful scope.

The State responds that Kohl’s initial questioning of the appellant was consistent with

the purpose of the traffic stop, and the appellant’s responses contributed to the officer’s reasonable

suspicion that the appellant was transporting illegal drugs. Kohl’s reasonable suspicion, in turn,

justified any additional detention of the appellant occasioned by the officer’s radio call to Hunter and

her preparation of a Spanish “Consent to Search” form. The State does not address on appeal the

appellant’s complaint concerning Kohl’s request to search the appellant’s vehicle; however, in the

trial court, the State asserted that the officer’s request occurred following the conclusion of the traffic

stop and during an ensuing consensual encounter.

The trial court concluded that

the questions posed by Officer Kohl were not beyond the scope of the

traffic stop. As already indicated by the Court, Officer Kohl had

reasonable suspicion to believe that the defendant was intoxicated or

was about to fall asleep at the wheel. She testified that the defendant

explained that the reason he was tired was because he had been

driving since leaving Los Angeles the previous day (this is

implausible in and of itself) and had only slept briefly at a few rest

stops. The conversation logically continued with a discussion

concerning the defendant’s destination and ownership of the vehicle.

Officer Kohl’s testimony regarding the questions she asked also

indicated that she was trying to determine whether the defendant was

intoxicated or just tired.

In terms of the additional time it took Officer Kohl to fill out a

consent to search form and request that a drug detection dog be sent

to the location, the Court finds that these actions by the officer were

not unreasonable under the state and federal constitutions and were

8

(...continued)

1993). Gen erally, how ever, the reason ablen ess of a traffic stop’s duratio n w ill be judged b y reference to the police

investigative meth ods oc casioning that duration , and the reasonableness of police investigative methods will be judged,

at least in part, by reference to the time required for their completion.

-21-

supported by reasonable suspicion that the defendant was engaged in

criminal activity at the time she was filling out the form and making

the request. The defendant’s evasiveness in answering the officer’s

questions regarding his destination and the ownership of the vehicle,

along with the fact that the vehicle had California license plates,

created rational inferences and deductions that the defendant’s vehicle

was possibly stolen, or that he was possibly engaged in transporting

contraband. . . . While the evasiveness of the defendant’s responses

did not rise to the level of giving the officer probable cause to arrest

or search the defendant’s vehicle at that point during the stop, it did

give the officer reasonable suspicion to detain the defendant long

enough to fill out the consent form, request the drug detection dog

and to ask the defendant for his consent to search the vehicle.

In regard to the additional questioning concerning whether there was

contraband in the vehicle and whether the defendant would consent

to having the vehicle searched, the Court finds that these actions were

also based upon reasonable suspicion.

....

As to the detention of the defendant in the case at bar, the Court

credits Officer Kohl’s testimony and finds that any extended

detention of the defendant after the initial stop was based upon

reasonable suspicion. Even assuming Officer Kohl did not have

reasonable suspicion, the Court would find that the “extended”

detention in this case was minuscule and not unreasonable under

either the state or federal constitutions . . . .

We first address the legality of Kohl’s inquiries concerning the appellant’s

destination, the ownership of his vehicle, his occupation, and his record of traffic violations and

arrests. Exploring the appropriate scope of an investigative detention, our supreme court has

indicated that the police may employ investigative methods unrelated to the purpose of the detention

so long as the investigative methods do not prolong the detention and do not otherwise implicate

federal or state constitutional provisions. See England, 19 S.W.3d at 767-768. That having been

said, we note that courts have disagreed about whether a police officer’s questioning of a motorist

on a subject unrelated to the purpose of a traffic stop violates the Fourth Amendment even when the

questioning does not prolong the initial, valid seizure. Cf., e.g., United States v. Holt, 264 F.3d

1215, 1228-1229 (10th Cir. 2001), and United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993).

In any event, Officer Kohl’s questioning of the appellant in this case in fact prolonged the traffic

stop. Therefore, we must determine whether the questioning was related to Kohl’s initial purpose

of ascertaining whether the appellant was intoxicated or falling asleep.

-22-

Preliminarily, courts have held that requests for driver’s licenses and vehicle

registration documents, inquiries concerning travel plans and vehicle ownership, computer checks,

and the issuance of citations are investigative methods or activities consistent with the lawful scope

of any traffic stop. United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000); United States v.

Hill, 195 F.3d 258, 268 (6th Cir. 1999); United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998).

But see United States v. Garcia, 205 F.3d 1182, 1187 (9th Cir. 2000)(holding that officer’s inquiries

concerning driver’s travel plans did not exceed the scope of traffic stop when “it was standard

procedure to delay drivers for a short period of time to wait for an arrest report,” the conversation

did not cause any additional delay, and the conversation did not alter the subsequent chain of events).

However, they have generally done so in the context of traffic stops based upon probable cause to

believe that the motorist committed a traffic violation. In the context of a traffic stop based upon

reasonable suspicion, at least one court has ruled that the stop must end as soon as the suspicion is

dispelled and may not be prolonged even to perform the limited functions enumerated above. United

States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994). Nevertheless, we conclude that requesting

a motorist’s identification and engaging him in a brief conversation by asking routine questions

concerning his destination and purpose and the ownership of his vehicle may be reasonably related

to ascertaining the cause of erratic or irregular driving and determining whether the motorist poses

a danger to others on the road. See, e.g., United States v. Barahona, 990 F.2d 412, 416 (8th Cir.

1993). The difficulty in the instant case lies in Kohl’s concession at the suppression hearing that,

after discussing with the appellant “his length of travel” and observing him retrieve his driver’s

license, she was satisfied that he was not intoxicated. Moreover, at that point, she had obtained an

explanation for the appellant’s weaving. While the appellant’s admitted fatigue justified Kohl’s

further inquiry regarding his precise destination in Georgia, Kohl’s subsequent inquiries concerning

the ownership of the vehicle in which the appellant was driving, the appellant’s occupation, and the

appellant’s record of traffic violations and arrests were inconsistent with the original purpose of the

traffic stop.

Of course, “[a]fter [Kohl] satisfied [herself] that [the appellant] was not drunk or

otherwise impaired, [she] [was] justified in continuing to detain [the appellant] if, by then, [she] had

reasonable and articulable suspicion that [the appellant] was engaged in other criminal activity.”

United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998); see also, e.g., United States v. Murillo,

255 F.3d 1169, 1174 (9th Cir. 2001). As previously indicated, a determination of reasonable

suspicion depends upon the totality of circumstances “as understood by those versed in the field of

law enforcement.” Cortez, 449 U.S. at 418, 101 S. Ct. at 695. Again, the trial court concluded that

the appellant’s “evasiveness in answering the officer’s questions regarding his destination and the

ownership of the vehicle, along with the fact that the vehicle had California license plates,” afforded

Kohl a reasonable suspicion that the appellant’s vehicle was stolen or the appellant was transporting

contraband. The State additionally notes the appellant’s virtually nonstop journey from California,

reflected by the litter in the appellant’s vehicle. Finally, the officer noted the presence of air

freshener in the appellant’s vehicle.

A motorist’s inability to produce proof of ownership of his vehicle or authorization

to operate the vehicle may justify a reasonable suspicion of criminal activity, United States v.

Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998), including the transportation of contraband, United

-23-

States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990). Moreover, inconsistencies in information

given to an officer during a traffic stop, such as the appellant’s statements concerning the identity

of the owner of the vehicle that he was driving, may give rise to reasonable suspicion of criminal

activity. United States v. Smith, 263 F.3d 571, 592 (6th Cir. 2001). However, we reiterate that

Kohl’s questions concerning the ownership of the vehicle exceeded the lawful scope of the traffic

stop.

Turning to the remaining grounds of reasonable suspicion, a motorist’s lack of

knowledge concerning his precise destination and a motorist’s out-of-state license plate will not,

without more, support an officer’s reasonable suspicion of criminal activity. United States v. Ramos,

42 F.3d 1160, 1163 (8th Cir. 1994). As to Kohl’s observation of a can of air freshener in the

appellant’s vehicle, we note that she only detected a slight odor of the air freshener emanating from

the vehicle. Thus, notwithstanding her knowledge of the frequent use of air freshener by drug

couriers to mask the odor of illegal drugs, her observation minimally strengthened her suspicion of

criminal activity. Cf., e.g., West, 219 F.3d at 1178; United States v. Patterson, 65 F.3d 68, 71 (7th

Cir. 1995); United States v. Rivera, 595 F.2d 1095, 1099 (5th Cir. 1979). Finally, unusual travel

plans may support an officer’s reasonable suspicion of criminal activity. Sokolow, 490 U.S. at 9,

109 S. Ct. at 1586-1587. In this case, the appellant’s travel plans included driving virtually nonstop

from California to Georgia in two days. Nevertheless, while acknowledging Officer Kohl’s

experience and specialized training, we must conclude that the totality of circumstances did not

support a reasonable suspicion of criminal activity sufficient to warrant expanding the scope of the

traffic stop absent the appellant’s responses to Kohl’s questioning concerning the ownership of the

vehicle. Cf. Murillo, 255 F.3d at 1174 (evidence of a long road trip in a short time frame in a rental

car contributed along with other factors to officer’s reasonable suspicion of drug-related criminal

activity), and United States v. Wood, 106 F.3d 942, 947 (10th Cir. 1997)(the presence of fast food

wrappers in a vehicle will not otherwise support an officer’s reasonable suspicion of criminal

activity). In so concluding, we note the United States Supreme Court’s recent observation that

several factors taken together may form a particularized and objective basis for a Fourth Amendment

intrusion even when each individual factor alone is susceptible to innocent explanation. United

States v. Arvizu, __ U.S. __, __, 122 S. Ct. 744, __ (2002). The factors in this case, however,

formed no more than an inchoate and unparticularized hunch of criminal activity.

Accordingly, other than advising the appellant to rest prior to continuing his journey,

Kohl was required to terminate the traffic stop following her inquiries concerning the appellant’s

destination. Instead, the detention continued until Kohl’s return to the appellant of his driver’s

license and vehicle registration document and her issuance of a warning citation, approximately

thirteen minutes following the traffic stop’s inception. “When a police officer issues a traffic citation

or warning and returns a driver’s license and registration, a traffic stop ceases to be a seizure for

purposes of the Fourth Amendment to the United States Constitution and Article I, Section 7 of the

Tennessee Constitution and becomes a consensual encounter unless a driver has ‘objectively

reasonable’ cause to believe that he or she is not free to leave.” See State v. McCrary, 45 S.W.3d

36, 42 (Tenn. Crim. App. 2000), perm. to appeal denied, (Tenn. 2001), and cases cited therein. The

determination of the point at which the traffic stop ceases to be a seizure is ultimately a question of

law. Id.; see also State v. Daniel, 12 S.W.3d 420, 423-424 (Tenn. 2000)(“[T]he trial court’s

-24-

conclusion that a seizure did not occur is a conclusion of law derived from an application of the law

to the undisputed facts of this case.”).

Our conclusion that the traffic stop terminated upon Kohl’s return to the appellant of

his driver’s license and vehicle registration document and her issuance of a warning citation entails

our resolution of the appellant’s further complaint that Kohl’s request for his consent to a search of

his vehicle likewise exceeded the lawful scope of the traffic stop.9 In particular, the record reflects

that Kohl’s request for the appellant’s consent occurred following her return to the appellant of his

driver’s license and vehicle registration document and her issuance of a warning citation. Moreover,

Kohl informed the appellant that he was free to leave prior to requesting his consent, cf, e.g.,

Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 216-221, 104 S. Ct. 1758, 1762-

1765 (1984), and neither an officer’s request for a motorist’s consent to a search of his vehicle nor

an officer’s inquiry concerning the presence of weapons or illegal drugs in the vehicle, without more,

constitutes objectively reasonable cause to believe that the motorist is not free to leave. McCrary,

45 S.W.3d at 43, and cases cited therein. Finally, we do not believe that the mere presence of a

second patrol car transformed the encounter into a seizure, particularly as the appellant was unaware

that Kohl had requested the presence of the additional officer, and Hunter and Lou remained in their

patrol car until the appellant consented to a search of his vehicle. Accordingly, Kohl’s request for

the appellant’s consent to a search of his vehicle did not implicate the Fourth Amendment to the

United States Constitution or Article I, Section 7 of the Tennessee Constitution.

iv.

Focusing next, for reasons made apparent later in this opinion, upon the consent itself

and the consequent search of the appellant’s vehicle, it is well settled that a search conducted

pursuant to a voluntary consent is yet another 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)(citing

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)). In contrast to the determination

of when a seizure has occurred, the determination of whether a consent to a search was voluntarily

given is a question of fact to be determined from the totality of circumstances. Schneckloth, 412

U.S. at 227, 248-249, 93 S. Ct. at 2047-2048, 2059; Ashworth, 3 S.W.3d at 29. Significantly, the

appellant does not dispute the trial court’s finding that the appellant’s consent to the search of his

vehicle was, in fact, “‘unequivocal, specific, intelligently given, and uncontaminated by duress or

coercion,’” Simpson, 968 S.W.2d at 784 (citing State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992));

Ashworth, 3 S.W.3d at 29; see also Schneckloth, 412 U.S. at 248-249, 93 S. Ct. at 2059, and the

record does not preponderate otherwise. Rather, as noted earlier, the appellant asserts that the

officers’ search in this case exceeded the scope of his consent.

9

In this regard, w e ack now ledge that the State failed to address in its brief the constitutionality of Kohl’s

request for the appellant’s consent, but “this Court should be free to examine the validity o f a search [o r othe r Fou rth

Am end me nt intru sion] using any appropriate legal analysis wh ere the reco rd in th e case perm its us to do so.” State v.

James A . Hearn, No. 01C01-9511-CR-00377, 1997 WL 537089, at *2 (Tenn. Crim. App. at Nashville, September 2,

1997)(Smith, J., concurring); see also State v. Jose Roberto Ortiz, No. M1998-00483-CCA-R3-CD, 1999 WL 1295988,

at *7 (Tenn. Crim . App. at Nashville, Decem ber 30, 1999 ).

-25-

Initially, regardless of the precise scope of the appellant’s consent, the drug-detection

dog Lou signaled to the officers the presence of illegal drugs in the appellant’s vehicle. “A positive

indication by a properly-trained dog is sufficient to establish probable cause for the presence of a

controlled substance.” United States v. Navarro-Camacho, 186 F.3d 701, 706 (6th Cir. 1999); see

also England, 19 S.W.3d at 768. Moreover, in Carroll, 267 U.S. at 149, 45 S. Ct. at 283-284, the

United States Supreme Court held that an officer’s probable cause to believe that an automobile

contains contraband will authorize the warrantless search of the automobile. See also Maryland v.

Dyson, 527 U.S. 465, 466-467, 119 S. Ct. 2013, 2014 (1999). Indeed, in Carroll, 267 U.S. at 132,

45 S. Ct. at 280, the Court concluded that probable cause supported the officers’ search of the

defendant’s vehicle despite the officers’ removal of the upholstering on the seats. In other words,

application of the automobile exception to the warrant requirement authorizes even the destructive

dismantlement of portions of an automobile in which contraband may be secreted. See, e.g.,

California v. Acevedo, 500 U.S. 565, 571, 111 S. Ct. 1982, 1987 (1991)(noting the Court’s

application of the Carroll doctrine to “searches of integral parts of the automobile itself”); see also,

e.g., Patterson, 65 F.3d at 71 (noting that probable cause would authorize dismantling the “interior

cover” of a truck’s tailgate); United States v. Strickland, 902 F.2d 937, 942 (11th Cir. 1990)(noting

that a search based upon probable cause may include some injury to the vehicle or items within the

vehicle if the damage is reasonably necessary to gain access to a specific location where contraband

is likely to be found).

That having been said, a finding of probable cause on the basis of a drug-detection

dog’s indication of the presence of illegal drugs should turn on the reliability of the dog, and the trial

court should ensure that the dog is reliable by an appropriate finding of fact. England, 19 S.W.3d

at 768. Factors relevant to a dog’s reliability include the dog’s training, the dog’s “track record,”

with emphasis on the amount of false negatives and false positives the dog has furnished, and the

officer’s training and experience with this particular dog. Id. The trial court in this case did not

directly address the issue of Lou’s reliability as it did not have the benefit of our supreme court’s

decision in England. The court did, nevertheless, note Hunter’s testimony concerning both his own

certification as a trainer of drug-detection dogs and Lou’s training in drug detection. We note,

however, that, although Hunter testified that drug-detection dogs are generally trained by their

handlers, he did not explicitly recount his own training and experience with Lou, nor did he testify

concerning Lou’s “track record.” Cf. State v. Selina G. Harrelson, No. W1999-00521-CCA-R3-CD,

2000 WL 1051854, at *6 (Tenn. Crim. App. at Jackson, July 28, 2000), perm. to appeal denied,

(Tenn. 2001). The Sixth Circuit Court of Appeals has observed:

When the evidence presented, whether testimony from the dog’s

trainer or records of the dog’s training, establishes that the dog is

generally certified as a drug detection dog, any other evidence,

including the testimony of other experts, that may detract from the

reliability of the dog’s performance properly goes to the “credibility”

of the dog. Lack of additional evidence, such as documentation of

the exact course of training, similarly would affect the dog’s

reliability.

-26-

United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994). In any event, we need not evaluate the

evidence of Lou’s reliability as we conclude that, in fact, the officers did not unlawfully exceed the

scope of the appellant’s consent to search.

The trial court in this case concluded that the “search conducted by police did not

exceed the consent granted by the defendant.” The scope of a party’s consent is measured by a

standard of “‘objective’ reasonableness - - what would the typical reasonable person have understood

by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248, 251, 111

S. Ct. 1801, 1803-1804 (1991). “Objective reasonableness is a question of law that is reviewed de

novo.” United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993). But cf. United States v.

Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993).

The understanding of a “typical reasonable person” will generally depend upon the

object of the search. Jimeno, 500 U.S. at 251, 111 S. Ct. at 1804. Thus, in Jimeno, the United States

Supreme Court concluded that, when an officer informs a motorist that he is searching for narcotics,

it is objectively reasonable for the officer to conclude that a general consent to search the motorist’s

vehicle includes consent to search containers within the vehicle that might contain drugs. Id. More

importantly, “‘courts have given broad scope to a consent to a general search of a vehicle for

narcotics, interpreting the consent to include non-destructive dismantlement of parts of the vehicle,

particularly when the defendant was present at the time and voiced no objection.’” State v. Garcia,

986 P.2d 491, 493-494 (N.M. App. Ct. 1999); see also United States v. Zapata, 180 F.3d 1237, 1243

(11th Cir. 1999)(holding that a police officer did not exceed the scope of a general consent when he

removed an interior door panel of an automobile with his fingers, dislocating two plastic clips; “a

search does not exceed the scope of consent merely because an officer forces open a secured

compartment that reasonably may contain the objects of the search”); United States v. Flores, 63

F.3d 1342, 1362 (5th Cir. 1995)(holding that police did not exceed scope of general consent by

removing two screws and two vent covers from the interior panels of an automobile); United States

v. Torres, 32 F.3d 225, 231-232 (7th Cir. 1994)(indicating that general consent encompassed the

removal of screws fastening a wooden compartment of a trailer); cf. United States v. Alverez, 235

F.3d 1086, 1088-1089 (8th Cir. 2000)(general consent to search a vehicle likely did not encompass

the cutting of the spare tire), and Martel-Martines, 988 F.2d at 858 (holding that the defendant’s

failure to object rendered it objectively reasonable for officers to conclude that the his general

consent to a search of his truck included consent to punch a small hole in a concealed compartment).

The record in this case reflects that the appellant was aware of the object of the

officer’s search, namely illegal drugs. Moreover, the “Consent to Search” form signed by the

appellant provided, “I . . . give my consent to Agents of the 20th Judicial District Drug Task Force,

to conduct a complete search of my entire vehicle and contents within it.” The search of the officers

pursuant to this consent extended to the removal of the screws from the molding covering one of the

vehicle’s rocker panels and the molding itself, actions unaccompanied by any objection from the

appellant and constituting “non-destructive dismantlement” of a portion of the vehicle. Indeed, the

appellant had previously stood by silently while the officers engaged in other “non-destructive

dismantlement” of his vehicle. Accordingly, we cannot conclude that the removal of the screws and

the molding was outside the scope of the appellant’s general consent. Having removed the screws

-27-

and molding, the officers could insert a probe into the pre-existing screw holes, thereby discovering

the presence of a foreign object inside the normally hollow rocker panel and, particularly in

combination with the drug-detection dog’s positive indication of the presence of illegal drugs,

establishing the probable cause necessary to extend the search beyond the scope of the appellant’s

consent.

v.

Finally, we address an issue largely neglected by both parties in this appeal, namely

whether the exclusionary rule requires the suppression of the methamphetamine seized by police in

the instant case. State v. James A. Hearn, No. 01C01-9511-CR-00377, 1997 WL 537089, at *2

(Tenn. Crim. App. at Nashville, September 2, 1997)(Smith, J., concurring); see also State v. Jose

Roberto Ortiz, No. M1998-00483-CCA-R3-CD, 1999 WL 1295988, at *7 (Tenn. Crim. App. at

Nashville, December 30, 1999), perm. to appeal denied, (Tenn. 2000). Although we have concluded

that Kohl’s traffic stop of the appellant violated the Fourth Amendment to the United States

Constitution and Article I, Section 7 of the Tennessee Constitution both at its inception and in its

scope, the United States Supreme Court has observed, “The question whether the exclusionary rule’s

remedy is appropriate in a particular context has long been regarded as an issue separate from the

question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated

by the police conduct.” Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 2324 (1983); see also,

e.g., Daniel, 12 S.W.3d at 428.

In Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963), the

Supreme Court broadly observed that the exclusionary rule operates to bar the admissibility of

evidence obtained both directly and derivatively from an unlawful invasion of an individual’s

privacy or personal security. However, the Court declined to hold that “all evidence is ‘fruit of the

poisonous tree’ simply because it would not have come to light but for the illegal actions of the

police.” Id. at 487-488, 417. Instead, the court held that, in determining whether physical or verbal

evidence is the fruit of a prior illegality, the “apt question . . . is ‘whether, granting establishment of

the primary illegality, the evidence to which instant objection is made has been come at by

exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the

primary taint.’” Id. at 488, 417. Thus, a consent to a search that is preceded by an unlawful seizure

may nevertheless validate the search if the consent is both (1) voluntary, Simpson, 968 S.W.2d at

784; Schneckloth, 412 U.S. at 248-249, 93 S. Ct. at 2059; and (2) “sufficiently an act of free will to

purge the primary taint of the unlawful invasion,” Wong Sun, 371 U.S. at 486, 83 S. Ct. at 416-417;

cf. Brown v. Illinois, 422 U.S. 590, 602, 95 S. Ct. 2254, 2261 (1975); United States v. Peters, 10

F.3d 1517, 1534 (10th Cir. 1993); see also United States v. Chavez-Villareal, 3 F.3d 124, 127-128

(5th Cir. 1993); United States v. Richardson, 949 F.2d 851, 858 (6th Cir. 1991). “The first prong

focuses on coercion, the second on the causal connection with the constitutional violation.” Chavez-

Villareal, 3 F.3d at 127.

As previously noted, the appellant consented to a search of his vehicle following the

conclusion of the unlawful traffic stop in this case. Once again, the trial court found and it is

undisputed that the appellant’s consent was voluntary. Of course, due to its determination that

Kohl’s traffic stop of the appellant comported with the Fourth Amendment of the United States

-28-

Constitution and Article I, Section 7 of the Tennessee Constitution, the trial court did not address

the issue of attenuation. Nevertheless, the issue of attenuation is one that this court reviews de novo,

State v. Ford, 30 S.W.3d 378, 380 (Tenn. Crim. App. 2000), and the record before this court is

adequate for purposes of our review.

To determine whether the causal connection between an illegal seizure and a consent

to search has been broken, a court should consider the following factors set forth by the United

States Supreme Court in Brown, 422 U.S. at 603-604, 95 S. Ct. at 2261-2262: (1) the temporal

proximity of the illegal seizure and the consent; (2) the presence of intervening circumstances; and

(3) the purpose and flagrancy of the official misconduct. The State carries the burden of establishing

sufficient attenuation. Id. at 604, 2262.

We acknowledge that the appellant consented to a search of his vehicle within

minutes of the conclusion of the traffic stop in this case. Moreover, any reasonable suspicion arising

during an unlawful traffic stop will not attenuate the connection between the seizure and a

subsequent consent to a search. United States v. Ward, 961 F.2d 1526, 1534-1535 (10th Cir. 1992),

overruled on other grounds by United States v. Little, 18 F.3d 1499, 1506 (10th Cir. 1994); cf. United

States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997); State v. Robert Lee Mallard, No. M2000-

00351-R3-CD, 2001 WL 178461, at **4-5 (Tenn. Crim. App. at Nashville, February 23, 2001).

Conversely, as already noted, Kohl did not require reasonable suspicion of criminal activity in order

to request the appellant’s consent to search his vehicle, and Kohl did not use knowledge acquired

during the unlawful traffic stop to elicit a consent from the appellant. Cf. United States v. Hearn,

496 F.2d 236, 241-244 (6th Cir. 1974). In fact, Kohl’s preparation of a Spanish “Consent to Search”

form during the appellant’s detention was intended to ensure that any subsequent consent was an

independent act of free will. Correspondingly, although Kohl radioed Officer Hunter during the

appellant’s detention, she did not inform the appellant that she had requested Hunter’s and Lou’s

presence, nor did she indicate any intention to seek their assistance until and unless the appellant

consented to a search of his vehicle. In other words, she did not obtain the appellant’s consent by

exploiting the fruit of the unlawful detention. Indeed, examples of circumstances sufficient to create

a discontinuity between an illegal traffic stop and a consent to search include the officer’s

communication to the driver that he is free to leave prior to requesting consent to search and her

advice to the driver of his right to refuse consent. United States v. Ramstad, 120 F. Supp.2d 973,

980 (D. Kan. 2000); see also United States v. Fernandez, 18 F.3d 874, 882 (10th Cir. 1994); United

States v. Ramos, 42 F.3d 1160, 1163-1164 (8th Cir. 1994); Bretti v. Wainwright, 439 F.2d 1042,

1045-1046 (5th Cir. 1971). The record in this case reflects both of the above circumstances. In

particular, we note that, notwithstanding the language barrier between Kohl and the appellant, the

appellant emphasized at trial that he understood that he was free to leave and that he was free to

refuse consent to the search. Finally, contrary to the appellant’s assertions in his brief, we do not

believe that the official misconduct in this case, i.e., the traffic stop, was either flagrant or

characterized by “a quality of purposefulness.” Brown, 422 U.S. at 605, 95 S. Ct. at 2262.

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Whether Kohl’s misconduct was flagrant or purposeful is particularly important to

our attenuation analysis in light of the deterrent purposes of the exclusionary rule. As one noted

authority has observed, “the underlying purpose of the ‘attenuated connection’ test is to mark ‘the

point of diminishing returns of the deterrence principle.’” WAYNE R. LA FAVE, 5 SEARCH AND

SEIZURE, § 11.4(a), at 235 (3d ed. 1996). That the impropriety of the seizure in this case was not

obvious and that the point of diminishing returns was reached is apparent from the trial court’s

agreement with Kohl that the appellant’s driving “was clearly characteristic of a driver who was

either intoxicated or about to fall asleep at the wheel,” and is illustrated by the legitimate

disagreements between judges and courts in Binette, No. 03C01-9802-CR-00075, 1999 WL 427606,

at **1-2, and Binette, 33 S.W.3d at 220-222, concerning the degree of weaving within a lane that

will support an officer’s reasonable suspicion of the driver’s intoxication. Cf. Chavez-Villareal, 3

F.3d at 128 (“[T]he required indicia of individualized suspicion were so utterly lacking herein that

only suppression will serve the deterrence function of the exclusionary rule.”). Similarly, while the

scope of the traffic stop exceeded its justification, the lack of reasonable suspicion justifying the

officer’s expansion of that scope was not indisputable, and, the thirteen-minute detention did not

otherwise amount to an instance of “flagrant” misconduct. Also, we do not believe that Kohl’s status

as a member of the Highway Interdiction Unit alone preponderates against the trial court’s manifest

accreditation of her testimony concerning the purpose of the traffic stop. In this regard, we

emphasize that there is no evidence before this court of the pattern of abuse of authority that so

concerned Circuit Judge Clay in his concurring opinion in United States v. Freeman, 209 F.3d 464,

467-472 (6th Cir. 2000).

In sum, we conclude that the appellant’s consent to the search of his vehicle and the

officers’ consequent discovery of 40.1 pounds of methamphetamine were not the fruit of Kohl’s

unlawful traffic stop of the appellant. Therefore, we cannot say that the trial court erred in denying

the appellant’s motion to suppress with respect to the methamphetamine seized from the appellant’s

vehicle. We note, however, that the trial court should have suppressed at trial Kohl’s testimony

concerning her observations during the unlawful detention and until her return to the appellant of

his driver’s license and vehicle registration document and her issuance of a warning citation.

Because we are reversing the appellant’s conviction on other grounds and remanding this case for

a new trial, the court below should limit Kohl’s testimony accordingly.

B. Testimony by Officer Daniel Rosales

The appellant next challenges the trial court’s admission at trial of the testimony of

Officer Rosales that criminal organizations dealing in illegal drugs select only trusted individuals

to transport their goods and that such organizations calculate the courier’s fee according to the

amount of illegal drugs transported. The appellant grounds his complaint upon the following two

arguments: (1) the State failed to timely notify him of its intention to call Rosales as a witness,

thereby violating Tenn. R. Crim. P. 12; and (2) Rosales’ testimony was inadmissible pursuant to

Tenn. R. Evid. 702 and 403.

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The State responds that “there [was] no prolonged delay between the State’s decision

to call [Rosales as a witness] and the defendant’s receipt of notification.” Moreover, the State argues

that the exclusion of Rosales’ testimony was not the appropriate remedy for any delay as the remedy

of a continuance was available to the appellant. Finally, the State asserts that “Officer Rosales’

testimony substantially assisted the trier of fact in this case in that it established that the car

contained nearly two million dollars of methamphetamine, that drug couriers were paid by the

amount being transported, and that drug dealers did not cavalierly relinquish control of such

expensive merchandise.”

i.

The record reflects that the appellant filed a motion for discovery on October 19,

1999. Among other items, he requested “[t]he correct names and current addresses of any witness

the State intends to use in its case in chief and particularly those whose names are not endorsed on

the Indictment.” The appellant cited Tenn. Code Ann. § 40-17-106 (1997) in support of his request.

The prosecutor filed a response on October 28, 1999, but did not name any additional witnesses.

Rather, he stated, “Defense counsel may assume that any specific request which is not answered is

either not discoverable or the information requested is not available.”

On May 8, 2000, one week before the appellant’s trial, the prosecutor sent to defense

counsel a letter notifying him that, “[a]s I had advised you earlier,” the State would be calling Officer

Daniel A. Rosales to testify as an expert witness. The letter arrived in defense counsel’s office on

May 9 and contained a brief description of Rosales’ proposed testimony. On May 10, 2000, defense

counsel filed a motion in limine asking that the trial court order the prosecutor to refrain at trial from

referring to Rosales’ testimony pending a hearing to determine its admissibility.

On May 16, 2000, the second day of the appellant’s trial, the trial court conducted a

jury-out hearing to address the admissibility of Rosales’ testimony. During the jury-out hearing,

Rosales indicated that he had been contacted by a DEA agent concerning the appellant’s case

approximately two or three weeks prior to trial and had first spoken with the prosecutor

approximately one and one-half weeks prior to trial.10 Moreover, Rosales communicated to the trial

court the substance of his proposed testimony. In addition to the testimony summarized earlier in

this opinion, Rosales indicated that he would testify that he had never encountered a drug courier

who was unaware that he was transporting contraband.

The parties’ arguments before the trial court were substantially similar to their

positions in this appeal. We additionally note defense counsel’s explanation to the trial court for his

failure to request a continuance due to the timing of the State’s notice concerning Rosales’

10

Similarly, Rosales later testified before the jury that he had first spoken with the prosecutor at most one and

one-half or two weeks prior to trial, but he was unsure of the precise time.

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testimony. Specifically, defense counsel asserted, “My client has been sitting in jail since May 9th.

His family flew in from Los Angeles.”

The trial court concluded that defense counsel had waived any objection to the timing

of the State’s notice by proceeding to trial without requesting a continuance. Moreover, the court

ruled that Rosales could testify as an expert in the field of “drug operations, modus operandi,”

observing,

[T]he main issue is . . . is the probative value [of Rosales’ testimony]

outweighed by the prejudicial effect to Mr. Garcia? And, I think to

some degree it is; that is, to the issues about . . . Officer Rosales’s . .

. the proffered testimony of Officer Rosales gave about he’s never

interviewed anyone that did not know that they were transporting

drugs, crosses the line in terms of becoming speculative in the

Court’s opinion.

But I do think his proffer concerning the drug organizations, the

hierarchy of drug organizations, mules, transporters, whatever you

want to call them, the fact that they’re trusted and paid for

transportation - - for transporting illegal substances, and the reasons

why he would think that they would know are areas that would

substantially assist this jury in determining an issue in this case; that,

is, did Mr. Garcia knowingly possess this? Now, [Rosales has]

already said, and General Zimmermann said, that he does not have

any information about Mr. Gar[ci]a in particular; but, that in and of

itself does not make it inadmissible. I mean, he can in general . . . as

I’ve stated, describe the reasons why a transporter would know

without . . . eliciting - - the State eliciting through him that no one

he’s ever interviewed did not know. I mean, I think the areas about

the value of the substance . . . and, it goes to the weight in terms of

whether that’s Houston or LA or Nashville or Georgia. Uh - - but,

the value - - uh - - as I’ve already stated, the hierarchy, in general, and

using people that they trust . . . and getting paid . . . and, that - - that

general testimony about what a mule does [are admissible].

ii.

We first address the appellant’s complaint concerning the timing of the State’s notice

to defense counsel that Rosales would testify at the appellant’s trial. The appellant apparently relies

wholly upon Tenn. R. Crim. P. 12(d), which provides:

Notice by the State of Intention to Use Evidence:

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(1) At the Discretion of the State. - At the arraignment or as soon

thereafter as is practicable, the state may give notice to the defendant

of its intention to use specified evidence at trial in order to afford the

defendant an opportunity to raise objections to such evidence prior to

trial under subdivision (b)(3) of this rule.

(2) At the Request of the Defendant. - At the arraignment or as soon

thereafter as is practicable, the defendant may, in order to afford an

opportunity to move to suppress evidence under subdivision (b)(3) of

this rule, request notice of the state’s intention to use . . . any

evidence which the defendant may be entitled to discover under Rule

16 . . . .

Notwithstanding the appellant’s reliance upon the above rule, we note our supreme court’s

observation in State v. Cook, 9 S.W.3d 98, 101 (Tenn. 1999)(quoting United States v. Barletta, 644

F.2d 50, 54 (1st Cir. 1981)), that “‘[a]t least as used in 12(b), . . . [m]otions to suppress are . . .

“objections to evidence on the ground that it was illegally obtained”, including “evidence obtained

as a result of an illegal search” and “other forms of illegality such as the use of unconstitutional

means to obtain a confession.”’” Accordingly, because Rosales’ testimony did not comprise illegally

obtained evidence, Tenn. R. Crim. P. 12(d) is irrelevant to the resolution of this issue. Moreover,

assuming the applicability of Tenn. R. Crim. P. 12(d), Tenn. R. Crim. P. 16 does not authorize

pretrial discovery of the names and addresses of State’s witnesses. State v. Harris, 839 S.W.2d 54,

69 (Tenn. 1992); State v. Martin, 634 S.W.2d 639, 643 (Tenn. Crim. App. 1982); State v. Jimmy

Clyde Jones, No. 02C01-9703-CC-00120, 1997 WL 777077, at *8 (Tenn. Crim. App. at Jackson,

December 18, 1997).

Rather, the pertinent authority is Tenn. Code Ann. § 40-17-106, which statute the

appellant relied upon in the trial court but largely and inexplicably ignores on appeal, thereby

waiving any reliance thereon. Tenn. R. App. P. 27(a)(7); Tenn. Ct. of Crim. App. Rule 10(b).

Notwithstanding waiver, the appellant is not entitled to relief under Tenn. Code Ann. § 40-17-106.

That statute provides that “[i]t is the duty of the district attorney general to endorse on each

indictment or presentment, at the term at which the same is found, the names of such witnesses as

the district attorney general intends shall be summoned in the cause.” Id. The statute is directory

rather than mandatory and does not necessarily disqualify from testifying a witness whose name has

been omitted from the indictment. Harris, 839 S.W.2d at 69. Rather, our supreme court has

indicated that a defendant is not entitled to relief absent a showing of prejudice, bad faith, or undue

advantage. Id.; see also State v. Allen, 976 S.W.2d 661, 667 (Tenn. Crim. App. 1997); State v.

Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996); State v. Joel Guilds, No. 01C01-9804-

CC-00182, 1999 WL 333368, at *3 (Tenn. Crim. App. at Nashville, May 27, 1999). Specifically

with respect to prejudice, “‘it is not the prejudice which resulted from the witness’ testimony but the

prejudice which resulted from the defendant’s lack of notice which is relevant.’” Kendricks, 947

S.W.2d at 883. The determination of whether a witness omitted from the indictment should testify

lies within the sound discretion of the trial court. Allen, 976 S.W.2d at 667; Kendricks, 947 S.W.2d

at 883.

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We cannot conclude that the trial court abused its discretion in the instant case. As

noted by the State, the appellant was aware for at least six days prior to trial that Rosales intended

to testify. Moreover, nothing in the record disputes the prosecutor’s reference in his May 4, 1999

letter to a prior discussion with defense counsel concerning Rosales’ testimony. Significantly, the

appellant has failed to state what more he could or would have done if he had been provided

Rosales’ name at an earlier date, and he therefore demonstrates neither any prejudice suffered by

himself nor any undue advantage enjoyed by the State. See, e.g., State v. Hutchison, 898 S.W.2d

161, 170-171 (Tenn. 1994). We also agree with the State that the appellant’s failure to request a

continuance must be weighed in the balance against the exclusion of Rosales’ testimony. See, e.g.,

Allen, 976 S.W.2d at 667. In this regard, we disagree with the appellant that “it is beyond belief”

that the prosecutor did not decide to use Rosales’ testimony well before issuing the appellant notice.

Both the trial court and the parties remarked upon the unusual nature of Rosales’ testimony. It is

certainly possible that the idea to call Rosales as a witness was the result of brainstorming occurring

in the final weeks prior to trial and required some degree of reflection prior to approval. In short,

the appellant has simply failed to carry his burden of demonstrating his entitlement to relief. In any

event, the appellant’s true complaint lies with the content of Rosales’ testimony, an issue we now

turn to address.

iii.

In State v. Coley, 32 S.W.3d 831, 834 (Tenn. 2000), our supreme court observed that

the following principles guide a trial court’s determination of whether to admit expert testimony

relating to scientific, technical, or other specialized knowledge:

First, the evidence must be relevant to a fact at issue in the case.

Tenn. R. Evid. 401, 402. Second, the expert must be qualified by

specialized knowledge, skill, experience, training, or education in the

field of expertise, and the testimony in question must substantially

assist the trier of fact to understand the evidence or determine a fact

in issue. Tenn. R. Evid. 702; [McDaniel v. CSX Transp., Inc., 955

S.W.2d 257, 265 (Tenn. 1997)]; State v. Begley, 956 S.W.2d 471,

475 (Tenn. 1997). Finally, when the expert witness offers an opinion

or states an inference, the underlying facts or data upon which the

expert relied must be trustworthy. Tenn. R. Evid. 703; McDaniel,

955 S.W.2d at 265.

The admissibility of expert testimony rests within the sound discretion of the trial court. Coley, 32

S.W.2d at 833; see also State v. William R. Stevens, No. M1999-02067-CCA-R3-DD, 2001 WL

579054, at * 15 (Tenn. Crim. App. at Nashville, May 30, 2001).

On appeal, the appellant challenges neither Rosales’ qualification as an expert nor

the trustworthiness of the underlying facts or data upon which he relied. Rather, the appellant simply

asserts that Rosales’ testimony was irrelevant and, rather than substantially assisting the trier of fact

to understand the evidence or determine a fact in issue, posed a significant danger of unfair

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prejudice. For purposes of clarity, we also emphasize that the challenged testimony does not appear

to encompass Rosales’ testimony concerning the street value of the methamphetamine, nor would

the appellant prevail on that basis. See, e.g., State v. Matthews, 805 S.W.2d 776, 782 (Tenn. Crim.

App. 1990). Instead, the challenged testimony comprises Rosales’ testimony concerning the

practices of criminal organizations dealing in illegal drugs.

In support of his challenge, the appellant seeks to analogize Rosales’ testimony to

expert testimony concerning the reliability of eyewitness testimony. Our supreme court addressed

the admissibility of the latter in Coley, 32 S.W.3d at 833-838. The court concluded that “general

and unparticularized expert testimony concerning the reliability of eyewitness testimony, which is

not specific to the witness whose testimony is in question, does not substantially assist the trier of

fact.” Id. at 838. The court based its decision on the following rationales: (1) expert testimony

concerning eyewitness identification simply offers generalities and is not specific to the witness

whose testimony is in question; (2) the subject of the reliability of eyewitness identification is within

the common understanding of reasonable persons; and (3) such testimony may mislead and confuse

the jury, resulting in the jury’s abandonment of its responsibility as fact-finder and its adoption of

the judgment of the expert. Id. at 837-838.11

We agree with the appellant that our supreme court’s decision in Coley has some

bearing upon the instant case. Like the expert testimony at issue in Coley, Rosales’ testimony

concerning the care with which organizations dealing in illegal drugs select their drug couriers and

the method by which the courier’s fee is calculated was of a general nature and was not specific to

this case. Indeed, the connection between the expert testimony and the case at hand is more

attenuated than that in Coley as, even assuming Rosales’ generalizations concerning criminal

organizations can be applied with confidence to any one organization, the State did not introduce

evidence, nor bring any charges, concerning the appellant’s participation in such an organization.

Cf. State v. Michael F. Marasciello, No. M1997-00049-CCA-R10-CD, 2000 WL 1130126, at **19-

20 (Tenn. Crim. App. at Nashville, July 28, 2000), perm. to appeal denied, (Tenn. 2000)(publication

pending). Accordingly, contrary to the State’s position on appeal, whether such organizations would

entrust large quantities of illegal drugs to an unwitting courier does not make the appellant’s

11

Other Tenn essee cases that are closely analogous to Coley include the following: In State v. Ballard, 855

S.W.2d 557, 561 -562 (Ten n. 1993), the suprem e court held that expert testimony concerning th e pro file of a sexu ally

abused child was inadmissible for the purpose of proving that the victim had in fact been sexually abused. M ore

recently, in State v. Sm ith, 42 S.W.3d 101, 110 -112 (Tenn . Crim . App. 20 00), perm. to appeal denied, (Tenn. 2001 ),

this court held that expert testimony concerning the general behavior of other criminal suspects during questioning by

police had no value in assessing the credibility of the defendant’s statements to the police. Similarly, in Stevens, No.

M1999-02067-CCA-R3-DD, 2001 WL 579054, at * 20, this court held that the State cou ld not establish that the motive

of the perpetrator w as “sex ual assault brought abou t by a precipitating stressor” by introducing expert testimony

comparing the crime scene at issue to the “typical crime scene” in which “sexual assault brought about by a precipitating

stressor” was the m otivation. See also State v. Ashburn, 914 S.W .2d 1 08, 1 11-113 (Ten n. Crim. A pp. 1 995 ). But cf.

State v. William Au brey Trotter, No. 01C01-9701-CR-00019, 1998 WL 75423, at *4 (Tenn. Crim. App. at Nashville,

February 24, 1998), and id. at * 5 (Tipton, J., concurring).

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knowledge of the methamphetamine any more or less probable. Tenn. R. Evid. 401. In short, the

testimony was irrelevant. Cf. United States v. Cordoba, 104 F.3d 225, 229-230 (9th Cir. 1997).

Moreover, even assuming the appellant’s participation in a criminal organization, we are not

convinced that the jury required the testimony of an expert to conclude that such an organization

would not entrust 1.8 million dollars worth of methamphetamine to an unwitting courier. Finally,

notwithstanding the disputed testimony’s lack of probative value and defense counsel’s efforts on

cross-examination to clarify Rosales’ lack of any knowledge specifically pertaining to the appellant,

the testimony created a danger of unfair prejudice, confusion of the issues, or misleading the jury

as it unavoidably left the jury with the impression that the appellant was a member of a large-scale

criminal organization. Tenn. R. Evid. 403.

While we would not characterize the State’s case against the appellant as

insubstantial, the credibility of the appellant or lack thereof was undoubtedly a critical component

of the jury’s resolution in favor of the State. Particularly in the context of Kohl’s inadmissible

testimony concerning the appellant’s statements during his illegal detention, we cannot conclude

with confidence that the introduction of Rosales’ testimony did not affect the judgment. Tenn. R.

Crim. P. 52(a); see also Tenn. R. App. P. 36(b). Accordingly, we must reverse the appellant’s

conviction and remand this case for a new trial.

C. Denial of Motion for Judgment of Acquittal

The appellant next asserts that the trial court erred in denying his motion for judgment

of acquittal under Tenn. R. Crim. P. 29(C). When a trial court is presented with a motion for a

judgment of acquittal, the court’s sole concern is the legal sufficiency, as opposed to the weight, of

the evidence. State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996); State v. Eric Terrell

Glover, No. W2000-01278-CCA-R3-CD, 2001 WL 1078279, at *5 (Tenn. Crim. App. at Jackson,

September 14, 2001). Of course, when a motion for judgment of acquittal is a component of a

motion for new trial, Tenn. R. Crim. P. 33(f) authorizes the trial court to grant a new trial if it

disagrees with the jury about the weight of the evidence. The accuracy of a trial court’s “thirteenth

juror” determination, however, is not subject to appellate review. State v. Moats, 906 S.W.2d 431,

435 (Tenn. 1995). In other words, once the trial court approves the jury’s verdict as the thirteenth

juror, appellate review is limited to the legal sufficiency of the evidence; that is, whether any

“rational trier of fact” could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e).

The standard of legal sufficiency is predicated upon the principle that all factual

issues raised by the evidence, including questions concerning the credibility of witnesses and the

weight and value to be given the evidence, are resolved by the trier of fact. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990). Consequently, on appeal, we afford the State as the prevailing party

the strongest legitimate view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). This standard applies to

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convictions based upon direct evidence, circumstantial evidence, or both. State v. Carruthers, 35

S.W.3d 516, 557 (Tenn. 2000). Thus, as in the case of direct evidence, the weight to be given

circumstantial evidence and “‘[t]he inferences to be drawn from such evidence, and the extent to

which the circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.’” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958).

The State in this case was required to prove beyond a reasonable doubt that the

appellant knowingly possessed methamphetamine with intent to deliver and that the

methamphetamine weighed one thousand grams or more. Tenn. Code Ann. § 39-17-417(a)(4) and

(j)(10)(1997). The legislature has defined the term “deliver” or “delivery” as “the actual,

constructive, or attempted transfer from one person to another of a controlled substance, whether or

not there is an agency relationship.” Tenn. Code Ann. § 39-17-402 (6) (1997). Moreover, in State

v. Transou, 928 S.W.2d 949, 955-956 (Tenn. Crim. App. 1996)(citations omitted), this court

elaborated upon the meaning of the term “possession” used in Tenn. Code Ann. § 39-17-417:

“The term possession . . . embraces both actual and constructive

possession. Before a person can be found to constructively possess

a drug, it must appear that the person has ‘the power and intention at

a given time to exercise dominion and control over . . . [the drugs]

either directly or through others.’ In other words, ‘constructive

possession is the ability to reduce an object to actual possession.’ . .

.

See also State v. Ross, 49 S.W.3d 833, 845-846 (Tenn. 2001).

The State may prove a criminal offense by the use of circumstantial evidence alone.

State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.1987); State v. Knight, 969 S.W.2d 939, 941

(Tenn. Crim. App. 1997). However, before a jury may convict a defendant of a criminal offense

based upon circumstantial evidence alone, the facts and circumstances “must be so strong and cogent

as to exclude every other reasonable hypothesis save the guilt of the defendant, and that beyond a

reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971); see also State v. Gregory,

862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). “In summary, a conviction for a criminal offense

cannot be predicated solely upon conjecture, guess, speculation, or a mere possibility that [the

accused] may be guilty.” Transou, 928 S.W.2d at 955.

Thus, this court has held that the mere presence of an accused in an area where drugs

are discovered or mere association with a person who does in fact control the drugs or property

where the drugs are discovered is not, alone, sufficient to support a finding that the accused

constructively possessed the drugs. Id. at 956. However, a defendant’s ownership or control over

a vehicle in which the contraband is secreted will support a finding of constructive possession and,

hence, knowing possession. Ross, 49 S.W.3d at 846; State v. Brown, 915 S.W.2d 3, 7-8 (Tenn.

Crim. App. 1995); State v. Johnny Bernard Jones, No. 02C01-9801-CC-00026, 1998 WL 886567,

*2 (Tenn. Crim. App. at Jackson, December 21, 1998). Moreover, a defendant’s knowledge of the

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drugs may be inferred from the large quantity or value of the drugs. See, e.g., United States v.

Ocampo, 937 F.2d 485, 488 (9th Cir. 1991). Similarly, Tenn. Code Ann. § 39-17-419 (1997)

provides that “[i]t may be inferred from the amount of a controlled substance or substances

possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled

substance . . . w[as] possessed with the purpose of selling or otherwise dispensing.”

Again, the appellant in this case was the driver and sole occupant of a vehicle in

which approximately eighteen thousand grams of methamphetamine were secreted. According to

the appellant, a “friend” had loaned him the vehicle approximately three days prior to his arrest

because the friend was going to Mexico on vacation for one month. The appellant acknowledged

that he had exclusive possession of the vehicle. He also acknowledged that his friend was aware of

his planned trip to Georgia to visit his cousin and, moreover, knew his cousin. However, the

appellant denied that his friend instructed him to take the car to Georgia and denied any awareness

of the drugs in the car. Nevertheless, during his consensual encounter with Officer Kohl following

the traffic stop, the appellant displayed nervousness only when questioned concerning the possible

presence of illegal drugs in the vehicle. Additionally, expert testimony established that, in some

markets, the methamphetamine found in the vehicle was worth approximately 1.8 million dollars.

A reasonable jury could have concluded that it was utterly implausible that a drug smuggler would

entrust the appellant with a vehicle containing 1.8 million dollars worth of methamphetamine for one

month without informing the appellant of its contents and without any instructions concerning the

appellant’s use of the vehicle, in the vague hope that the appellant would either successfully convey

the drugs to the appropriate destination or otherwise hold the drugs in safety until the owner’s return.

This issue is without merit.

D. Jury Instructions

Finally, the appellant complains concerning the trial court’s rejection of his proposed

jury instruction on the lesser-included offense of criminal responsibility for facilitation of a felony

and his proposed instruction that a defendant’s mere association with a person who does in fact

control the drugs or property where the drugs are discovered is insufficient to establish the

defendant’s constructive possession of the drugs. With respect to the facilitation instruction, the

appellant asserts that, pursuant to State v. Burns, 6 S.W.3d 453, 467 (Tenn. 1999), facilitation is

“clearly” a lesser-included offense of the charged offense, and the instruction was warranted by the

State’s theory at trial that the appellant was a drug courier working on behalf of a criminal

organization. With respect to the instruction on “mere association,” the appellant relies upon

Transou, 928 S.W.2d at 956, and asserts that the instruction was warranted in light of undisputed

evidence that the appellant did not own the vehicle in which the methamphetamine was discovered.

The State responds that the trial court properly refused to instruct the jury on

facilitation because, “[t]o be guilty of facilitation, the defendant would have to know the drugs were

in the car. If he knew the drugs were in the car and he drove the car, then he transported the drugs

and is guilty of the charged offense.” As to the proposed instruction on mere association, the State

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asserts that the substance of the instruction was inherent in the court’s instruction on constructive

possession.

i.

We agree with the appellant that facilitation is a lesser-included offense of possession

of a controlled substance with intent to deliver. Burns, 6 S.W.3d at 467; see also State v. Ely, 48

S.W.3d 710, 720 (Tenn. 2001)(noting that, although defendant was not specifically charged with

criminal responsibility for the conduct of another, “part (c) of the Burns test expressly states that

facilitation of the charged offense is a lesser-included offense of the charged offense”), cert. denied,

__ U.S. __, 122 S. Ct. 408 (2001). Accordingly, the trial court was obligated to instruct the jury on

facilitation if there existed evidence that reasonable minds could accept as to the lesser-included

offense and this evidence was legally sufficient to support a conviction of the lesser-included

offense. Burns, 6 S.W.3d at 469. Significantly, “[w]hether sufficient evidence supports a conviction

of the charged offense does not affect the trial court’s duty to instruct on the lesser offense if

evidence also supports a finding of guilt on the lesser offense.” Id. at 472; see also State v. Bowles,

52 S.W.3d 69, 80 (Tenn. 2001). But cf. State v. Doney D. Miles, No. W2000-02587-CCA-R3-CD,

2001 WL 1078281, at **4-5 (Tenn. Crim. App. at Jackson, September 14, 2001). In determining

whether the evidence warranted an instruction on facilitation, the court was required to “view the

evidence liberally in the light most favorable to the existence of the lesser-included offense without

making any judgments on the credibility of such evidence.” Burns, 6 S.W.3d at 469.

“A person is criminally responsible for the facilitation of a felony if, knowing that

another intends to commit a specific felony, but without the intent required for criminal

responsibility under Tenn. Code Ann. § 39-11-402(2), the person knowingly furnishes substantial

assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403 (a)(1997). Thus,

facilitation requires the absence of any “intent to promote or assist the commission of the offense,

or to benefit in the proceeds or results of the offense.” Tenn. Code Ann. § 39-11-402(2) (1997).

We must agree with the State that there is no evidence in the record that the appellant

was criminally responsible for facilitating the commission of the charged offense by another. Again,

the appellant was charged with possession of methamphetamine with intent to deliver. Arguably,

as the appellant was the driver and sole occupant of the vehicle transporting the drugs to Georgia,

there was no one to whom he could furnish substantial assistance in committing the offense of felony

possession of a controlled substance. However, we note that a person may exercise constructive

possession through another. Transou, 928 S.W.2d at 955-956. At least in the context of possession

of stolen property, we have observed that a person

“‘has such constructive possession where the goods are in the

possession of someone over whom he has for the time being direction

and control, such as his authorized servants or agents, . . . so that the

goods will be forthcoming when he orders, and also where by his

direction the goods are deposited in a place subject to his control, or

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where they are concealed on his premises by others with his

knowledge or consent.’”

Sullivan v. State, 513 S.W.2d 152, 154 (Tenn. Crim. App. 1974). Nevertheless, assuming that the

owner of the vehicle or someone other than the appellant had constructive possession of the drugs

through the appellant, that the appellant was aware of the person’s intent to deliver the drugs, and

that the appellant furnished substantial assistance in the commission of the offense, no reasonable

juror could have believed that the appellant did not intend “to promote or assist the commission of

the offense, or to benefit in the proceeds or results of the offense.” Tenn. Code Ann. § 39-11-402(2).

Indeed, assuming the appellant’s knowledge of the drugs, the appellant possessed no other reason

for using the vehicle in question in order to drive to Georgia other than to assist in the commission

of the offense or, at a minimum, benefit from the “results of the offense” by virtue of avoiding the

use of his own vehicle for the lengthy trip. Accordingly, no instruction on the lesser-included

offense of facilitation was warranted. See, e.g., Ely, 48 S.W.3d at 724.

ii.

As to the appellant’s proposed instruction on “mere association,” a defendant has a

“constitutional right to a correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236,

249 (Tenn. 1990). Accordingly, trial courts “should give a requested instruction if it is supported

by the evidence, embodies a party's theory, and is a correct statement of the law.” State v. Phipps,

883 S.W.2d 138, 150 n.20 (Tenn. Crim. App. 1994). However, trial courts need not give requested

instructions if the substance of the instructions is covered in the general charge. State v. Zirkle, 910

S.W.2d 874, 892 (Tenn. Crim. App. 1995). We must agree with the State that “the substance of the

requested instruction is inherent in the court's instruction that constructive possession requires that

the defendant have both the power and intention to exercise control over an object” and in the court’s

instruction on circumstantial evidence. State v. Johnny Wayne Tillery, No. 01C01-9506-CC-00182,

1998 WL 148326, at *1 (Tenn. Crim. App. at Nashville, March 30, 1998); State v. Milton Jerome

Johnson, No. 139, 1991 WL 35752, at *2 (Tenn. Crim. App. at Jackson, March 20, 1991).

III. Conclusion

For the foregoing reasons, we reverse the judgment of the trial court and remand this

case for a new trial.

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NORMA McGEE OGLE, JUDGE

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