Carlos L. Acevedo v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED

DECEMBER 1998 SESSION

April 16, 1999

Cecil W. Crowson

Appellate Court Clerk

CARLOS L. ACEVEDO, )

) C.C.A. NO. 01C01-9711-CR-00541

Appellant, )

) DAVIDSON COUNTY

VS. )

) HON. THOMAS H. SHRIVER,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

GREGORY D. SMITH JOHN KNOX WALKUP

One Public Square, Suite 321 Attorney General & Reporter

Clarksville, TN 37040

TIMOTHY BEHAN

Asst. Attorney General

John Sevier Bldg.

425 Fifth Ave., North

Nashville, TN 37243-0493

VICTOR S. JOHNSON, III

District Attorney General

JON SEABORG

Asst. District Attorney General

222 Second Ave., North, Suite 500

Nashville, TN 37201

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY,

Judge

OPINION

In April 1994, the petitioner was charged by indictment with possession of

cocaine and possession of marijuana after a search of his person revealed drugs and

money. He filed a motion to suppress the drugs and money, which was denied. He then

entered a plea of nolo contendere and attempted to preserve his right to appeal the

suppression issue. On appeal, however, this Court determined that because the

petitioner’s judgment did not refer to a certified question of law for appeal, the petitioner

had waived his right to appeal. See State v. Carlos L. Acevedo, 01C01-9602-CR-00061,

Davidson County (Tenn. Crim. App. filed November 22, 1996, at Nashville). This Court

did not address the merits of the suppression issue. See id.

The petitioner filed a petition for post-conviction relief, asking for a delayed

appeal because counsel’s error in failing to preserve his right to appeal prejudicially

prevented him from appealing the merits of the suppression issue. In an agreed order

signed by the post-conviction judge, the petitioner and the State stipulated that petitioner

was entitled to a delayed appeal because he was prejudiced by his counsel’s error. This

case is now before this Court by delayed appeal, the sole issue being whether the trial

court properly denied the petitioner’s motion to suppress.

In its brief, the State argues that this case should be dismissed because a

delayed appeal is inappropriate and cannot resurrect an issue previously waived. The

State also argues that this case should be dismissed because the petitioner’s counsel

was not ineffective for failing to properly preserve the suppression issue for appeal. The

State’s arguments must fail because by agreed order, the State stipulated “that

Petitioner’s petition for post-conviction relief, which requests a delayed appeal on a

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reserved issue of appellate review, should be granted.”

As stated in this Court’s previous opinion, the facts of this case are as

follows:

On July 9, 1993, Agent Gary Luther of the Twenty-First Judicial Task

Force telephoned Officer Perry Buck, who was assigned to the Federal

Drug Task Force at the Nashville International Airport. Luther informed

Buck that he was "working" the Defendant, a drug courier who was about

to fly from Nashville to Texas. Luther stated that he was attempting to

arrive at the airport before the Defendant's plane departed but was unsure

as to whether he would be able to do so. As a result, Luther asked Buck

to "surveil" and "interview" the Defendant. He gave Buck the name of the

Defendant and a physical description.

Buck and three other officers began looking for the Defendant. As

they walked toward the gate of the Defendant's departing flight, they

identified a man fitting the description given by Agent Luther sitting at a

restaurant in the concourse. They approached him, identified themselves,

and asked if they could speak with him, to which the Defendant responded

affirmatively. The officers asked the Defendant where he was going and

other "preliminary" matters, and then requested his plane ticket. They

informed the Defendant that they suspected him of carrying drugs and

asked him for consent to search his person. According to Buck, the

Defendant willfully consented. They subsequently asked the Defendant if

he wanted to go to a more private location for the search. According to

Buck, the Defendant responded affirmatively, and they all went to a men's

restroom adjacent to the restaurant.

The officers conducted a pat-down search of the Defendant which

revealed no contraband. They then asked the Defendant to remove his

boots. As the Defendant removed one of his boots, a quantity of United

States currency fell onto the floor. The Defendant fled the scene but was

apprehended in the concourse after a short chase. The officers discovered

a quantity of both cocaine and marijuana in the Defendant's socks.

The defendant was subsequently indicted for possession of cocaine

with intent to deliver and for possession of marijuana with intent to deliver.

On June 8, 1994, he filed a motion to suppress the drugs and currency

discovered during the search at the airport. He argued that the law

enforcement officers had not had a reasonable suspicion to detain him

under the Aguilar-Spinelli principles set forth in State v. Jacumin, 778

S.W.2d 430 (Tenn. 1989). The trial court denied the motion to suppress,

ruling that the discovery of the drugs and currency occurred pursuant to a

lawful consent search.

Carlos L. Acevedo, 01C01-9602-CR-00061.

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The petitioner cites the unpublished case of State v. Norman L. Wilson, No.

01C01-9207-CR-00219, Davidson County (Tenn. Crim. App. filed October 14, 1993, at

Nashville), in his issue statement, apparently relying upon Wilson as authority for his

proposition that the trial court’s denial of his motion to suppress should be reversed. In

Wilson, the defendant was stopped in an airport by a police officer acting upon

information received from a telephone dispatcher. The defendant was asked to produce

his plane ticket, but he did not. When asked to consent to a search, he agreed, and a

controlled substance was found in his pocket. A panel of this Court decided that because

“neither the informant’s reliability nor his/her basis for knowledge was sufficiently

demonstrated,” the police were not justified in seizing the defendant. To use the Wilson

court’s terminology, the initial encounter between the defendant and the police was

tainted. The Wilson court further determined that since the initial encounter between the

defendant and the police was tainted, the defendant’s purported consent to be searched

was irrelevant. Thus, the Wilson court’s decision to affirm the trial court’s suppression

of evidence turned on whether the State had established the reliability of the informant

and his or her basis for knowledge in accordance with Aguilar v. Texas, 378 U.S. 108

(1964), Spinelli v. United States, 393 U.S. 410 (1969), and State v. Jacumin, 778 S.W.2d

430 (Tenn. 1989)(adopting the Aguilar-Spinelli requirements in Tennessee).

In the instant case, the petitioner does not challenge the reliability or the

basis of the information given to Officer Buck and the other police officers. Thus, the

petitioner’s reliance on Wilson is misplaced.

The petitioner argues that his consent to be searched was not voluntarily

given because it resulted from “official intimidation or harassment.” The petitioner claims

he was “coerced” and “intimidated into submission” because four police officers

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approached him, identified themselves, and “surrounded” him in a bathroom while they

searched him. According to the petitioner, the officers retained his plane ticket

throughout the interview and search, even though his plane was “ready to fly.” He

characterizes his encounter with the police officers as one in which “any attempt to

decline the search was wasted effort” and for this reason, contends that the consent

search was not valid.

The record does not support the petitioner’s version of the facts. According

to the record, Officer Buck and the other officers approached the petitioner, identified

themselves, and asked if they could speak with him. After discussing several “preliminary

matters,” they asked the petitioner if he would consent to a search. The petitioner said

yes. The officers then asked him if he would prefer to conduct the search in the

bathroom for privacy’s sake. Again, the petitioner agreed. According to the record, only

two officers accompanied the petitioner into the bathroom where he was searched, so

contrary to the petitioner’s assertion, he was not “surrounded” by “several officers” when

he was searched. Moreover, while the record indicates that at some point (the record

does not specify when) the police officers asked to look at the petitioner’s plane ticket,

there is no indication that the officers retained the plane ticket. There is also no evidence

that the interview and initial search of the petitioner detained him while his flight was

boarding.

Given these circumstances delineated and uncontroverted in the record,

nothing supports the petitioner’s conclusion that his consent was obtained by coercion.

Rather, the record reveals a consensual encounter between police officers and the

petitioner, and even though the petitioner was not obliged to even talk to the officers, let

alone consent to the search, see Florida v. Royer, 460 U.S. 491, 497-98 (1983), he did

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so voluntarily. Because a seizure does not occur---and thus, the Fourth Amendment is

not implicated---by a police officer merely talking to or questioning an individual in a public

place, the petitioner’s argument must fail. See Royer, 460 U.S. at 497; State v. Moore,

776 S.W.2d 933, 938 (Tenn. 1989).

We recognize that there is an interesting twist to the facts in the instant

case. Although the record shows that the petitioner validly consented to the search when

asked, it is not so clear whether the petitioner’s act in fleeing from the officers after the

search had already commenced somehow vitiated the consent given. Unfortunately,

neither party addresses this issue. In fact, it is questionable that the record, sparse as

it is, would even support such an argument. The record reflects that once the petitioner

fled, the police officers chased him, wrestled him to the ground, and somehow

subsequently discovered drugs in his socks, but it is unclear whether the police officers

discovered the drugs by continuing their search or whether they discovered it because

the petitioner removed his socks in an attempt to abandon the contraband.1 At any rate,

since the petitioner does not argue that he withdrew consent and rightfully terminated the

search once he fled from the bathroom, and that the officers did not have either

articulable suspicion or probable cause to further detain or arrest him---let alone cite

cases for this argument---we deem any argument in this vein to be waived. Rule of the

Court of Criminal Appeals of Tennessee 10(b).

The petitioner also briefly proposes that the search “should have ended

after a ‘Terry Tap’ revealed no reason to continue or expand the search.” Because the

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W hen desc ribing his st rugg le with the p etition er af ter ch asin g him , Off icer B uck testifie d, “Bu t

he continued to struggle, until he got a sock off; and then he -- apparently -- I didn’t see him sling the

sock but, apparently, he -- . . . .” At this point, Officer Buck’s testimony was interrupted by a defense

objection because Officer Buck was beginning to “testify to something he has no personal knowledge

of.” B efor e the trial jud ge co uld ru le, the pros ecu tor vo lunta rily aba ndo ned this line of qu estio ning, but it

was never established, either by the State or the defense, exactly how the drugs were discovered in the

petitioner’s socks.

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petitioner does not direct any argument or citations to authority on this point, it too is

deemed waived. Rule of the Court of Criminal Appeals of Tennessee 10(b).

The trial court’s order denying the petitioner’s motion to suppress is

affirmed.

_______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

JOSEPH M. TIPTON, Judge

______________________________

NORMA McGEE OGLE, Judge

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