State of Tennessee v. Antonio Smith

01/30/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 17, 2017

STATE OF TENNESSEE v. ANTONIO SMITH

Appeal from the Criminal Court for Knox County

No. 105486A Steven Wayne Sword, Judge

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No. E2016-02130-CCA-R3-CD

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Defendant, Antonio Smith, was indicted by the Knox County Grand Jury in a multi-count

presentment with one count of sale of heroin in a drug-free zone, one count of delivery of

heroin in a drug-free zone, three counts of possession of heroin with the intent to sell in a

drug-free zone, three counts of possession of heroin with the intent to deliver in a drug-

free zone, one count of possession of marijuana, two counts of possession of a firearm

with the intent to go armed during the commission of a dangerous felony, two counts of

felon in possession of a firearm with intent to go armed during the commission of a

dangerous felony, three counts of felon in possession of a firearm, and four counts of

criminal gang enhancement. A codefendant, Heather Montgomery, was also indicted for

several offenses. The trial court dismissed the criminal gang enhancement counts prior to

trial after the statute was found unconstitutional by this court in State v. Bonds, 502

S.W.3d 118 (Tenn. Crim. App. 2016). Following a jury trial, Defendant was acquitted of

the two counts of felon in possession of a firearm with intent to go armed during the

commission of a dangerous felony but found guilty of all other counts as charged. The

trial court merged several of the convictions and sentenced Defendant as a career

offender to an effective sentence of 72 years. After the denial of a motion for new trial,

Defendant initiated this appeal. On appeal Defendant challenges the denial of a pretrial

motion to suppress evidence and the sufficiency of the evidence. Having carefully

reviewed the record before us and the briefs of the parties, we find no error and affirm the

judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Antonio Smith.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha M.

Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts

Motion to Suppress

Defendant filed a motion to suppress evidence prior to trial in which he sought to

suppress “all evidence obtained from the illegal search of the Ford Explorer in which

[Defendant] was a passenger.” Specifically, Defendant sought to suppress a Glock .45

caliber pistol, eleven small bags of marijuana, seven small bags of heroin, and thirty

dollars of prerecorded money which were seized during a traffic stop and subsequent

search of Defendant’s person.

Lieutenant Tony Willis of the Knoxville Police Department (“KPD”) received

information from officers who were conducting surveillance on a controlled drug

purchase that Defendant was seen leaving the apartment of codefendant Montgomery and

getting into the passenger side of a red and silver Ford Explorer. Lieutenant Willis was

given the tag number of the vehicle and located the vehicle shortly thereafter, in close

proximity to the location where the drug transaction took place. Lieutenant Willis saw

the vehicle “[d]isregarding a stop sign.” At the time, Lieutenant Willis was in an

unmarked car so he radioed for backup to arrive to “make the traffic stop.” In the

meantime, Lieutenant Willis “followed the vehicle as it went up to Hill Avenue, took that

exit right by the police department, made a right onto . . . eastbound Hill, which is kind of

discombobulated there. . . .” Another unmarked police vehicle picked up surveillance

after that so that the officers could “try to avoid being detected.” Lieutenant Willis

picked up surveillance a few minutes later, following Defendant to the stop sign at

Church and Hill. A marked police car made a “traffic stop.”

Defendant was instructed to step out of the vehicle. He complied. Lieutenant

Willis walked up to the Ford Explorer and, in plain view on the passenger-side floor

board, there was a gun. During a pat-down of Defendant, officers discovered “other

contraband.”

At the conclusion of the hearing, the trial court determined that the motion to

suppress was not timely filed and denied the motion solely on that basis. However, the

trial court also determined that Defendant did not have a reasonable expectation of

privacy in the vehicle in which he was merely a passenger. In other words, Defendant

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did not have standing to challenge the suppression of the gun. The trial court determined

that the testimony of Lieutenant Willis was credible. Moreover, the trial court found that

the officers had probable cause to effectuate the stop of the vehicle and ask Defendant to

exit the vehicle. Accordingly, the trial court denied the motion to suppress.

Trial

At trial, Officer Robert Rose of the KPD explained that he was working with a

confidential informant (“CI”) on a controlled drug operation. The CI informed officers

that codefendant Montgomery had access to both heroin and marijuana. On January 6,

2015, the CI conducted a controlled buy with money provided by the KPD. Prior to the

transaction, the serial numbers of the bills used in the transaction were recorded. The CI

wore a transmitter broadcasting audio only because in a previous controlled buy,

codefendant Montgomery had nearly discovered the video recording device used by the

CI. There were six total officers involved in the surveillance of the controlled buy.

The CI went to codefendant Montgomery’s apartment, located within 1000 feet of

Rock City Park. Codefendant Montgomery was seated in the living room when the CI

arrived and appeared to be sending text messages to someone on her phone. The CI

placed the money for the drugs on the coffee table. Codefendant Montgomery “kept

trying to get ahold of whoever she was getting ahold of . . . to get - - find out when they

were coming.” Not “much longer” after that, a man came to the apartment wearing a

“hoodie and sunglasses.” Codefendant Montgomery grabbed the money off the table and

walked to the back bedroom with the man, closing the door after they entered the

bedroom. When the pair exited the bedroom a few minutes later, the man left the

apartment and codefendant Montgomery set heroin on the table. The CI took the heroin

she received from codefendant Montgomery and left the apartment. The CI went straight

to the police station and turned the heroin over to police.

KPD Officer Brandon Stryker saw the man in the hoodie enter codefendant

Montgomery’s apartment while the CI was inside. When the man exited the apartment,

he left the area in a “maroon/red” Ford Explorer.

Officer John Holmes and Lieutenant Willis followed the Ford Explorer after it left

the apartment complex. While officers were following the Ford Explorer, it travelled

within 1000 feet of Green Elementary Magnet School and the YMCA child care services.

Lieutenant Willis watched as the driver of the vehicle disregarded a stop sign. The

officers were driving in an unmarked car so they called for a marked patrol car to assist in

making the traffic stop. During the stop, the officers asked the passenger, later identified

as Defendant, to exit the vehicle. Defendant complied. Officers asked Defendant if he

“had anything on him” when he exited the vehicle. Defendant admitted that he had some

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marijuana. Defendant was placed in handcuffs. When Lieutenant Willis approached the

vehicle, he observed a handgun on the floor on the passenger side.

Defendant’s person was searched incident to his arrest. Officers found one packet

of heroin in his wallet, marijuana in his jacket, and one twenty dollar bill and one ten

dollar bill from the controlled buy. The heroin in Defendant’s wallet was packaged in the

same manner as the heroin the CI purchased from codefendant Montgomery. The

marijuana was individually wrapped in small bundles and the small bundles were

contained inside one larger plastic bag. Defendant was also in possession of a non-

working cell phone. Inside the battery compartment of the phone, officers located “a

powdery substance consistent with the substance that [Defendant] had in his possession

and which is consistent with the packaging and that of heroin.”

Defendant was taken to the police station for an interview. During the interview,

Defendant claimed that the marijuana was for personal use. He explained that it was

individually wrapped because he had purchased it as “blunt bags.” At first, Defendant

claimed that he only used heroin. Later, Defendant admitted that he sold heroin for thirty

dollars a packet and used some of the heroin in order to test it. He claimed that he had

never met his supplier. Defendant explained that the heroin would be dropped off at a

specific location and Defendant would pick the heroin up and leave the money at the

location. Defendant told police that he bought the gun from a friend for twenty-five

dollars.

Forensic testing of the materials by the Tennessee Bureau of Investigation (“TBI”)

revealed that Defendant was in possession of 1.1 grams of marijuana, .08 grams of

heroin, and .04 grams of heroin.

Defendant did not present proof at trial but stipulated that he had a prior felony

conviction involving violence, a prior felony conviction involving force, and a prior

felony conviction involving a deadly weapon.

Defendant was found guilty by a jury of the sale of heroin within 1000 feet of a

park and fined $10,000; delivery of heroin within 1000 feet of a park and fined $2000;

possession of heroin with intent to sell within 1000 feet of a park and fined $10,000;

possession of heroin with intent to sell within 1000 feet of a public elementary school and

fined $25,000; possession of heroin with intent to deliver within 1000 feet of a child care

agency and fined $15,000; possession of heroin with intent to deliver within 1000 feet of

a park and fined $10,000; possession of heroin with intent to deliver within 1000 feet of a

public elementary school and fined $25,000; simple possession of marijuana and fined

$1000; possession of a firearm during a dangerous felony and fined $5000; possession of

a firearm during a dangerous felony and fined $5000; possession of a firearm during a

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dangerous felony and fined $5000; possession of a firearm having been convicted of a

felony involving the use of force and fined $10,000; possession of a firearm after having

been convicted of a felony involving the use of violence and fined $10,000; and

possession of a firearm after having been convicted of a felony involving the use of a

deadly weapon and fined $10,000. The jury found Defendant not guilty of two counts of

felon in possession of a firearm with intent to go armed during the commission of a

dangerous felony.

After the denial of a motion for new trial, Defendant appealed.

Analysis

Motion to Suppress

Defendant contends that the stop and resulting search exceeded the scope required

for investigation of a violation of a traffic law. In other words, Defendant argues that the

trial court erred in denying the motion to suppress. The State argues that the marijuana,

heroin, currency, and gun were properly admitted because they were found during a

search incident to a lawful arrest. The State responds that Defendant does not have

standing to suppress the handgun because he did not have a legitimate expectation of

privacy in the vehicle.

When reviewing a trial court’s ruling on a motion to suppress, “[q]uestions of

credibility of the witnesses, the weight and value of the evidence, and resolutions of

conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” State

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Accordingly, “a trial court’s findings of fact

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

Appellate courts conduct a de novo review of questions of law and the trial court’s

application of law to facts. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). As the

prevailing party, the State is “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.” Odom, 928 S.W.2d at 23.

The Fourth Amendment to the United States Constitution and article I, section 7 of

the Tennessee Constitution protect against unreasonable searches and seizures. A

warrantless search or seizure “is presumed unreasonable, and evidence discovered as a

result thereof is subject to suppression unless the State demonstrates that the search or

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

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Our federal and state courts have recognized three categories of police-citizen

interactions: “(1) a full-scale arrest, which requires probable cause; (2) a brief

investigatory detention, requiring reasonable suspicion of wrongdoing; and (3) a brief

police-citizen encounter, requiring no objective justification.” State v. Echols, 382

S.W.3d 266, 277 (Tenn. 2012). A stop of a vehicle based upon probable cause that an

offense is being committed is constitutionally valid. State v. Vineyard, 958 S.W.2d 730,

731 (Tenn. 1997). The officers in the case sub judice observed the vehicle in which

Defendant was a passenger disregard a stop sign. Defendant’s brief candidly states

“[o]fficers may order the driver, and perhaps passengers as well, to exit a vehicle which

is lawfully stopped for a traffic violation.” Defendant further concedes that what the

agents did was pre-textual, but it is well settled that as long as there is probable cause or

reasonable suspicion to stop a vehicle on a valid basis, it does not matter if that reason is

pre-textual to investigate for illegal drugs. See State v. Orson Wendell Hudson, No.

M2004-00077-CCA-R3-CD, 2005 WL 639129, at *3 (Tenn. Crim. App. March 15, 2005)

(“An officer’s subjective intention for stopping a vehicle is irrelevant, as long as

independent grounds exist for the detention.”) (citing Whren v. United States, 517 U.S.

806 (1996); State v. Vineyard, 958 S.W.2d 730 (Tenn. 1997)), no perm. app. filed.

Moreover, inquiries into matters unrelated to the reason for the traffic stop are permitted

as long as they do not measurably extend the duration of the stop. Arizona v. Johnson,

555 U.S. 323, 333 (2009). This Court has determined that asking questions about

weapons or drugs does not unreasonably exceed the scope of a traffic stop. State v.

Landon McConaughy, No. W2008-01645-CCA-R3-CD, 2010 WL 681361, at *7 (Tenn.

Crim. App. Feb. 26, 2010), no perm. app. filed.

When the vehicle was stopped on the basis of the traffic violation, Defendant was

asked to exit the vehicle. He complied. One of the officers then asked Defendant if he

had anything on his person. Defendant admitted that he possessed marijuana and was

arrested. Defendant was searched in conjunction with his arrest. Our supreme court has

stated:

In order to justify a warrantless search as incident to a lawful arrest, four

conditions must be met: (1) the arresting officer must have probable cause

to believe that the defendant had engaged or was engaging in illegal

activity, State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999) (holding that

a “custodial arrest,” which is required to justify a search as incident to

arrest, must be “based on probable cause”); (2) the probable cause must

attach to an offense for which a full custodial arrest is permitted—i.e., there

must be statutory grounds for a warrantless arrest, see T.C.A. § § 40-7-103,

40-7-118(c); cf. State v. Walker, 12 S .W.3d 460, 467-78 (Tenn. 2000); (3)

the arrest must be consummated either prior to or contemporaneously with

the search, Crutcher, 989 S.W.2d at 302 n.12; and (4) the search must be

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incident to, not the cause of, the arrest. Id. at 302 (observing that “[i]t is

axiomatic that a warrantless police search may not precede an arrest and

serve as part of its justification”); see Smith v. Ohio, 494 U.S. 541, 543

(1990); Hughes v. State, 588 S.W.2d 296, 308 (Tenn. 1979) (observing that

“no search or frisk ‘unlawful at its inception may be validated by what it

turns up’”) (quoting Wong Sun v. United States, 371 U.S. 471, 484 (1963)).

State v. Richards, 286 S.W.3d 873, 878 (Tenn. 2009).

Defendant argues that the seizure of Defendant exceeded the scope of the traffic

stop. We disagree. First, we note that at the trial court level, Defendant challenged the

admission of the gun found in the vehicle. On appeal, Defendant argues that the motion

to suppress should have been granted to exclude “all evidence obtained as a result of that

unlawful seizure, including the narcotics and cash . . . .” The State argues that because

Defendant fails on appeal to specifically challenge the admission of the gun, this issue is

waived, citing Tennessee Court of Criminal Appeals Rule 10(b). We disagree with the

State’s argument. “[A]ll evidence” certainly includes any evidence seized as a result of

the traffic stop and subsequent search of Defendant’s person. The gun at issue was seized

pursuant to the plain view doctrine after a valid traffic stop. See Horton v. California,

496 U.S. 128, 136-41 (1990); Armour v. Totty, 486 S.W.2d 537, 539 (Tenn. 1972). The

marijuana, heroin, and money found on Defendant’s person were found during a search

incident to a lawful arrest. See State v. Richards, 286 S.W.3d 873, 878 (Tenn. 2009).

We conclude Defendant’s constitutional protections against unreasonable search and

seizure were not violated. The vehicle was stopped after committing a traffic violation

and Defendant was asked to exit the vehicle. When the officers asked if he “had anything

on him,” Defendant admitted that he had some marijuana. At that point in time, officers

had probable cause to believe that Defendant possessed marijuana. See T.C.A. § 40-7-

103(a) (permitting a search without a warrant for an offense committed in an officer’s

presence). After the officers had probable cause, they arrested and searched Defendant’s

person. The search resulted in the discovery of the marijuana, heroin, and currency used

in the drug transaction. Defendant is not entitled to relief on this issue. Defendant also

argues that the trial court should have suppressed “incriminating statements” he made

after the traffic stop. Defendant provides no citations to the record or further argument to

identify these statements. Moreover, his motion to suppress filed in the trial court did not

seek to exclude “incriminating statements.” To the extent he attempts to raise this issue

for the first time on appeal, it is waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R.

App. P. 36(a).

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Sufficiency of the Evidence

Defendant complains that the evidence was insufficient to support his convictions

for selling heroin in a drug-free zone and possession of heroin with intent to sell in a

drug-free zone. He does not challenge his remaining convictions. Specifically, he insists

that the jury could conclude that he did not actually sell the heroin or intend to sell the

heroin but merely went to codefendant Montgomery’s apartment to purchase heroin and

that he received the marked bills as change during his own drug purchase. The State

disagrees.

We review Defendant’s claim of insufficient evidence mindful that our standard of

review is whether, after considering the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,

319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This

standard applies to findings of guilt based upon direct evidence, circumstantial evidence,

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither re-

weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

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

evidence, as well as all factual issues raised by the evidence are resolved by the trier of

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must

afford the State the strongest legitimate view of the evidence contained in the record as

well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id. The conviction replaces the presumption of innocence with a presumption of guilt,

and the accused has the burden of illustrating why the evidence is insufficient to support

the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

“It is an offense for a defendant to knowingly . . . [s]ell a controlled substance[] or

[p]ossess a controlled substance with the intent to . . . sell the controlled substance.”

T.C.A. § 39-17-417(a)(3)-(4). Heroin is a Schedule I controlled substance. T.C.A. § 39-

17-406(c)(11). Additionally, the drug-free zone enhancement applies if a violation of

section 39-17-417 occurs “within one thousand feet . . . of the real property that

comprises a public or private elementary school, middle school, secondary school,

preschool, child care agency, or public library, recreational center or park[.]” T.C.A. §

39-17-432(b)(1).

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In this case, at the conclusion of the jury trial, the trial court merged the conviction

for delivery of heroin with the conviction for sale of heroin within 1000 feet of a park.

Likewise, the trial court merged the three convictions for possession of heroin with the

intent to sell and two of the convictions for possession of heroin with the intent to deliver

into one count of possession of heroin with intent to deliver within 1000 feet of an

elementary school. The evidence was sufficient to support the convictions. When the CI

arrived at the apartment, she placed the prerecorded buy money on the coffee table.

Codefendant Montgomery appeared to be attempting to get in touch with someone on her

phone via text message. Shortly after the CI arrived, a man came into the apartment.

Codefendant Montgomery took the money the CI had placed on the table and went into

another room with Defendant for a short period of time. When they exited the bedroom,

Defendant left the apartment. Codefendant Montgomery handed the heroin to the CI.

When Defendant was apprehended shortly thereafter, he was in possession of a twenty

dollar bill and a ten dollar bill with serial numbers that matched those of bills given to the

CI by police. The heroin purchased by the CI was in the same type of packaging as the

heroin found on Defendant’s person. Codefendant Montgomery’s apartment was within

1000 feet of a city park. The vehicle in which Defendant was riding passed within 1000

feet of an elementary school while he was being followed by police prior to the traffic

stop. Moreover, Defendant told police that he sold heroin and had never met his supplier.

The evidence is sufficient to support the convictions.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

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THOMAS T. WOODALL, PRESIDING JUDGE

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