State of Tennessee v. Adam Dewayne Holmes ( 2022 )

01/04/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 17, 2021
STATE OF TENNESSEE v. ADAM DEWAYNE HOLMES
Appeal from the Criminal Court for Knox County
No. 109529 Steven W. Sword, Judge
No. E2021-00326-CCA-R3-CD
The defendant, Adam Dewayne Holmes, appeals his Knox County Criminal Court jury
convictions of facilitation of possession with intent to sell heroin, facilitation of possession
with intent to deliver heroin, possession with intent to sell less than .5 grams of cocaine in
a drug-free zone, possession with intent to deliver less than .5 grams of cocaine in a drug-
free zone, and simple possession, arguing that the evidence was insufficient to support his
convictions and that the trial court erred by denying his motion to suppress the results of
what he alleges to be an unlawful vehicle search. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and JILL BARTEE AYERS, JJ., joined.
Susan Shipley, Knoxville, Tennessee (at trial and on appeal), and Brent Horst, Nashville,
Tennessee (at motion hearing), for the appellant, Adam Dewayne Holmes.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Philip H. Morton,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Knox County Grand Jury charged the defendant with one count each of
possession with intent to sell less than 15 grams of heroin, a Schedule I controlled
substance, in a drug-free zone; possession with intent to deliver less than 15 grams of
heroin, a Schedule I controlled substance, in a drug-free zone; possession with intent to sell
less than .5 grams of cocaine, a Schedule II controlled substance, in a drug-free zone;
possession with intent to deliver less than .5 grams of cocaine, a Schedule II controlled
substance, in a drug-free zone; possession of marijuana, a Schedule VI controlled
substance; accessory after the fact by harboring or concealing a felony offender; and
driving on a revoked license. Before trial, the State dismissed the charge of driving on a
revoked license.
At the November 2017 trial, Joel Asher, a maintenance superintendent for
Knoxville’s department of parks and recreation testified that Frajan Campbell Park was
located at 1300 Moses Avenue in Knoxville and that the park contained “play structures .
. . and a basketball court.” He said that Frajan Campbell was a public park at the time of
the offenses in this case.
Donna Roach worked for the Knoxville, Knox County, Knoxville Utilities
Board Geographic Information System (“KGIS”) and did “the computer mapping for Knox
County.” KGIS “can do digital data or actually cut maps and different type[s] of GO
processing . . . for the city, county, KUB, engineers, excavators, architects, and various
homeowners.” Ms. Roach said that KGIS used aerial photography in generating maps and
that the courts often use those maps “for visualization.” She said that she was able to
determine a distance between two points on a map and that the mapping system used by
KGIS showed all of the parks in Knox County. She calculated the distance from the
intersection of “West Fifth Avenue and James Avenue” to Frajan Campbell Park as 693
feet. She said that the margin of error for the calculation was “a foot for every hundred
feet, which would be 10 feet within a thousand foot area.”
During cross-examination, Ms. Roach acknowledged that Frajan Campbell
Park was not visible from the intersection of West Fifth and James Avenues.
Zachary Akins, a criminal warrants officer with the Knox County Sheriff’s
Office (“KCSO”), testified that he routinely worked with federal officers in serving
warrants. He said that in February 2016, he was working with the United States Marshals
Service to locate Erreese King, a fugitive. A few weeks prior to the defendant’s arrest, the
officers went to the defendant’s house in search of Mr. King. Officer Akins said that the
officers told the defendant that they were looking for Mr. King and “explained to [him]
that if he’s caught harboring, aiding, and abetting or assisting the fugitive in any way he
could be charged and prosecuted.”
On February 5, 2016, Officer Akins, in coordination with the Marshals
Service, “set up surveillance on a house off of . . . West Fifth.” He received a report that
Mr. King had gotten into “a red Dodge Charger, pulling out of the address there off West
Fifth and turning onto James Street,” one block from where Officer Akins was positioned.
When Officer Akins saw the red Charger, he identified the person in the front passenger
seat as Mr. King and initiated a traffic stop using “lights and sirens” and going “nose to
nose” with the Charger. Officer Akins said that the Charger stopped in “the middle of the
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street” and that he and other officers “removed the occupants of the vehicle,” including Mr.
King, the defendant, who had been driving, and a female passenger from the backseat.
Although Mr. King was the target of the traffic stop, as a matter of policy, Officer Akins
checked for outstanding warrants on the other two occupants and discovered that the
defendant’s driver’s license had been revoked. He took the defendant into custody “for
driving on a revoked [license] and, of course, for the aiding and abetting as well.”
During cross-examination, Officer Akins testified that his vehicle was not
equipped with a video recording device and that he did not wear a body camera. He
acknowledged that he did not prepare a report on his initial encounter with the defendant
prior to the February 5 incident. Officer Akins said that during that initial encounter, the
defendant permitted the officers to enter his house and that the Marshals “did a majority of
the talking.” He said that, at the time of the defendant’s arrest, the female occupant of the
vehicle was not taken into custody and acknowledged that he did not record her name in
his report. He also said that he called a narcotics agent to “verify the evidence found”
during the search of the defendant’s vehicle. A substance later identified as cocaine was
recovered from under the front passenger seat of the Charger and approximately 14 pills
were recovered from the backseat. Officer Akins said that he charged both the defendant
and Mr. King in relation to the cocaine found under where Mr. King was seated.
KCSO Detective Jeff Neely testified as an expert in narcotics investigation.
He said that he responded to the location where Officer Akins had stopped the defendant’s
vehicle. When he arrived, the vehicle had already been secured. He searched the vehicle
and “found a bag underneath the front passenger seat that contained . . . approximately 22
grams of a substance believed to be crack cocaine.” He identified the substance as cocaine
based on “how it looked.” He described the cocaine as being in multiple pieces within a
single bag. He said that 22 grams of cocaine was a quantity more consistent with that
purchased by dealers and not for personal use. “You’re typically not found with 22 grams
of cocaine if your intention is not to sell it.” Detective Neely said that he found no evidence
of drug use inside the vehicle or on the occupants. He explained that crack cocaine was
typically sold in half-gram to one-gram portions and that dealers would “use the digital
scales to make sure they’re not giving too much.” He said that he found an empty box for
a digital scale in the “center console armrest.” He also found “a box of sandwich bags
commonly used to package narcotics and some different items that would be considered
paraphernalia” in the trunk of the vehicle.
Detective Neely recovered “a bag of pills” from the backseat of the vehicle,
which pills he identified as oxycodone by the use of a pill identifier application on his
telephone. In the cupholder in the center console, he found “a small baggie” with 1.37
grams of marijuana. From the defendant’s person, he recovered $1,975 in cash. He
explained that “[i]t’s common with -- people who are selling drugs [to] always have a
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substantial amount of currency on them.” Based on his professional experience, Detective
Neely believed that the pills and cocaine were possessed for the purpose of resale and that
the marijuana was possessed for the purpose of personal use.
Detective Neely testified that after he finished searching the Dodge Charger,
the vehicle “was seized” by the KCSO, explaining that “[v]ehicles are seized during drug
cases because they’re used as a conveyance to . . . transport narcotics” and because “in
general, [i]n the case of narcotics dealers, they’re not employed,” and if the vehicle was
“purchased with drug funds, maintained with drug funds, or used to transport narcotics, we
seize it.” Vehicle records indicated that the Charger belonged to Emanuel Merriweather,
but the defendant told the officers that he had recently purchased the car from Mr.
Merriweather. Officers were unsuccessful in their attempts to contact Mr. Merriweather.
Detective Neely said that he gave the defendant a “carbon copy” of the seizure form with
information on reclaiming the vehicle and money that had been seized.
During cross-examination, Detective Neely clarified that all three occupants
had been removed from the vehicle by the time he arrived to the scene and that the female
occupant had already left, saying, “I showed up long after that part was over.” He said that
he did not photograph the items he collected from the vehicle because it was not part of his
usual procedure. He said that another officer was “there with me inventorying the non-
narcotic stuff” from the vehicle. He did not dispute that the other items in the trunk of the
car included grocery items and acknowledged that it would not be unusual to find sandwich
bags among grocery items.
Tennessee Bureau of Investigation Special Agent Carl Smith testified as an
expert in forensic chemistry. In this case, he received “a rock-like substance, a plant
material, and then tablets.” He determined the rock-like substance to be cocaine base, a
Schedule II controlled substance. He determined that the 14 tablets were illegally
manufactured with markings that were consistent with oxycodone, but upon further
analysis, he determined them to be heroin, a Schedule I controlled substance. He
determined the plant-like material to be marijuana, a Schedule VI controlled substance.
The State rested, and, after a Momon colloquy, the defendant elected not to
testify and put on no proof.
The jury found the defendant guilty of the lesser included offenses of
facilitation of possession with intent to sell a Schedule I controlled substance and
facilitation of possession with intent to deliver a Schedule I controlled substance in Counts
1 and 2, guilty as charged of possession with intent to sell less than .5 grams of a Schedule
II controlled substance in a drug-free zone and possession with intent to deliver less than
.5 grams of a Schedule II controlled substance in a drug-free zone in Counts 3 and 4, and
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guilty of simple possession of a Schedule VI controlled substance in Count 5. The jury
acquitted the defendant of the charge of accessory after the fact by harboring or concealing
a felony offender in Count 6. After merging the appropriate convictions, the trial court
imposed an effective sentence of eight years’ incarceration. Following a timely but
unsuccessful motion for a new trial, the defendant filed a timely notice of appeal. In this
appeal, the defendant maintains that the evidence at trial was insufficient to support his
convictions and that the trial court erred by denying his motion to suppress.
I. Sufficiency of the Evidence
The defendant challenges the sufficiency of the evidence only as to the
convictions related to the cocaine and heroin, arguing that the State failed to establish that
he possessed the controlled substances.
Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—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. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331
S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of
the witnesses, the weight and value of the evidence, and the factual issues raised by the
evidence. 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.As relevant here, “[i]t is an offense for a defendant to knowingly . . . [p]ossess
a controlled substance with intent to manufacture, deliver or sell the controlled substance.”
T.C.A. § 39-17-417(a)(4); see also id. § 39-17-406 (identifying heroin as a Schedule I
controlled substance); id. § 39-17-408 (identifying cocaine as a Schedule II controlled
substance). The term “possession” embraces both actual and constructive possession.
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). In order for a person to
“constructively possess” a drug, that person must have “the power and intention at a given
time to exercise dominion and control over . . . [the drugs] either directly or through others.”
Id. (quoting State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)).
Additionally, “it 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 or substances were possessed with the purpose of selling or otherwise
dispensing.” T.C.A. § 39-17-419. A violation of Code section 39-17-417 “that occurs . . .
within one thousand feet (1,000’) of the real property that comprises a public . . . park shall
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be punished one (1) classification higher than is provided in [section] 39-17-417(b)-(i) for
such violation.” Id. § 39-17-432(b)(1) (2014).
Moreover, “[a] person is criminally responsible as a party to an offense, if
the offense is committed by the person’s own conduct, by the conduct of another for which
the person is criminally responsible, or by both.” Id. § 39-11-401(a). Criminal
responsibility for the actions of another arises when the defendant, “[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, . . . solicits, directs, aids, or attempts to aid another person to commit the
offense.” Id. § 39-11-402(2); see State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)
(“[C]riminal responsibility is not a separate, distinct crime. It is solely a theory by which
the State may prove the defendant’s guilt of the alleged offense . . . based upon the conduct
of another person.”). “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 § 39-11-402(2), the person knowingly furnishes
substantial assistance in the commission of the felony.” Id. § 39-11-403(a). A person acts
knowingly
with respect to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct
or that the circumstances exist. A person acts knowingly with
respect to a result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result.
Id. § 39-11-302(b).
Here, the evidence adduced at trial established that the defendant, who had
been told that officers were looking for Mr. King, was driving in the area of West Fifth and
James Avenues with Mr. King in the front passenger seat and an unidentified female in the
backseat of his vehicle. Officer Akins effectuated a traffic stop to facilitate the arrest of
Mr. King, and the defendant stopped his car in the middle of the road. Officer Akins asked
all three occupants to exit the vehicle and determined that the defendant’s driver’s license
had been revoked. Officer Akins arrested the defendant for driving on a revoked license
and placed him in the back of a patrol vehicle. Officer Akins impounded the defendant’s
vehicle and arranged to have it towed away. Officers searched the vehicle to inventory its
contents and discovered what was later identified as 22 grams of cocaine base under the
front passenger seat, an amount much greater than what is typical for personal use, 14
heroin pills in a bag in the backseat, and 1.37 grams of marijuana in a front cupholder.
Officers also recovered an empty box for a digital scale in the center console, a box of
sandwich bags from the trunk, and $1,975 in cash from the defendant’s person.
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The defendant argues that the evidence was insufficient to establish that he
possessed either the heroin or the cocaine. As to the heroin-related convictions, the
defendant was convicted of facilitation of the offenses. To be found guilty of these
offenses, the jury had to find that the defendant “knowingly furnishe[d] substantial
assistance” to someone else’s possessing the heroin pills with the intent to sell or deliver
them and not that the defendant had actual or constructive possession of the pills himself.
Similarly, as to the cocaine-related convictions, the jury was instructed on the theory of
criminal responsibility. To convict the defendant under the theory of criminal
responsibility, the jury had to find that the defendant “inten[ded] to promote or assist”
another’s possession of cocaine with the intent to sell or distribute by “aid[ing], or
attempt[ing] to aid another person to commit the offense.” Moreover, a person may be
found to be in constructive possession of an illegal substance that is found in the car in
which he is an occupant. Peters v. State, 521 S.W.2d 233, 235 (Tenn. Crim. App. 1974)
(stating that “possession means control” and holding that all three occupants of a vehicle
“were in control of the drugs” that were discovered underneath the passenger seat and in
the back of a van).
The evidence adduced at trial was sufficient to support the defendant’s
convictions for facilitation of possession of heroin with the intent to sell or distribute it. A
bag of 14 heroin tablets, designed to look like oxycodone pills, were found on the backseat
of the defendant’s vehicle near where the unidentified female passenger was seated. The
female passenger’s close proximity to the bag of heroin and the quantity of the drug in the
bag supported the jury’s finding that the female passenger possessed the heroin with the
intent to sell or distribute it. See State v. Gibson, 506 S.W.3d 450, 459-60 (Tenn. 2016)
(defendant’s sitting on a chair next to a duffel bag containing drugs supported a finding
that he constructively possessed the drugs); Peters, 521 S.W.2d at 235. Moreover, the
presence of the box for a digital scale and sandwich bags, which items Detective Neely
testified were commonly associated with drug dealing, further supported the finding that
the drugs in the vehicle were possessed for the purpose of resale. See State v. Nash, 104
S.W.3d 495, 500 (Tenn. 2003) (“[G]iven the large quantity of marijuana along with the
drug paraphernalia, it was reasonable to find that [the driver] possessed the marijuana with
the intent to sell or deliver.”). The jury was free to infer that the defendant knew of the
female passenger’s possession of the heroin and to conclude that he provided substantial
assistance to her by driving her around.
Likewise, the evidence was sufficient to establish that the defendant, as the
owner and driver of the car, constructively possessed the cocaine found under the front
passenger’s seat. Peters, 521 S.W.2d at 235. Moreover, the quantity of the drug, the
presence of a box for a digital scale and sandwich bags, and the defendant’s having $1,975
in cash on him supported the finding that he possessed the cocaine with the intent to sell or
distribute it. See Nash, 104 S.W.3d at 500. This evidence was also sufficient to support a
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conviction on the theory of criminal responsibility. The jury could have concluded that
Mr. King possessed the cocaine with the intent to sell or distribute it and that the defendant
intended to promote or assist Mr. King’s commission of the offense by driving him around
and by holding the cash used in the drug transactions.
II. Motion to Suppress
Before trial, the defendant moved the trial court to suppress all evidence
obtained from the search of his vehicle, arguing that “the stop and search of the vehicle
was conducted without probable cause or reasonable suspicion and without other lawful
authority.” The State argued that the traffic stop was lawful and that the search of the
vehicle was performed incident to the defendant’s arrest or as a valid inventory search upon
impoundment of the vehicle. The trial court held a hearing on the motion on June 9, 2017.
At the motion hearing, Officer Akins testified that, at the time of the offenses
in this case, he was assigned to the U.S. Marshal-led Smoky Mountain Fugitive Task Force,
in which he assisted in “[a]pprehending violent fugitives, gang members, and people with
. . . felony drug charges, so on, so forth.” He said that the task force was looking for Erreese
King, who was wanted by the U.S. Marshal Service. Although the defendant was not a
subject of that investigation, the defendant’s address was associated with Mr. King. Officer
Akins said that he was present “a week or two” before February 5, when he and other
officers went to the defendant’s house and that the other officers warned the defendant
about “harboring a fugitive, aiding and abetting” and that if the defendant was “caught . . .
helping, aiding [Mr. King] in any way, he could be subject to prosecution.” On February
5, Officer Akins saw Mr. King riding in the passenger’s seat of the defendant’s vehicle in
the area of “Boyd and James Street.” Officer Akins effectuated a traffic stop “in the middle
of the street,” “detained” the three occupants, and checked their identifications for
outstanding warrants and driver’s license statuses. The defendant had been driving the
vehicle, and a check of his driver’s license revealed that his license had been revoked. At
that point, Officer Akins “[p]laced him into custody for driving on [a] revoked license.”
Mr. King was taken into custody for outstanding warrants. The female passenger who had
been riding in the backseat had a “discrepancy with her license too,” although Officer
Akins could not recall the specific issue.
Determining that none of the three occupants could drive the vehicle, Officer
Akins determined that the vehicle “was going to be towed.” He said that the vehicle was
inventoried to prepare it for towing and that the inventory search revealed “crack cocaine
and OxyContin,” but he could not remember where in the vehicle the drugs were found.
He also said that “a misdemeanor amount of marijuana” was also found. The vehicle was
then towed from the scene.
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During cross-examination, Officer Akins acknowledged that he had never
seen Mr. King other than in pictures. He said that he identified Mr. King as the front seat
passenger in the vehicle from approximately 150 yards away. He said that he “was pretty
positive” at the time that the man he saw was Mr. King. Officer Akins said that he
determined “10 to 15 minutes or so” after the initial stop that the defendant’s driver’s
license was revoked and that he immediately took the defendant into custody and placed
him in his patrol vehicle. Officer Akins said that, other than the three occupants of the
vehicle, no civilians were present. He said that he learned “later on” that the defendant had
just driven away from his sister’s house that was very nearby where Officer Akins stopped
the car. Officer Akins said that he did not remember discussing with the defendant what
to do with the car but acknowledged that such a conversation “[c]ould have” happened. He
said that he did not personally search the vehicle but that he was familiar with the KCSO’s
vehicle inventory procedures.
On redirect examination, Officer Akins testified that under the KCSO’s
policy, it was up to the officer’s discretion whether to have a vehicle towed or to allow
someone to drive it away from the scene. He said that, to his knowledge, no one asked to
take the vehicle from the scene in this case.
The defendant testified that when he was stopped by Officer Akins, he “had
just pulled up at my sister[’s] driveway.” He estimated that his vehicle was less than 42
feet away from his sister’s house. He said that while he was seated in the police vehicle,
“My mama was out there” and that he asked an officer, “[C]an you give my keys and phone
to my mama?” He said that his mother was at the scene because he had “called her ’cause
I was telling them that I stay right across the street.” He explained that he wanted his
mother to take possession of his “stuff,” including his car. He said that shortly before he
was taken from the scene, his wife also arrived.
During cross-examination, the defendant said that he owned the car. He said
that he had been at his sister’s house and was stopped immediately after leaving her
driveway. He said that Mr. King and a female acquaintance of Mr. King were in the car
with him. The defendant denied that Officer Akins had previously talked to him about
their searching for Mr. King but acknowledged that a U.S. Marshal had told him that “they
were doing the search.” He said that the Marshal told him, “‘If I see you with Mr. King . .
. I’m going to charge you with harboring a fugitive[.]’” He reiterated that his mother came
to the scene because he called her to “personally . . . tell her I was getting locked up.” He
also said that he “told the officer, yes, I want my mom to come get my car ’cause I dropped
my kids off. School was just letting out.” He said that an officer had possession of his
cellular telephone and that he wanted his mother to take possession of his car and his
telephone.
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Lydia Darlene Holmes, the defendant’s mother, testified that the day of the
defendant’s arrest, she “had just got off from work and my daughter lives . . . not too far
from where it was at.” She said that she came to the scene because “I was already coming
down because I’m nosey.” She said that her daughter’s house was not far from where the
defendant was arrested and that “[y]ou could see everything” from the house. When she
arrived on the scene, the defendant “was in a car.” She said that she attempted to ask the
officers what was going on but that “they wasn’t even thinking about what I was saying.”
Ms. Holmes said that the vehicle the defendant had been driving was actually her car and
that she spoke with a female officer and asked, “‘Well, can you get his keys and his phone
and stuff so I can get his car?’” She said that the officer agreed but that as “she was about
to give them to me,” another officer “stopped her and told her, no, that they were going to
seize the car.” She noted that “there was a lot of people standing outside being nosey.
’Cause anytime people see the police, they going to come outside and be nosey.” Among
the bystanders were Ms. Holmes’ “daughter, my boyfriend at the time, [the defendant’s]
girlfriend, my grandson, a bunch of people.” She also said that several neighbors were also
“outside being nosey.”
During cross-examination, Ms. Holmes said that it was her routine to go to
her daughter’s house after work and that on the day of the defendant’s arrest, she saw his
car stopped by the police while en route to her daughter’s house. She said that the
defendant’s arrest “was already in process when I got there.” She also saw her daughter
and grandson standing outside. She explained that she owned the car but that the defendant
“was driving the car[,] . . . . [s]o it was his car at the time.” She said the car was registered
to the defendant’s girlfriend, who arrived at the scene sometime after Ms. Holmes arrived.
Ms. Holmes denied that the defendant had called and asked her to come to the scene. She
said that she asked the officers to give her the defendant’s telephone, keys, and car because
she “was going to take the car with me.” She reiterated that an officer told her that “he was
seizing the car.” She stayed at the scene until the car was towed away.
On redirect examination, Ms. Holmes estimated that five to six other people
that she knew saw her at the scene.
Kristin Brown, the defendant’s fiancé, testified that she arrived at the scene
“at the end” of the incident. She said that Ms. Holmes was already present when she arrived
and that the defendant was already in the police vehicle. She asked Ms. Holmes what was
going on, and Ms. Holmes said, “‘Well, they won’t let me get my son’s car.’” Ms. Brown
said that she came to the scene because the defendant’s sister had called her.
During cross-examination, Ms. Brown said that she and the defendant shared
the car and that she thought that it was registered in the defendant’s name. She said that
she attempted to recover the car after it had been towed but that “the company who had it,
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. . . told me that it was seized, that I couldn’t get it.”
At the close of the evidence, the trial court took the matter under advisement.
In its written order denying the defendant’s motion to suppress the evidence found in the
warrantless search of the car, the trial court found that Officer Akins effectuated a traffic
stop on the defendant after members of the task force saw Mr. King in the passenger’s seat
of the defendant’s vehicle. The court also found that the officers had already seized the
vehicle and begun to search it before Ms. Holmes arrived on the scene and asked to take
possession of it and that Ms. Brown did not arrive at the scene until after Ms. Holmes. The
trial court concluded that the initial traffic stop and the defendant’s arrest were lawful. The
trial court concluded that the search of the vehicle was not lawful as a search incident to an
arrest because the defendant was secured in a police vehicle at the time of the search. The
court, however, concluded that the search was a valid inventory search. The court found
that because the vehicle was parked in the middle of the road, the defendant had been
arrested, and neither Ms. Holmes nor Ms. Brown were present when the officers decided
to impound the vehicle, the officers properly impounded the vehicle and that the inventory
search was permissible.
In this appeal, the parties do not dispute that the initial traffic stop or the
defendant’s arrest were lawful; they dispute only the propriety of the impoundment and
search of the defendant’s vehicle. The defendant argues that the evidence collected during
the search of his vehicle was inadmissible because the officers illegally impounded the
vehicle despite his asking them to allow his mother to take possession of the vehicle. The
State argues that an inventory search was permissible because the officers properly
impounded the vehicle.
A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215,
217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge, and this court must uphold a trial court’s findings
of fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d
at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is
reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).
Both the federal and state constitutions offer protection from unreasonable
searches and seizures with the general rule being “that a warrantless search or seizure is
presumed unreasonable and any evidence discovered subject to suppression.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing U.S. Const. amend. IV; Tenn. Const. art.
I, § 7). Our supreme court has recognized, as one exception to the warrant requirement,
that “it is constitutionally permissible for police officers to inventory the contents of a
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lawfully impounded automobile without a search warrant as long as it is in accordance with
routine administrative procedures.” State v. Watkins, 827 S.W.2d 293, 295 (Tenn. 1992)
(citing South Dakota v. Opperman, 428 U.S. 364, 373 (Tenn. 1976)).
Impoundment of a vehicle is not permissible in every case, however. As our
supreme court has said, “Impoundment of a citizen’s vehicle following his or her arrest on
a traffic charge is inappropriate when reasonable alternatives to impoundment exist.”
Drinkard v. State, 584 S.W.2d 650, 653 (Tenn. 1979) (quoting State v. Bales, 552 P.2d
688, 689 (Wash. 1976)). The lawful arrest of a driver, alone, is insufficient to support a
vehicle’s impoundment; “there must also be reasonable cause to take his vehicle into
custody.” Id. “The guideline . . . is that if the circumstances that bring the automobile to
the attention of the police in the first place are such that the driver, even though arrested,
is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle
can be parked and locked without obstructing traffic or endangering the public, the police
should permit the action to be taken rather than impound the car against the will of the
driver and then search it. Id. “[T]he overriding question is whether, under all the attendant
circumstances, impoundment is reasonably necessary.” State v. Lunsford, 655 S.W.2d 921,
923 (Tenn. 1983) (citing Drinkard, 584 S.W.2d at 654; Miller v. State, 504 So. 2d 1307(Fla. 1981)). The State bears the burden to “show the reasonableness of the impoundment.”
Drinkard, 584 S.W.2d at 654 (quoting Bales, 552 P.2d at 689).
In determining the reasonableness of the impoundment, the trial court should
consider the extent to which the officer advised the defendant “that his car will be
impounded unless he can provide a reasonable alternative to impoundment.” Lunsford,
655 S.W.2d at 924 (citation omitted). An officer’s “failure to ask the defendant if he had
an alternative to towing the vehicle,” however, does not invalidate an impoundment when
“there are no reasonable alternatives for the disposition of the car.” Jason Lee Fisher v.
State, No. M2014-02327-CCA-R3-PC, 2015 WL 5766521, at *5 (Tenn. Crim. App.,
Nashville, Oct. 2, 2015) (quoting State v. Jeffery L. Hammons, No. M1999-00756-CCA-
R3-CD, 2000 WL 924633, at *3 (Tenn. Crim. App., Nashville, June 30, 2000)).
Here, the trial court found that the defendant’s vehicle was stopped in the
middle of the road and that neither Ms. Holmes nor Ms. Brown arrived until after the
vehicle had been impounded and the search of the vehicle had begun. The record supports
these findings. Because no eligible driver was available to take possession of the car when
Officer Akins decided to impound the vehicle and have it towed from the scene, the
impounding of the vehicle was appropriate. See Jason Lee Fisher, 2015 WL 5766521, at
*5 (quoting Jeffrey L. Hammons, 2000 WL 924633, at *3) (“[T]his court has held that
‘[w]here there are no reasonable alternatives for the disposition of the car, the appropriate
action is to impound the vehicle.’” (second alteration in Fisher)). Consequently, the
inventory search of the vehicle was lawful, and the results of the search are not subject to
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suppression. That Ms. Holmes and Ms. Brown arrived after the search of the vehicle had
commenced did not invalidate the impoundment.
Accordingly, the judgments of the trial court are affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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