State of Tennessee v. Robert Lamar Kellery ( 2017 )

08/28/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2017
STATE OF TENNESSEE v. ROBERT LAMAR KELLEY
Appeal from the Criminal Court for Wilson County
No. 13-CR-339 Brody N. Kane, Judge
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No. M2016-01425-CCA-R3-CD
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Following the trial court’s denial of his motion to suppress, the Defendant-Appellant,
Robert Lamar Kelley, entered a guilty plea in the Wilson County Criminal Court to the
charged offense of possession of more than ten pounds of marijuana, a Class D felony,
for which he received a sentence of four years, with service of six months in confinement
and the remainder on supervised probation. See T.C.A. §§ 39-17-417(a)(4), (g)(2). As a
condition of his guilty plea, Kelley properly reserved two certified questions of law
pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) regarding the stop and search
of his vehicle. After reviewing the record, we find no error in the denial of the motion to
suppress and affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.
Comer L. Donnell, District Public Defender; Kelly A. Skeen (on appeal and at trial) and
Shelley Thompson (at trial), Assistant Public Defenders, for the Defendant-Appellant,
Robert Lamar Kelley.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and Jason L. Lawson,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Factual Background. After receiving a tip from a confidential informant, police
stopped a truck driven by Kelley and found eleven pounds of marijuana. Following his
indictment, Kelley filed a motion to suppress the drugs found in his vehicle.
At the suppression hearing, Kenneth Powers, a narcotics detective for the Lebanon
Police Department who was assigned to the Drug Enforcement Administration (DEA)
Drug Task Force in Nashville, testified that he received information from a confidential
informant that Kelley and Timothy Haddock were trafficking marijuana. Detective
Powers explained that in addition to the DEA, the Tennessee Bureau of Investigation
(TBI), as well as the Nashville and Lebanon Police Departments were investigating
Kelley for drug trafficking.
Detective Powers’ criminal informant told him that Kelley and Haddock were
driving to the Smithville, Tennessee area to receive a load of 50 to 100 pounds of
marijuana from some Hispanic individuals.1 He stated that this particular informant had
provided reliable information in the past that had been independently corroborated by
police. In addition, this informant had made several controlled drug buys from other
defendants in unrelated cases.
When Detective Powers asked the informant how he became aware of Kelley’s
and Haddock’s marijuana trafficking, the informant said that he lived with Kelley and
Haddock, which allowed him to have first-hand knowledge of their drug activities. The
informant told Detective Powers that Kelley would often travel to his “stash house” in
Dowelltown, Tennessee, where he would pick up a shipment of marijuana that Hispanic
drug couriers had delivered. Detective Powers acknowledged that he had no information
showing that the informant had ever been to Kelley’s home in Dowelltown.
Thereafter, in October 2011, Investigator Mike Galluzzi2 of the Nashville Police
Department executed a search warrant on Kelley and Haddock’s residence in Old
Hickory, Tennessee, and found 44 to 47 pounds of marijuana. Detective Powers said the
same confidential informant involved in the current case against Kelley informed him
that the Nashville Police Department had just discovered a substantial amount of
marijuana at Kelley and Haddock’s Old Hickory residence, and Detective Powers
contacted Investigator Galluzzi to discuss the details regarding the discovery of this
marijuana. Detective Powers said the discovery of the marijuana at the Old Hickory
residence further corroborated what the informant had told him about Kelley and
Haddock’s trafficking marijuana.
1
We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
to as Mr. or Mrs. or by his or her proper title.
2
Although the transcript from the suppression hearing refers to this individual as Mike Galousey,
this individual is identified as Mike Galluzzi in several other portions of the record.
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On May 22, 2012, this informant told Detective Powers that Dennis Anderson was
going to meet Haddock that afternoon to pick up a half-pound of marijuana at Kelley and
Haddock’s Old Hickory residence. The police conducted surveillance at the Old Hickory
address, and at around 2:00 p.m., they observed Haddock entering and exiting the house
and going to a home across the street. Then Haddock left his home and drove to a
tobacco shop, where he met Anderson in the parking lot. The officers saw Haddock and
Anderson exchange a plastic bag while looking under the hood of one of their vehicles.
The police later stopped Anderson in Lebanon for a speeding violation and found a half-
pound of marijuana in a yellow plastic bag, which also corroborated the information the
confidential informant had given to Detective Powers.
On June 6, 2012, Detective Powers obtained a warrant to install a Global Position
System (GPS) tracking device on Kelley’s Ford Ranger truck. He stated that the
probable cause for the tracking order was based on the information the informant had
given him regarding Kelley’s pattern of drug activities with Haddock as well as his
interviews with other detectives, including Investigator Galluzzi. Detective Powers
acknowledged that there was no mention of Kelley’s home in Dowelltown in the warrant
or affidavit for the GPS device. After obtaining the warrant, police installed the tracking
device on the truck on June 8, 2012, and began tracking Kelley’s movements. Sometime
prior to the suppression hearing, the company that provided the GPS tracking service for
Kelley’s vehicle was purchased by another company, and the GPS records showing
Kelley’s movements were destroyed.
On June 13, 2012, Detective Powers observed a controlled drug buy by the TBI,
wherein Powers’ confidential informant and an undercover agent purchased more than an
ounce of marijuana from Haddock at the same tobacco shop where the May 22, 2012
drug transaction between Anderson and Haddock took place. After this controlled buy,
the informant told Detective Powers that Haddock was Kelley’s “right hand man,” that
Kelley was Haddock’s supplier, and that Kelley “called the shots.” Detective Powers
said he spoke with his criminal informant on a weekly basis prior to Kelley’s stop,
although he did not recall speaking to him on June 20, 2012, the day of Kelley’s stop in
this case. He said his informant told him several times that Kelley was using his home in
Dowelltown as a “stash house.”
On June 20, 2012, Detective Powers monitored the tracking device on Kelley’s
vehicle and discovered that Kelley was driving east on Interstate 40 past Wilson County
in the direction of his home in Dowelltown. Detective Powers immediately informed
TBI agents in the area regarding Kelley’s movement and began following Kelley’s
vehicle, a Ford Ranger truck, to establish surveillance. Because Detective Powers was
afraid he would be seen, he conducted surveillance from a safe distance and continued to
monitor Kelley’s movements through the GPS device. Detective Powers saw Kelley pull
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into an area near Kelley’s residence in Dowelltown, which made him believe his criminal
informant had given reliable information about Kelley picking up a shipment of
marijuana there.
Kelley subsequently left his Dowelltown residence, and Detective Powers and the
TBI agents followed him from a distance. As Kelley returned to Lebanon, Tennessee,
Detective Powers contacted Detective Eric Brockman of the Lebanon Narcotics Unit and
asked him to wait at mile marker 245 so Detective Brockman could take over physical
surveillance of Kelley’s vehicle and conduct a “wall off stop,” meaning a traffic stop
where officers have reasonable suspicion or probable cause to believe that a narcotics
transaction has occurred. Detective Powers believed, at the point when he contacted
Detective Brockman, that he had reasonable suspicion to stop Kelley and to conduct a
narcotics investigation on the basis that Kelley’s vehicle contained marijuana. This
reasonable suspicion was based on the information regarding Kelley’s drug trafficking
activities and his “stash house” in Dowelltown that he had learned from his informant as
well as Kelley’s actions in going to the house in Dowelltown.
At the time of this call, Detectives Brockman and Rickles were travelling behind
Kelley, and Detective Powers was following behind these detectives. Detective Powers
continued to monitor the tracking device on Kelley’s vehicle, which told him Kelley’s
speed and location. When Kelley’s truck reached mile marker 239, Detective Powers
observed, via his monitoring of the tracking device, that Kelley’s vehicle was travelling
78 miles per hour, 8 miles per hour over the posted speed limit. The officers, who were
in unmarked cars, continued to follow Kelley into Wilson County, and Detective Powers
contacted Officer Jason Toporowski of the Lebanon Police Department to tell him that
they were following Kelley’s Ford Ranger and that they wanted him to stop Kelley.
Detective Powers told Officer Toporowski that Kelley’s vehicle was speeding, travelling
seventy-eight miles per hour in a seventy-mile-per-hour zone, and asked Officer
Toporowski to “[t]ry to develop any of his own probable cause that he could.”
Officer Toporowski testified that when he received the telephone call from
Detective Powers, he suspected that the stop of Kelley’s vehicle involved narcotics
because Detective Powers was a narcotics detective. Shortly after receiving this call, at
approximately 4:40 p.m., Officer Toporowski activated his blue lights and conducted a
stop of Kelley’s vehicle at mile marker 235. Officer Toporowski admitted that he did not
personally observe Kelley speeding or engaging in illegal activity prior to the stop. He
said he never wrote Kelley a ticket for speeding because Detective Powers had observed
the speeding violation. Officer Toporowski stated that he stopped Kelley because he had
received a call from Detective Powers asking him to conduct the stop. He confirmed that
a video recording was taken of the stop and that the recording accurately depicted what
occurred during the stop.
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Officer Toporowski said that when he stopped Kelley’s truck, he walked to the
driver’s side of the vehicle and observed Kelley in the driver’s seat and Haddock in the
passenger seat. He asked both men for identification and then returned to his patrol car to
have the dispatcher conduct a license check for both men. Officer Toporowski said that
Trooper Russell Peters, who was passing by, stopped to provide assistance, although he
had not specifically asked Trooper Peters to stop. After giving Kelley’s and Haddock’s
license numbers to the dispatcher, Officer Toporowski said he approached Kelley’s truck
again and asked for Kelley to exit the vehicle.
Officer Toporowski said Kelley exited his vehicle and, at his request, walked to
the front of Officer Toporowski’s patrol car. For his own safety, Officer Toporowski
patted down Kelley to ensure that he did not have any weapons on his person, though he
admitted no one had told him Kelley was armed. Because Kelley’s pockets were bulging,
he asked Kelley to remove the contents of his pockets, and Kelley took out nearly $6000
cash from his pockets and placed it on the hood of the patrol car.
Officer Toporowski said that in response to his questioning, Kelley said he did not
have anything illegal in his vehicle. When Officer Toporowski asked Kelley if he would
mind if he took a look in his truck, Kelley questioned why this was necessary, and
Officer Toporowski said it was his job to ask. During this conversation, Officer
Toporowski’s supervisor called to check on him, and he replied that he was fine. Officer
Toporowski returned to his conversation with Kelley and asked him a second time if he
could search the truck because Kelley had not given him a direct answer the first time,
and Kelley replied, “I don’t mind,” which Officer Toporowski interpreted as Kelley’s
consenting to a search of his vehicle. He added that Kelley never limited his consent to
search his vehicle in any way. He said that just after Kelley consented to the search of
his truck, the dispatcher informed him that Kelley and Haddock did not have any
outstanding arrest warrants. He then conducted a search of Kelley’s truck. At that point,
the audio portion of the recording malfunctioned, although Officer Toporowski asserted
that he had not turned off the audio.
When Officer Toporowski started to search the truck, Officer Bates arrived to help
him. Nothing was found during the search of the inside of the truck. However, during
the search, Officer Toporowski observed “an odd lock” on the toolbox attached to the bed
of the truck. After finishing the initial search, Officer Toporowski returned to Kelley and
asked him what was in the toolbox, and Kelley said it contained “tools and stuff” because
he did “construction.” When Officer Toporowski asked if he could “take a look,” Kelley
replied, “I can’t get it open, I don’t have the key” because he had “lost it or didn’t have
it.” Officer Toporowski, who had Kelley’s keys in his hand at the time, asked if one
particular key fit the lock, and Kelley responded, “I don’t know.” When Officer
Toporowski asked if he would mind if he tried this key, Kelley said, “[G]o ahead.”
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Officer Bates immediately got into the back of the truck, and Officer Toporowski gave
him Kelley’s keys before going back to his patrol car to return a phone call from
Detective Powers.
During this phone call, Officer Toporowski told Detective Powers that they had
gotten Kelley’s consent to search the truck but had not found anything yet. When he
added that they were trying to gain access to the tool box, Detective Powers told him they
were sending a K9 unit to the scene. Seconds later, Officer Bates turned around, and
Officer Toporowski could tell that “something wasn’t right.” Officer Toporowski ended
his telephone conversation and exited his patrol car. He said when Officer Bates used
one of Kelley’s keys, he was able to open the lock on the tool box and discovered the
marijuana, which weighed approximately 11 pounds. Officer Toporowski asserted that
the lock on the tool box was never forced open or broken in order to gain access to its
contents. After Officer Bates found the marijuana, Officer Toporowski told Detective
Powers about the drugs, and Kelley and Haddock were taken into custody and brought to
talk to the detectives. Officer Toporowski asserted that if Kelley had told him not to look
in his truck, then he would not have searched it.
Trooper Russell Peters also testified that Kelley consented to the search, stating
that when Officer Toporowski asked him if they could search the truck the first time,
Kelley replied, “I don’t mind,” and then the second time, Kelley “shrugged like, yeah, go
ahead.” Trooper Peters said he did not recall what he discussed with Kelley after Officer
Toporowski began searching the vehicle but stated, “I’m sure I was just doing
pleasantries and small talk to keep him occupied.” He said he would not have gone along
with the search of Kelley’s truck if Kelley had refused to give consent.
Later that day, Kelley was interviewed by Detective Powers at the police station
after waiving his Miranda rights. During this interview, Kelley was cooperative, agreed
to speak with police, and gave consent for officers to search another piece of property.
The video recording of Kelley’s stop was viewed by the trial court during the
suppression hearing. The recording showed that Officer Toporowski followed Kelley’s
vehicle for a few seconds before activating his blue lights and siren to stop him. As
Kelley stopped his vehicle on the shoulder of Interstate 40 West at mile marker 235,
Officer Toporowski asked the dispatcher to send him another unit. He then approached
Kelley’s truck and identified himself by name before telling Kelley that he was driving
“78 back there in a 70.” Officer Toporowski asked for both men’s driver’s licenses and
the vehicle’s registration before inquiring where the Kelley and Haddock were going.
The men replied that they were driving to Daytona on vacation. After he received the
licenses and registration, Officer Toporowski returned to his patrol car and asked the
dispatcher to check the license numbers for Kelley and Haddock. Over the radio, another
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officer notified Officer Toporowski that he was in route. Shortly thereafter, Trooper
Peters arrived on the scene, and Officer Toporowski and this trooper approached Kelley’s
truck. Officer Toporowski asked Kelley to step outside his vehicle, and Kelley exited the
truck, stopping to leave a few items inside his truck. Officer Toporowski asked Kelley if
he had “anything illegal on him like knives, guns, drugs,” and Kelley admitted that he
had a knife, which Officer Toporowski took from him and gave to Trooper Peters before
informing Kelley that he needed to conduct a pat-down search. Officer Toporowski
conducted the pat-down search while restraining Kelley’s hands and noted that Kelley
had something in the pockets of his cargo shorts. When he asked Kelley what it was,
Kelley responded that he had a wallet, and Officer Toporowski stated, “There’s a bunch
in there.” Officer Toporowski asked Kelley to walk over to his patrol car. He then asked
Kelley if he minded if he reached in and grabbed what was in his pockets, and Kelley
agreed. Officer Toporowski subsequently removed what appeared to be large amount of
cash as well as a wallet from Kelley’s pockets. He then asked Kelley if he had “any
weapons or anything like that in the back of your truck,” and Kelley’s response cannot be
heard. When Officer Toporowski continued to search his pockets, Kelley made a
statement that cannot be heard, and Officer Toporowski replied, “It is just part of our job,
what we’re kinda out here doing.” After emptying Kelley’s pockets, he released the
restraint on Kelley’s hands and asked if he had “anything illegal in the back of the
vehicle,” and Kelley said, “No,” and shook his head in the negative. Then Officer
Toporowski asked, “Mind if I take a look?,” and Kelley, stated, “Uh, I mean, I don’t
mind” and then asked why it was necessary, and Officer Toporowski said, “That’s just
part of our job.” When Officer Toporowski again asked, “You don’t mind if we take a
quick look,” Kelley said, “I guess not.” Officer Toporowski approached Kelley’s truck
while Kelley and Trooper Peters conversed in a friendly manner, although their
conversation was not captured on the audio portion of the recording. Officer Toporowski
then requested Haddock to exit the vehicle and when he asked Haddock if he had
anything “on him,” Haddock said, “No.” Officer Toporowski conducted a quick pat-
down search of Haddock. He did not remove anything from Haddock’s pockets before
asking Haddock to walk with him to the front of his patrol car. At that point, the audio
from the microphone on Officer Toporowski’s uniform stopped functioning. Officer
Toporowski approached Kelley’s truck and held up two items that had been placed on the
car’s hood, and he returned them to Kelley before walking back to Kelley’s truck.
Officer Toporowski opened the driver’s side door of the truck as Officer Bates, a
motorcycle officer, arrived on the scene and began assisting with the search of Kelley’s
truck. At the time, Trooper Peters continued to engage in friendly conversation with
Kelley and Haddock and received a telephone call. Officer Toporowski and Officer
Bates continued to search the truck and opened both the driver’s and passenger’s doors to
the truck, although most actions related to the search were obscured because Kelley and
Haddock were blocking the camera’s view of the truck. Officer Toporowski walked back
to his patrol car and appeared to ask Kelley a question, and when he heard Kelley’s
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response, Officer Toporowski nodded and returned to Kelley’s truck. A few seconds
later, Officer Bates climbed into the back of Kelley’s truck, and Officer Toporowski
returned to sit in his patrol car, where the audio resumes from the microphone inside the
patrol unit. Officer Toporowski told someone over the radio or a cell phone that they
“haven’t found a thing.” An instant later, Officer Bates opened a duffle bag in the back
of Kelley’s truck. Officer Toporowski told the person he was talking to that he had to go
as Trooper Peters and Officer Bates quickly handcuffed Kelley and Haddock and placed
them in the back of Officer Toporowski’s patrol car. A few seconds later, Officer Bates
climbed back into the back of Kelley’s truck and picked up the duffle bag, which caused
either Kelley or Haddock to curse as they are sitting in the patrol car. Officer Bates
brought the bag to the hood of Officer Toporowski’s patrol car and, in the presence of
Officer Toporowski, removed two large bales wrapped in plastic wrap. Either Kelley or
Haddock then said, “Well, that’s it.”
At the suppression hearing, Kelley testified that that Officer Toporowski asked
him if he could search his truck two or three times, and Kelley replied that Officer
Toporowski could look at “whatever is in plain view” but that he could not “search
through [his] vehicle.” He claimed that he clearly told Officer Toporowski that he could
not search his truck, which was why he kept asking for consent to search. Kelley also
claimed he was protesting the search to Trooper Peters on the video recording but that
that particular portion of the recording did not have audio. He said that when he saw
Officer Toporowski going through the back of his truck, he asked why he was searching
his vehicle, and Trooper Peters responded, “I’m just here for support or back up.” Kelley
claimed that he did not have a key to the tool box and that the tool box had “a lock that
you could jimmie open.”
At the conclusion of the suppression hearing, the trial court denied the motion to
suppress. While it did not enter a written order, the court made the following oral
findings of fact and conclusions of law at the end of the hearing:
I’ve reviewed the video tape, watched it twice before we ever got
here. I’ve had an opportunity to read the Defendant’s brief, which was very
helpful to me. I read the cases as well. And to be honest, I did have some
concerns prior to the hearing about what happened out there on the side of
the road.
After hearing the proof, watching the witnesses, because I didn’t
know exactly what the State’s witnesses were going to say, I do believe that
reasonable suspicion existed to make the stop, both with the speeding
allegation based on the GPS review that [Detective] Powers testified to as
well as the ongoing drug issues[.]
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I do believe, based on the experience and the corroboration from this
confidential informant [that] this confidential informant is definitely
reliable. Some other transactions occurred which were foretold by this
confidential informant, so I am satisfied upon that as well with of course
the [informant’s] basis of knowledge. I am satisfied that reasonable
suspicion existed to make the stop on the side of the road.
Then we get to the issue of consent. Folks, like I said, I listened to
this twice on my laptop at the office. I couldn’t hear it, I didn’t hear it the
first time through when we watched it today, but on the second run through
it was pretty evident to me, and this was replayed again I believe two more
times after that, when the Defendant was asked, does he mind if I search the
car, he says, no, I mean, I don’t mind. And then it goes on. You can’t hear
everything that was said thereafter, but I consider that valid consent based
on what I watched.
It’s true, [the State] asked if he was protesting and that sort of thing,
and I don’t believe the Defendant would have been required to scream and
go crazy trying to object to the search of the vehicle, but I do believe by my
observations of his demeanor from the stop after the statement was made to
Officer Toporowski [that his demeanor was] not consistent with one that
was continuously objecting or protesting what was going on.
I credit the testimony of Trooper Peters with respect to their
conversation, what was said. He was right there within four or five feet of
the conversation with his back to the traffic and he testified that he gave
consent. He even indicated that had Officer Toporowski had persisted with
a search of the vehicle against his consent that he would not have gone
along with it.
So, I’m satisfied based on the testimony I’ve heard that this is a legal
and valid stop based on the reasons given by [the prosecutor] in his closing.
I’m satisfied that that’s what occurred in this matter. Albeit, when I came
in today, I wasn’t. I did have some concerns, but after hearing the proof
and seeing that it wasn’t like this tool box got pried open by some special
pliers or something like that, it appears it was opened. There was a little bit
of discrepancy on whether it was a key that opened it or not. I don’t
believe Officer Toporowski knew exactly how it was opened, but there was
no evidence that it was actually pried open by a crow bar or something
along those lines.
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So, based on my review of the facts and the video tape and my
observations of the witnesses, their demeanor, I find that it is a valid stop, a
valid seizure of evidence, so I’m going to allow that evidence to be used at
the trial in this matter on Wednesday.
Following the denial of his motion to suppress, Kelley entered a guilty plea to
possession of marijuana in excess of ten pounds and properly reserved the following two
certified questions of law:
(1) Did the trial court err in finding the stop of the defendant’s vehicle was
supported by reasonable suspicion that the defendant was transporting
illegal controlled substances, sufficient to permit a Terry stop, and therefore
that the stop was constitutionally permissible? If the aforesaid question is
answered in the affirmative, then did the trial court err in finding the stop of
the defendant’s vehicle was supported by a reasonable suspicion that the
defendant was committing a traffic violation (travelling in excess of the
speed limit), sufficient to permit a Terry stop, and therefore the stop was
constitutionally permissible?
(2) If the stop is valid, did the trial court err in finding the search of the
defendant’s vehicle was pursuant to the defendant’s valid consent, and
therefore the search was constitutionally permissible?
ANALYSIS
Kelley argues that the trial court erred in denying his motion to suppress the
evidence found in his truck. He claims that his stop was not supported by reasonable
suspicion that he possessed marijuana or was speeding. He also asserts that he never
consented to a search of his truck. We conclude that because the stop and the search of
Kelley’s vehicle were constitutionally permissible, the trial court properly denied the
motion to suppress.
Although this is an appeal of two certified questions of law, we apply the same
standard of review as we would in considering the underlying issue, which is the denial
of the motion to suppress. State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citing
State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006)). A trial court’s findings of fact in
a suppression hearing will be upheld unless the evidence preponderates otherwise. State
v. Odom, 28 S.W.2d 18, 23 (Tenn. 1996). The prevailing party in the trial court “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.” Id. Moreover, “[q]uestions of credibility of the witnesses, the weight and
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value of the evidence, and resolution of conflicts in the evidence are matters entrusted to
the trial judge as the trier of fact.” Id. Despite the deference given to trial court’s
findings of fact, this court reviews the trial court’s application of the law to the facts de
novo with no presumption of correctness. State v. Montgomery, 462 S.W.3d 482, 486
(Tenn. 2015) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect citizens from unreasonable searches and seizures.
See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “[U]nder both the federal and state
constitutions, 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) (citing
Coolidge v. New Hampshire, 403 U.S. 403, 454-55 (1971); State v. Bartram, 925 S.W.2d
227, 229-30 (Tenn. 1996)); see State v. Davis, 354 S.W.3d 718, 727 (Tenn. 2011).
I. The Stop. Kelley argues the trial court erred in finding that the stop of his
vehicle was supported by reasonable suspicion that he possessed marijuana.
Alternatively, he argues that the trial court erred in finding the stop was supported by
reasonable suspicion that he was speeding.
One exception to the warrant requirement is a brief investigatory stop of a vehicle
that is supported by reasonable suspicion. State v. Keith, 978 S.W.2d 861, 866 (Tenn.
1998). An officer may make an investigatory stop of a vehicle based upon “a reasonable
suspicion, supported by specific and articulable facts, that the occupants of the vehicle
have committed, are committing, or are about to commit a criminal offense.” State v.
England, 19 S.W.3d 762, 766 (Tenn. 2000) (citing United States v. Cortez, 449 U.S. 411,
417 (1981)); Terry v. Ohio, 392 U.S. 1, 20-23 (1968). “‘[R]easonable suspicion can be
established with information that is different in quality or content than that required to
establish probable cause and can arise from information that is less reliable than that
required to show probable cause.’” Hanning, 296 S.W.3d at 49 (quoting State v. Day,
263 S.W.3d 891, 903 (Tenn. 2008)). Moreover, the likelihood of criminal activity
required for reasonable suspicion is not as great as that required for probable cause and is
“considerably less” than that required to satisfy the preponderance of the evidence
standard. State v. Lindsey A. Ochab, No. M2015-02290-CCA-R3-CD, 2016 WL
6247429, at *7 (Tenn. Crim. App. Oct. 26, 2016) (quoting United States v. Sokolow, 490
U.S. 1, 7 (1989)).
The Tennessee Supreme Court has defined reasonable suspicion as “‘a
particularized and objective basis for suspecting the subject of a stop of criminal
activity.’” Day, 263 S.W.3d at 903 (quoting State v. Binette, 33 S.W.3d 215, 218 (Tenn.
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2000)). The objective standard for determining whether an officer has reasonable
suspicion is whether “the facts available to the officer at the moment of the seizure or the
search warrant a man of reasonable caution in the belief that the action taken was
appropriate[.]” Terry, 392 U.S. at 21-22 (internal quotation marks and citations omitted).
“‘The issue of whether reasonable suspicion existed to validate a traffic stop is a mixed
question of fact and law.’” Davis, 354 S.W.3d at 726 (quoting State v. Garcia, 123
S.W.3d 335, 342 (Tenn. 2003)). The State bears the burden of presenting sufficient facts
to establish reasonable suspicion. Day, 263 S.W.3d at 908. “[T]he reasonableness of
seizures less intrusive than a full-scale arrest is judged by weighing the gravity of the
public concern, the degree to which the seizure advances that concern, and the severity of
the intrusion into individual privacy.” State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).
A court must consider the totality of the circumstances in determining whether
reasonable suspicion is supported by specific and articulable facts. State v. Watkins, 827
S.W.2d 293, 294 (Tenn. 1992); Binette, 33 S.W.3d at 218. These circumstances include
officers’ objective observations, information obtained from other law enforcement
officers or agencies, information obtained from citizens, offenders’ pattern of operation,
and officers’ inferences and deductions based on experience. Yeargan, 958 S.W.2d at632 (citing Watkins, 827 S.W.2d at 294; Cortez, 449 U.S. at 418; Terry, 392 U.S. at 21).
“[T]he content, quality, and quantity of information possessed by police must be assessed
in determining whether it is sufficiently reliable to support a finding of reasonable
suspicion.” Keith, 978 S.W.2d at 867. In making a reasonable suspicion determination,
“[o]bjective standards apply rather than the subjective beliefs of the officer making the
stop.” Day, 263 S.W.3d at 903 (citing State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim.
App. 1996); Terry, 392 U.S. at 21-22). Reasonable suspicion must not rely on an
officer’s “inchoate and unparticularized suspicion or ‘hunch.’” Terry, 392 U.S. at 27;
Hanning, 296 S.W.3d at 49.
A. Reasonable Suspicion of Marijuana Possession. Kelley argues that his stop
was not supported by reasonable suspicion that he possessed marijuana.
First, Kelley complains that all of the information regarding his alleged drug
activities came from a single criminal informant, who told Detective Powers that Kelley
used his Dowelltown home as a “stash house” for marijuana trafficking. Kelley claims
that this informant was not reliable because Detective Powers admitted that the informant
had never been to Kelley’s Dowelltown residence, Detective Powers conceded that he
had not talked to the informant on June 20, 2012, the day of Kelley’s stop, and Detective
Powers acknowledged that he could not recall the last time his informant told him Kelley
used the Dowelltown residence for drug activities.
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When information from a confidential informant contributes to the stop of a motor
vehicle, a totality-of-the-circumstances analysis may be appropriate in determining
whether reasonable suspicion or probable cause exists to support the stop. Compare State
v. Tuttle, 515 S.W.3d 282, 307-08 (Tenn. 2017) (overruling Jacumin and adopting the
Gates totality-of-the-circumstances analysis when determining whether an affidavit
establishes probable cause for issuance of a search warrant), with Day, 263 S.W.3d at 903(“Under circumstances where the information forming the basis for a motor vehicle stop
is derived from an anonymous informant, Tennessee law requires some showing of both
the informant’s veracity or credibility and his or her basis of knowledge.”), and Keith,
978 S.W.2d at 866 (While independent police corroboration can make up deficiencies in
either prong of this test for an informant’s reliability, “each prong represents an
independently important consideration that must be separately considered and satisfied in
some way.”). In conducting this totality-of-the-circumstances analysis, an informant’s
“veracity,” “reliability,” and “basis of knowledge” remain highly relevant but should not
be recognized as distinct and independent requirements to be rigidly applied in each case.
Id. at 303 (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). Circumstances
surrounding the informant’s tip, such as contemporaneous police corroboration of the tip
or corroboration of several details of the informant’s information, may increase the
reliability of the tip. Simpson, 968 S.W.2d at 782.
When considering the reliability of the informant in this case, the trial court
recognized that this informant had a long history of providing information that was later
corroborated by the police, which made him credible. It also found that the informant
predicted other transactions related to this case that were confirmed by the police, which
established the informant’s basis of knowledge that Kelley was trafficking marijuana.
Detective Powers specifically testified that the informant told him he knew of Kelley’s
trafficking of marijuana because he lived with Kelley and Haddock, which allowed him
to personally observe their drug activities. The evidence does not preponderate against
the trial court’s finding that the informant in this case was reliable.
Kelley also claims that reasonable suspicion to stop him was lacking because the
GPS device, which allowed Detective Powers to follow him to Dowelltown and back
was obtained based on information from this same confidential informant as well as
information from the unrelated stop of his co-defendant Timothy Haddock. Kelley
complains that the warrant application and supporting affidavit for the GPS device only
referenced his residence in Old Hickory and a car lot in Smithville and did not reference
his residence in Dowelltown, where he was leaving at the time to his stop. He claims that
although the State tried to use the informant’s information to have “built[-]in reasonable
suspicion” to stop him regardless of his location, this information amounted to a “mere
hunch” and fell short of the reasonable suspicion required to stop his vehicle. We have
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already determined that the confidential informant in this case was reliable, and, as we
will explain, the stop in this case was lawful.
At the time that Officer Toporowski stopped Kelley, the confidential informant in
October 2011 had promptly alerted Detective Powers that a substantial amount of
marijuana had been found by the Nashville Police Department at the residence shared by
Kelley and Haddock, which corroborated the informant’s claim that Kelley and Haddock
were trafficking marijuana. The informant also predicted the drug transaction between
Haddock and Anderson on May 22, 2012 and participated in a controlled buy of drugs
from Haddock on June 13, 2012. He informed Detective Powers that Haddock was
Kelley’s “right-hand man,” that Kelley was Haddock’s supplier for the drugs, and that
Kelley “called the shots” regarding the drugs. Regarding the stop in this case, the
informant told Detective Powers that Kelley and Haddock were trafficking marijuana and
that Kelley often travelled to his “stash house” in Dowelltown, where he would pick up
shipments of marijuana that had been delivered by Hispanic drug couriers.
On June 20, 2013, Detective Powers, while monitoring the GPS device on
Kelley’s vehicle, discovered that Kelley was driving east on Interstate 40 past Wilson
County, which indicated that Kelley might be travelling to his home in Dowelltown, and
Detective Powers followed Kelley to an area near this home. When Kelley left the
Dowelltown residence, Detective Powers and TBI agents followed him from a distance.
As Kelley entered Lebanon, Detective Powers contacted Detective Eric Brockman and
asked him to wait at mile marker 245 so Detective Brockman could take over physical
surveillance of Kelley’s truck for him and could conduct a traffic stop supported by
reasonable suspicion or probable cause that a narcotics transaction had occurred.
Detective Powers and the TBI agents continued to follow Kelley, and Detective Powers
continued to monitor Kelley’s movements through the GPS device installed on Kelley’s
truck. After Detective Powers realized that Kelley was travelling at 78 miles per hour, 8
miles per hour over the posted speed limit, he notified Officer Toporowski, who initiated
the stop.
When considering whether Officer Toporowski had reasonable suspicion that
Kelley was trafficking marijuana at the time of the stop, we recognize that the doctrine of
collective knowledge applies in this case. The Tennessee Supreme Court has recognized
this concept of collective knowledge when determining whether an officer has probable
cause to arrest a suspect:
When determining whether the police possessed probable cause, the
courts should consider the collective knowledge that law enforcement
possessed at the time of the arrest, provided that a sufficient nexus of
communication existed between the arresting officer and any other officer
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or officers who possessed relevant information. Such a nexus exists when
the officers are relaying information or when one officer directs another
officer to act. State v. Echols, 382 S.W.3d at 278; 2 [Wayne R.] LaFave[,
Search and Seizure: A Treatise on the Fourth Amendment] § 3.5(a)-(c)
[(5th ed. 2012)]. It matters not whether the arresting officers themselves
believed that probable cause existed. State v. Huddleston, 924 S.W.2d 666,
676 (Tenn. 1996) (“[An officer’s] subjective belief that he did not have
enough evidence to obtain a warrant is irrelevant to whether or not probable
cause actually existed.”).
State v. Bishop, 431 S.W.3d 22, 36 (Tenn. 2014).
Because the doctrine of collective knowledge applies when determining whether
an arresting officer has probable cause to arrest a particular suspect, it is logical that this
doctrine also applies when determining whether an officer possessed reasonable
suspicion to stop an individual. This idea of imputed knowledge has been applied by this
court in the past. See State v. Bryant, 678 S.W.2d 480, 482-83 (Tenn. Crim. App. 1984)
(concluding that the initial detention of the defendant by an officer who heard another
officer’s description of the defendant’s vehicle and request for assistance over the police
radio was lawful even though the officer who stopped the defendant had not witnessed
any unlawful activity by the defendant). Under the concept of collective knowledge, all
of the information known to Detective Powers would be imputed to Officer Toporowski
at the time of the stop, so long as a sufficient nexus of communication existed. Because
Detective Powers had reasonable suspicion that Kelley possessed marijuana and then
directed Officer Toporowski to act by stopping Kelley, a sufficient nexus existed such
that Detective Powers’ reasonable suspicion was imputed to Officer Toporowski.
B. Reasonable Suspicion Based on a Traffic Violation. Alternatively, Kelley
argues that the stop of his truck was not supported by reasonable suspicion that he was
speeding. He also contends that his detention exceeded the permissible scope of a lawful
traffic stop.
A police officer’s initiation of a traffic stop constitutes a seizure under the United
States and Tennessee Constitutions. Whren v. United States, 517 U.S. 806, 809-10
(1996); State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997); Pulley, 863 S.W.2d at 30.
“As a general rule . . . the stop of an automobile is constitutionally reasonable, under both
the state and federal constitutions, if the police have probable cause or reasonable
suspicion to believe that a traffic violation has occurred.” Vineyard, 958 S.W.2d at 734.
Kelley argues that the only proof he was speeding came from the GPS device
monitored by Detective Powers and that no officer personally observed him speeding.
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He also asserts that because his speeding offense was a misdemeanor, the officers should
have given him a citation and released him in lieu of effecting a custodial arrest. See
T.C.A. §§ 40-7-118(b)(1), 55-10-207(b)(1).
Initially, we note that Officer Toporowski had probable cause to initially stop
Kelley based on Detective Powers’ communication to him that Kelley was speeding. See
Bishop, 431 S.W.3d at 36 (collective knowledge doctrine). Officers regularly enforce
speeding laws by having one officer serve as the lookout with a radar gun and another
officer positioned in a place where he can stop and issue citations to violators. See, e.g.,
Bryant, 678 S.W.2d at 483. “‘It is well established that a traffic violation—however
minor—creates probable cause to stop the driver of a vehicle.’” State v. Davis, 484
S.W.3d 138, 143 (Tenn. 2016) (quoting United States v. Barry, 98 F.3d 373, 376 (8th Cir.
1996)); see State v. Berrios, 235 S.W.3d 99, 105 (Tenn. 2007) (“As a general rule, if the
police have probable cause to believe a traffic violation has occurred, the stop is
constitutionally reasonable.”); Vineyard, 958 S.W.2d at 736 (holding that officers’
observation of the defendant’s violations of traffic laws created probable cause justifying
the stop).
Moreover, at a minimum, Officer Toporowski’s stop of Kelley’s truck was
supported by reasonable suspicion that he was speeding. Although Kelley argues that
Officer Toporowski did not personally see him speeding, this court may consider an
officer’s reliance upon information provided by another officers when making a
reasonable suspicion determination. See Yeargan, 958 S.W.2d at 632; Watkins, 827
S.W.2d at 294. Based on the information provided by Detective Powers, Officer
Toporowski had reasonable suspicion, supported by specific and articulable facts, that
Kelley had committed the offense of speeding at the time of the stop.
Kelley also claims that because the GPS records documenting his speed were
destroyed, the State failed to establish that he was driving in excess of the posted speed
limit at the time of the stop. He asserts that although Detective Powers told Officer
Toporowski that he was speeding at mile marker 239 or 240, he was not actually stopped
until five miles later and that Officer Toporowski admitted he never observed Kelley
doing anything illegal prior to the stop. We note that the fact that the GPS records are no
longer in existence does not lessen the impact of Detective Powers’ testimony that he
monitored Kelley’s movements through the GPS device and that Kelley’s speed was
eight miles over the posted speed limit just prior to the stop, which was accredited by the
trial court. As we have already recognized, the information Detective Powers provided to
Officer Toporowski provided sufficient reasonable suspicion to stop Kelley for speeding.
We note that no constitutional violation exists if there is a valid reason for the traffic stop,
even if the officers have other motives in effecting the stop. Whren, 517 U.S. at 813.
Regardless of whether the officers believed that Kelley was engaged in the possession of
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marijuana, Officer Toporowski had a valid reason for stopping Kelley for speeding based
on the information he learned from Detective Powers.
In addition, Kelley asserts that his detention and subsequent search exceeded the
scope of a lawful traffic stop for speeding. He complains that there were multiple armed
officers at the scene, that he and Haddock were ordered out of the car and searched, and
that these searches culminated in Officer Toporowski’s reaching into their pockets while
handcuffing or restraining their hands behind their backs. While it is questionable
whether Kelley included this specific issue in his certified question, we will briefly
address whether the detention and search in this case exceeded the scope of the traffic
stop for speeding.
We recognize that “a law enforcement officer making a valid traffic stop must not
prolong the stop for longer than necessary to process the traffic violation without having
some reasonable suspicion of other criminal activity sufficient to warrant prolonging the
stop.” State v. Harris, 280 S.W.3d 832, 842 (Tenn. Crim. App. 2008). The duration of
the stop must be “‘temporary and last no longer than necessary to effectuate the purpose
of the stop.’” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting Florida v.
Royer, 460 U.S. 491, 500 (1983)). A traffic stop may become unreasonable “‘if the time,
manner or scope of the investigation exceeds the proper parameters.’” Id. (quoting
United States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001)). An officer’s conduct during
an investigative stop must be “reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry, 392 U.S. at 20. The proper inquiry is
whether the officers diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly during the detention. Troxell, 78 S.W.3d at871 (citing Simpson, 968 S.W.2d at 783).
Even if Officer Toporowski only had probable cause or reasonable suspicion to
stop Kelley for speeding, he developed reasonable suspicion that Kelley possessed
marijuana during the course of the stop. Prior to the stop, Detective Powers told Officer
Toporowski that Kelley had been speeding and asked him to “[t]ry to develop any of his
own probable cause that he could.” Officer Toporowski suspected that narcotics were
involved in this stop because Detective Powers, a narcotics detective, had told him to stop
Kelley’s vehicle. After initiating the stop, Officer Toporowski detained Kelley while
checking his driver’s license and the vehicle’s registration, and this detention was within
the permissible scope of the traffic stop. See Harris, 280 S.W.3d at 840 (recognizing that
“[r]equests 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.”
(internal quotation marks and citations omitted)). Shortly after Officer Toporowski
stopped the vehicle, he asked Kelley to step outside of the vehicle, and such requests
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have been deemed only a “de minimis” intrusion or a “mere inconvenience.” Berrios,
235 S.W.3d at 107. When Kelley exited his vehicle, Officer Toporowski asked him if he
had “anything illegal on him like knives, guns, drugs,” and Kelley admitted that he had a
knife, which gave Officer Toporowski reasonable suspicion to conduct a pat-down
search. See id. at 108 (stating that an officer has the authority to conduct a reasonable
search for weapons for the purpose of his safety, where he has reason to believe that the
suspect is an armed and dangerous individual); Terry, 392 U.S. at 27 (If an officer “has
reason to believe that he is dealing with an armed and dangerous individual, regardless of
whether he has probable cause to arrest the individual for a crime,” he may conduct a
limited pat-down search for weapons.). A subsequent search of Kelley’s person revealed
that he had approximately $6000 in his pockets, which gave Officer Toporowski probable
cause or, at a minimum, reasonable suspicion that a search of the vehicle would reveal
narcotics. Seconds later, Officer Toporowski asked Kelley for consent to search his
vehicle, and Kelley agreed to the search. We conclude that at the time Officer
Toporowski made this request to search, he was diligently pursuing his investigation in a
way that was likely to confirm or dispel his suspicions quickly. The video recording of
the stop shows that only fifteen minutes elapsed from the initiation of the stop to the
discovery of the marijuana. Almost immediately after Officer Toporowski made the
request to search, Kelley agreed to the search of his truck and never objected to or limited
the scope of this search, which resulted in his being detained for a longer period of time.
Because the time, manner, and scope of the investigation did not exceed the proper
parameters of the stop, Kelley has failed to show that the officers unreasonably detained
him following the traffic stop.
II. The Search. Finally, Kelley argues that the trial court erred in finding that he
consented to the search of his truck. He also claims that there was no proof supporting
the officers’ claim that they accessed the marijuana inside the toolbox with a key he
provided.
When evidence is seized following a warrantless search of a vehicle, the State
must prove that the search was conducted pursuant to one of the exceptions to the warrant
requirement. Troxell, 78 S.W.3d at 871 (citing Keith, 978 S.W.2d at 865). One such
exception is a search conducted pursuant to a person’s consent. Id. (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 248 (1973)); Bartram, 925 S.W.2d at 230.
The State has the burden of establishing that an individual’s “‘consent was, in fact,
freely and voluntarily given.’” State v. Reynolds, 504 S.W.3d 283, 306 (Tenn. 2016)
(quoting Schneckloth, 412 U.S. at 222). To be valid, consent must be “‘unequivocal,
specific, intelligently given, and uncontaminated by duress or coercion.’” State v.
Ingram, 331 S.W.3d 746, 760 (Tenn. 2011) (quoting Berrios, 235 S.W.3d at 109). A
defendant’s will cannot be overborne and his act of consenting must be “the product of an
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essentially free and unconstrained choice.” State v. Cox, 171 S.W.3d 174, 185 (Tenn.
2005). Whether a person voluntarily consents to a search is a question of fact to be
determined from the totality of the circumstances. Berrios, 235 S.W.3d at 109 (citing
Schneckloth, 412 U.S. at 227; Cox, 171 S.W.3d at 184, 186).
Factors to consider in determining whether an individual’s consent is voluntary
include the time and place of the encounter, whether the encounter was in a public or
secluded place, the number of officers involved, the degree of hostility during the
incident, whether weapons were displayed, whether consent was requested, and whether
the consenter initiated contact with the police. Cox, 171 S.W.3d at 185. In addition, an
individual’s “age, education, intelligence, knowledge, maturity, sophistication,
experience, prior contact with law enforcement personnel, and prior cooperation or
refusal to cooperate with law enforcement personnel” are relevant in determining whether
consent is voluntary. Id. (internal quotation marks and citation omitted). Finally, an
individual’s “‘[k]nowledge of the right to refuse consent’” is also a factor in determining
the voluntariness of consent. Id. (quoting Schneckloth, 412 U.S. at 235-47).
Even if a person’s consent is voluntary, evidence seized in the search will be
inadmissible if the search exceeds the scope of the consent given. Troxell, 78 S.W.3d at871 (citing 3 Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996)). When
determining the scope of consent, any express or implied limitations on the time,
duration, area, or intensity of the police activity necessary to accomplish the stated
purpose of the search, as well as the expressed object of the search should be considered.
Id. (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). The scope of consent is not
based on the subjective intentions of the consenting individual or the subjective
interpretations of the searching officer but on “‘objective’ reasonableness—what would
the typical reasonable person have understood by the exchange between the officer and
the suspect.” Id. at 871-72 (quoting Jimeno, 500 U.S. at 251).
Kelley claims he told the officers they could “look around at what’s [sic] ever in
plain view” but that they “[did] not have consent to search [his] vehicle.” He argues that
the trial court should not have accredited the testimony of the officers because neither
Officer Toporowski nor Officer Peters were able to recall anything said during their
discussions with Kelley other than the fact that Kelley consented to a search of his
vehicle. He also claims that the malfunctioning of the audio portion of the recording at
the precise moment the officers claimed he gave consent is suspicious.
After hearing the testimony from Officer Toporowski, Trooper Peters, and Kelley
and after reviewing the recording of the stop several times, the trial court found that when
Kelley “was asked, does he mind if I search the car, [Kelley] says, no, I mean, I don’t
mind.” The trial court also found that Kelley’s demeanor supported a finding that he
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consented to the search of his truck. The court stated, “I don’t believe the Defendant
would have been required to scream and go crazy trying to object to the search of the
vehicle, but I do believe by my observations of his demeanor from the stop after the
statement was made to Officer Toporowski [that his demeanor was] not consistent with
one that was continuously objecting or protesting what was going on.”
When considering the voluntariness of Kelley’s consent, we note that at the time
of the stop, Kelley was thirty-three years old. The record shows that Kelley had average
intelligence and that he had prior experience with both law enforcement and the criminal
justice system. In October 2011, a warrant was executed on Kelley’s Old Hickory house,
where officers discovered 44 to 47 pounds of marijuana, and Kelley was indicted for this
offense. At the time of the stop, Kelley had prior convictions for possession of marijuana
in excess of ten pounds, possession of marijuana not less than one-half ounce nor more
than ten pounds, misdemeanor theft, and a weapons offense.
We next consider the details of the incident in determining the voluntariness of
Kelley’s consent. The video recording of the stop shows that the stop occurred in the late
afternoon on the shoulder of an extremely busy interstate. While there were a total of
three officers at the scene, all of these officers were professional and respectful during the
course of Kelley’s stop and detention. Nothing in the record suggests that the officers
pressured or coerced Kelley into giving consent to search, and no officer drew his
weapon during the encounter. In particular, we recognize that Officer Peters provided
clear, unequivocal testimony about Kelley’s consent to the search, which was accredited
by the trial court, and we will not second-guess the credibility determinations made by
the trial court on appeal. Considering the totality of the circumstances, we conclude that
the evidence, including the video recording and the testimony from Officer Toporowski
and Trooper Peters, supports the trial court’s finding that Kelley consented to the search
of his vehicle.
Lastly, Kelley argues that “there was no proof on the record that the officers got
into the toolbox, located in the back of his truck, by any means of a key that he supplied.”
At the suppression hearing, Officer Toporowski testified that when he asked Kelley if any
of the keys on his keychain would open the lock, Kelley responded, “I don’t know.” He
then asked if Kelley would mind if he tried the keys, Kelley said, “[G]o ahead.” Officer
Toporowski stated that Officer Bates used one of the keys on Kelley’s keychain to open
the lock and that the lock did not have to be forced open. After hearing this proof, the
trial court made the factual finding that the officers did not pry the toolbox open, and the
proof does not preponderate against this finding. The record does not show that the
officers exceed the scope of the consent given by Kelley. After concluding that the initial
stop was justified and that the detention was reasonable in scope and duration, we further
conclude that Kelley voluntarily consented to the search of his truck, which led to the
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discovery of the marijuana. Therefore, the trial court properly denied the motion to
suppress.
CONCLUSION
Because the stop and the search in this case were constitutionally permissible, we
affirm the judgment of the trial court.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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