State of Tennessee v. Corey Forest ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 18, 2016 Session
STATE OF TENNESSEE v. COREY FOREST
Appeal from the Circuit Court for Maury County
No. 24034 Robert Jones, Judge
No. M2016-00463-CCA-R3-CD – Filed January 31, 2017
The Defendant, Corey Forest, was indicted for possession of twenty-six grams of cocaine
with the intent to sell in a drug-free school zone, possession of marijuana, and unlawful
possession of a firearm. The Defendant filed a pretrial motion to suppress the warrantless
search of his vehicle. The trial court denied the Defendant’s motion, and the Defendant
pleaded guilty to the lesser-included offense of possession of more than .5 grams of a
Schedule II substance and to unlawful possession of a firearm, and attempted to reserve a
certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)
about whether the stop of the Defendant’s vehicle by law enforcement was lawful. After
review, because the Defendant has failed to properly comply with Rule 37, we dismiss
the Defendant’s appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
John S. Colley, III, Columbia, Tennessee, for the appellant, Corey Forest.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Brent A. Cooper, District Attorney General; and Gary M. Howell, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Background
This case arises from the stop of the Defendant’s vehicle on April 8, 2014, and the
subsequent search of the Defendant’s vehicle during which law enforcement officers
found cocaine, marijuana, and a handgun.
Before trial, the Defendant filed a motion to suppress, contending, among oter
things, that the City of Columbia police officer lacked jurisdiction to act outside the City
of Columbia, that police officers illegally stopped his vehicle, and that any evidence
derived from the subsequent search of his vehicle should be suppressed. At the hearing
on the motion, the following evidence was presented: Officer Neylan Barber testified that
he worked for the Columbia Police Department and that he stopped the Defendant’s
vehicle for speeding on April 18, 2014. Officer Barber stated that he was following the
Defendant’s vehicle as part of a drug investigation. The narcotics task force believed that
drugs were being sold at an apartment complex, and the police were monitoring a
residence at the apartment complex for the two days leading up to the stop of the
Defendant’s vehicle. Investigators observed the Defendant at the residence and, each
time he left the residence, the amount of traffic at the residence would increase.
Investigators also observed the Defendant’s vehicle at the apartment complex on multiple
occasions and, on each occasion, there was “increased traffic” coming and going from the
complex. The narcotics task force eventually received confirmation that narcotics were
being sold from the particular residence the Defendant frequented over those two days.
Officer Barber followed the Defendant’s vehicle from the apartment complex, at
the direction of Lieutenant James Shannon from the narcotics task force. He observed
the Defendant speeding and initiated a traffic stop at approximately 10:15 p.m., and a
recording of the stop was played for the trial court. Officer Barber testified that he
observed the Defendant’s vehicle traveling 60 miles per hour in 55 mile per hour and 50
mile per hour speed zones. The Defendant provided Officer Barber with a driver’s
license and proof of insurance but was unable to provide his registration at that time.
Officer Barber testified that the Defendant also provided him with a handgun carry
permit. When the Defendant took the permit and driver’s license out of his wallet,
Officer Barber observed what appeared to be a “couple hundred dollars” in twenty dollar
bills in the Defendant’s wallet. Officer Barber described how, as shown in the video, he
left the Defendant’s vehicle and returned to his police vehicle to run the Defendant’s
license through the NCIC database and through the Tennessee State Portal system to
check for outstanding warrants. Officer Barber then returned to the Defendant’s vehicle
at 10:22 p.m. to get the Defendant’s registration from him. Another officer arrived at the
scene at 10:23 p.m. Officer Barber stated that the Defendant said he had just come from
a restaurant, which Officer Barber knew to be untrue because he had followed the
Defendant from a “known drug house” at the apartment complex.
Officer Barber asked for consent to search the Defendant’s vehicle. He suspected
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that the Defendant was in possession of illegal narcotics based on the following facts: the
residence the Defendant came from, the amount of money in his wallet, his frequenting
the residence often over the course of the two-day period and the subsequent increase in
traffic to and from the residence, and the Defendant lying about where he had come from
when he was stopped. The Defendant refused to consent to a search and Officer Barber
informed him that a K-9 officer (narcotic drug dog) was going to perform a search around
his vehicle to check for illegal narcotics. At this point, Officer Barber had not written a
speeding citation for the Defendant. The K-9 officer indicated the presence of drugs in
the Defendant’s vehicle and a subsequent search of the vehicle revealed five bags of
cocaine present inside, totaling 30.92 grams of cocaine. The cocaine was found inside
the sunroof enclosure.
On cross-examination, Officer Barber clarified that he began following the
Defendant at the apartment complex, which was located near Columbia State Community
College. Officer Barber had been participating in surveillance of this apartment complex
for two days prior and observed increased foot traffic to and from the complex while the
Defendant’s vehicle was present. He agreed that he did not observe any drug
transactions. Lieutenant Shannon instructed Officer Barber to follow the Defendant from
the apartment complex and “find a traffic stop” on him. Officer Barber testified that he
left the Columbia city limit in Maury County at some point while he was following the
Defendant. Officer Barber testified that he was less than a mile from crossing the Maury
County line into Lawrence County when he activated his emergency lights.
Officer Barber stated that he measured the Defendant’s speed by “pacing” his
vehicle, gauging the Defendant’s vehicle’s speed against his own. Officer Barber stated
that he stopped the Defendant’s vehicle with no intention of writing him a speeding
ticket, and that it was a “pre-textual stop” based on Officer Barber’s belief that the
Defendant’s vehicle contained illegal narcotics. When he stopped the Defendant’s
vehicle, Officer Barber knew that the K-9 officer was en route to the scene. Officer
Barber agreed that, before he stopped the Defendant, he received a radio transmission
that told him that the Defendant’s driver’s license was “clear,” but no mention was made
about the Defendant’s registration or whether he had any outstanding warrants.
Officer Barber agreed that when the K-9 arrived at the scene, he “abandoned” the
pretext of writing the Defendant a speeding ticket and furthered the investigation into the
narcotics instead. Officer Barber clarified that the residence in the apartment complex
where the Defendant was seen coming and going was a “known drug house” because
multiple vehicles driven by people leaving the residence were stopped and had drugs
inside.
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On redirect-examination, Officer Barber stated that he was “confident” that the
Defendant was traveling 60 miles per hour in a 50 mile per hour zone when Officer
Barber stopped his vehicle.
The trial court questioned Officer Barber, and he clarified that multiple police
vehicles were following the Defendant’s vehicle in a “leapfrogging” maneuver, so he
would not become suspicious. Officer Barber agreed that the Lawrence County sign was
not far from where he stopped the Defendant.
Trooper Michael Kilpatrick testified that he worked for the Tennessee Highway
Patrol and that his K-9 performed a drug sniff on the Defendant’s vehicle. Trooper
Kilpatrick testified that he received the call to bring the K-9 to the traffic stop before the
Defendant’s vehicle was actually stopped. He was on the scene for less than a minute
before the K-9 drug sniff was performed.
On cross-examination, Trooper Kilpatrick stated that he was not sure how long it
took him to arrive at the scene after he received the call to assist. He denied that other
officers were “waiting around” for him; he stated Officer Barber and the Defendant were
“conducting business” when he arrived.
On redirect-examination, Trooper Kilpatrick stated that he received the call to
assist in a traffic stop of the Defendant’s vehicle “in case” a stop was made. He denied
that there was any “definiteness” to the call.
The trial court questioned Officer Barber further about the traffic stop. Officer
Barber stated that he had the paperwork available to write the Defendant a speeding ticket
but that he gave him a warning to slow down in order to be “lenient” on him. The trial
court then stated the following:
The Court does find this is the most extreme example of a pre-
textual stop that this Judge has ever seen where an officer in a marked car
along with one or two additional city officers follows the suspect 15 or 20
miles beyond the municipal limits of the City of Columbia and finally stops
the car within a quarter of a mile of leaving the county. And I’ve had a
case where an off-duty officer stopped a car north of Pulaski when that
officer was maybe on his way home. But it was a car weaving all over the
road, a DUI stop, and one that did result in an arrest.
....
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The Court noted in the video that the vehicle was stopped at about
[10:17 p.m.]. That the dog arrives at the driver’s side of the vehicle at
[10:26 p.m.]. . . . But you can actually see [Trooper Kilpatrick] and the dog
within nine minutes or so after the stop. There is less expectation of
privacy in a vehicle situation. And as the State argues, the Court’s not
impressed with the separate indicia of suspicion relied upon by Officer
Barber, but may be taken together along with what he knew about the
Columbia [apartment complex] residence and other circumstances. The
nine minute period of detention [of the Defendant] was not unreasonable.
Again, it’s a borderline case, because the Court is not impressed with
the [drug] dog’s conduct in indicating any sort of certainty of [drug] scent.
. . . The Court finds that Tennessee cases would permit it and that
[Rodriguez v. U.S., 135 S. Ct. 1609 (2015)] does not seem to prohibit such
officer conduct. Therefore, the Court finds the period of detention was
reasonable and not constitutionally defective under both the State and
Federal Constitutions. But like I say, it’s the most extreme pre-textual stop
I’ve ever seen.
The trial court denied the Defendant’s motion to suppress. Thereafter, the
Defendant offered a plea of guilty to possession .5 grams or more of a Schedule II
substance and to unlawful possession of a firearm and attempted to reserve a certified
question of law about the propriety of the stop of his vehicle. The trial court entered the
plea and sentenced the Defendant to eleven years of incarceration. In an agreed upon
order, the Defendant attempted to reserve for appeal the following certified questions of
law:
1. Was there a constitutionally permissible basis for the initial stop of the
Defendant’s vehicle?
2. Did the dog sniff impermissibly prolong the stop?
Both parties agree that the certified questions of law are dispositive of the case.
II. Analysis
A. Certified Question of Law
The State contends that the Defendant’s appeal should be dismissed because his
certified questions of law are “overbroad and non-specific.” The State argues that the
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Defendant “fails to identify the specific constitutional violations and makes no mention
of any specific factual allegations concerning his case” and complains that his certified
questions make no mention of “citizen arrest, probable cause, the basis for the stop, [or]
pre-textual stops.” The Defendant failed to file a reply brief to address these State
arguments.
Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure provides that a
defendant may appeal from any judgment or conviction occurring as the result of a guilty
plea. State v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004). The following are
prerequisites for an appellate court’s consideration of the merits of a question of law
certified pursuant to Rule 37(b)(2):
(i) The judgment of conviction, or other document to which such judgment
refers that is filed before the notice of appeal, contains a statement of the
certified question of law reserved by the defendant for appellate review;
(ii) The question of law is stated in the judgment or document so as to
identify clearly the scope and limits of the legal issue reserved;
(iii) The judgment or document reflects that the certified question was
expressly reserved with the consent of the state and the trial judge; and
(iv) The judgment or document reflects that the defendant, the state, and the
trial judge are of the opinion that the certified question is dispositive of the
case . . . .
Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).
In State v. Preston, our supreme court stated its intention to “make explicit to the
bench and bar exactly what the appellate courts will hereafter require as prerequisites to
the consideration of the merits of a question of law certified pursuant to Tenn. R. Crim. P.
37(b)(2)(i) or (iv).” 759 S.W.2d 647, 650 (Tenn. 1988). First, the final order or
judgment appealed from must contain a statement of the dispositive question of law
reserved for review. Id. The question must clearly identify the scope and limits of the
legal issue and must have been passed upon by the trial judge. Id. Second, the order
must also state that: (1) the certified question was reserved as part of the plea agreement;
(2) the State and the trial judge consented to the reservation; and (3) both the State and
the trial judge agreed that the question is dispositive of the case. Id. Third, the defendant
bears the burden of “reserving, articulating, and identifying the issue” reserved. State v.
Troy Lynn Woodlee, No. M2008-01100-CCA-R3-CD, 2010 WL 27883, at *2 (Tenn.
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Crim. App., at Nashville, Jan. 6, 2010), perm. app. denied (Tenn. May 20, 2010) (citing
Preston, 937 S.W.2d at 838). Failure to properly reserve a certified question of law
pursuant to the requirements stated in Preston will result in the dismissal of the appeal.
Troy Lynn Woodlee, 2010 WL 27883, at *2 (citing State v. Pendergrass, 937 S.W.2d
848, 838 (Tenn. 1996)). The importance of complying with the Preston requirements has
been reiterated by our supreme court in State v. Armstrong, 126 S.W.3d 908, 913 (Tenn.
2003), which stated that the Preston requirements are “explicit and unambiguous,” in
rejecting the defendant’s argument in favor of substantial compliance with Tennessee
Rules of Criminal Procedure 37.
The issues reserved by the Defendant in this case are: (1) Was there a
constitutionally permissible basis for the initial stop of the Defendant’s vehicle? and (2)
Did the dog sniff impermissibly prolong the stop?
The Defendant’s purported certified question does not clearly identify the “scope
and limits of the legal issue.” State v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App.
2004). Our supreme court has cautioned us regarding questions of law of this kind,
stating that in “questions of law involv[ing] the validity of searches and the admissibility
of [evidence], the reasons relied upon by the defendant in the trial court at the
suppression hearing must be identified in the statement of the certified question of law. . .
.” Preston, 759 S.W.2d at 650. Here, the Defendant’s certified questions of law neither
state the reasons the Defendant is entitled to relief nor state what evidence the Defendant
is seeking to suppress. Indeed, the questions as posed do not even state the legal basis for
suppression. This Court has previously held that certified questions of law that fail to
narrowly construe the issues and identify the trial court’s holding do not provide an
adequate basis for our review. See State v. Casey Treat, No. E2010-02330-CCA-R3-CD,
2011 WL 5620804, at *5 (Tenn. Crim. App., at Knoxville, Nov. 18, 2011) (holding that a
certified question that did not “articulate the reasons previously relied upon by the
Defendant in support of his arguments [and did] not describe the trial court’s holdings on
the constitutional issues presented” was overly broad), no Tenn. R. App. P. 11 filed; State
v. Bradley Hawks, No. W2008-02657-CCA-R3-CD, 2010 WL 597066, at *5 (Tenn.
Crim. App., at Jackson, Feb. 19, 2010) (holding that the certified question was overly
broad because it did not specify what police action rendered the search and arrest
unconstitutional, and did not adequately set forth the legal basis for the claim), perm. app.
denied (Tenn. June 16, 2010); see also State v. Tobias Toby Horton and Latonya Lynn
Townsend, No. W2008-01170-CCA-R3-CD, 2009 WL 2486173, at *4 (Tenn. Crim.
App., at Jackson, Aug. 13, 2009) (holding that the certified question was framed too
broadly such that the appeal court would have to conduct a complete overview of search
and seizure law to answer it, which the court declined to do), perm. app. denied (Tenn.
Dec. 14, 2009).
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Thus, we conclude that the Defendant’s certified questions of law are overly broad
and fail to clearly identify the issue preserved for appeal, as well as the scope and limits
of the issue. As such, we lack jurisdiction to address the merits of the Defendant’s claim
because his certified questions of law were not properly reserved. Pendergrass, 937
S.W.2d at 837. We reiterate that we take no satisfaction in the dismissal of this or the
many other failed Rule 37 appeals; however, we cannot assume jurisdiction when it is
denied due to failures in meeting the strict prerequisites of Preston. See Armstrong, 126
S.W.3d at 912.
III. Conclusion
After a thorough review of the evidence and relevant authorities, we conclude that
the proposed certified questions were not properly reserved. Accordingly, we dismiss the
Defendant’s appeal.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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