State v. Ungandua Andre Ingram.

331 S.W.3d 746

STATE of Tennessee

v.Ungandua Andre INGRAM.

No. M2008–02765–SC–R11–CD.

Supreme Court of Tennessee, at Nashville.

Oct. 7, 2010 Session Heard at Centerville.1Jan. 21, 2011.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel, Nashville, Tennessee; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General; William Bottoms, Assistant District Attorney General, for the appellant, State of Tennessee.Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellee, Ungandua Andre Ingram.SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

OPINION

SHARON G. LEE, J.

Police officers had probable cause to arrest the defendant on drug charges based on information from a confidential informant and their surveillance of an illegal drug transaction. Shortly thereafter, when they observed the defendant commit a minor traffic offense, they pulled in behind him at a gasoline station and turned on their blue lights. The officers searched the defendant and told him that they had grounds to arrest him for drug distribution if they “wanted to.” The search of his person produced cash from the drug transaction. The police then searched the defendant's residence based on his consent, although the defendant disputed that he consented to the search. The search produced, among other things, cocaine and marijuana. The defendant was advised of his Miranda rights, but was not taken into custody. About four months later, the defendant was indicted on ten counts of drug-related charges. The defendant moved to suppress the fruits of the search of his person and his residence. After the trial court denied the motion to suppress, the defendant was convicted of selling cocaine, conspiring to sell cocaine, possession of cocaine with intent to sell, possession of marijuana and possession of unlawful drug paraphernalia. On review, we hold that the defendant was not under arrest at the time of the search of his person, and therefore the warrantless search was invalid. The warrantless search of his residence, however, was proper because the defendant consented to the search and the consent was not the product of the previous illegal search of the defendant's person. The defendant's convictions are reversed in part and affirmed in part.

Factual and Procedural Background

This case arose from two controlled purchases of crack cocaine made by a confidential informant (“CI”) employed by the Seventeenth Judicial District Drug Task Force. The officers involved in the operation were Director Tim Lane, Assistant Director Tim Miller, Special Agent Shane George of the Shelbyville Police Department, and Deputy Billy Ostermann of the Marshall County Sheriff's Department. These officers, as well as the CI and Ungandua Ingram (“the Defendant”) testified at a suppression hearing held on February 1 and March 13 of 2008. From their testimony, we gleaned the following facts.

On April 13, 2007, the officers arranged for the CI to make a controlled crack cocaine buy from Tonya Hampton, the co-defendant in this case and the target of the Drug Task Force's operation.² After the CI called Ms. Hampton and arranged to purchase from her an “eight-ball” ³ of crack cocaine, he met with Agent George and Deputy Ostermann. Deputy Ostermann outfitted the CI with a “wire” transmitter for the purpose of transmitting and recording any conversation during the buy. Agent George searched the CI for money, weapons, and contraband, and, finding none, issued him $150 in cash with recorded serial numbers for the cocaine purchase.

Agent George drove the CI to a location about a half mile from Ms. Hampton's house and dropped him off there. While the CI walked to Ms. Hampton's residence, Agent George parked at a nearby location with a view of the house and driveway. Assistant Director Miller had already set up surveillance from a location behind Ms. Hampton's house with a view of the rear entrance. Deputy Ostermann drove to a nearby parallel street, monitored the transmission from the CI's wire, and operated the equipment to record the transmission. Deputy Ostermann was the only agent who was able to hear the CI's conversations in “real time,” but he was not parked in a position where he could see the house. Director Lane was driving the perimeter of the operation in a supervisory capacity. The officers updated one another on the surveillance proceedings via radio.

The CI entered Ms. Hampton's house, and she took him to a room separate from the other people in the house and closed the door. The CI told Ms. Hampton he wanted to buy an eight-ball, and she said, “I've got to call and have it delivered.” Ms. Hampton called someone on her cell phone and told the person to bring the “dope” to her house. After the call, Ms. Hampton said, “you'll be surprised who I'm calling.” The CI asked who it was, and Ms. Hampton responded that it was his nephew “Ungandua.” The Defendant is the CI's nephew. After they heard a car pull up, Ms. Hampton left the room.

During this time, Agent George and Assistant Director Miller saw a white “round-body” style Chevrolet Caprice drive into Ms. Hampton's driveway. They saw a black male wearing dark pants and a grey hooded sweatshirt get out of the Caprice and enter the house. Shortly thereafter, Ms. Hampton returned to the room and gave the CI a small bag of what appeared to be crack cocaine in return for $150 in cash. As the CI was leaving the house, he saw the Defendant. Because they were not on good terms due to a previous disagreement, they did not speak. The CI testified that outside the house he saw the Defendant's car, “one of those round-bodied white Caprices.” The CI made his way back to Agent George's vehicle and gave him the crack cocaine.

The white round-body Caprice left Ms. Hampton's house shortly thereafter. Agent George, believing the Caprice's driver to be Ms. Hampton's drug supplier, radioed Deputy Ostermann with a description of the vehicle and instructed him to search the area for it. As Deputy Ostermann passed nearby Saint Ann Street, he saw a car matching the description of the Caprice parked in a residential driveway and saw a male matching the Defendant's description walking away from the car. Meanwhile, the CI told Agent George that the Defendant was the person who had delivered the crack cocaine and that the Defendant was going back to his residence on Saint Ann Street. Director Lane, having heard this information over the radio, searched the Department of Motor Vehicles' database and discovered that a vehicle matching the Caprice's description was registered to the Defendant and that the Defendant's driver's license listed an address on Saint Ann Street.

About forty-five minutes to an hour after the first buy, the officers decided to send the CI back to Ms. Hampton's house for a second controlled buy of another eight-ball. They followed a procedure similar to the first arranged buy, searching the CI, wiring him with a transmitter, providing him with $150 in recorded bills, and sending him on foot to the house. After the CI entered Ms. Hampton's house this time, Ms. Hampton told him that she had already sent her sister to deliver the crack cocaine to the CI's house. Ms. Hampton called her sister and asked her to return with the eight-ball, which she did. The CI then gave her the $150 in exchange for the small sack of what appeared to him to be crack cocaine. On this occasion, the CI did not see or hear the Defendant at the residence, nor did the surveillance officers see the white round-body Caprice at the house around the time of the purchase. The CI again met up with Agent George, gave him the bag of crack cocaine, and was released.

Assistant Director Miller radioed Agent George, told him he had located the Caprice parked nearby in the area, and instructed him to prepare to follow it. Assistant Director Miller then observed three persons come out of the nearby residence and get in the Caprice. Agent George recognized the white Caprice as the same car he had observed at the Hampton residence during the first controlled buy. He followed the Caprice when it drove off and observed the car fail to come to a complete stop at two stop signs. Agent George radioed this information to Director Lane and Assistant Director Miller, each of whom was driving his vehicle in the area. The Caprice pulled into the parking lot of a Shell gas station. Assistant Director Miller activated his blue lights and pulled in behind it. Director Lane did the same almost immediately thereafter. Assistant Director Miller approached the Defendant first and told him they were stopping him because of his stop sign violations. The officers saw two young children in the back seat of the vehicle. Director Lane then told the Defendant that they had been conducting a drug investigation and asked him to get out and step to the rear of the car so that they could discuss the investigation away from the children. The Defendant complied with this request.

Shortly after the officers initiated the stop, the CI and his brother arrived at the Shell station and asked permission to take care of the Defendant's children. Director Lane testified that he responded that “we are still in the middle of conducting an investigation, and we'd be making a decision regarding the issue involving the children and ... basically don't bother us right now.” The CI and his brother then drove away.

Once the Defendant got to the back of the car outside of the children's earshot, Director Lane told him that “we had made a controlled purchase of crack cocaine earlier in the evening and that I felt that there was enough probable cause that if we wanted to ... we would arrest him for distribution of cocaine base, conspiracy to distribute cocaine base.” Director...