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STATE OF TENNESSEE Appellee
vs.
DORTHA JEANNE PUTT Appellant.
 
Case:
C.A. NO. 01C01-9601-CC-00039
 
Location:
COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE 1997 Tenn. Crim. App.
 
Date:
January 23 1997 FILED
 
Attorneys:
For Appellant: ELAINE B. BEELER Asst. Public Defender Franklin TN.
For Appellee: CHARLES W. BURSON Counsel General & Reporter KAREN M. YACUZZO Asst. Counsel General Nashville TN JOSEPH D. BAUGH District Counsel General RONALD L. DAVIS Asst. District Counsel General Franklin TN.
 
Court:
JOHN H. PEAY Court CONCUR: DAVID H. WELLES Court JERRY L. SMITH Court
 
Author:
The Hon. Justice John H. Peay
 

The defendant was indicted by presentment on November 7 1994 for introduction of contraband into a penal institution possession of a controlled substance in a penal institution and possession of a controlled substance for resale. She pled guilty to possession of a controlled substance in a penal institution a Class C felony. She was sentenced as a Range I standard offender and received a three year sentence. All but forty-five days of the sentence was suspended with the remainder to be served under supervised probation. In addition she received a two thousand dollar ($2000) fine. Prior to entering the plea the defendant reserved the following certified questions of law for appellate review:

1) Whether the stop and search of defendant's car violated defendant's constitutional rights guaranteed by the Fourth Amendment to the Constitution of the United States and Section 7 of Article 1 of the Constitution of Tennessee and the arrest evidence and statements obtained therefrom be suppressed?

2) Whether Court should have refused to allow the motion to suppress to be heard?

After a review of the record and applicable law we find that the defendant's constitutional rights were not violated and that the trial court was correct in refusing to hear the second motion to suppress.

On August 21 1994 the defendant went to Turney Center to visit her incarcerated husband. Upon arriving at the facility her car was searched and marijuana and drug paraphernalia were found. After being indicted she moved to suppress the evidence discovered by the search. An evidentiary hearing on her motion was held and the following relevant facts were developed.

On the day of the defendant's visit to Turney Center officers from the Twenty-First Judicial Drug Task Force were present and were searching all incoming vehicles. The task force was there at the request of Ricky Bell the warden at that time. Bell testified at the suppression hearing that drugs particularly marijuana had become a problem in the facility causing stabbings and other general violence among the inmates. While all visitors must be frisked and must pass through a metal detector drugs were nonetheless being brought into the facility. Because at least reasonable suspicion is needed before conducting body cavity searches Bell and his staff did not often conduct these searches. Thus Bell suspected that this was the manner used to smuggle drugs into the prison.

In an effort to prevent narcotics from entering the facility the task force was asked to search all vehicles that entered the Turney Center grounds. Regulations governing the Tennessee Department of Correction (TDOC) did not allow Bell and his staff to perform these vehicle searches. Department regulations provided that TDOC employees may not conduct any forcible searches and that any visitor who refuses to submit to any search shall be denied admittance to the facility and shall be asked to leave. Furthermore the regulations stated that any visitor who refuses to submit to a search shall not be detained. Because these regulations prevented TDOC employees from actually confronting individuals or forcing searches Bell asked the task force to conduct the searches. Task force officers have the power to arrest while TDOC employees do not.

Turney Center is located at the dead end of Highway 299. About one-quarter of a mile before reaching the facility a sign posted on the left side of the road states: "ALL PERSONS AND VEHICLES ARE SUBJECT TO SEARCH. FIREARMS WEAPONS DRUGS AND ALCOHOL PROHIBITED. VIOLATORS WILL BE PROSECUTED." The defendant had visited her husband approximately fifty times between February 1994 and the day of the search.

On the day of the search the defendant pulled into the parking area of Turney Center and stopped in the upper lot. An employee of Turney Center who was directing cars to the lower lot to be searched advised the defendant to remain in her car and drive to the search location. Upon realizing that vehicle searches were taking place the defendant told the employee that she was sick and needed to leave. At this same time Agent Joey Kimball of the drug task force came toward the defendant's vehicle. As he approached the vehicle he detected a strong odor of men's cologne. At the suppression hearing Kimball testified that cologne is often used to cover the smell of marijuana and prevent a drug dog from detecting the presence of the drug.

Kimball told the defendant that she must participate in the search and instructed her to drive her vehicle to the lower lot for inspection. The defendant did as instructed. A drug dog entered the vehicle but did not indicate the presence of marijuana. Kimball then entered the car and saw a workshop vise in plain view on the front floorboard. Upon further inspection he found a cigar box wrapped in a plastic bag. The box contained five plastic bags with approximately one-quarter ounce of marijuana and four cylinder shaped pellets that contained compressed marijuana. Kimball testified that the vise was the type commonly used to compress marijuana or other drugs into capsules that could be inserted into body cavities.

Later that day Agent Kimball took the defendant to the Hickman County jail where she was read her Miranda rights. After stating that she understood her rights the defendant said that she had been using the vise to compress marijuana so that she could smuggle the drug into the prison by concealing it in her body cavities. She also explained that the piece of paper found in her purse was a list of inmates who owed her money for the marijuana.

The defendant did not testify at the suppression hearing nor did she offer any evidence to contradict the State's witnesses. The trial court denied the motion to suppress and in its denial included findings of facts as well as conclusions of law. The findings of a trial Court on factual issues in a suppression hearing will be upheld unless the evidence preponderates otherwise. State v Odom 928 S.W.2d 18 23 (Tenn. 1996). We find no reason to disturb the factual findings of the trial Court.

In its conclusions of law the trial court cited alternative reasons for denying the motion to suppress. In what appears to be an issue of first impression the trial court determined that "there is an exception to the search warrant requirement of the Fourth Amendment as applied to the searching of prison visitor vehicles." In the alternative Court found that the defendant had not been "stopped" and that Agent Kimball had adequate reasonable suspicion to continue to observe the defendant. Court reasoned that Agent Kimball's reasonable suspicion became probable cause when he detected the heavy cologne and thus the search was constitutionally valid. We agree with the trial court on the first alternative ground only.

We first turn to the question of whether there was in fact any stop or seizure of the defendant when she was told she must take part in the search activities. Apparently the defendant pulled into the upper parking lot of the facility and stopped upon noticing that all vehicles were being searched. When she stopped a TDOC officer approached her and advised her to remain in her car and drive to the lower lot where the searches were taking place. *fn1 This activity in itself cannot be considered a "stop." The defendant had already brought her car to a stop and the TDOC employee simply approached her stopped car. See State v. Moore 776 S.W.2d 933 935 (Tenn. 1989). However the analysis does not end here; we must next determine whether the defendant was later "seized."

In Terry v. Ohio 392 U.S. 1 16 20 L. Ed. 2d 889 88 S. Ct. 1868 (1968) the Supreme Court observed that "it must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away he has 'seized' that person." This is so even if the purpose of the stop is limited and the detention is brief. Delaware v. Prouse 440 U.S. 648 653 59 L. Ed. 2d 660 99 S. Ct. 1391 (1979). The test to be applied is whether in view of all the circumstances a reasonable person would have believed that he was not free to leave. INS v. Delgado 466 U.S. 210 215 80 L. Ed. 2d 247 104 S. Ct. 1758 (1984). In this case the defendant indicated her desire to leave and was told by a TDOC officer and an agent of the drug task force that she could not do so and that she must participate in the vehicle searches. She could not simply drive away because Turney Center is located on a dead end and because the agent and the TDOC employee had instructed her not to do so. The defendant was clearly not free to leave and was thus seized within the meaning of Terry and its progeny.

Having determined that the defendant was "seized the next question is whether the seizure and the search complied with both state and federal constitutional prohibitions against unreasonable searches and seizures." We need not consider the appropriateness of the seizure as a distinct matter from that of the search because the search itself was undertaken without a warrant probable cause or any level of suspicion on the part of the TDOC employee or the drug task force agent. Thus the search was undertaken with no more justification than the less intrusive seizure. See People v. Turnbeaugh 116 Ill. App. 3d 199 451 N.E.2d 1016 1018-19 71 Ill. Dec. 862 (Ill. App. Ct. 1983).

In general the Fourth Amendment requires probable cause before an arrest is deemed to be reasonable. However the reasonableness of measures less intrusive than a full-scale arrest is "Courtd 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. Pully 863 S.W.2d 29 30 (Tenn. 1989). See Brown v. Texas 443 U.S. 47 50-51 61 L. Ed. 2d 357 99 S. Ct. 2637 (1979).

In this case the public concern is great. Turney Center is plagued as many correctional facilities are with serious problems as a result of drugs being smuggled into the facility by prison visitors. The warden at the time of the defendant's arrest testified that drug smuggling had led to stabbings among the inmates as well as other general outbursts of violence. As one court has noted it is vital that contraband articles be kept out of a prison. This is necessary for the protection of the inmates, employees of the institution and law enforcement officials assigned to that institution. State v. Manghan 126 N.J. Super. 162 313 A.2d 225 227 (N.J. Super. Ct. Law Div. 1973). The United States Supreme Court has stated a detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. Bell v. Wolfish 441 U.S. 520 559 60 L. Ed. 2d 447 99 S. Ct. 1861 (1979). Thus we have no trouble concluding that the first element of the reasonableness test weighs heavily in the state's favor.

The second part of the reasonableness analysis is the degree to which the search and seizure advances the public concern. In other words the search and seizure must be "reasonably related in scope to the circumstances which justified the interference in the first place. Terry 392 U.S. at 20. In this case the searches were conducted in an effort to keep drugs from being smuggled into the facility. The ordinary "frisk" search of visitors had proven unsuccessful in accomplishing this purpose thus officials at Turney Center opted for a different approach through the vehicle searches. Apparently Tennessee has not yet addressed the issue of whether these type of searches are reasonably related to the goal of keeping drugs from entering the prison. Turning to federal courts and courts of other states we find differing opinions.

In Spear v. Sowders a section 1983 claim the Sixth Circuit Court of Appeals noted that the Constitution does not require "individualized suspicion to search a car on prison grounds particularly if the visitor has been warned that the car is subject to search." 71 F.3d 626 633 (6th Cir. 1995). In Spear the plaintiff sued prison officials after she was subjected to a strip search and a vehicle search while visiting a prison inmate. Court stated that prison visitor searches fall into a special category which eliminates the need for probable cause before conducting every search of a prison visitor. Court recognized that while such a lower standard is inappropriate for a strip or body cavity search the nature of a vehicle search is less intrusive and therefore is an appropriate time to apply the lower standard.

Court further stated We cannot say that [the plaintiff] had a clearly established right to enter a prison facility with a sign notifying her that her car would be searched, place her car in an area to which prisoners have access, enter the prison facility and then turn around and seek to leave without submitting to a search. Nor can we even say that the search of her car absent any suspicion was per se unreasonable. Spear 71 F.3d at 633. Spear reached Court as a result of summary judgment having been granted in the defendants' favor. Because Court found genuine issues of material fact the case was remanded for resolution as to whether a warning sign was actually in place whether prisoners actually had access to the parking lot and whether the vehicle search was actually lengthy and intrusive. These questions of fact barred the Sixth Circuit from making a determination as to whether this particular search could withstand constitutional scrutiny. Nonetheless the analysis used by Court is helpful to our determination in the present case.

In Romo v. Champion also a section 1983 case the Fifth Circuit Court of Appeals reached a similar result. 46 F.3d 1013 (10th Cir. 1995). In Romo the plaintiffs were stopped at a roadblock near the entrance of a correctional facility. They were asked to remain in their car while a drug dog sniffed for evidence of drugs. Marijuana was subsequently located on one of the plaintiffs. They later brought suit against prison officials claiming that the initial stop at the roadblock was an unconstitutional seizure and that the canine sniff was an unconstitutional search.

In holding that the seizure was not unconstitutional Court applied the reasonableness test and determined that "the public interest in keeping drugs out of prisons and maintaining prison security is substantial the roadblock was reasonably tailored to achieve these objectives and the interference with plaintiffs' individual liberty was not significant." Romo 46 F.3d at 1016. Analyzing the search Court observed that probable cause is not needed to conduct a search when "special needs" beyond those of normal law enforcement are present. It concluded that the operation of a prison presents a special needs situation that may justify a departure from the normal requirements of the Fourth Amendment. Romo 46 F.3d at 1017. Thus Court held that the search of the vehicle did not violate the plaintiffs' constitutional rights. In reaching this decision Court pointed to these three factors: "First because they were visiting a prison plaintiffs' expectations of privacy were 'diminished by the exigencies of prison security.' . . . Second . . . the governmental objectives in conducting the search were substantial . . . . Third . . . prison authorities must be afforded wide-ranging discretion in adopting policies designed to preserve institutional security." Romo 46 F.3d at 1018 (citations omitted).

A third case People v. Turnbeaugh 116 Ill. App. 3d 199 451 N.E.2d 1016 71 Ill. Dec. 862 (Ill. App. Ct. 1983) also addresses this issue and is the primary authority for the trial court's determination in the case sub judice. In Turnbeaugh the defendant's vehicle was searched after he was stopped by a prison official on the access road to the correctional facility. The defendant had already passed a sign warning him that all persons and vehicles were subject to being searched. His car was stopped not because of any individualized suspicion but rather because all cars coming into the prison that day were being searched. The defendant was arrested when officers found a bag of cannabis between the seats of the car. Turnbeaugh 451 N.E.2d at 1018.

In Turnbeaugh Court also applied the reasonableness test and concluded that neither the stop nor the search of the defendant's vehicle was unconstitutional. In support of this decision the court pointed to the legitimate governmental interest in keeping contraband out of penal institutions to the fact that the group being searched was "self-selected" in that only those traveling to the prison were being searched and to the sign warning that vehicles were subject to search. Turnbeaugh 451 N.E.2d at 1019.

Because there is no Tennessee law governing this issue we look to the aforementioned cases for guidance in determining whether the search and seizure was reasonably related to the circumstances which justified the interference in the first place. The clear purpose of the vehicle searches was to prevent visitors from smuggling drugs into the prison. The balancing test requires us to determine whether this governmental interest outweighs the intrusion on the defendant's privacy interests. In analyzing this issue we find several factors similar to those in Romo which are particularly significant. First because the defendant was entering a correctional facility she had a lesser expectation of privacy. Blackburn v. Snow 771 F.2d 556 563 (1st Cir. 1985). The intrusion on her privacy is certainly less intrusive in this situation than had the search been conducted outside the confines of a correctional facility. In addition a sign posted outside the prison grounds warned the defendant that she and her vehicle were subject to search. Second as we noted earlier the state has a substantial interest in keeping drugs out of prisons. And third searching all incoming cars was a sufficiently reasonable method of preventing drugs from entering the facility. Turney Center's warden at the time testified that "frisk" searches alone were not adequate methods of prevention. Additionally he testified that a select group of prisoners has access to the visitor parking lot during non-visitation hours. While no inmate is allowed in the parking lot while visitors are present it is hardly a stretch to imagine a visitor leaving a contraband item in the parking lot for an inmate to recover at a later time. Thus weighing the important state interest against the intrusion upon the defendant in this case we conclude that both the seizure and the search were reasonable under the second prong of the reasonableness test.

The third and final part of the reasonableness analysis is the severity of the intrusion into individual privacy. The United States Supreme Court has observed that any search of an automobile is a "substantial" invasion of privacy. United States v. Ortiz 422 U.S. 891 896 45 L. Ed. 2d 623 95 S. Ct. 2585 (1975). However as we noted above the fact that the defendant had entered the grounds of the prison facility diminishes her usual expectation of privacy. This intrusion on her privacy is outweighed by the state's substantial interest in preventing the introduction of drugs into prison facilities. We take this opportunity to note that had the defendant been subjected to a strip search or a body cavity search our analysis would not be the same. A reasonable suspicion standard generally applies to these types of searches and nothing in this opinion shall be construed to hold otherwise. See e.g. Spear v. Sowders 71 F.3d 626 (6th Cir. 1995); Cochrane v. Quattrocchi 949 F.2d 11 (1st Cir. 1991); Daugherty v. Campbell 935 F.2d 780 (6th Cir. 1991); Thorne v. Jones 765 F.2d 1270 (5th Cir. 1985). Here however the search of the defendant's vehicle is a "far cry" from the embarrassing and humiliating experience of a strip search. See Romo 46 F.3d at 1019.

Our analysis under the reasonableness test therefore leads us to the conclusion that the vehicle search in this case was constitutional under the state and federal constitutions despite the fact that it was conducted without a warrant probable cause or reasonable suspicion.

Having reached this conclusion we have one other issue to address. The defendant claims that despite whether prison officials may conduct vehicle searches without a warrant or probable cause her constitutional rights were violated when she asked to leave and was told that she could not. The Turnbeaugh defendant made a similar argument by contending that once he was stopped he should have been given the opportunity either to consent to the search or to leave. He apparently did not consent to the search but he did not ask to leave either. Court rejected this argument stating that "an option to depart rather than be searched would constitute a one-way street for the benefit of the party planning mischief as there is no guarantee that he would not return later and be more successful." Turnbeaugh 451 N.E.2d at 1019. Citing State v. Manghan 126 N.J. Super. 162 313 A.2d 225 228-29 (N.J. Super. Ct. Law Div. 1973). The trial court in the case sub judice also used this language to reject the defendant's argument.

However in a similar case a Maryland court held that the detention of a prison visitor who had asked to leave rather than he searched was unreasonable. Gadson v. State. 341 Md. 1 668 A.2d 22 (Md. 1995). In Gadson the defendant was stopped and his vehicle was searched at a guard station about one-quarter of a mile from the prison. Court noted that the purpose for the vehicle searches was to prevent drugs from entering the correctional facility. When the defendant offered to turn around and leave the goal of the searches had been fulfilled. Gadson 668 A.2d at 30. The defendant should have been further detained only if the guard who stopped him had reasonable articulable suspicion that there were drugs in the vehicle. See Wayne R. Lafave Search and Seizure SEC. 10.7(b) (3rd ed. 1996) ("A search without probable cause of a jail visitor is justified only by the need to prevent the introduction of contraband and weapons into the jail and this is accomplished if the person declines to be searched and departs. Should he return on another day he will again be subject to a search of sufficient intensity to meet the danger and thus the failure to apprehend him earlier does not jeopardize the security of the detention facility."). See also People v. Whisnant 103 Mich. App. 772 303 N.W.2d 887 891 (Mich. Ct. App. 1981)("Random pat-down searches of prison visitors are reasonable where the visitor is aware of the possibility of the search and can avoid it by choosing not to proceed with the prison visit."); Commonwealth v. Dugger 506 Pa. 537 486 A.2d 382 (Pa. 1985)("A visitor comes to a prison voluntarily. If he or she refuses to be searched they may leave.").

In this case before us the warden at the time testified that the presence of drugs was a problem at Turney Center in large part due to visitors bringing drugs into the facility by concealing the contraband in body cavities. The simple "frisk" search of all visitors did not allow detection of the drugs. In an effort to stop the drug trafficking the warden thought that vehicle searches were necessary. Had the defendant been allowed to leave the prison grounds without being searched she could have easily removed the drug paraphernalia from her vehicle inserted the capsules with the compressed marijuana and returned to the facility. A search of her vehicle would have revealed nothing leaving the defendant free to pass the drugs to her incarcerated husband. Or if the defendant did not return that day she would certainly be wiser the next time she chose to visit and would not arrive at the facility with the tools of her trade in the vehicle. Additionally vehicle searches at Turney Center are not everyday occurrences. If the defendant had been allowed to leave she may be luckier at her next visit and choose a day that the drug task force is absent. There is no guarantee that she will be subject to a search of "sufficient intensity" at her next visit. And again we point out the fact that prison inmates have access to this parking area. Thus in this situation the failure to apprehend the defendant at the first chance certainly does jeopardize the security of Turney Center. For these reasons we choose to follow the reasoning of the Turnbeaugh court and hold that detaining the defendant after she requested to leave was not a violation of her constitutional rights.

In summary we hold that the search of the defendant's vehicle was reasonable under the Fourth Amendment to the United States Constitution and under Article 1 Section 7 of the Tennessee Constitution despite the absence of a warrant probable cause or reasonable suspicion. We further hold that the denial of defendant's request to leave was not a violation of her constitutional rights. Thus we affirm the trial court's decision that the evidence discovered as a result of the vehicle search should not be suppressed.

In her second certified question the defendant challenges the appropriateness of Court's refusal to hear her second motion to suppress. The Rules of Criminal Procedure provide that motions to suppress must be raised prior to trial. Tenn. R. Crim. P. 12 (b)(3). The rules further provide that the trial court may set a time for the making of pretrial motions unless a local rule provides otherwise. Tenn. R. Crim. P. 12(c). Hickman County Local Criminal Rule 2 section 2.01 provides that motions to suppress evidence must be filed within ten days of the date the State has complied with a defendant's discovery request.

In this case the State filed its compliance with the discovery request on December 19 1994. The defendant did not file her first motion to suppress until January 11 1995. She then filed an amendment to the first motion on April 12 1995. A hearing on the amended motion was held on April 18 1995 and an order denying the motion was entered on May 15 1995. Then on October 12 1995 the defendant filed a second motion to suppress. The trial court granted the State's motion to strike this second motion because it was untimely. We find no error in the trial court's decision. The trial court had already allowed the defendant to file her first motion past the ten day deadline and had then allowed her to amend the motion nearly three months later. We find that the defendant had ample time and opportunity to file her motion to suppress.

That the defendant's issue raised in the second motion to dismiss is a constitutional issue involving due process rights at the time of her arrest is immaterial. As this Court has stated before in defending deadlines for filing motions to suppress. "The rule does not deny anyone of his constitutional rights; it merely provides for an orderly procedure to be followed to invoke the exclusionary rule when a constitutional right is violated. Provisions are made for a defendant who has good cause for not filing his motion pretrial. . . . We reject [the defendant's] insistence that the rule is not applicable when a violation of a constitutional right is claimed." State v. Foote 631 S.W.2d 470 473 (Tenn. Crim. App. 1982). Thus the defendant's second certified question is without merit.

For the foregoing reasons the judgment below is affirmed.

JOHN H. PEAY Court

CONCUR:

DAVID H. WELLES Court

JERRY L. SMITH Court

 
Notes:

*fn1 The defendant argues that the search and seizure violated Turney Center's internal regulations because the regulations provide that TDOC employees are not to perform forcible searches or to detain any prison visitor who refuses to submit to a search. While these regulations appear to pertain only to TDOC employees and not to agents with the drug task force the violation of an administrative rule does not implicate any Fourth Amendment right Long v. Norris 929 F.2d 1111 1115 (6th Cir. 1991).