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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs January 29, 2013

STATE OF TENNESSEE V. DANE SAYLES, ALIAS BRADLEY HARPER
Appeal from the Criminal Court of Hamilton County No. 268630 Rebecca J. Stern, Judge

No. E2012-00138-CCA-R3-CD - Filed May 3, 2013

Dane Sayles, alias Bradley Harper ("the Defendant"), was convicted by a jury of possession with the intent to sell or deliver three hundred grams or more of cocaine. The trial court sentenced the Defendant as a Range II, multiple offender to forty years to be served consecutively to previous sentences the Defendant received in Pennsylvania. On appeal, the Defendant argues that the trial court erred in denying his motion to suppress the stop and search of his vehicle, as well as the seizure of cell phone text messages. The Defendant also asserts that the trial court erred in "permitting the State to continue adding witnesses in the middle of trial whose names were not provided in discovery." Finally, the Defendant challenges the length of his sentence. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN and R OGER A. P AGE, JJ., joined. Donna Robinson Miller (on appeal) and Kelli Black (at trial), Chattanooga, Tennessee, for the appellant, Dane Sayles, alias Bradley Harper. Robert E. Cooper, Jr., Attorney General & Reporter; Meredith DeVault, Assistant Attorney General; William H. Cox, III, District Attorney General; and Boyd Patterson and Charlie Minor, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION Factual and Procedural Background A Hamilton County Grand Jury indicted the Defendant and Marcus Harper ("the codefendant") on one count of possession with the intent to sell or deliver three hundred grams or more of cocaine.1 Prior to trial, the Defendant moved to suppress evidence seized as a result of what the Defendant alleged was an improper stop. On December 8, 2008, the trial court held a suppression hearing. Officer Dale Lockhart of the Chattanooga Police Department ("CPD")2 testified that on April 28, 2008, he stopped a vehicle in which the Defendant was a passenger. He had observed the vehicle driving sixty-six miles per hour in a fifty-five mile per hour zone. Then, "[b]efore pulling the vehicle over at a safe location [he] observed the vehicle making improper lane changes without using his turn signal in heavy traffic." Upon approaching the passenger side of the vehicle, he noticed that the co-defendant and the Defendant ("the co-defendants") seemed nervous,3 making him suspicious of potential criminal activity. When Officer Lockhart asked for the co-defendant's driver's license and insurance, he handed Officer Lockhart his entire wallet. Additionally, the Defendant never would make eye contact with Officer Lockhart. According to Officer Lockhart, the Defendant was breathing heavily, and "the carotid artery in his neck was beating rapidly." On cross-examination, Officer Lockhart acknowledged that the age difference of the two individuals also contributed to his suspicion of criminal activity. Additionally, he did not see any luggage in the vehicle. On cross-examination, however, Officer Lockhart acknowledged that the luggage could have been in the trunk. Officer Lockhart stated that he returned to his vehicle with the co-defendant's driver's license to run "a computer check." He then approached the passenger side of the stopped vehicle and asked the co-defendant to step out of the car. The co-defendant mentioned that he was applying for employment with a police department in Atlanta, Georgia, and did not want a ticket. Officer Lockhart informed the co-defendant that he would be giving the codefendant a warning citation. As he filled out the citation, he asked the co-defendant about his trip. The co-defendant stated that they were traveling from Atlanta to Pennsylvania because "his sister was having a kidney transplant." Although the co-defendant stated that

Although the other indictments were not included in the record, from the trial record we deduce that the co-defendant also was indicted on one count of speeding and one count of failure to maintain his lane of travel.
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At some point between the suppression hearing and trial, Officer Lockhart left the CPD. The co-defendant was in the driver's seat, and the Defendant was in the passenger's seat.

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his sister was in the hospital, he could not recall the name of the hospital. Officer Lockhart did not allow the co-defendant to leave after writing the warning citation because of his "suspicion of criminal activity." The co-defendant informed Officer Lockhart that the vehicle he was driving was a rental vehicle ("rental vehicle"). So Officer Lockhart examined the rental agreement and noticed that the vehicle was registered to a female who was not present in the rental vehicle. The agreement indicated that no one was to drive the vehicle except the person to whom it was registered. Officer Lockhart asked the co-defendant who the female was, and the codefendant responded that she was the Defendant's girlfriend. When asked who the Defendant was, the co-defendant said that he was the co-defendant's uncle, but the codefendant could not tell Officer Lockhart his name. The co-defendant offered to go ask for the passenger's name, but Officer Lockhart told him to stay where he was, and Officer Lockhart again approached the Defendant. He asked the Defendant for identification ("ID"), and the Defendant responded that he did not have an ID but did have a passport. The Defendant told Officer Lockhart that they were traveling to visit family. He asked the Defendant if someone was sick or if it was just a vacation. The Defendant then said, "[N]o, everything's fine, we're just going to see family." After speaking with the Defendant, Officer Lockhart returned to speak with the codefendant. He told the co-defendant that their stories did not match. The co-defendant denied having anything illegal in the vehicle. Officer Lockhart asked the co-defendant for consent to search, but the co-defendnt stated that he did not want Officer Lockhart searching the vehicle. According to Officer Lockhart, he then returned to his patrol car to request a K9 unit. After informing the co-defendant of the request, the co-defendant stated that he would allow Officer Lockhart to search the vehicle. Accordingly, Officer Lockhart called and cancelled the request for a K-9 unit. As Officer Lockhart approached the vehicle to search it, he noticed that he did not see "the seat belts sticking up from the [back] seat," so he lifted up the seat. Upon doing so, he found "two kilos of cocaine laying under the seat." He then placed both the co-defendant and the Defendant in custody. On cross-examination, defense counsel entered the video from the stop into evidence. Officer Lockhart did not recall whether the rental agreement included a phone number for the female lessee but reiterated that no one but the person who signed the agreement was to drive the rental vehicle. He did not recall asking the co-defendant whether he had permission to drive the vehicle. He agreed that the only inconsistency in the co-defendant's story and the Defendant's story was that the co-defendant stated his sister was having a kidney transplant but that the Defendant stated that no one was sick and that they were simply going -3-

to visit family. Officer Lockhart acknowledged that he ran a computer check on the Defendant's passport, but he did not remember the results of that check. At the conclusion of the proof, the trial court took the matter under advisement but stated, "I'm going to tell you right now, I think the State has some problems and I'm leaning

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