Category: Content

State of Tennessee v. Minor

State of Tennessee v. Christopher Minor

546 S.W.3d 59

Attorney Contributor: Taylor D. Payne

Criminal Law Journal Member: Joseph North

PDF Copy: State of TN v. Christopher Minor

In State of Tennessee v. Christopher Minor, the Tennessee Supreme Court thoroughly detailed the plain error doctrine and held that that “new rules apply retroactively to cases pending on direct review but do so subject to other jurisprudential concepts, such as appellate review preservation requirements and the plain error doctrine.”[1] The Court’s holding correctly applied long held doctrines of Tennessee law and reversed the decision by the Court of Criminal Appeals that did not address the retroactive application of new rules.[2] The facts of this case are straightforward.

Christopher Minor was acting at the behest of the leader of the Black P-Stone Nation – the criminal gang to which Mr. Minor also owed his allegiance – when Rico Swift was murdered, and Julie Frye was injured during a robbery perpetrated by Mr. Minor and fellow members of the gang.[3] Ms. Frye positively identified, through a photo array, Mr. Minor as the person who attacked Mr. Swift and then pistol-whipped her into unconsciousness.[4] Mr. Minor vehemently denied Ms. Frye’s accusations, insisting instead that he was merely a scout who had only accepted his portion of the proceeds from the robbery under penalty of gang discipline.[5]

Mr. Minor was subsequently indicted on sixteen counts, including two felony murder counts and seven counts for violating Tennessee Code Annotated §40-35-121(b), the Criminal Gang Statute, the violation of which qualified Mr. Minor for sentencing one classification higher than the charged offenses.[6] The trial judge bifurcated the proceedings: one trial determined guilt as to felony murder, aggravated robbery, aggravated burglary, aggravated assault, and employing a firearm in the commission of a dangerous felony while the other trial determined guilt as to the seven counts for violating the Criminal Gang Statute.[7]

At sentencing, the trial court merged several of the defendant’s convictions and imposed a total effective sentence of life plus twenty years with at least ten years of the defendant’s effective sentence resulting from enhancement under the criminal gang offense statute.[8] Additionally, the trial court recorded the defendant’s convictions of aggravated robbery, aggravated burglary, aggravated assault, and felon in possession of a handgun as one classification higher than the classifications established by the statutes creating the offenses, as authorized by the criminal gang offense statute.[9]

Following the defendant’s trial and sentencing but during the pendency of his appeal, the Court of Criminal Appeals handed down State v. Bonds, declaring the “Criminal Gang Statute” unconstitutional on grounds that Tennessee Code Annotated §40-35-121(b) violated the Due Process Clause of the Fourteenth Amendment for lack of a nexus requirement between the underlying offenses and the gang affiliation.[10]

Mr. Minor relied on Bonds in his own appeal to the Court of Criminal Appeals, but the Court held that that the defendant had waived his constitutional challenge to the statute by failing to raise the issue in the trial court and that the defendant was not entitled to relief on his constitutional claim via the plain error doctrine.[11]

The Court of Criminal Appeals noted that the gang enhancement statute was not found unconstitutional until after the defendant’s trial beginning and the imposition of his sentence.[12] That Court further noted that “[e]very act of the General Assembly is presumptively constitutional until condemned by judicial pronouncement.”[13] Because the Criminal Gang Statute was still in effect at the time of sentencing, a clear and unequivocal rule of law was not breached. Therefore, the trial court had not made plain error.[14] The Tennessee Supreme Court accepted certiorari “to clarify the interplay among appellate review preservation requirements, the plain error doctrine, and the retroactive application of new rules.”[15]

As to the retroactive application of new rules, the Supreme Court noted that, generally, “appellate courts apply new constitutional rules retroactively to all cases pending on direct review when the new rule was announced.”[16]However, this application is not unconstrained.[17] When determining whether to apply new rules retroactively to cases pending on direct review, such cases are subject to appellate review preservation requirements and the plain error doctrine.[18]

The Supreme Court noted that the “obligation to preserve issues for appellate review applies to constitutional issues and issues of ‘any other sort.’”[19] Appellate review is generally limited to issues that a party properly preserves for review by raising the issues in the trial court and on appeal.[20] However, the “plain error doctrine has long been recognized as a necessary exception to [those] requirements, which affords appellate courts discretion to review unpreserved errors and grant relief when fairness and justice demand.”[21] Because Mr. Minor failed to preserve the issue of the constitutionality of the Criminal Gang Statute, the issue could only be considered under the plain error doctrine.[22]

To find plain error, an appellate court must find:

(1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the issue was not waived for tactical reasons; and (5) consideration of the error is necessary to do substantial justice.[23]

Though the appellate courts are empowered to find plain error, such authority must be “sparingly exercised.”[24]

Because the Defendant did not preserve for appeal the issue of the constitutionality of the Criminal Gang Statute, Defendant could only seek review under the plain error doctrine. The primary issue on appeal was whether “a clear and unequivocal rule of law was breached” because that was the ground on which the Court of Criminal Appeals rejected the plain error doctrine.[25] The Tennessee Supreme Court analyzed the Olano, Jonhson, and Henderson trifecta, as decided by the Supreme Court of the United States.

In Olano, the United States Supreme Court held “that an error is not ‘plain’ for purposes of the plain error doctrine unless the error is clear under current law.[26] In Johnson, the Court held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal . . . it is enough that an error be ‘plain’ at the time of appellate consideration.”[27] In Henderson, the Court held that an appellate court must “apply the law in effect at the time it renders its decision.'”[28] That rule, harkens back to the earliest days of jurisprudence in the United States when Chief Justice Marshall wrote that “if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed.”[29]

The Tennessee Supreme Court held that Henderson did not need to be adopted or addressed, finding that “the circumstances of this case lie somewhere between Johnson and Henderson but resemble slightly more closely those of Johnson,” and on those grounds Johnson was found to control.[30] The Court held that the “law at the time of the defendant’s trial concerning the constitutionality of the criminal gang offense statute cannot be characterized as unsettled,” but rather “the issue was simply undecided because no court had addressed it.”[31]

Pursuant to Johnson¸ the Criminal Gang Statute was still in effect at the time of Mr. Minor’s trial, but the Criminal Gang Statute was no longer in effect at the time of direct appeal, rendering the extant law on appeal clearly contrary to the law at the time of trial. The Court held that “the defendant’s convictions and enhanced sentencing under the unconstitutional criminal gang offense statute violate a clear and unequivocal rule of law.”

The Court briefly discussed the other elements of the plain error doctrine before reversing and remanding for “resentencing in accordance with the sentencing classification ranges established by the specific statutes creating the offenses, without any classification or sentence enhancement pursuant to the criminal gang offense statute.”[32]

The Tennessee Supreme Court’s decision was both prudent and correct, though the concurring opinion disagrees. The concurring opinion argues for the adoption of Henderson to hold that “an appellate court, when determining whether a defendant is entitled to plain error relief, should apply the law in effect at the time of its review.”[33] The adoption of Henderson was not necessary, and the Court correctly declined to address it.

The Court applied Johnson, which the Court had adopted in 2005.[34] The Court addressed only the issues before it by Mr. Minor and was able to resolve those issues within existing legal precedent. Tennessee has long applied the doctrine of stare decisis.[35] The Tennessee Supreme Court held over one-hundred and fifty years ago that it is “more important to adhere to precedent, and uniformity of decision, than to change that which is settled.”[36]

Stare decisis “only arises in respect of decisions directly upon the points in issue.”[37] In Minor, Johnson was the law governing at the time of the appeals, and Johnson was applicable to the issues on appeal. It may behoove the Court to adopt Henderson at some later date, but Johnson’s holding was sufficient to address these issues, and Henderson did not need to be addressed.

The concurring opinion states that Henderson would simplify “appellate practice by sparing lawyers and judges the ‘temporal ping-pong’ that results from focusing on the law at the time of trial—law that changes after trial and may be obsolete by the time of appeal.”[38] Johnson does not require “temporal ping-pong;” for relief under Johnson, settled law applied at trial must be essentially cast aside and a contrary position adopted at the time of appeal. The law at the time of appeal must be clearly contrary for Johnson to apply, and that determination is relatively straightforward. In Minor, law in effect at the time of trial was no longer in effect at the time of appeal: a simple yes or no determination for appellate courts. Applying Johnson is far more akin to Chinese checkers than ping-pong.  The Court properly declined to adopt Henderson.

Because of this scheme, a legal practitioner must keep abreast of new developments in the law. An attorney must remain informed of any and all changes in the law to effectively represent clients. An attorney must take the time to scour the advance sheets and slip opinions, published daily by the appellate courts, to remain informed of new legal developments and changes in the law. An attorney must update research and Shepardize citations every time a form motion is to be used. An attorney must know the law, not merely concepts and theories and history, but the very statutes and precedent that effect matters pending in all courts.

Further, as Minor notes, an attorney must preserve a record on appeal and cannot rely on the doctrines such as plain error to provide relief for clients. Without properly preserved objections, a record on appeal will be deficient and non-reviewable. Plain error applies only in the narrowest of circumstances and cannot be relied on as the primary grounds for appellate relief.


1 State v. Minor, 546 S.W.3d 59, 75 (Tenn. 2018).

2 See State v. Minor, No. W2016-00348-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 102, at *26-27 (Crim. App. Feb. 16, 2017).

3Minor, 546 S.W.3d 59, 62 (Tenn. 2018).

4 Id. at 63.

5 Id.

6 Id.

7 Id.

8 Id. at 64.

9 Id.

[10] See State v. Bonds, 502 S.W.3d 118, 167 (Tenn. Crim. App. 2016).

[11] State v. Minor, 546 S.W.3d 59, 64 (Tenn. 2018)(citing State v. Minor, No. W2016-00348-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 102, at *27 (Crim. App. Feb. 16, 2017).

[12] State v. Minor at *27 (Crim. App.)(citing State v. Jermaine Stripling, No. 2015-01554-CCA-R3-CD, 2016 Tenn. Crim. App. LEXIS 443, 2016 WL 3462134 at *8 (Tenn. Crim. App. June 16, 2016).

[13] State v. Minor at *27 (Crim. App.) (citing Taylor v. State, 995 S.W.2d 78, 85 n7 (Tenn. 1999).

[14] State v. Minor at *27 (Crim. App.)

[15] State v. Minor, 546 S.W.3d 59, 62 (Tenn. 2018).

[16] Id. at 68 (citing Griffith v. Kentucky, 479 U.S. 314, 326-28 (1987); State v. Gomez 163 S.W.3d 632, 643 (2005)).

[17] Id.

[18] Id.

[19] Id. at 65 (citing United States v. Olano, 507 U.S. 725, 731 (1993)).

[20] Id.

[21] Id. (citing Olano, 507 U.S.732).

[22] See State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007); Tennessee Rules of Appellate Procedure Rule 36.

[23] Minor, 546 S.W.3d at 67 (citing Tenn. R. App. P. 36(b); State v. Martin, 505 S.W.3d 492, 504).

[24] Minor, 546 S.W.3d at 67.

[25] Id. at 64.

[26] Id. at 71 (citing United States v. Olano  507 U.S., 266, 275 (1993)).

[27] Id. (citing U.S. v. Johnson 520 U.S. 461, 466 (1997).

[28] Minor, 546 S.W.3d at 72 (citing U.S. v. Henderson Id. at 271 (quoting Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281(1969))).

[29] Minor, 546 S.W.3d at 72 (citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L. Ed. 49 (1801).

[30] Minor, 546 S.W.3d at 74.

[31] Id.

[32] Minor, 546 S.W.3d 75.

[33] Minor, 546 S.W.3d 76.

[34] See State v. Gomez, 163 S.W.3d 632, 636 (Tenn. 2005)(vacated on other grounds)

[35] Memphis v. Overton, 216 Tenn. 293, 297, 392 S.W.2d 98, 100 (1965) (citing Sherfy v. Argenbright, 48 Tenn. 128 (1870); Foster v. Roberts, 142 Tenn. 350, 219 S.W. 729 (1919); Staten v. State, 191 Tenn. 157, 232 S.W.2d 18 (1950).

[36] Sullivan v. Ivey, 34 Tenn. 487, 488 (1855).

[37] Memphis v. Overton, 216 Tenn. 298, 392 S.W.2d 98 at 101 (citing State ex rel. v. Nashville Baseball Club,127 Tenn. at 307, 154 S.W. at 1155 (1912).

[38] Minor, 546 S.W.3d at 76.

State of Tennessee v. McElrath

State of Tennessee v. Jerome Antonio McElrath

569 S.W.3d 565 (Tenn. 2019)

No. M2015-01794-SC-R11-CD and No. M2015-01958-SC-R11-CD

Attorney Contributor: Roger E. Nell

Criminal Law Journal Member: Cooper Byers

PDF: State of TN v. McElrath

 

Rather than keeping just one document listing all those currently barred from housing authority property, the Union City Police Department kept two.[1] One document, the “barred” list, listed people currently barred from housing authority property.[2] Another document, the “reinstated” list, listed people who were no longer barred from such property.[3] In April of 2015, both the barred list and the reinstated list included Jerome McElrath’s name.[4]

When Union City Police Officer Chris Cummings called dispatch on April 8, 2015 asking if Mr. McElrath was barred, dispatch looked at the barred list, and upon finding McElrath’s name, told the officer McElrath was in fact barred from housing authority property.[5] However, dispatch failed to also check the reinstated list which  would have revealed that Mr. McElrath was no longer barred.[6] In fact, McElrath had been reinstated and his name placed on the reinstated list, however his name was not removed from the barred list for nearly five years.[7]

Because dispatch told Officer Cummings that McElrath was still barred, Officer Cummings arrested McElrath, twice, for criminal trespassing.[8] Incident to arrest, both times, the officer searched him.[9] Both times the officer found contraband on him.[10]  McElrath was twice charged with possession of marijuana.[11] McElrath moved to suppress the evidence.[12]  The trial court granted McElrath’s motion to suppress and the Court of Criminal Appeals affirmed because, as the trial judge put it, Tennessee had no good faith exception “to get around the exclusionary rule.”[13]

The Tennessee Supreme Court extended the good faith exception of Herring v. United States[14] to Tennessee.[15]“[W]hen police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence [by suppressing the evidence] does not ‘pay its’ way.”[16] Nonetheless, the Court upheld the suppression of evidence in this case because the five-year long error was the result of a systemic or reckless disregard for constitutional requirements.[17]

The Tennessee Supreme Court holding in this case further signaled to trial courts that courts are not bound to apply a good-faith exception exclusively to those circumstances under which the Court itself has specifically applied it.[18] The Tennessee Supreme Court was clear in earlier applications and extensions of a good-faith exception that such was limited to the situation at hand.[19] Trial courts were not free to find a good-faith exception under other circumstances.

Now, trial courts “have discretion to consider variations of the good-faith exception described herein.”[20] In other words, trial courts are at liberty to look for and find good-faith exceptions under circumstances other than what the Tennessee Supreme Court has specifically considered. In that regard, the dam appears to have been broken. Yet, the Tennessee Supreme Court noted a doctrine that may be helpful in diverting the deluge: collective knowledge.[21]

To those on the law enforcement side of things, this case is a boon.  Indeed, it was set up as such.[22] On its face, this case further erodes State constitutional protections[23] and continues the trend of reducing State constitutional protections to the floor level of the Federal Constitution.[24] In the end, the Tennessee Supreme Court’s broad adoption of the good-faith exception ostensibly excuses police negligence with regard to constitutional protections.[25]

The majority’s position is that the exclusionary rule will do little to nothing to prevent or correct law enforcement’s “mere negligence.” Justice Lee fairly counters that position. She notes that the majority conclusion “goes against the long-standing tort principle that individuals and entities have an incentive to act with due care when there is liability for negligence.”[26] If holding a person financially liable for injuries is sufficient to correct or prevent negligent behavior by the average citizen, why would the loss of admissible evidence be insufficient to correct or prevent constitutionally negligent behavior by law enforcement?

Interestingly, the majority relied in part on the “collective knowledge” doctrine in upholding the suppression of the evidence.[27] In sum and with some overstatement, that doctrine holds that what one cop knows, they all know.[28]Courts have used the “collective knowledge” doctrine to uphold warrantless searches and seizures when the arresting or searching officer did not personally have sufficient knowledge to support probable cause but other law enforcement, at least those marginally involved in the situation, did.[29] The majority in McElrath, relying in part on Ramirez[30]  – a California case, held that probable-cause-defeating information, too, must be imputed to the officer on the ground.[31]Sauce for the goose is sauce for the gander.

Justice Kirby took umbrage with this notion. She argued that Ramirez may not have survived Herring and should be disregarded.[32] However, Justice Kirby’s argument fails for two reasons.

First, the majority did not exclusively rely on Ramirez. The majority also relied on Leon,[33] which established the exclusionary rule at the federal level in the first instance. The Herring court also relied upon Leon. Specifically, as the majority quoted Herring, “Leon admonished that we must consider the actions of all the police officers involved.”[34]

Second, Ramirez was decided by the California Supreme Court. When Ramirez is read closely, this case appears to have been resolved as a matter of State constitutional law and is thus free to provide more protection to people than the federal constitution.[35] Similarly, McElrath is a Tennessee case decided under Tennessee’s Constitution. The Tennessee Supreme Court is free to create its own remedies and rules for State constitutional issues and they should.

On the surface McElrath seems to wash away any errors in receipt and transmission of information to the law enforcement officer on the street at the scene. The focus of that argument will be that whatever happened was “simple, isolated oversight or inadvertence.”[36] That will be the State’s position and it is still the State’s burden to prove that a search or seizure was constitutional and that a good-faith exception applies.[37]

To counter that effect, McElrath provides authority to hold law enforcement accountable for the accurate receipt and transmission of information from beginning to end. We are in an era of “swatting.”[38] Nefarious individuals call 911 falsely reporting a serious emergency, such as a bomb threat, murder, or hostage situation. That (mis)information triggers an overwhelming police response sometimes to deadly ends for wholly innocent and unsuspecting people. Ought not law enforcement bear some responsibility for vetting information before acting? Ought the courts not demand such? Otherwise, the courts will enable systemically flawed processes or inadequately maintained records, excusing constitutional violations under the guise of isolated oversight or inadvertence.

Once information is relayed to law enforcement, the law enforcement system is responsible for its accurate receipt and transmission right down the chain.[39] While it looks like McElrath’s good-faith exception provides insulation for the searching or seizing officer, such insulation should only be available if the State can establish that all of the information known and provided to the acting officer was accurate, was received accurately, and was transmitted accurately. Only then should the officer – rather, the law enforcement system – be deemed to have acted in good-faith.

 

[1] State v. McElrath, No. W2015-01794-SC-R11-CD and W2015-01958-SC-R11-CD, slip op. at 3-4 (Tenn. Mar. 12, 2019).

[2] Id.

[3] Id.

[4] Id. at 4-5.

[5] Id. at 2.

[6] Id. at 5.

[7] Id. at 4.

[8] Id. at 3.

(MISSING FOOTNOTE)

[9] Id. at 1.

[10] Id. at 2.

[11] Id.

[12] Id. at 4.

[13] Id. at 4-5.

[14] Herring v. U.S., 555 U.S. 135 (2009).

[15] McElrath, at 21-22.

[16] Id. at 15 (quoting Herring, 555 U.S. at 147-48).

[17] Id. at 19.

[18] Id. at 16 n.3.

[19] See, State v. Reynolds, 504 S.W.3d 283, 313 (Tenn. 2016).

[20] McElrath, at 16 n.3 (emphasis added).

[21] Id. at 19.

[22] State v. McElrath, 2017 WL 2361960, *3 (Tenn. Crim. App. No. W2015-01794-CCA-R3-CD, May 31, 2017).

[23] McElrath, at 15-16.

[24] Id.  See State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016); State v. Davidson, 509 S.W.3d 156 (Tenn. 2016); State v. Lowe, 552 S.W.3d 832 (Tenn. 2018); State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017).  Justice Brennan warned: “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.  The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law – for without it, the full realization of our liberties cannot be guaranteed.” Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).

[25] McElrath, at 15; Lee’s Separate Opinion at 3.

[26] Lee’s Separate Opinion at 3.

[27] McElrath, at 19-21.

[28] Id. at 19.

[29] Id.

[30] People v. Ramirez, 668 P.2d 761 (Cal. Sup. Ct. 1983).

[31] McElrath, at 21.

[32] Kirby’s Separate Opinion at 5-6.

[33] United States v. Leon, 468 U.S. 897 (1984).

[34] McElrath, at 20 (quoting Herring, 555 U.S. at 140 in turn citing Leon, 468 U.S. at 925, n.24) (emphasis added).

[35] Ramirez, 668 P.2d at 768-69.  Chief Justice Bird’s one-paragraph concurrence would specifically state that Ramirez turned solely on independent State grounds.  State courts of last resort should remember Justice O’Connor’s suggestion in Michigan v. Long, 463 U.S. 1032 (1983).  “If a state court chooses to rely on federal precedence as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purposes of guidance, and do not themselves compel the result that the court has reached. . . .  If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.”  Id. at 1041.

[36] McElrath, at 17 (quoting State v. Lowe, 552 S.W.3d 832, 860 (Tenn. 2018)).

[37] Id.

[38] See, Swatting, available at https://en.wikipedia.org/wiki/Swatting (accessed Sept. 26, 2019); Swatting is a Dangerous Prank with Potentially Deadly Consequences, available at https://www.cnn.com/2019/03/30/us/swatting-what-is-explained/index.html (accessed Oct. 2, 2019).

[39] We used to play a game called “Telephone” in school.  The teacher whispered a word or phrase to a student.  Then that student whispered it to the next, and to the next, and it was passed through all the students.  The last student then said out loud what he had been told.  Never did the last student ever say what the teacher whispered to the first student – never.  Current technology available to and being used by law enforcement is sufficient to overcome this problem.

State of Tennessee v. Anthony Jerome Miller

State of Tennessee v. Anthony Jerome Miller

575 S.W.3d 807 (Tenn. 2019)

Attorney Contributor: Ellison M. Berryhill

Criminal Law Journal Member: Colbie Taylor

Full Article PDF: State of Tennessee v. Miller

On May 22, 2019, the Tennessee Supreme Court issued an opinion in State v. Miller, which held that “Tennessee Code Annotated section 39-17-1007 does not require search warrants to be applied for by the office of the district attorney general.”[1] The issue in the case was whether the word “process” as used in T.C.A. 39-17-1007 included a search warrant. The Tennessee Supreme Court ruled that it did not. This comment will proceed in two parts. First, it will describe the history and holding of the Miller case. Second, it will argue that the Tennessee Supreme Court inappropriately ignored the rule of lenity, which required it to give deference to the defendant in resolving the meaning of an ambiguous statute.

The facts of the case as described in the Tennessee Supreme Court opinion are straightforward. The State alleged that on or about January 8, 2015, Mr. Miller committed the offense of Sexual Exploitation of a Minor as defined by Tenn. Code Ann. §39-17-1003(a).[2] As a part of the investigation, “Detective Michael O’Keefe of the Morristown Police Department obtained and executed a search warrant for the Defendant’s residence and computers.”[3] Detective O’Keefe also filed an affidavit indicating that law enforcement consulted with the district attorney’s office before requesting the warrant.[4] The State gathered certain evidence because of this search warrant that they intended to introduce against Mr. Miller.[5]

Mr. Miller filed a motion to suppress the seized evidence arguing that law enforcement did not have the authority to file for a search warrant.[6] The centerpiece of the argument is the statute that governs Sexual Exploitation of a Minor and, specifically, T.C.A. §39-17-1007 which provides that “[n]o process, except as otherwise provided, shall be issued for the violation of [s]ections 39-17-1003 – 39-17-1005 unless it is issued upon the application of the district attorney of the district.”[7] Mr. Miller raised the issue of whether the process referred to in this statute includes the search warrant that Detective O’Keefe obtained.[8] If the search warrant was “process,” then the statute required the prosecutor to apply for the warrant, and Detective O’Keefe did not have the constitutional authority.[9] If he did not have constitutional authority to seize the evidence, then the evidence could not be introduced at trial.[10]

After a hearing, the trial court denied the motion.[11] The trial court held that a search warrant was an investigative tool and not “process” as referenced in the statute.[12] The court did not delve deeply into the law of process but held that process would refer to something like an arrest warrant, a presentment, or an indictment.[13] Because this did not fit into one of those categories, the trial court found that the search warrant was not process.[14]

Additionally, the trial court found that, even if the issuance of the search warrant constituted process, law enforcement met their obligation by consulting with the district attorney.[15] Although the statute says that the search warrant must be issued upon the application of the district attorney, the trial court found that a mere consultation with them prior to filing met the statutory definition.[16]

After this ruling, Mr. Miller pled guilty but reserved the certified question of law that is central to this case: “Whether the affidavit in support of [the] search warrant and [the] search warrant [itself] were subject to and complied with the requirements of T.C.A. §39-17-1007?”[17] On appeal, the Court of Criminal Appeals affirmed the trial court’s ruling that the statute did not apply to search warrants.[18]

The Tennessee Supreme Court granted Mr. Miller the right to appeal and affirmed the Court of Criminal Appeals’ ruling. The Supreme Court began their analysis by rejecting two Court of Criminal Appeals’ cases that found in favor of similarly situated defendants.[19] The first case was State v. Davis.[20] In that case, the defendant raised the issue presented here, but the Court of Criminal Appeals upheld the warrant based upon other law.[21] The Court of Criminal Appeals did hold that section -1007 “is broad enough to include a search warrant” and that “involvement of the district attorney general was required . . . .”[22] The Tennessee Supreme Court in Miller rejected this holding as dictum because “the intermediate appellate court engaged in no particular analysis to arrive at this conclusion.”[23]

The Court also addressed State v. Doria.[24] In Doria, the Court of Criminal Appeals held that the statute required the district attorney to apply for the search warrant but found that the State complied with this rule because the prosecutor signed the application for the warrant.[25] They found the prosecutor’s signature to be a level of involvement sufficient to satisfy T.C.A. §39-17-1007’s requirements.[26] The Miller Court noted that Doria cited the supposed dicta in Davis and, therefore, rejected the Doria holding.[27]

The Court then turned to an analysis of T.C.A. §§40-6-101 through -110 (2018), which provides “the general law regarding the issuance of search warrants.”[28] The Court said that T.C.A. §§40-6-101 through -110 does not provide any circumstances under which the district attorney general alone may apply for a search warrant.[29] In fact, Tennessee Rule of Criminal Procedure 41(a) provides a list of the officials who can apply for a search warrant and that list includes any law enforcement officer.[30] The Court found that had the legislature intended to deviate from the wording of Rule 41 and the statutory scheme relating to search warrants, they “would have said so explicitly.”[31] Therefore, the Court held that process as listed in T.C.A. 39-17-1007 does not include a search warrant and, therefore, the search warrant in Miller was proper.[32]

One of the fundamental rules of statutory construction is the rule of lenity. The rule of lenity requires a court to resolve statutory ambiguity in favor of the criminal defendant.[33] A word is ambiguous if it “can reasonably have more than one meaning.”[34] A statute is ambiguous if it “is susceptible [to] more than one reasonable interpretation.”[35] As the United States Supreme Court has held, the rule of lenity “reflects not merely a convenient maxim of statutory construction but is based on fundamental principles of due process.”[36]

The rule of lenity serves two functions: (1) protecting the legislature’s authority to establish the rules of criminal law by preventing the judiciary from being overly punitive and (2) protecting the defendants’ rights to due process by ensuring that they have notice of the rules to be used against them.[37] This rule should apply to this case because the legislature has the right to set the rules surrounding search warrants and defendants have the right to know who can obtain search warrants against them. If there is ambiguity in the definition of process, then it should be resolved in favor of the Defendant.

There are at least two points of ambiguity in the word “process” as used in T.C.A. §39-17-1007.[38] First, the definition of “process” in the statute is not obvious. The Supreme Court did not look to dictionary definitions of the word in their ruling, but the definition at the time of the statute’s passage is certainly relevant. [39] If a fundamental word in the statute is unclear, then the court should find that the statute’s applicability is ambiguous.

The legislature passed T.C.A. §39-17-1007 in 1990, and Black’s Law Dictionary at that time included intermediate process in the definition of process.[40] Black’s Law Dictionary defined intermediate process (or mense process) as “distinguished from final process . . . signifies any writ or process issued between the commencement of the action and the suing out of execution. ‘Mense’ in this connection may be defined as intermediate; intervening; the middle between two extremes.” [41]

The definition unties process generally from the process at the beginning of the case. The modern colloquial definition of process is the service of process to begin the lawsuit and that colloquial definition may be how the Supreme Court became confused about this ambiguity. However, the legislators who wrote this statute had a broader understanding at the time they wrote the statute. This is an ambiguity that should be resolved in favor of the Defendant.

Second, the Supreme Court’s conclusion makes an unwarranted jump in logic that, at minimum, supplies some ambiguity but arguably serves to discredit the opinion as a whole. The Court finds that the general law concerning search warrants allows law enforcement agents to apply for search warrants.[42] The Court rejected Mr. Miller’s argument that T.C.A. § 39-17-1007 narrows this range because, the Court believed, the legislature would have been explicit about narrowing the authority for search warrants had it intended to do so.[43] It says this without providing sufficient examples of divergent rules that might meet its requirements.

This extension of logic is inappropriate. The legislature regularly adds specific rules to an area of established law with more generalized rules. [44] Such is frequently the purpose of legislation and that is likely what happened with this case. The typical rule for search warrants is that law enforcement officers can apply for them. However, it is reasonable to believe that, in cases of sexual exploitation of a minor, the legislature wanted the district attorney to be the applicant and therefore passed a statute to narrow the law.

There is even some precedent for the legislature to set different rules in child sex cases. Tennessee Rule of Criminal Procedure 16 regulates the discovery process in criminal cases.[45] Section (d) of the rule sets out the procedure for protecting discovery and the sanctions for failing to comply with discovery, but (d)(3) set out specific rules for child pornography cases.[46] Although normally the defendant can get a copy of all of the discovery available to the state, Rule 16(d)(3) prevents that copying when the discovery contains documents depicting sexual exploitation of minors.[47] The authors of those rules clearly wanted a difference in sexual exploitation cases and it was unreasonable for the Supreme Court to ignore that difference here.

Defenders of the Tennessee Supreme Court opinion may argue that the modification in Rule 16 is explicit to the point that practitioners can understand the difference while that in T.C.A. §39-17-1007 is not. Rule 16 notes that it overrides the conflicting portions of the law.[48] However, the deviation in T.C.A. §39-17-1007 is its own statute and, by that, declares itself separate and apart from the other law in the field. The sexual exploitation of a minor statute creates a statutory scheme that applies only to that set of crimes. The existence of this statutory scheme is an explicit modification of the traditional law that should be sufficient for the Tennessee Supreme Court to respect it.

Cases involving sexual exploitation of a minor are sensitive and involve substantial harm to some of the most vulnerable people in society. It is important for the criminal system to get those cases right, but it is also important to investigate them carefully. Being charged with sexual exploitation of a minor can ruin someone’s life even if they are eventually acquitted.[49]

If a search warrant is going to be issued on a sensitive case, then it makes sense that the application would have to come from the top officials and it makes sense that the legislature would provide that protection to the potentially harmed subject. Just because the rest of the body of law does not provide for the limitation implied by this statute does not mean that the legislature would not pass a statute containing a limitation. This logical leap supplies an ambiguity that should be resolved in favor of the defendant.

Overall, the rule of lenity provides that ambiguity should be resolved in favor of the defendant. In at least two places, this statute contains ambiguity. First, the definition of process at the time of the law’s passage included intermediate process. Second, the addition of a rule to an existing body of law is often done purposefully, so ignoring it in this case is not logical. Therefore, the word process should be read to include a search warrant. The Supreme Court ignored this rule and, therefore, released an incorrect ruling.

 

[1] State v. Miller, 575 S.W.3d 807 (Tenn. 2019).

[2] Id. at 808.

[3] Id.

[4] Id. at 810.

[5] According to the opinion, law enforcement seized “a Westell wireless router, a Logitech flash drive, Kingston SD card, Kingston micro SD adapter, LG flip phone, three pieces of paper with notes, eight gigabytes Scandisk memory stick, five CDRs, HP computer, three VHS tapes, a JVC video camera, a 32 gigabyte Scandisk from a camera and a Bart router and Samsung cell phone and ninety CDs and DVDs.” Id. at 809.

[6] The opinion discusses the factual basis for the search warrant, but Mr. Miller does not contest the basis for the search warrant so we will not analyze it here.

[7] Id. at 811 (citing T.C.A. 39-17-1007).

[8] State v. Miller, 574 S.W.3d at 808.

[9] Id.

[10] Mapp v. Ohio, 367 U.S. 643, 655 (1961).

[11] State v. Miller, 574 S.W.3d at 808.

[12] Id. at 809-10.

[13] Id. at 809.

[14] Id.

[15] State v. Miller, at 810.

[16] Id.

[17] Id. (brackets added).

[18] State v. Miller, No. E2016-01779-CCA-R3-CD, 2017 WL 2839745, at *4-5 (Tenn. Crim. App. July 3, 2017), perm app granted (Tenn. Nov. 16, 2017).

[19] Id. at 811-12.

[20] Id.

[21] Id.

[22] State v. Davis, E2003-02162-CCA-R3-CD, 2004 WL 2378251, at *7 (Tenn. Crim. App. Oct. 25, 2004), aff’d on other grounds 185 S.W.3d 338, 347 (Tenn. 2006).

[23] State v. Miller, 574 S.W.3d at 811.

[24] Id. at 811-12.

[25] State v. Doria, No. M2014-01318-CCA-R3-CD, 2016 WL 1694120, at *1 (Tenn. Crim. App. Apr. 26, 2016), perm. app. denied. (Tenn. Aug. 17, 2016).

[26] Id.

[27] State v. Miller, 574 S.W.3d at 811-12.

[28] Id. at 812.

[29] Id.

[30] Id. (citing Tenn. R. Crim. P. 41(a)).

[31] Id.

[32] Id. at 813.

[33] David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo Law Review 523, 524 (2008).

[34] State v. Bowens, No. E2017-02075-CCA-R3-CD, 2018 WL 5279374, at *5, (Tenn. Crim. App. Oct. 23, 2018), no perm app filed (quoting Lee Med. Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010)).

[35] Bowens, 2018 WL 5279374, at *5, (quoting Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn. 2001)).

[36] Dunn v. United States, 442 U.S. 100, 112 (1979).

[37] Romantz, supra note 33, at 524.

[38] There are other potentially ambiguous points. For example, amendment No. 1 to § 39-17-1001 said “seizure for the possession of obscene matter shall be in accordance with 39-17-901 – 39-17-908” in section 9. Tenn. Code. Ann. § 39-17-903 states “Upon a showing of probable cause that the obscenity laws of this state are being violated, any judge or magistrate shall be empowered to issue a search warrant in accordance with the general law pertaining to searches and seizures in this state.” Section 9 never made it into the final statute, which indicates that the legislature wanted these offenses to be treated differently than typical obscene material.

[39] Courts are restricted to the natural and ordinary meaning of the language used by the legislature in the statute, unless an ambiguity requires resort elsewhere to ascertain legislative intent. Halbert v. Shelby County Election Comm’n, 31 S.W.3d 246, 248 (Tenn.2000).

[40] Henry Campbell Black, Black’s Law Dictionary, Abridged Sixth Edition, Centennial Edition (1891-1991), West Publishing Co (1991), 837-838.

[41] Id.

[42] State v. Miller, at 812.

[43] Id. at 813.

[44] One example of this comes from the federal law on firearm provisions. Typically, being convicted of a felony makes it illegal for one to own or possess a firearm. 18 U.S.C. § 922. Misdemeanors are typically excluded from this rule. However, Congress believed that domestic violence was a type of misdemeanor that deserved to be treated specially. They, therefore, extended the prohibition in 18 U.S.C. §922 to those convicted of a misdemeanor crime of domestic violence.

[45] Tenn. R. Crim. P. 16.

[46] Tenn. R. Crim. P. 16(d)

[47] Id.

[48] Id.

[49] For example, Michael Jackson was tried for molestation in 2005. He was acquitted but allegations continued to surface and his public reputation was tarnished.

State of Tennessee v. Walls

State of Tennessee v. Susan Jo Walls

No. M2014-01972-SC-R11-CD

Attorney Contributor:Jack Mitchell

Criminal Law Journal Member:Jake Old

Full Article PDF: State v. Walls

Though the facts within State v. Walls are unusual, this case ultimately turns on fundamental rules of evidence and procedure. Susan Walls was implicated in a conspiracy to murder her husband, Larry Walls, Sr. [1] Susan Walls had met with her daughter, son-in-law, and friends in the days leading up to Larry Walls’s death. [2] The group conspired to murder Larry Walls, apparently as retribution for his abusive behavior towards them. [3] The conspiracy called for Susan Walls and other family members to take her grandchildren to Chuck E. Cheese while two friends, Sean Gerheardt and Jason Starrick, actually carried out the physical act of murdering Larry Walls. [4]

On the day of the homicide, Susan Walls arrived home to the scene of her husband’s death and called 9-1-1; she reported to the call-taker that it appeared that a burglary had taken place at her home—and made no mention of the homicide.[5] The crime scene was described as gruesome, with blood on the walls, floor, and furniture around the victim.[6] The TBI agent  responsible for investigating the scene said it looked staged and that the 9-1-1 call seemed odd. [7] Ultimately, agents uncovered evidence pointing to the murder-for-hire conspiracy. [8] Susan Walls was charged with First Degree Murder and Conspiracy to Commit Murder. [9]

At trial, Susan Walls experienced some health problems during closing arguments. [10] A paramedic was called and Walls was reported to have very high blood pressure levels. [11] After she was transferred to a hospital, the trial court judge mentioned the possibility of instructing the jury without Susan Walls present, but defense counsel objected to any further action without the defendant present; as a result, the parties and the Court waited to proceed with the case.[12] During the period of delay, the State prosecutor and defense counsel discussed how to move forward with proceedings; defense counsel stated that, “the best thing to do would be to adjourn until tomorrow and start fresh in the morning.”[13] There was no further discussion on the matter. [14]

Susan Walls returned from the hospital approximately two and a half hours later and the jury began deliberating at 7:13 p.m.[15] Guilty verdicts were returned at 1:05 a.m. the following morning.[16]Walls was sentence to life in prison and 21 years for each offense.[17] She appealed her convictions on several grounds, including the trial court’s decision to allow the jury to deliberate late into the night.[18] The Tennessee Court of Criminal Appeals reversed the convictions based on the late-night jury deliberations.[19] After the State appealed, the Tennessee Supreme Court heard the case to consider the following issues: (1) whether Walls sufficiently preserved review of late-night jury proceedings; (2) if so, whether the appellate court could apply a plain error review instead; and (3) the proper standard of review for determining whether a trial court erred in allowing late-night jury deliberations. [20]

The Supreme Court ultimately held that Walls did not preserve the issue of late-night proceedings.[21]Further, the Court decided that plain error review was not available as an avenue of relief for Walls because the defense never asserted plain error as a basis of review.[22] The Court also held that the standard of review in determining whether a trial court errs in allowing late-night jury deliberations is abuse of discretion.[23] The Court’s last holding—regarding the proper standard of review—was addressed in a concurring opinion by Justice Sharon Lee, who called the majority’s decision an “advisory opinion.” [24]

The Court began its analysis by determining whether or not a statement of concern by defendant’s counsel about the jury beginning deliberations after seven o’clock in the evening rose to the level of a contemporaneous objection.[25] Because the trial judge did not respond to counsel’s comment, and no further discussion was had on the record, the Court concluded this issue was waived.[26] Counsel also had argued in his motion for new trial that an elderly juror exhibited fatigue during the night, but neither brought it to the judge’s attention during the trial, nor did he call the juror as a witness at the hearing to testify about the effects of the late-night proceedings.[27]

Because counsel made no objection to the late-night deliberations, the issue was deemed to be waived.[28] The Court still considered whether or not relief was warranted based on plain error.[29] The Court, in State v. Martin, previously held that an appellate court will grant relief for plain error only if: (a) the record clearly establishes what occurred in the trial court; (b) a clear and unequivocal rule of law has been breached; (c) a substantial right of the accused has been adversely affected; (d) the accused did not waive the issue for factual reasons; and (e) consideration of the error is “necessary to do substantial justice.”[30]

The Court declined to apply plain error to the facts of this case­–nor was it asserted or argued for by defendant–finding it inapplicable because of a lack of clear and unequivocal law on the subject.[31] Because it found the standard of review for late-night judicial proceedings to be unclear, the Court resolved the issue by holding that the appropriate standard of review is abuse of discretion.[32] Justice Lee’s concurring opinion was critical of the majority for not simply ending its analysis upon determining that the defendant was not entitled to a new trial, instead choosing to overreach and address the appellate standard of review.[33] However, her criticism seems misplaced in light of the majority’s stated purpose of establishing the proper standard of review under the Court’s supervisory authority.

Of particular importance for any trial attorney is that this case highlights why it is far better to make a clear objection, on the record and contemporaneous with any error, real, perceived, or even suspected. Absent plain error by the trial judge, a failure to object is usually fatal on appeal.[34] An appeals court may infer an objection without counsel uttering the word “objection,” but the risk inherent in this tactic is unnecessary.[35] The worst that can happen upon making an objection is the judge chooses to overrule it, but doing so is valuable in that it preserves the issue for appeal. This fact can easily be forgotten in the controlled chaos of a trial, but zealously representing a client requires an attorney to pay particular attention to the details–and safeguarding the client’s options in the event of an unfavorable verdict is one of the most critical.

 

[1]State v. Walls, 537 S.W.3d 892, 895-96 (Tenn. 2017).

[2]Id. at 895.

[3]Id.

[4]Id.

[5]Id. at 894-95.

[6]State v. Walls, 537 S.W.3d 892, 895 (Tenn. 2017).

[7]Id. at 894.

[8]Id. at 895-97.

[9]Id. at 897.

[10]Id. at 897.

[11]State v. Walls, 537 S.W.3d 892, 897 (Tenn. 2017).

[12]Id.

[13]Id.

[14]Id.

[15]Id.

[16]State v. Walls, 537 S.W.3d 892, 898 (Tenn. 2017).

[17]Id. at 896.

[18]Id. at 897.

[19]State v. Walls, No. M2014-01972-CCA-R3-CD, 2016 Tenn. Crim. App. LEXIS 263, *43-*46, *85 (Crim. App. Apr. 7, 2016). See also State v. Walls, 537 S.W.3d 892, 897 (Tenn. 2017).

[20]Walls, 537 S.W.3d at 899, 904-05.

[21]State v. Walls, 537 S.W.3d 892, 903-04 (Tenn. 2017).

[22]Id. at 901.

[23]Id. at 904-05.

[24]Id.at 906(Lee, J. concurring).

[25]Walls, 537 S.W.3d at 897-99 (Tenn. 2017).

[26]State v. Walls, 537 S.W.3d 892, 899-901 (Tenn. 2017).

[27]Id. at 900.  

[28]Id.

[29]Id. at 900-01.  

[30]505 S.W.3d 492, 504 (Tenn. 2016).

[31]State v. Walls, 537 S.W.3d 892, 901-04 (Tenn. 2017).

[32]Id. at 904-05.

[33]Id.at 906-07(Lee, J. concurring).

[34]“In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection if the specific ground was not apparent from context[.]” Tenn. R. Evid. 103(a)(1).

[35]“Generally, failure to make a timely, specific objection in a trial court prevents a litigant from challenging the introduction of inadmissible evidence for the first time on appeal.” Welch v. Bd. Of Prof’l Responsibility for the Supreme Court of Tenn., 193 S.W.3d 457 (Tenn. 2006). See also Tenn. R. Evid. 103.

State of Tennessee v. David Scott Hall

State of Tennessee v. David Scott Hall

No. M2015-02402-SC-R11-CD

Attorney Contributor: Victor Johnson

Criminal Law Journal Member: Hannah Roman

Full Article PDF: State v. Hall

This case began on May 18, 2010, when the defendant, David S. Hall, hid a video camera in the minor victim’s bedroom while the victim was showering. The defendant positioned the video camera to record the victim’s bed and the area in which she typically changed clothes. After showering, the victim returned to her bedroom fully clothed and after noticing a flashing red dot on her dresser, discovered the defendant’s video camera hidden under her bra. The victim’s mother turned the video camera over to the police who, in addition to the recording of the victim, discovered a previously deleted “test video” recorded prior to the original video. The “test video” was almost identical to the other video and began by focusing on the victim’s fish tank before panning the room and re-focusing on the victim’s bed. [1]

In December 2010, the defendant was indicted for attempted especially aggravated sexual exploitation of a minor in violation of T.C.A. §39-17-1005 and §39-12-101(a)(2). The defendant was subsequently convicted of that offense following a bench trial in 2015. On appeal in 2017, the Court of Criminal Appeals affirmed that decision. The appellate court’s reasoning relied on the Supreme Court’s recent decision in State v. Whited, 506 S.W.3d 416 (Tenn. 2016), which also addressed the application of the sexual exploitation of a minor statute to hidden-camera video footage of minors.

The Tennessee Supreme Court granted the defendant’s appeal to address the unresolved question in Whited of what evidence is sufficient to sustain a conviction of attempted especially aggravated sexual exploitation of a minor. T.C.A. §39-17-1005(a)(1) outlines the offense of especially aggravated sexual exploitation of a minor as follows: “It is unlawful for a person to knowingly promote, employ, use, assist, transport or permit a minor to participate in the performance of, or in the production of, acts or material that includes the minor engaging in . . . [s]exual activity.” “Sexual Activity” is defined in T.C.A. §39-17-1002(8)(g) as, “[l]ascivious exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person.”

In a 3-2 decision, the Supreme Court determined that the facts were insufficient to support a finding that the defendant attempted to produce material that would include a depiction of a minor in a “lascivious exhibition” of her private body areas, as required under Tennessee’s child sexual exploitation statutes and construed in Whited. The Court reversed the defendant’s conviction, relying on the ruling in Whited which stated that images of a minor victim engaging in everyday activities normally performed in the nude were insufficient to constitute a “lascivious exhibition” under the child exploitation statutes.

In the majority opinion, Justice Holly Kirby, who also wrote the majority opinion for Whited, determined that the appellate court had misapplied Whited to the facts of this case.  In Whited, the defendant hid his cell phone video camera in the family bathroom as well as his daughter’s bedroom where he recorded nine videos of his minor daughter and her friend in various degrees of nudity. It is important to note that, unlike this case, the defendant in Whited was initially convicted for the completed offense of especially aggravated sexual exploitation of a minor. The Supreme Court ultimately reversed the lower courts’ rulings, holding that the videos did not depict the minors engaging in “lascivious exhibitions” as defined under the relevant child sexual exploitation statutes. [2]

In this case, the defendant was indicted and convicted under subdivision (a)(2) of the criminal attempt statute, which states, “A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part . . .”[3] The Court stated that, considering the criminal attempt statute [4] with the child exploitation statutes, “the evidence must show that the defendant knowingly acted (1) with intent to create a video that would include the victim engaging in a lascivious exhibition of her private body areas and (2) with the belief that his conduct would cause the resulting crime intended without further conduct on [his] part.” [5]

Analyzed under T.C.A.§39-12-101(a)(2), the majority ultimately concluded that the evidence in this case was simply insufficient to hold that any rational trier of fact could have found that the defendant intended to record and believed he would record anything more than mere nudity. The Court remarked that the evidence in this case did not give rise to an inference that the intended video would have been any more sexualized than those in Whited. [6]

In his dissent, Justice Roger A. Page, joined by Chief Justice Jeffrey S. Bivins, disagreed with the majority’s reliance on Whited because, unlike Whited, the defendant in this case was charged with the lesser-included offense of attempt. Also unlike in Whited, in this case, it is uncertain what the video could have shown if the victim had not discovered the camera. The inherent uncertainty present in addressing an attempt makes analysis extremely difficult. However, the dissent argued that, “[T]he [d]efendant failed to carry his burden of showing that no rational trier of fact could have found that the [d]efendant intended or believed his hidden camera would capture sexual activity.” [7] The dissent concluded that the facts of this case, in light of the deferential standard of review and fact-bound issue, were sufficient to support the defendant’s conviction for attempted especially aggravated sexual exploitation of a minor. [8]

The dissent disagreed with the majority’s reliance on Whited because the defendant in this case was convicted for attempt under T.C.A. §39-12-101(a)(2), and it is uncertain what the video camera could have recorded had the victim not discovered it. Unlike the dissent, the majority firmly refused to speculate about what the defendant may have hoped to capture. The Court agreed with the lower courts and the dissent that the defendant’s multiple explanations for why his video camera was in the victim’s room were not credible. However, the Court stated that, “[T]he [d]efendant’s lack of credibility does not substitute for evidence that the [d]efendant intended to capture, or believed his hidden camera would capture, an image of anything more than mere nudity.” [9]

The majority concluded that the evidence showed that the defendant would have captured videos nearly identical to those in Whited, which the Court in Whited ultimately determined to be insufficient to sustain the defendant’s conviction. However, the Court in Whited determined that, although the videos of the minor daughter and her friend “engaging in everyday activities that are appropriate for the settings and not sexual and lascivious within the ordinary meaning of those terms” precluded the Court from finding the defendant guilty of the completed offense, the videos did not preclude the State from retrying the defendant for attempted especially aggravated sexual exploitation of a minor.  The Court stated, “The facts of this case present a close question regarding whether the defendant intended to capture exactly what he recorded in the videos—minors engaged in everyday activities ordinarily done nude—or whether he intended to ‘cause a result that would constitute the offense’ of production of child pornography by recording the minors engaged in lascivious exhibition. Tenn. Code Ann. §39-12-101(a)(3). Considering the entirety of the record, ‘the evidence in the record is not so insufficient’ so as to preclude a finding of attempted production of child pornography.” [10]

Of critical importance, the Court in Whited stated that the facts of the case did not preclude a finding of attempted production of child pornography under T.C.A. §39-12-101(a)(3), which states, “A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.” [11]

Subdivision (a)(3) determines that attempt responsibility attaches when an individual’s intentional acts constitute a “substantial step toward the commission of the offense” beyond mere preparation.

In this case, the majority repeatedly referenced the similarities between the videos recorded in Whited and those the defendant in this case was attempting to record. The Court noted that the depictions in this case were similar to those in Whited, in which the camera was situated to capture the victims as they walked about in the bedroom or bathroom nude, performing ordinary activities such as grooming or changing clothes.[12]The defendant in this case engaged in “staging” to ensure that placement of the camera would capture close up images of the victim’s torso while changing. The Court remarked that the videos in Whited included very similar “staging.”[13]All these similarities left the majority to conclude that, “. . . it cannot reasonably be inferred that the [d]efendant intended to capture depictions of the [v]ictim that were appreciably different from those in Whited.”[14]

The majority in Whited stated that the facts did not preclude a finding of attempted production of child pornography under T.C.A. §39-12-101(a)(3). This suggests that the nearly identical facts in this case could also have established attempt under the substantial step standard of subdivision (a)(3) of the criminal attempt statute. However, as noted above, the defendant in this case was indicted and convicted under subdivision (a)(2), which imposes responsibility under the “last proximate act” doctrine, a higher threshold than substantial step. State v. Hall [15]

The Defendant was indicted in 2010 and convicted in 2015, both before the Supreme Court decided Whited in 2016. The State did not have the information provided by Whited when charging the defendant with attempt to produce child pornography under subdivision (a)(2). However, viewing Judge Kirby’s majority opinion in Whited with her majority opinion in this case, had the State indicted under subdivision (a)(3) rather than (a)(2), the result of this case may have been very different. Instead, the question of what evidence is sufficient to establish the attempt of especially aggravated sexual exploitation of a minor under T.C.A. §39-12-101(a)(3) remains unresolved.

[1]State v. Hall, No. M2015-02402-SC-R11-CD, 2019 Tenn. LEXIS 5 (Jan. 7, 2019).

[2]Whited, 506 S.W.3d at 448.

[3]Tennessee Code Annotated §39-12-101(a)(2) (West, Westlaw through 2019 Reg. Sess.).

[4]T.C.A. §39-12-101(a)(2).

[5]Hall, 2019 Tenn. Lexis 5, at *30.

[6]Hall, 2019 Tenn. Lexis 5, at *38-39.

[7]Hall, 2019 Tenn. Lexis 5, at *62.

[8]Id.at *61-62.

[9]Hall, 2019 Tenn. Lexis 5, at *39 n.24.

[10]Whited, 506 S.W.3d at 448.

[11]Tenn. Code Ann. § 39-12-101(a)(3)(West, Westlaw through 2019 Reg. Sess.).

[12]Hall, 2019 Tenn. Lexis 5, at *37.

[13]Id.

[14]Id.

[15]SeeSentencing Commission Comments to T.C.A. §39-12-101 (West, Westlaw).

State of Tennessee v. Decosimo

State of Tennessee v. Rosemary L. Decosimo

No. E2017-00696-SC-R11-CD

Attorney Contributor: Mark Fulks

Criminal Law Journal Member: Chase Misenheimer

Full Article PDF: State of Tennessee v. Rosemary L. Decosimo

This case began on August 18, 2012, when the defendant, Rosemary L. Decosimo, was arrested for driving under the influence (“DUI”) with a blood alcohol content above 0.08% which constitutes DUI per se.  The defendant consensually provided a blood sample upon her arrest, and the sample was submitted for analysis to the Forensic Services Division of the Tennessee Bureau of Investigation, (the “TBI”).  The defendant challenged the constitutionality of the $250 “blood alcohol or drug concentration test (“BADT”) fee” on every person convicted of statutorily specified offenses, including DUI, if the offender “has taken a breath alcohol test on an evidential breath testing unit provided, maintained, and administered by a law enforcement agency for the purpose of determining the breath alcohol content” or the offender “has submitted to a chemical test to determine the alcohol or drug content of the blood or urine.”

The BADT fees are collected by clerks and forwarded to the state treasurer for deposit

into the TBI’s toxicology unit’s Intoxicant Testing Fund, (the “ITF”).  The monies deposited into the ITF do not revert to the State’s general fund, but instead remain available for appropriation to the TBI, as determined by the General Assembly.  The money is used “to fund a forensic scientist position in each of the three (3) [TBI] crime laboratories, to employ forensic scientists to fill these positions, and to purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the [TBI] to operate in a more efficient and expeditious manner.”  Any additional available funds “shall be used to employ personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner.”

On January 31, 2014, the defendant filed a motion to dismiss, or in the alternative, to suppress the TBI’s blood alcohol test results.  The defendant contended the constitutionality of the BADT fee by arguing that conditioning the BADT fee upon conviction and allocating the monies collected to the ITF instead of to the State’s general fund incentivizes the TBI’s forensic scientists to develop test results that produce convictions.  The defendant argued that this system invokes an appearance of impropriety and potential for abuse that violated her fundamental right to a fair trial as guaranteed by both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution.

At trial, the defendant’s defense motions for suppression and dismissal were denied.  The defendant entered a nolo contendere plea to DUI per se and reserved the following certified question of law for appeal:

Whether the trial court erred in not dismissing this case, or alternatively, suppressing the blood alcohol evidence without which the State could not proceed against the defendant on this DUI per se conviction, where T.C.A. § 55-10-413(f) is unconstitutional in violation of due process and rights to a fair trial under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and under article I, sections 8 and 9 of the Tennessee Constitution based on the fact that the [TBI] receives a $250 BADT/BAT fee in every case in which a conviction is obtained for driving under the influence or other listed offense, wherein a TBI blood test or TBI-calibrated breath test result is used, thereby creating a “contingent-fee-dependent system” susceptible to bias because the TBI’s testing and interpretation of these tests play the determinative role in the prosecution of the charge, and a jury instruction regarding this statutory incentive in favor of conviction is insufficient to cure the magnitude of the constitutional violation.

 

The Court of Criminal Appeals resolved the question and held that the BADT fee violates “due process principles” by creating in the TBI a “direct pecuniary interest in securing convictions.”

The Appeals Court reversed the trial court, granted the motion to suppress the results of the TBI blood alcohol testing, and dismissed the DUI per se charge.

The Tennessee Supreme Court granted the State’s application for permission to appeal. Upon de novo review, the Court held that under both the federal and state constitutions, the standards of neutrality apply only to persons exercising either judicial or quasi-judicial authority and do not apply to TBI forensic scientists which lack such authority.  Additionally, even if the standards applied to TBI forensic scientists, the constitutional claim fails because the scientists have “no direct, personal, substantial pecuniary interests in fees imposed pursuant to the [BADT] statute, and any institutional financial interest the scientists may have . . . is too remote to give rise to an appearance of impropriety.”  Furthermore, the Court also disagreed with the Court of Criminal Appeals that the statute violates substantive due process, and thus, the Court of Criminal Appeals was reversed, and the trial court’s judgment was reinstated.

The most striking thing about the Supreme Court’s opinion—and the Court of Criminal Appeals’ opinion that preceded it—is that the appellate courts did not have jurisdiction to hear the certified question because it is not dispositive of the case.  Neither appellate court addressed the jurisdictional prerequisites.,  The rules of criminal procedure permit a criminal defendant to appeal a certified question of law following plea of guilty or nolo contendere only if:

(A) the defendant entered into a plea agreement under Rule 11(c) but explicitly reserved–with the consent of the state and of the court–the right to appeal a certified question of law that is dispositive of the case, and the following requirements are met:

 

(i) the judgment of conviction or order reserving the certified question that is filed before the notice of appeal is filed contains a statement of the certified question of law that the defendant reserved for appellate review;

 

(ii) the question of law as stated in the judgment or order reserving the certified question identifies clearly the scope and limits of the legal issue reserved;

 

(iii) the judgment or order reserving the certified question reflects that the certified question was expressly reserved with the consent of the state and the trial court; and

 

(iv) the judgment or order reserving the certified question reflects that the defendant, the state, and the trial court are of the opinion that the certified question is dispositive of the case.

 

The Tennessee Supreme Court has held that a certified question “is dispositive when the appellate court must either affirm the judgment of conviction or reverse and dismiss the charges.”  Moreover, the appellate courts are “not bound by the determination and agreement of the trial court, a defendant, and the State that a certified question of law is dispositive of the case.”  Instead, the appellate courts are required to “make an independent determination that the certified question is dispositive.”  Furthermore, and most importantly, the appellate courts do not have jurisdiction to decide certified questions that are not dispositive.  Thus, when a defendant reserves a certified question challenging some but not all of the state’s evidence, the question is not dispositive because the State has other evidence to sustain the defendant’s prosecution.  “When the record contains incriminating evidence apart from that challenged through the certified question, the appellate court must dismiss the appeal because the certified question is not dispositive.” F

 

Here, the Supreme Court’s opinion makes it clear that the certified question was not dispositive.  Decosimo challenged to the constitutionality of the BADT statute on due process grounds and sought to exclude the testimony of the TBI’s forensic scientist who tested her blood sample on the ground that both the scientist individually and the TBI as an institution had a financial incentive to generate test results that support convictions, which, in turn, lead to the imposition of the BADT fee.  Yet Decosimo did not seek suppression of the blood sample itself, which she provided voluntarily, and which incriminated her in the crime of DUI per se independently of the TBI agent’s testimony.

The remedy for a successful facial challenge to the constitutionality of a statute is  invalidation of the statute.  The remedy for conflicts of interest is disqualification in the context of expert witnesses, prosecuting attorneys,  and defense counsel.  Dismissal is only a remedy when the conflict disqualifies the prosecuting attorney and strikes at the heart of the prosecuting attorney’s charging decision.  Thus, the courts could remedy the constitutional challenge to the BADT fee statute by invalidating the statute and precluding the State from collecting the fee upon the defendant’s conviction.  And, although no court has ever excluded the testimony of a law enforcement officer on the ground that a conflict of interest created an appearance of impropriety, the courts could remedy the defendant’s claim that the TBI forensic scientist, who may be viewed as an expert witness, by disqualifying the witness and precluding the witness from testifying.  Under these circumstances, dismissal is not an option.

But that is not the only reason the certified question is not dispositive of the case.  Even if the courts declared the statute void and disqualified the forensic scientist, individually, or the TBI, collectively, the prosecution would still be entitled to use the defendant’s blood sample to prove her guilt.  In the absence of the TBI forensic scientist, the prosecution would remain free to submit the blood sample for analysis by an independent laboratory.  This point finds emphasis in the court’s discussion of the discharged forensic scientist: “The TBI fired the forensic scientist and sent all samples he had tested to an outside laboratory for retesting.”  In that instance, the TBI procured retesting of 2,827 blood samples.  The TBI, or the District Attorney General, could more easily obtain retesting of the defendant’s blood sample and those of the twenty-two other defendants who challenged the BADT fee statute.  In the end, the results of the independent laboratory testing would be available to the prosecution for use at trial against Decosimo.

It is no answer to claim that the appellate courts obtained subject matter jurisdiction through the defendant’s citation of Tumey v. Ohio, 273 U.S. 510 (1927), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Connally v. Georgia, 429 U.S. 245 (1977), and her claim that dismissal is the appropriate remedy.  For one thing, the claim falls hard upon the Supreme Court’s conclusion that those cases apply only to judicial and quasi-judicial officers and not to TBI forensic scientists.  For another, if Rule 37(b) is to retain any meaning, the appellate courts cannot leave the existence of subject matter jurisdiction to a defendant’s outlandish claim to an unavailable remedy and citation to inapposite authority.  To do so would reduce the jurisdictional analysis to the mere incantation of talismanic buzzwords devoid of substance.

Beyond the jurisdictional issue attendant to the lack of dispositivity, the Supreme Court’s opinion is straightforward and flows directly from the factual distinctions between the defendant’s case and the cases that she cites.  The United States Supreme Court limited Tumey and its progeny to cases in which the neutrality of judicial or quasi-judicial actors was at issue.  Moreover, the Supreme Court held in Marshall that Tumey strict neutrality did not apply to administrative prosecutors.  The defendant attacked the conduct of law enforcement forensic scientists who the Tennessee Supreme Court rightly concluded resided one-step removed from the prosecutors.  Simply stated, the TBI’s forensic scientists are not deciders in the adjudicatory process; they do not decide to file charges, nor do they decide whether the defendant is guilty.  Instead, the forensic scientists merely analyze the evidence submitted to the crime laboratory.  Accordingly, the defendant’s appeal was destined to fail under the cited authority.

Nevertheless, the Court held that forensic scientists’ conduct may be subject to the constraints of due process.  And, after stating that it would not determine the boundaries imposed by due process, the court proceeded, by negative implication, to do precisely that.  The Court appears to suggest that due process will be offended when a forensic scientist has “a direct, personal, substantial pecuniary interest in producing a particular test result.”  Likewise, the Court appears to suggest that due process will be offended when the facts demonstrate “a realistic possibility” that a forensic scientists judgment will be distorted by the prospect of institutional gain.  These two points are analogous to the circumstances that have caused some courts concern over the governments outrageous and egregious conduct in criminal investigations.

State of Tennessee v. Frazier and Parks

State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks

No. M2016-02134-SC-R11-CD

Attorney: Mark J. Fishburn, Criminal Court Judge

Criminal Law Journal Member: Erin Hagerty

Full Article PDF: State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks

The facts in State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks are straightforward and uncontested.  Various law enforcement agencies within the 19th and 23rd Judicial Districts were engaged in a joint ongoing wiretap investigation looking into the distribution of methamphetamine in Middle Tennessee. The investigation extended from July – October of 2015.  The supervising judge of the wiretap investigation was an elected circuit court judge in the 23rd Judicial District, who in late October 2015 issued search warrants upon the homes of the defendant, both of whom resided in the 19th judicial district.  Law enforcement obtained the warrants from the supervising judge because of that judge’s familiarity with the investigation and the suspects involved in the larger conspiracy. A significant amount of drugs, money and several guns were seized from both Frazier’s home and Park’s home during the execution of the search warrants.

Ultimately, a presentment issued from Dickson County against the defendants and nearly 100 other people charging them with conspiracy to distribute 300 grams or more of methamphetamine. The Defendants challenged the validity of the search warrants of their residences located in the 19th Judicial District based on the lack of jurisdiction of the issuing judge from the 23rd Judicial District pursuant to Tenn. R. Crim. Proc. 41(a). Specifically, the defendants challenged the authority of the supervising wiretap judge, admittedly a magistrate for purposes of search warrants, to issue search warrants on property not located in counties within his judicial district. The Circuit Court judge presiding over the proceedings arising from the presentment, granted the motion to suppress and excluded the seized property.

The State sought and was granted an interlocutory appeal under Tenn. R. App. Proc. 9 on this issue and on the non-litigated issue of whether the good-faith exception to the exclusionary rule applies to the instant case. On appeal, the State cited Tenn. Code Ann. 40-1-106 to support its position that the circuit court judge had statewide jurisdiction. In the alternative, the State argued for the first time that even if the judge exceeded his jurisdictional authority, this was a technical violation of Rule 41(a) and the evidence was subject to the good faith exception of the exclusionary rule. The Court of Criminal Appeals affirmed the trial court’s ruling on the limited jurisdictional authority of a circuit court judge to issue search warrants. Further, the Court of Criminal Appeals ruled that the good-faith exception to the exclusionary rule was inapplicable because the violation was a constitutional violation, not a technical one, and therefore, the court upheld the suppression of the evidence. The Tennessee Supreme Court accepted the State’s Rule 11 application for permission to appeal on both issues raised and decided before the Tennessee Court of Criminal Appeals.

The Tennessee Supreme Court, affirming the decisions of the lower courts, held that the Circuit Court judge of the 23rd Judicial District lacked authority to issue a search warrant for property located outside of that judge’s statutorily designated judicial district “in the absence of interchange, designation, appointment, or some other lawful means of obtaining expanded geographical jurisdiction.” Although the Court agreed with the State that the language of Tenn. Code Ann. 40-1-106 was unambiguous, contrary to the holding of the Court of Criminal Appeals, the Tennessee Supreme Court disagreed with the State’s contention that the statute gave statewide authority to a Circuit Court judge to perform the duties statutorily bestowed upon magistrates, including, inter alia, the authority to issue search warrants.

Additionally, the Tennessee Supreme Court, relying on the exercise of its general supervisory authority, addressed the issue raised by the State for the first time on appeal that the good-faith exception to the exclusionary rule should apply to the trial judge’s action as argued before the Court of Criminal Appeals. The Supreme Court “decline[d] to extend the good-faith exception to the circumstances of this case.” In doing so, the Court noted “the delay in raising the issue, the absence of a specific request for extension of the good-faith exception from the State, and the limited scope of review in interlocutory appeals.”

At first glance, the Frazier decision seems to be one of those mundane decisions that garner little attention in the legal community because of its limited applicability and the unlikelihood that it will be an issue in any future litigation. In practice, there are few situations that lend itself to law enforcement seeking a search warrant for property not within its judicial jurisdiction. And, unlike many opinions that create as many new questions as old ones are answered, the Court’s opinion on the jurisdictional powers of circuit court judges as magistrates is clear i.e. a circuit court judge, unless specifically provided in accordance with any statute, cannot issue a search warrant on property outside the statutorily defined judicial district for that judge.

The issue before the Court required it to apply the well-established rules of statutory construction to certain statutes and rules of criminal procedure to ascertain “the geographical jurisdiction of a circuit court judge who is acting as a magistrate.” After establishing that circuit court judges are magistrates for purposes of issuing search warrants, the legal authority for the General Assembly to define the geographical makeup of each of the thirty-one (31) judicial districts, and the authority of magistrates to issue search warrants the court undertook a review of relevant statutes which, when read together, lead to the conclusion that a circuit court judge’s authority is limited to the geographical jurisdiction to which that judge is elected when serving as a magistrate.

Notably the State never contested the meaning or effect of these laws. Instead, the State argued that circuit court judges were granted statewide authority to perform the duties of magistrates to issue search warrants pursuant to Tenn. Code Ann. 40-1-106 relying on the phrase “throughout the state” for this expanded jurisdictional authority. Although the Court agreed with the State that the statute was unambiguous, contrary to the finding of the Court of Criminal Appeals, it disagreed with the State’s contention that the language cited operates to expand the jurisdictional authority of circuit court judges statewide when acting in the capacity of a magistrate. The Court rejected this argument relying again on well-established rules of statutory construction.

If the Supreme Court had limited its opinion to the sole issue raised at the trial court, then the story would have ended and Frazier likely would have faded off into obscurity seldom, if ever, to be cited as authority in future litigation. However, the Court, in accepting review of this interlocutory appeal and pursuant its inherent exercise of supervisory authority, also agreed to review the issue of the applicability of the good-faith exception to the exclusionary rule which was first raised by the State before the Court of Criminal Appeals. It is the decision by the Court to address the applicability of the good-faith exception that makes Frazier potentially intriguing and possibly serves as a precursor for future litigation.

The good-faith exception to the exclusion of unlawfully seized evidence was first adopted by the Tennessee Supreme Court to allow the introduction of blood evidence improperly seized without a warrant where it was determined that the police conducted the seizure in an objectively reasonable reliance on binding appellate precedent. Later that same year, the Tennessee Supreme Court extended the good-faith exception to evidence seized pursuant to a search warrant reasonably and in good-faith executed by law enforcement believed to be valid, but later determined to be invalid because of a good-faith failure of the parties to comply with affidavit statutory and procedural requirements. The good-faith exception was next invoked to deny suppression of evidence seized pursuant to a constitutionally issued warrant that was defective under Rule 41 due to an inconsequential clerical error which resulted in a variation in the three copies of the search warrant. That same day, the Court found the good-faith exception to apply to evidence seized pursuant a validly issued search warrant, but the police failed to comply with the technical requirement of Rule 41 to leave a copy of the warrant with the defendant.

It is against this backdrop that the State again sought application of the good-faith exception to the exclusionary rule when a circuit court judge exceeds his or her jurisdictional authority as a magistrate to issue a search warrant. First, the State urged the Court to apply the good faith exception because the defect in the warrant was an inadvertent, clerical or technical error to the requirements of Rule 41, similar to the facts in Davidson, Lowe, and Daniel. In rejecting this argument, the Court determined that Frazier did not “involve an inadvertent, clerical or technical error.” Instead the warrant in question in Frazier went beyond the constitutional and statutory jurisdictional authority granted him, and therefore, was void ab initio. The State also argued that the good-faith exception should apply because the police acted in an objectively reasonable good-faith reliance on binding appellate precedent under authority approving searches under facts similar to those in this case.  However, the Court rejected this argument, stating that the cases cited by the State were not binding on it, but were instead only persuasive authority which it declined to follow.

The Frazier opinion marks the first time the Tennessee Supreme Court has refused to extend the good-faith exception to a case before it since its adoption in Reynolds. That makes Frazier unique, at least momentarily. What makes it interesting and intriguing is why the Court felt the obligation to exercise its supervisory authority to consider the good-faith issue based on the facts before it in the first instance. Frequently, this is done to avoid needless litigation or particularly to eliminate confusion with respect to common law doctrines and procedures. However, as pointed out by the Court in its opinion and as referenced above, the act of the circuit judge in signing the search warrant for property outside his jurisdiction was a nullity from the start. Clearly there was no relevant common law to the original issue before the court. And if the warrant was void from the start, is there any circumstance that would permit the good-faith or any other exception to somehow breathe life into a non-existent order that needed to be addressed to avoid needless litigation? As farfetched as that question may seem, the Court only relied upon the warrant being void to reject the State’s argument that the good-faith exception under Davidson, Lowe, and Daniel applied. It did not extend this reasoning to its denial under Reynolds, instead stating that the State failed to present binding rather than persuasive authority for its argument to apply the good-faith of the exception to this case. Ultimately, the Court observed that under the circumstances of this case “the delay in raising the issue, the absence of a specific request for extension of the good-faith exception from the State, and the limited scope of review in interlocutory appeals, we decline to extend the good-faith exception.”

The Court’s reasoning not to apply the good-faith exception, while correctly decided, is not reassuring to the finality of its ruling on the jurisdictional authority of the circuit courts to issue search warrants. If one of the reasons for denial was “the delay in raising the issue,” then why exercise its judicial authority to agree to consider it? The same question may be asked of the court’s reasoning for considering the issue despite the lack of a specific request to extend the good-faith exception and based on the limited scope of review of interlocutory appeals. The court was fully aware of all of these circumstances when it chose to consider the issue. So, what was the point of addressing the good-faith exception?

If there is anything that we can learn from Frazier it is that the good faith exception to the exclusionary rule is alive and vibrant. It is unprecedented for the Supreme Court to grant permission to review the same exception to the exclusionary rule five times in a span of two years, but that is the reality of what has occurred with the good-faith exception.  Clearly the law laying out this recently created exception is evolving and will continue to evolve. In the case of Frazier, the Court seemed to send out a standing invitation to “come visit again” when a party is timely in raising and specific in seeking application of the good-faith exception that is presented to them in a Tenn. R. App. Proc. 3 appeal of right. Oh and by the way, it wouldn’t hurt to bring a little federal appellate authority to the table to support the position that the good-faith exception can overcome a void act. We may find that “under the unique circumstances of that case” even an act that is void ab initio or a nullity might yet have legs to prevent the exclusion of evidence.

 

 

 

 

 

Nunley v. State of Tennessee

Tommy Nunley v. State of Tennessee

No. W2016-01487-SC-R11-ECN

Attorney: Kimiya Sarayloo

Criminal Law Journal Member: Philip Butler

Full Article PDF: Tommy Nunley v. State of Tennessee

The Tennessee Supreme Court’s unanimous decision in Nunley v. State restricts the ability of pro se criminal defendants to obtain coram nobis relief.  Nunley held that a pro se coram nobis petition is subject to being summarily dismissed if the face of the petition does not show that it was timely filed or that the defendant is entitled to equitable tolling of the statute of limitations.

Tommy Nunley was convicted of aggravated rape in 1998. On July 25, 2000, he filed a petition for post-conviction relief, claiming that his “trial counsel was ineffective for failing to move for state-funded expert assistance for DNA testing of various items collected during the investigation of the case.” After an evidentiary hearing, the post-conviction court entered a sua sponte order, directing the TBI to conduct DNA comparison testing between biological samples taken from the Defendant and those in the victim’s sexual assault kit. However, the State reported that the sexual assault kit had been either lost or destroyed and was no longer available for testing. On July 11, 2003, the post-conviction court granted the Defendant’s petition for post-conviction relief, finding that the failure to test the evidence at the time of trial resulted in a violation of the Defendant’s constitutional right to a fair trial. The State appealed, and the Court of Criminal Appeals reversed the post-conviction court, holding that the proof did not support a finding that trial counsel’s request for DNA testing would have affected the outcome of the Defendant’s trial.

In May 2014, the Defendant filed a petition for relief under the Post-Conviction DNA Analysis Act, requesting DNA testing on all evidence in the State’s possession. The trial court denied the Defendant’s petition based on the post-conviction court’s prior finding that any evidence which would have been tested no longer existed, and the Criminal Court of Appeals affirmed.

In May 2016, the Defendant filed a pro se petition for writ of error coram nobis, claiming that the State’s July 7, 2014 response to his petition for post-conviction DNA analysis included four exculpatory exhibits of which he had not previously been aware. The first exhibit to the Defendant’s coram nobis petition included two reports from a forensics laboratory. The second exhibit consisted of two letters from the Assistant District Attorney to the TBI Crime Lab, asking for DNA testing of the evidence in the Defendant’s case, or at least blood typing. The third exhibit was an “Official Serology Report” from the TBI Crime Lab, and the fourth exhibit was a “memo” to the prosecution’s case file from Assistant District Attorney. A type-written statement on the memo read, “I spoke to Steve Wiechman at the TBI lab. His lab’s policy is not to re-do tests already done by another certified lab. The local lab . . . determined that there was no match between the defendant and the [victim]. He will not re-do any tests.” The Defendant claimed that these four exhibits demonstrated that the State withheld exculpatory evidence that would have exonerated him, in violation of his Constitutional right to due process.

The trial court dismissed the Defendant’s petition on its face as time barred.  On appeal, the Court of Criminal Appeals first declined to address whether the Defendant’s petition was timely because the State did not plead the statute of limitations as an affirmative defense. Next, the appellate court went on to address whether the Defendant should be entitled to coram nobis relief. In affirming the trial court’s denial of coram nobis relief, the appellate court noted that, “regardless of what the memo suggests, testing performed by Cellular and Molecular Forensics Laboratory did not, in fact, determine[ ] that there was no match between the defendant and the victim.”  The appellate court concluded that, when “examined within the context of the record as a whole, the information contained in the memo does not qualify as newly discovered evidence.”

The Defendant filed a petition for writ of certiorari, contending that he was entitled to coram nobis relief because Exhibit D to his petition showed that the State withheld exculpatory evidence at his trial in violation of his constitutional right of due process under Brady v. Maryland.  It was not until after the Court granted permission to appeal that the Defendant was appointed counsel.

Ultimately, the Court held that the statute of limitations set forth in Tenn. Code Ann. § 27-7-103 is not an affirmative defense that must be specifically raised by the State in error coram nobis cases. Instead, the coram nobis petition must show on its face that it is timely filed, or in the alternative, that the petitioner is entitled to equitable tolling of the statute of limitations.

The writ of error coram nobis is codified in Tenn. Code Ann. § 40-26-105 and provides a form of relief available to a convicted criminal defendants. The Tennessee Supreme Court has described it as “an extraordinary remedy known more for its denial than its approval.” The decision to grant or deny a petition for writ of error coram nobis is within the trial court’s discretion. The one-year coram nobis statute of limitations begins to run, thirty days after entry of the judgment in the trial court if no post-trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion. And as a result, in most instances, to be timely, a petition for writ of error coram nobis generally will be filed during the pendency of an appeal as of right. Nevertheless, the statute of limitations may be tolled on due process grounds if a petition seeks relief based upon newly discovered evidence of actual innocence.  The Tennessee Supreme Court has stated that “[i]n determining whether tolling of the statute is proper, the court is required to balance the petitioner’s interest in having a hearing with the interest of the State in preventing a claim that is stale and groundless.”

Because the Sixth Amendment right to counsel ends at the first appeal of right, writ of corm nobis petitioners seeking to argue that the statute of limitation should be tolled on due process grounds will either have to hire their own counsel to draft such arguments, or if they cannot afford counsel, attempt to draft such arguments without counsel.  To afford indigent petitioners with a fair opportunity to obtain coram nobis relief, Tenn. Code Ann. § 40-14-204 provides that “[i]n all proceedings for the writ of habeas corpus or the writ of error coram nobis, the court having jurisdiction of those matters shall determine the question of indigency and appoint counsel, if necessary, in the manner set out . . . ” Nevertheless, the defendant in Nunley was not appointed counsel until after the Court granted certiorari.

The Court’s decision in Nunley ultimately makes it more difficult for indigent criminal defendants to obtain relief upon filing a petition for coram nobis because it places the burden on the petitioner to show that he or she is entitled to equitable tolling of the statute of limitations. Without access to counsel and without any legal training, indigent defendants face a significant hurdle in obtaining coram nobis relief once the one-year statute of limitations has passed.

 

 

State of Tennessee v. Daniel

State of Tennessee v. Angela Faye Daniel ­­

No. M2015-01073-SC-R11-CD

Attorney Contributor: Erin Coleman

Criminal Law Journal Member: Madaleine Gray

Full Article PDF: State of Tennessee v. Angela Faye Daniel

This case began on June 6, 2014 when Officer Megan Valentine, of the Franklin Police Department, stopped Ms. Angela Daniel, the defendant for suspected driving under the influence. At the time of the incident, the Defendant refused to participate in any field sobriety tests and blood alcohol testing. Consequently, Officer Valentine obtained a search warrant for a blood draw. That same day, Defendant was transported to the Williamson County Medical Center, where she had her blood drawn.  At no point during the blood draw did Officer Valentine leave a copy of the search warrant with the Defendant.

The Defendant filed a motion to suppress the blood draw evidence due to Officer Valentine’s failure to abide by Tennessee Criminal Procedure Rule 41(g)(6). Rule 41 states:

A person aggrieved by an unlawful or invalid search or seizure may move the court pursuant to Rule 12(b) suppress any evidence obtained in the unlawful search and seizure.  If property was unlawfully seized, the aggrieved person may move for the return of the property.  The motion shall be granted– except as to the return of contraband- if the evidence in support of the motion shows that …

(6) the serving officer- where possible- did not leave a copy of the warrant with the person or persons on whom the search warrant was served.

At the suppression hearing, Officer Valentine testified it was her normal protocol to leave search warrants with defendants. However, she was unable to recall whether she left one with the Defendant on June 6, 2014. The Defendant was adamant throughout her testimony that she never received a copy of the search warrant on that day.

After the hearing, the General Sessions Judge granted the motion to suppress finding that Officer Valentine’s failure to give the Defendant a copy of the search warrant was not a clerical error as defined by the Exclusionary Rule Reform Act (ERRA). Thus, no exception applied to Rule 41 and the evidence had to be suppressed under the rule.  This decision was upheld by the Tennessee Court of Criminal Appeals. The State appealed to the Supreme Court of Tennessee to ask the specific question as to whether “Rule 41 requires suppression of the evidence at issue under the facts and circumstances presented and, if so, whether the ERRA applies to countermand Rule 41’s exclusionary rule.”

The Supreme Court of Tennessee reversed the Tennessee Court of Criminal Appeals judgment and remanded the case to the trial court. The Court’s holding was dependent on the recent creation of narrow good-faith exceptions to Rule 41’s exclusionary rule–particularly the Court’s decision in State v. Reynolds–where the deviations from the Rule’s requirements are inadvertent, inconsequential, and clearly resulted in no prejudice to the defendant.

The Tennessee Supreme Court’s holding in State v. Daniel misconstrues Tennessee’s exclusionary rule’s purpose and, as a result, promotes a vague and exploitable two-prong test, contradicts the language of Rule 41 of the Tennessee Rules of Criminal Procedure, and slights previous case law interpreting the Rule.

The Daniel Court devised its reasoning in reliance with the analysis articulated in State v. Lowe. The Lowes Court discussed State v. Reynolds­ and its anomalous ruling. In Reynolds, the Tennessee Supreme Court assessed the good-faith exceptions accepted by the United States Supreme Court, beginning with United States v. Leon, because Tennessee’s relevant constitutional provision echoes the text of the Fourth Amendment. After scrutinizing the ensuing applications of the good-faith exception, the Reynolds Court permitted the introduction of evidence obtained when law enforcement officers acted in an objectively reasonable good-faith reliance on “binding appellate precedent that specifically authorized a particular police practice” and stipulated that Rule 41 does not supersede applicable substantive law on the exclusionary rule and its exceptions.

The Court in Daniel also relied on State v. Davidson, which stated that a search warrant must comply with provisions of the United States Constitution, the Tennessee Constitution, and Tennessee’s statutory requirements. The Davidson Court discussed issuance of a warrant by a “neutral and detached magistrate” and held that the issuing judge’s failure to notice an unsigned affidavit does not indicate that a departure from the role of “neutral and detached” magistrate. Davidson’s “neutral and detached” language pertains to the necessity–and allure–of “severance and disengagement” from law enforcement activities to ensure fairness and preserve judicial veracity. This notion is noteworthy in analyzing the holding in Daniel, which shifts the burden to the State to establish, by a preponderance of evidence, that: (1) the technical noncompliance was the result of a good-faith error; and (2) the error did not result in any prejudice to the defendant.

Daniel erroneously relied on Davidson for comparative purposes when, in actuality, the two cases’ distinctions are significantly more probative. While the Davidson Court held that a good-faith error by a judge does not hinder his ability to function as a disinterested party to law enforcement objectives, Daniel deals with the procedural inconsistencies of a law enforcement officer with an interest in obtaining evidence in a suspected driving under the influence case. Unlike disinterested judges, law enforcement officers are interested parties and cannot be severed from their employment objectives. The “prejudice” language in Daniel is vague and unfeasible given the immersive nature of law enforcement positions. While Courts consider the exclusionary rule “a judicially-created remedy” and support the good-faith exception on the belief that “the criminal is not to go free because the magistrate has blundered,” inconsistencies within the discretion of law enforcement officers could severely disrupt fairness and promote negligence. Exposing defendants to procedural inconsistencies creates another variable–or barrier–that may have a large impact on the overall course of proceedings for defendants. Additionally, the good-faith exception impedes judicial integrity by epitomizing a nearly farcical overstatement of deference to law enforcement officers in evidentiary proceedings.

Further, the Court in Davidson refrained from condemning a judge who failed to rectify an error within an excess of documents requiring attention. The task of sufficiently preparing, signing, and delivering an affidavit is within the job responsibilities of police officers and should be afforded the officer’s full attention during preparation. The Daniel test snubs the public’s belief that government entities follow routine procedural standards to promote uniformity. The holding goes further to drastically reduce the responsibility of observing the procedural requirements articulated in Rule 41, diminishing the Rule’s efficacy. Standardized practices in criminal proceedings should be respected; procedures that establish routine and equality embody the principles of Due Process and Equal Protection. The holding in Daniel not only substantiates, but sanctions imprudent practices by law enforcement officers by curtailing the application of remedial provisions that penalize negligent errors.

The Davidson Court substantiates its Rule 41 holding with policy reasoning that rationalizes circumventing the compulsory suppression because “societal interests are not advanced when the exclusionary rule applies to exclude evidence obtained from execution of the warrant.” Conversely, Tennessee residents have an interest in maintaining the heightened protections afforded by the strict compliance requirements and suppression remedy codified in Rule 41. Societal interests are arguably more vulnerable if the good-faith exception becomes an unconstrained instrument for manipulation and abuse by law enforcement officials who seek to use the irremediable grant of police power as a scapegoat to achieve their ulterior motives–attainable with an unfettered means to encroach on individual privacy rights and resulting in citizen distrust of law enforcement.

The precedent examined in both Lowes and Reynolds, which the Court in Daniel relies on, depicts an expansion of the good-faith exception and an unsolicited and daunting deviation from long withstanding case law. With the existence of several commonly recognized exceptions to the warrant requirement–such as the plain view doctrine, consent, and the existence of exigent circumstances–the importance of shielding citizen’s privacy rights considerably outweighs the trivial successes of law enforcement allowed by a good-faith exception–correcting errors that were only created through employee negligence. In Daniel, the Court should have looked to the exigent circumstances exception before haphazardly expanding the good-faith exception.

The holding articulated in State v. Daniel unnecessarily expands the good-faith exception and circumvents the purpose and language of Rule 41 of the Tennessee Rules of Criminal Procedure. The ambiguous language of the holding creates an instrument for inconsistency and potential abuse and goes further to eradicate law enforcement’s recordkeeping responsibilities. The Court in Daniels concludes that societal interests are not furthered by suppressing evidence that was obtained lawfully notwithstanding a law enforcement officers “good-faith error.” However, the Court fails to give sufficient weight to societal interests in the greater protections that are available to Tennessee citizens under the unique mandatory suppression provision in Rule 41 of the Tennessee Rules of Criminal Procedure. The Court in Daniel relied on erratic precedent that departed from almost a century of practice. Given the rapid expansion of exceptions to the exclusionary rule evidenced in the analysis in Reynolds, it is in the best interest of citizens’ rights to avoid additional and unnecessary expansion of the good-faith exception. The holding in Daniel further expands the application of good-faith exception, which inevitably will result in the erosion of the individual liberties afforded by the Tennessee Constitution and the Fourth Amendment of the Constitution.

State of Tennessee v. Stanfield, et al.

State of Tennessee v. Janet M. Stanfield, et al.

No. W2015-02503-SC-R11-CD

Attorney: Jessica Jackson

Criminal Law Journal Member:  Marabeth Kennedy

Full Article PDF: State of Tennessee v. Janet Michelle Stanfield, et al.

The Tennessee Supreme Court recently examined the nuances of the Fourth Amendment with respect to the expectations of privacy of a parolee, a probationer, and a private citizen in the same household during a parole search. The case revolved around defendant Tony Winsett, who lived in a house with defendant Janet Stanfield and her adult son, defendant Justin Stanfield. At the time, defendant Winsett was on parole and defendant Janet Stanfield was on Community Corrections, a form of probation. Justin Stanfield was not subject to any form of supervised release. Acting on a tip from a confidential informant, law enforcement officers went to the residence to conduct a warrantless parole search at the residence. When officers arrived, they saw a burn pile outside the residence containing what they suspected was marijuana residue. No one answered when officers knocked on the door. Officers observed security cameras outside the residence and heard a “running noise” coming from inside the residence. The noise sounded like someone was inside the residence destroying evidence.

Officers entered the residence with a pocketknife. Once inside, they were greeted by a large dog and the odor of marijuana. No people were present. The doors were open to all three of the bedrooms inside the residence. Officers determined that one of the rooms was uninhabitable, one was shared by defendants Winsett and Janet Stanfield, and one belonged to defendant Justin Stanfield. Officers seized a gun, ammunition, clear plastic bags, a set of digital scales, a marijuana pipe, and methamphetamine from the room belonging to defendants Winsett and Janet Stanfield. In defendant Justin Stanfield’s room, officers found marijuana, a handgun, and ammunition. Officers saw defendant Justin Stanfield’s car drive past the residence on the security camera footage that was displayed on the television monitor in one of the bedrooms. A traffic stop was initiated. Defendant Justin Stanfield was read his Miranda rights and placed in custody. He consented to a search of his phone. He also admitted to officers that he sold marijuana, that he received a text during the stop about the purchase of marijuana, and that he would complete the sale.

Shortly thereafter, defendants Winsett and Janet Stanfield were located in a vehicle and stopped by one of the officers. They were placed in custody and read their Miranda rights. During a search of their vehicle, officers seized more than $200 and four alprazolam pills from defendant Janet Stanfield’s purse. Prior to trial, the trial court granted a motion to suppress, dismissing the indictments as to all three defendants. The Court of Criminal Appeals affirmed. The Tennessee Supreme Court granted permission to appeal.

The Tennessee Supreme Court, partially reversing the Court of Criminal Appeals held that: (1) a warrantless search of a parolee’s residence is constitutionally reasonable as long as the totality of the circumstances indicate a valid law enforcement concern for the search; (2) the doctrine of common authority extends the scope of parole searches to areas of a residence over which a parolee has common authority; and (3) doctrine of common authority limits the scope of a parole search of an area within a residence held exclusively by an individual with no conditional release status. As a result, the Tennessee Supreme Court reversed the grant of the motion to suppress with respect to defendants Winsett and Janet Stanfield and affirmed the grant of the motion to suppress and resulting dismissal of the indictment with respect to defendant Justin Stanfield.

In its analysis, the court briefly reviewed the law with respect to Fourth Amendment protection against unreasonable search and seizure before turning to the resolution of the individual issues on appeal with respect to the validity of the warrantless searches.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches and seizures. Tennessee’s constitutional protections regarding searches and seizures are identical in intent and purpose to those in the federal constitution. In evaluating the constitutionality of warrantless searches, the court “evaluate[s] the search or seizure under traditional standards of reasonableness” by balancing an individual’s privacy interests against legitimate governmental interests. Of course, “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. The burden is place on the State to show by a preponderance of the evidence, that a warrantless search passes constitutional muster.

In Stanfield, the court examined the validity of the warrantless search of defendant Winsett, the parolee, because it served as the basis for the police presence at the residence.  As a starting point in the analysis, the court noted the parties’ reliance on Turner and Samson. In particular, the State asked the court to provide guidance as to what constituted a legitimate law enforcement concern in the context of a warrantless search of a parolee.  Defendants argued that the search was constitutionally unreasonable, and that the totality of the circumstances did not give rise to reasonable suspicion to support the search.

In Turner, the Tennessee Supreme Court formally determined that a parolee could be “searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers.” The decision in Turner was based in part on the State’s “interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”

With that backdrop in mind, the court reviewed the Parole Certificate signed by defendant Winsett. The document indicated defendant Winsett’s agreement to “a search, without a warrant, of [his] person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time without reasonable suspicion.” Applying Turner to the facts in Stanfield, the court determined that the warrantless search was “constitutionally reasonable” based merely on defendant Winsett’s status as a parolee. In other words, the State did not have to prove reasonable suspicion or probable cause to justify the search. Despite the determination that the warrantless search in defendant Winsett’s case was constitutionally reasonable based merely on defendant Winsett’s release status, the court noted that a warrantless search could be deemed unreasonable if “conducted for reasons other than valid law enforcement concerns.” In order to protect against unreasonable searches, the court examined the totality of the circumstances as an additional “safeguard.” The court, while refusing to place parameters on the definition of a “legitimate law enforcement concern” for a search, noted that the drug activity suspected in defendant Winsett’s case was a valid law enforcement concern.  The court also pointed out that the search did not seek to cause harm, was not predicated on personal animosity, and was not part of a pattern of repetitive searches conducted while the parolee was at work or asleep.

Next, the court reviewed the warrantless search of defendant Janet Stanfield’s possessions located in a bedroom shared with a parolee. The court recognized that defendant Janet Stanfield was on a form of probation, specifically Community Corrections, but based the efficacy of the search of her possessions on the application of the doctrine of common authority rather than a determination of whether the conditions of Community Corrections would have supported a suspicionless, warrantless search of her residence and/or bedroom. Common authority can be shown by “mutual use of the property by persons generally having joint access or control” where the relationship of the people make it such that any one of them “has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” For the first time in Tennessee, the doctrine of common authority was applied “to parole searches of areas of a residence over which a parolee has common authority.” The court found it was the State’s burden to prove the doctrine of common authority applied to the factual scenario, concluding that the proof showed there was no “question” to the officers that defendants Winsett and Janet Stanfield shared a bedroom, thus “law enforcement officers did not err in searching and seizing all items of contraband found in the shared bedroom.” As a result, the court reversed the grant of the motion to suppress with respect to defendant Janet Stanfield, both as to items found in the search of the bedroom and the subsequent search of defendant Janet Stanfield’s person during the automobile stop.

Lastly, the court determined, as a matter of first impression, that the doctrine of common authority did not extend to validate a search of the bedroom of an “individual who is unencumbered by a conditional release status but who resides with an individual subject to such restrictions.” In other words, the court limited the doctrine of common authority.

In this case, the door to defendant Justin Stanfield’s the room was open. There was no evidence that any possessions belonging to defendants Winsett or Janet Stanfield were found in the room. While the police were aware that defendant Justin Stanfield lived at the house, there was no evidence that he was aware of the search conditions related to the parole or probationary status of defendants Winsett and Janet Stanfield or that he was aware that their status or those conditions could impact his constitutional protections. The court, balancing the individual privacy rights against the government interests, recognized that an individual cannot be expected to completely give up privacy expectations in their own bedroom as a result of living with a parolee or probationer, thus limiting common authority.  In other words, the court determined that common authority did not extend to areas under the nonparolee’s exclusive control simply because of proximity to a parolee who has relinquished certain rights as a result of their conditional release status. The court acknowledged and suggested that officers could have and likely should have secured a warrant based on probable cause after smelling marijuana when they entered the house. Because there was no warrant and common authority did not validate the search of defendant Justin Stanfield’s bedroom, the court determined that the evidence was properly suppressed as to defendant Justin Stanfield.

Justice Sharon G. Lee, dissenting in part and concurring in part, expressed disagreement with the majority’s determination that parolee status subjected both defendants Winsett and Janet Stanfield to a warrantless and suspicionless search. In her view, the Tennessee Constitution requires the police to establish reasonable suspicion prior to searching a parolee without a warrant and the facts of the case did not support a finding a reasonable suspicion. The dissent specifically noted the importance of the fact that defendant Winsett did not “voluntarily” agree to give up his constitutional rights but that he was required to sign the parole agreement as a condition of parole. While her opinion is understandable and, certainly arguable, it misses the mark. Defendant Winsett, a convicted felon, was granted parole−something that the court has pointed out is a privilege, not a right. The distinction between a privilege and a right is important, and helps to shape the parameters of government control over an individual on parole status. Justice Lee concluded that because reasonable suspicion had to exist prior to the forcible entry into the home, and the confidential informant’s information about illegal activity at the home was not corroborated prior to the search of the curtilage of the home, the search was illegal. Thus, Justice Lee agreed with the court’s conclusion as to defendant Justin Stanfield, albeit for different reasons.

While at first glance the factual scenario built around a parolee, a probationer, and a regular citizen living together in a residence sounds like the beginning of a well-crafted joke or an idyllic bar exam question, it actually provides the backdrop for the state’s most recent case on the seemingly ever-evolving law of warrantless searches under the Fourth Amendment. While the majority of those citizens most likely lack an unwavering familiarity with all of the amendments encapsulated within the Bill of Rights, the Fourth Amendment is commonly referenced in every day parlance. Even though the Tennessee Supreme Court’s ultimate conclusion is not necessarily a surprising one, it should be noted that the opinion blatantly leaves several hypothetical scenarios unanswered. For example, the Court noted that the outcome of the case could have been different if someone had been home at the time of the search. Additionally, the court refused to consider whether a parole search is “akin” to a consent search or whether the conditions of Community Corrections (the specific type of probationary sentencing applicable to defendant Janet Stanfield) would support a suspicionless, warrantless search of a residence. Perhaps the court is anticipating a case by case approach to this area of search and seizure or, more likely, the court is anticipating that a case or cases more on point with one of those factual scenarios will be presented to the court. To that end, it should be noted that less than a week prior to the release of Stanfield, the Court granted permission to appeal in a case involving a “probation search” of a residence shared by a probationer and a regular citizen. In that case State v. Angela Carrie Payton Hamm and David Lee Hamm, the Court of Criminal Appeals determined that the initial search was not supported by reasonable suspicion and, as a result, declined to address whether the probationer consented to a search of her home as condition of her probation and/or the resulting effect of the application of the doctrine common authority to the validity of the search.  Perhaps some of those unanswered questions in Stanfield will be addressed by the Court in this appeal−stay tuned−this area of the law will certainly continue to develop in the near future.