IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs July 10, 2007

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1 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs July 10, 2007 STATE OF TENNESSEE v. CHARLES THOMAS LARD, II and DOREEN REBECA GATES LARD Appeal from e Circuit Court for Tipton County No Joseph H. Walker III, Judge No. W CCA-R3-CD - Filed December 5, 2007 The Appellants, Charles Thomas Lard, II, and Doreen Rebeca Gates Lard, each pled guilty in e Tipton County Circuit Court to possession of one-half ounce or more of marijuana wi intent to deliver and to e manufacture of one-half ounce or more of marijuana, bo Class E felonies. Pursuant to a plea agreement, e Lards reserved e following certified question for consideration by is court on appeal: wheer e trial court erred in denying eir respective motions to suppress evidence and statements obtained by e police after a search of eir home, based upon its finding at e Lards knowingly and voluntarily consented to e search. After orough consideration of e arguments of e parties and e record on appeal, we affirm. Tenn. R. App. P. 3; Judgment of e Circuit Court Affirmed DAVID G. HAYES, J., delivered e opinion of e court, in which THOMAS T. WOODALL and NORMA MCGEE OGLE, JJ., joined. J. Barney Wierington IV, Covington, Tennessee, for e Appellant, Charles Thomas Lard, II. Frank Deslauriers, Covington, Tennessee, for e Appellant, Doreen Rebeca Gates Lard. Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Mike Dunavant, District Attorney General; and Walt Freeland, Assistant District Attorney General, for e Appellee, State of Tennessee. OPINION Factual Background In September of 2005, e Tipton County Sheriff s Department received a telephone call from Department of Children s Services ( DCS ) worker Edna Kalmon. Kalmon informed Deputy Delashmit and Deputy Mike Rose, wi e Narcotics Division, at she had received a referral as to possible child abuse at e home of e Appellants. Specifically, e referral alleged at e child

2 1 of e Appellants daughter, Christine Gates, had suffered a broken leg. During e course of e telephone conversation, e officers advised Kalmon at e Appellants home had been under surveillance regarding possible drug use. Kalmon informed e officers of her intent to visit e home and investigate, and she asked at an officer accompany her on e visit. At approximately 3:30 p.m. on September 20, 2005, Kalmon and Rose arrived at e Appellants home and knocked on e door. Christine Gates opened e door, and Rose immediately noticed e odor of burnt marijuana. Gates invited em into e house, and Kalmon informed her of e purpose of e visit. Rose asked Gates, Is ere marijuana in is house? I can smell it. Gates said, Yes, sir, and, furer, at she had just smoked a joint about [irty] minutes ago. Rose indicated at he needed to take a look around and asked Gates if she would sign a consent to search form, to which Gates responded, Yes, sir, but I can t give you consent to my house. This is my parents house. I can give you [consent] where I live. I live upstairs in my room. At 3:40 p.m., Gates signed a consent form allowing e officers to search e [l]iving [a]rea [u]pstairs... to include all containers and [l]ocked [b]oxes. During is interaction, anoer sheriff s deputy, Sergeant Dan Jones, arrived at e scene. The officers proceeded upstairs, and Gates directed em to a closet area containing two or ree jars of a green leafy substance at Gates identified to e officers as marijuana. Gates informed e officers at her parents had given her e marijuana. At some point shortly ereafter, Gates s moer, e Appellant Doreen Lard, was contacted by telephone. During is call, she told Rose to [g]o ahead and search e rest of e house, but Rose informed her at he would wait until she arrived home from work in Memphis. Approximately an hour later, e Appellants arrived at e home togeer. Rose immediately approached em and stated at drugs had been found upstairs. Rose informed em at e officers required consent to search e rest of e house. The Appellants each signed a consent form permitting e officers to search e house, purportedly [t]o include all outbuildings, vehicles, and locked containers. At e suppression hearing, Rose testified as follows regarding e officers discoveries roughout e course of e search: Q. What were [e Appellants] doing while you searched e house? A. They were very cooperative. They went wi me and showed me everying at ey had in e house. Q. Now, when you say everying, can you describe what you found in e house? A. I ink ere was [sic] approximately fifteen fruit jars at were sealed at ey said ey had grown marijuana for eir personal use. And as a matter of fact, ey showed me all of e guns, e shotgun, everying. Q. Where were ese fruit jars? A. In eir bedroom, undernea e bed were some of em. There were some bags, loose bags wi marijuana, scattered different places in e bedroom. 1 Gates is e daughter of Appellant Doreen Rebeca Gates Lard and e stepdaughter of Appellant Charles Thomas Lard, II. -2-

3 The shotgun was in e closet. There was a pistol laying on e dresser, like. There was [sic] ree or four guns in e house. Then ey after we got rough ere, ey took me to anoer room where ey had some lights and some lines hanging wi plants drying. Then ey took me outside where some plants were still standing. The officers advised e Appellants of eir rights against self-incrimination, which e Appellants en each waived via written waiver. Bo of e Appellants en provided a written statement to e officers. On November 7, 2005, a Tipton County grand jury indicted e Appellants for possession wi intent to deliver one-half ounce or more of marijuana and for e manufacture of more an onehalf ounce of marijuana. The Appellants each filed a motion to suppress e evidence seized and statements given to e police. After e trial court held a hearing on August 9, 2006, it denied e motions. On August 10, 2006, e Appellants entered a conditional guilty plea to e indicted offenses, reserving a certified question for appeal. The trial court entered judgments of conviction on August 29, 2006, sentencing e Appellants, as multiple offenders, to ree years of supervised probation, wi a $2000 fine and service of sixty days in jail. The Appellants timely filed a notice of appeal. Analysis Rule 37(b)(2)(i) of e Tennessee Rules of Criminal Procedure allows an appeal from a guilty plea in certain cases under very narrow circumstances. An appeal lies from a guilty plea, pursuant to Rule 37(b)(2)(i), if e final order of judgment contains a statement of e dispositive certified question of law reserved by an Appellant, wherein e question is so clearly stated as to identify e scope and e limit of e legal issues reserved. State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The order must also state at e certified question was expressly reserved as part of e plea agreement, at e State and e trial judge consented to e reservation, and at e State and e trial judge are of e opinion at e question is dispositive of e case. Id. The certified issue reserved for is court on appeal was articulated by e trial court in its final order as follows: wheer or not e trial court erred by finding at e evidence seized by law enforcement in is case and e statement given by defendant[s] were properly not suppressed and at said evidence and statement[s] were not obtained as a result of any coercion on e part of law enforcement and e consent to search and statements were voluntarily given by [e Appellants]. On appeal, e Appellants contend at e record in is case indicates a highly coercive atmosphere at e time of e alleged consent to search and at eir consent was not given voluntarily and intelligently. The Appellants cite Vaughn v. State, 477 S.W.2d 260 (Tenn. Crim. -3-

4 App. 1971), for eir argument at [t]he fact at a defendant consents to a search knowing at contraband lies in e area at will be searched militates heavily against his validly consenting. 2 The Appellants furer assert at coercion is shown by e fact at Rose told em, prior to obtaining consent, at he had already found marijuana in e home, ereby convincing em at eir consent was not of eir own volition. The Four Amendment to e Constitution protects e right of e people to be secure in eir persons, houses, papers, and effects, against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct. 1914, 1916 (1995). It is axiomatic at e physical entry of e home is e chief evil against which e wording of e Four Amendment is directed.... And a principal protection against unnecessary intrusions into private dwellings is e warrant requirement imposed by e Four Amendment on agents of e government who seek to enter e home for purposes of search or arrest. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S. Ct. 2091, 2097 (1984). Article I, section 7 of e Tennessee Constitution provides: [t]hat e people shall be secure in eir persons, houses, papers and possessions, from unreasonable searches and seizures; and at general warrants, whereby an officer may be commanded to search suspected places, wiout evidence of e fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted. State v. Stephenson, 195 S.W.3d 574, 592 n.13 (Tenn. 2006). This constitutional provision is identical in intent and purpose wi e Four Amendment. Id. (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). A search or seizure conducted wiout a warrant is presumed unreasonable, and any evidence discovered as a result of such a search is subject to suppression. Coolidge v. New Hampshire, 403 U.S. 443, , 91 S. Ct. 2022, 2031 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). However, e evidence will not be suppressed if e State proves at e warrantless search or seizure was conducted pursuant to one of e narrowly defined exceptions to e warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (quoting Yeargan, 958 S.W.2d at 629). A consent to search is an exception to e normal requirement of a search warrant. State v. 2 We acknowledge e language of Vaughn, which observed at e fact at a defendant consents to a search knowing at contraband lies in e area at will be searched militates heavily against his validly consenting. 477 S.W.2d at 263 (citing Higgins v. United States, 209 F.2d 819, 820 (D.C. Cir. 1954)). We would also note at e United States Court of Appeals, Six Circuit, in United States v. Edward Kelly, 913 F.2d 261, 267 n.3 (6 Cir. 1990), rejected e holding of Higgins and observed at is rule has been overwhelmingly rejected by oer courts. See, e.g., United States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 1879 (1980); United States v. Williams, 754 F.2d 672, st (6 Cir. 1985); United States v. Manchester, 711 F.2d 458, 462 (1 Cir. 1983); United States v. Robinson, 625 F.2d st 1211, n. 12 (5 Cir. 1980); United States v. Ciovacco, 518 F.2d 29, (1 Cir. 1975); United States v. Piet, 498 F.2d 178, 182 (7 Cir.), cert. denied, 419 U.S. 1069, 95 S. Ct. 655 (1974); Leavitt v. Howard, 462 F.2d 992, 997 st (1 Cir. 1972). -4-

5 Watson, 227 S.W.3d 622, 644 (Tenn. Crim. App. 2006) (citing Schnecklo v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059 (1973)). To pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). The sufficiency of consent depends largely upon e facts and circumstances in a particular case. State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993). The determination of wheer consent to search was voluntary can only be made by examining e totality of e circumstances surrounding e giving of consent. State v. Ashwor, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999). The burden is on e prosecution to prove at consent was freely and voluntarily given. State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983). When a decision on a motion to suppress is challenged, e trial court s findings of fact are presumed correct unless e evidence contained in e record preponderates against em. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). Wiout such a showing, we must affirm e trial court s decision. The trial court announced its ruling at e conclusion of e hearing on e Appellants motions to suppress: The Court finds at wi regard to e issues raised by [e Appellants] in eir motion[s], at e officer was accompanying e children s services about a complaint at ey had received, at ey were invited into e premises, could smell e odor of an illegal narcotic, which gave em reasonable basis. They were lawfully ere, first of all. Secondly, gave em a reasonable basis to investigate furer; at Ms. Gates gave a [c]onsent to [s]earch freely; and en [e Appellants] were notified, or a[n Appellant] was notified, and en later [e Appellants] appeared. The Court finds at ere s been no coercion or coercive behavior against [e Appellants] shown in e proof today to require suppression of e [c]onsent to [s]earch..... In is particular case ey certainly had probable cause to secure a warrant if ey had wanted to go get a warrant in e meantime. The officers chose to wait to see if e [Appellants] would consent to search. All e proof I ve heard was at [e Appellants] arrived, were cooperative, showed e officers, and maintained at e substances were for eir personal use. Finding no reason to suppress e evidence or statements resulting from e search, e trial court denied e Appellants motions. -5-

6 In support of eir argument at eir consent to search e house was invalid, e Appellants rely on Vaughn, a case which involved a warrantless police search of e trunk of e defendants vehicle during a traffic stop. 477 S.W.2d at 262. In at case, one of e defendants, who was driving e car, was placed under arrest after e police officer discovered at he had no driver s license, and e oer defendant was arrested after admitting ownership of a pistol found in e car. Id. The police officer subsequently asked for consent to search e trunk of e vehicle, where he discovered a quantity of narcotics. Id. On appeal, e defendants argued at e evidence from e trunk should have been suppressed, because it was obtained as a result of an unconstitutional search. Id. In reversing e convictions for possession of narcotics, is court discussed e controlling facts and principles as follows: The pivotal question, as we view is record, is wheer e search as conducted was legal. We are satisfied at e search of e trunk and e discovery of e fourteen cases of Robitussin was not connected in any manner wi e offense which brought about e initial arrest. In fact, e only basis e officer had for making e search was his suspicion at was aroused by e mannerisms of [defendant] Vaughn. This is not sufficient.... The trooper had no prior knowledge of any oer offense having been committed by e defendants, because, as he related, he was looking for anying he could find. In short, he was conducting a condemned exploratory search. The trial court found at e search was a consent search in permitting e evidence (Robitussin) to go to e jury and in overruling e motion to suppress. We are satisfied at a defendant may waive his rights relative to searches and seizures.... We disagree wi e trial court s findings from our review of e record. We note at e trooper took e keys from e ignition and unlocked e glove compartment. His suspicions being aroused, he en inquired about looking into e trunk. This permission was denied by Vaughn. The trooper en related at he had to look in e car, at he could get a warrant. The defendant Vaughn en related he would let him look but he did not have e key, at [defendant] Barnes had it. They en proceeded to Barnes when Vaughn en stated he would let him look and stated at he (e trooper) looked like a level-headed person he could do business wi. Under e totality of e circumstances we do not believe e State has met its heavy burden and shown at e defendant Vaughn intelligently consented to is search. The fact at e contraband was known by Vaughn to be in e trunk militates heavily against his validly consenting.... The very fact at Vaughn refused e trooper s request to search in e first instance is incongruous wi validly consenting to e search. His hedging and delaying in producing e key conveys to us acquiescing to auority raer an clear positive words and actions denoting a valid consent

7 Under ese circumstances, we are satisfied at Vaughn s act of consenting was of necessity and not of his volition. Id. at (citations omitted). The Appellant s reliance on Vaughn is misplaced. The holding of at case turned on is court s analysis of e totality of circumstances, which indicated at e search of e defendant s vehicle was unrelated to e offense for which arrest was made and at e defendant had initially refused to consent to a search of e vehicle before eventually conceding to e officer s requests. See id. The present case is distinguishable in numerous respects. Here, DCS worker Kalmon requested at police officers accompany her to e Appellants residence after she received a referral alleging child abuse at e address. Once ey arrived at e home, Gates invited em inside, and Officer Rose immediately noticed e smell of marijuana. After obtaining Gates consent to search her room, e validity of which is not at issue, e law enforcement officers discovered contraband, which Gates stated had been given to her by e Appellants. At e suppression hearing, e Appellants failed to establish any basis for concluding at eir consent to search e house was a result of eir acquiescing to auority raer an clear positive words and actions denoting a valid consent[,] as was held to be e situation in Vaughn. The proof does not preponderate against e trial court s finding at Rose waited for e Appellants to return home and asked em for consent to search e rest of e house, which we conclude at ey provided, wiout reluctance, in written form, voluntarily and wiout coercion. We hold at in is case e State carried its burden of establishing at e Appellants consent to search eir home was freely and voluntarily given. Accordingly, e Appellants assignments of error to e trial court s denial of e motions to suppress are wiout merit, and e judgments are affirmed. CONCLUSION Based upon e foregoing, e judgments of e Tipton County Circuit Court are affirmed. DAVID G. HAYES, JUDGE -7-