Christopher Demotto Linsey v. State of Tennessee ( 2022 )

02/25/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 19, 2021
CHRISTOPHER DEMOTTO LINSEY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Montgomery County
No. 63CC1-2015-CR-544 William R. Goodman, III, Judge
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No. M2020-01126-CCA-R3-PC
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The Petitioner, Christopher Demotto Linsey, appeals the denial of his petition for post-
conviction relief, arguing that his trial counsel was ineffective for failing to file a motion
to suppress evidence obtained from his cell phone, failing to object to evidence presented
at trial, and failing to file a timely motion for new trial. Based on our review, we affirm
the judgment of the post-conviction court denying relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and ROBERT H. MONTGOMERY, JR., JJ., joined.
Daniel P. Ufford, Clarksville, Tennessee, for the appellant, Christopher Demotto Linsey.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Robert J. Nash, District Attorney General; and Daniel Brollier, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
The Defendant was convicted by a Montgomery County jury of possession of 0.5
grams or more of cocaine with the intent to sell or deliver, simple possession of marijuana,
possession of drug paraphernalia, and resisting arrest. He was sentenced by the trial court
as a Range III, persistent offender to an effective term of twenty-three years in the
Department of Correction. In his direct appeal, the Petitioner challenged the sufficiency
of the evidence in support of his cocaine conviction and argued that the trial court imposed
an excessive sentence. This court affirmed the convictions and sentence, and our supreme
court denied his application for permission to appeal. State v. Christopher D. Linsey, No.
M2017-00059-CCA-R3-CD, 2018 WL 557927, at *1 (Tenn. Crim. App. Jan. 24, 2018),
perm. app. denied (Tenn. Mar. 14, 2018).
The investigative process that led to the Petitioner’s arrest and subsequent
convictions began on February 24, 2015, when Officer Jack Williams of the Clarksville
Police Department, who was responding to a report of a possible trespasser in the back
yard of one residence, smelled burnt marijuana and tracked the odor to the next-door
residence. Id. at *1. Approximately two hours later, Officer Williams, accompanied by
two other officers, approached the home for a “knock and talk” and spoke with the
homeowner, Tiffany Holliday, who initially denied them entry but eventually relented and
allowed them to enter and conduct a protective sweep of the home. Id. Once inside, where
the odor was stronger, Officer Williams asked Ms. Holliday to have the occupants assemble
in the living room, and the Petitioner and four other men came from a converted garage at
the rear of the home. Id.
Officer Williams then contacted the Clarksville Police Department’s on-call drug
agent, Agent Robert DelGiorno, who obtained a search warrant for the residence and its
occupants, which was executed shortly after midnight. Id. In the converted garage,
officers found a small baggie of powder cocaine that had been stuffed down the cushions
of a couch, a digital scale, a marijuana grinder, and “five or six marijuana ‘roaches.’” Id.
They found a second digital scale in a back bedroom. Id. Inside the front pocket of a jacket
that the Petitioner had been wearing, they found multiple small plastic baggies that were
consistent with the type used to package marijuana and cocaine. Id. at *2. They also
recovered a cell phone from the jacket.
Because of the number of potential defendants, the officers decided to strip search
the Petitioner and his companions at the home rather than waiting until they had transported
them to jail. Id. After the Petitioner had removed his clothing at the direction of the
officers, one of the drug agents saw a plastic baggie protruding from the Petitioner’s
clenched “‘butt cheeks.’” Id. The Petitioner attempted to get away, and a brief struggle
ensued. Id. After officers handcuffed the Petitioner, they found a small baggie containing
1.98 grams of crack cocaine on the floor in an area that had previously been searched. Id.
A search warrant for the Petitioner’s cell phone was subsequently obtained, and the
forensic analysis uncovered several text messages indicating that the Petitioner was
engaged in the sale of cocaine and marijuana. Id.
The jury rendered their guilty verdicts on November 24, 2015, and the trial court
sentenced the Petitioner on December 17, 2015. No motion for new trial was filed. On
November 23, 2016, trial counsel filed a motion to withdraw from representation, which
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was granted on December 12, 2016. The Petitioner filed a pro se “Notice of Delayed
Appeal” on January 17, 2017, in which he requested that this court waive the timely notice
of appeal requirement and appoint counsel. We found that trial counsel failed to comply
with Rule 37 (e)(1) of the Tennessee Rules of Criminal Procedure by not timely requesting
to withdraw from representation, and waived the timely notice of appeal requirement in the
interest of justice. Because the record reflected that the Petitioner had been declared
indigent but had retained trial counsel, we remanded to the trial court for a determination
of whether the Petitioner was indigent and should be appointed appellate counsel. On May
11, 2017, the trial court appointed appellate counsel, who filed the delayed direct appeal
that challenged the sufficiency of the evidence and the sentences.
On November 8, 2018, the Petitioner filed a timely pro se petition for post-
conviction relief. Following the appointment of post-conviction counsel, the Petitioner
filed an amended petition in which he alleged that trial counsel was ineffective for, among
other things, failing to plead crucial defense motions, failing to properly object to the
admission of evidence at trial, and failing to preserve the Petitioner’s appellate rights by
not filing a timely motion for new trial.
At the July 15, 2020, evidentiary hearing, trial counsel testified that the instant case
was the second of two, back-to-back cases in which she had represented the Petitioner on
similar charges. Due to the passage of time and the similarity between the cases, she could
not remember a lot of the details surrounding the instant case. She was unable to recall if
she had been appointed or retained, and could not remember any questions about a video
at the preliminary hearing. However, upon being shown a portion of the transcript, she
acknowledged that there had been questions about a possible video recorded by one of the
patrol officers. She could not recall if the video was ever produced.
Trial counsel testified that she filed a motion to suppress on the grounds that the
search of the Petitioner’s person was unconstitutionally intrusive and unlawful. She said
the motion was denied following a hearing. She could not recall why she did not include
in her motion a challenge to the validity of the search warrant itself. She also could not
recall if she presented any evidence at the suppression hearing about the possible officer-
recorded video.
When asked why she had not filed a motion to suppress the evidence obtained from
the Petitioner’s cell phone, she replied that she was not sure if the Petitioner ever mentioned
that there was any evidence on his phone. She also “guess[ed] it was just a defense
tactic[.]” She thought the search of the cellphone was probably included as part of the
initial search warrant, but could not recall with certainty. She acknowledged that there was
a lot of trial testimony about what had been found on the phone but said she did not believe
the evidence on the phone was what led to the Petitioner’s conviction.
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Trial counsel could not remember any specific objections she raised at trial. She
could not recall the State’s motion to substitute photographs of some of the evidence
instead of the physical evidence itself but indicated she would not have had a problem with
that common practice.
Trial counsel recalled that the Petitioner had been in jail during the course of her
representation. She could not remember how many times she visited him in jail but did
recall that she spoke often with his wife, who relayed information to the Petitioner on her
behalf. Trial counsel explained that the Petitioner’s wife visited him frequently and that
the most efficient method for counsel to communicate with him was through his wife. Trial
counsel was certain, however, that she met at least a few times with the Petitioner for trial
preparation, with each meeting lasting at least an hour, if not more.
Trial counsel testified that the Petitioner and his wife had hired her to handle the
appeal for his first case and therefore knew that they had to make a payment for her to
handle the appeal in the instant case, but they did not do so. In the meantime, on December
9, trial counsel received the devastating news that her mother had died. Trial counsel
repeated that the Petitioner understood that he had to hire her if he wanted her to handle
the appeal because the instant case was “his second rodeo.” Because she was back home
in Kansas and unavailable during that time, she had no idea if the Petitioner ever contacted
her law office about the motion for new trial and appeal.
On cross-examination, trial counsel agreed that she based her motion to suppress on
the issue that she thought had the best chance of success, which was the officers’ unlawful
detainment and strip search of the Petitioner in the home. In her opinion, the substantial
amount of cocaine recovered during the strip search was the most damaging evidence
against the Petitioner at trial.
Trial counsel could not recall any issue about a video, or that any videos were
introduced at trial. She said the Petitioner did not ask her to investigate or call any
witnesses at trial. She stated that she was unaware of any legal bases for a successful
challenge to the search of the cell phone or the validity of the search warrant. On redirect
examination, she acknowledged that the text messages on the Petitioner’s phone implicated
him in the sale of cocaine.
The Petitioner testified that trial counsel met with him only twice at the jail, for
approximately an hour each time. He recalled asking trial counsel about the video, which
Officer Williams had mentioned at the preliminary hearing. To his knowledge, trial
counsel never requested that the video be produced or even talked about it again. The
Petitioner did not think he ever specifically asked trial counsel to seek production of the
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video. He believed, however, that the video could have been used to refute Officer
Williams’ trial testimony that the Petitioner had been wearing the jacket in which the
plastic baggies and the cell phone were found.
The Petitioner testified that the search warrant for the phone was separate from the
search warrant for the residence and its occupants. He said he and trial counsel did not
discuss filing a motion to suppress the results of the search of the phone.
The Petitioner testified that officers provided inconsistent testimony about where
the two digital scales had been found. He said he did not discuss that inconsistency with
trial counsel, but he did ask her why she did not object to other things, and she responded
that she wanted “everything to be on record for appeal purposes.” He was unable to provide
any specific examples of times that he had wanted her to object, suggesting that there were
so many different occasions that he could not name one. He testified that trial counsel only
raised one objection during the entire trial, but he could not remember what it was about.
The Petitioner testified that trial counsel never informed him of how much time he
was potentially facing. He said he believed that trial counsel’s failure to adequately
communicate with him about the case prevented him from properly assisting in the defense.
He stated that he knew that trial counsel failed to file a motion for new trial, but was
unaware of the reason until her evidentiary hearing testimony.
On cross-examination, the Petitioner testified that, according to Officer Williams’
preliminary hearing testimony, a patrol officer had made a video that showed the officer’s
approach and entry into the residence. He testified that he did not see the officer
videotaping but was relying on what Officer Williams said about it at the preliminary
hearing. He acknowledged that he had never seen the video and had no independent
knowledge that it existed.
On July 21, 2020, the post-conviction court entered an order denying the petition.
The court noted that trial counsel had filed and argued a motion to suppress the cocaine
found on the Petitioner’s person based on the allegedly unconstitutional search, but that the
motion was denied. The court found that the Petitioner failed to show that counsel was
deficient in her actions with respect to the motion to suppress, or that a different approach
or argument would have resulted in the suppression of the evidence. The court further
found that the Petitioner was unable to reference any specific evidence or testimony to
which trial counsel failed to object that was outcome determinative in the case. With
respect to trial counsel’s failure to file a timely motion for new trial, the court, citing
Howard v. State, 604 S.W.3d 53, 63-4 (Tenn. 2020), found that counsel was deficient in
her performance, but that the Petitioner was unable to show that a full consideration of the
waived issues on direct appeal would have changed the outcome of the case. On this latter
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point, the court noted that the overwhelming evidence of the Petitioner’s guilt included the
large amount of cocaine he had concealed in his buttocks, his possession of the drug
paraphernalia, and the text messages on his cell phone. On August 24, 2020, the Petitioner
filed an untimely notice of appeal.
ANALYSIS
On appeal, the Petitioner argues that trial counsel provided ineffective assistance by
failing to file a motion to suppress the “intent” evidence obtained from the cell phone,
which deprived the Petitioner of the opportunity for either full acquittal of the charge or
conviction of the lesser offense of simple possession; by failing to avail herself of multiple
opportunities to object to the admission of evidence at trial, which “significantly changed
the outcome of the case by allowing the State an easier presentation” of its proof against
the Petitioner; and by failing to timely file a motion for new trial, which, combined with
her ineffective assistance during the pretrial and trial phases of the case, “robbed [the
Petitioner] of his basic rights in these criminal proceedings.”
As a threshold issue, we must first address the Petitioner’s untimely notice of appeal.
The post-conviction court entered its order denying relief on July 21, 2020. “[T]he notice
of appeal . . . shall be filed with the clerk of the appellate court within 30 days after the
date of entry of the judgment appealed from[.]” Tenn. R. App. P. 4 (a). However, a notice
of appeal is not jurisdictional, and this court may waive the timely notice of appeal
requirement in the interest of justice. Id. “In determining whether waiver is appropriate,
this [c]ourt will consider the nature of the issues presented for review, the reasons for and
the length of the delay in seeking relief, and any other relevant factors presented in the
particular case.” State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL
3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005). Given the history of this case, and
because the notice of appeal was filed only four days late, we have elected to waive the
timely notice of appeal requirement.
Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const. amend.
VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective assistance
of counsel is made under the Sixth Amendment to the United States Constitution, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2)
that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a petitioner must
establish both prongs of the test, a failure to prove either deficiency or prejudice provides
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a sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989). We apply the Strickland test to claims of ineffective
assistance of trial counsel as well as ineffective assistance of appellate counsel. Carpenter
v. State, 126 S.W.3d 879, 886 (Tenn. 2004).
Deficient performance requires a showing that “counsel’s representation fell below
an objective standard of reasonableness,” despite the fact that reviewing courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court reviews
a lawyer’s performance, it “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the
conduct from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319,
326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). We will not deem counsel to have
been ineffective merely because a different strategy or procedure might have produced a
more favorable result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We
recognize, however, that “deference to tactical choices only applies if the choices are
informed ones based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).
As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must establish that his
counsel’s deficient performance was of such a degree that it deprived him of a fair trial and
called into question the reliability of the outcome.” Pylant v. State, 263 S.W.3d 854, 869
(Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).
The burden in a post-conviction proceeding is on the petitioner to prove allegations
of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); see Dellinger,
279 S.W.3d at 293-94. On appeal, we are bound by the post-conviction court’s findings of
fact unless we conclude that the evidence in the record preponderates against those
findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions
concerning the credibility of witnesses, the weight and value to be given their testimony,
and the factual issues raised by the evidence are to be resolved” by the post-
conviction court. Id. Because they relate to mixed questions of law and fact, we review
the post-conviction court’s conclusions as to whether counsel’s performance was deficient
and whether that deficiency was prejudicial under a de novo standard with no presumption
of correctness. Id. at 457.
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We agree with the post-conviction court that the Petitioner failed to meet either the
deficiency or the prejudice prong of his ineffective assistance of counsel claim with respect
to counsel’s failure to file a motion to suppress the cell phone search results and counsel’s
failure to object to the introduction of evidence at trial. Trial counsel’s memory of the trial
was hazy, but she was certain that she concentrated in her motion to suppress on the issues
she thought had the best chance of success. She also said she was unaware of any basis for
a successful challenge to the search of the cell phone. We note that the Petitioner has not
identified a successful basis for a challenge to the cell phone search, either. Instead, the
Petitioner merely speculates that, had trial counsel filed a motion to suppress the results of
the cell phone search, the text messages that showed the Petitioner’s intent to sell cocaine
might have been suppressed.
The Petitioner, likewise, merely speculates that trial counsel may have been
successful had she had raised objections at trial to the authentication of the photographs,
authentication of the cell phone report, chain of custody of the evidence, and hearsay
testimony by the witnesses, asserting that “[m]uch like her failure to address the issue of
suppressing the cell phone, we cannot know the real outcome of the trial because trial
counsel’s deficient performance so drastically undermined it.” The Petitioner does not
identify any problems with hearsay testimony, the chain of custody, or authentication of
the photographs or cell phone report, and our review of the trial record does not reveal any
problems that counsel failed to address that would have altered the outcome of the case.
What the trial transcript does reveal is that trial counsel vigorously cross-examined
the State’s witnesses, attempting to cast doubt on the officers’ claim that the cocaine found
in the room originated from the Petitioner by, among other things, questioning their
descriptions of the Petitioner’s actions, the thoroughness of their earlier search of the room,
and whether they had the plastic baggie tested for the presence of fecal material. The
Petitioner has not met his burden of showing that trial counsel was deficient in her
performance before or during the trial, or that any alleged deficiency prejudiced the
outcome of his case.
While not unsympathetic to the reason for her failure to file a timely motion for new
trial or to timely withdraw from representation, we also have no hesitation in agreeing with
the post-conviction court that trial counsel was deficient in her performance for not filing
a timely motion for new trial. Whether the Petitioner was prejudiced as a result is a closer
question. As the post-conviction court observed, a claim of ineffective assistance of
counsel based on counsel’s failure to file a timely motion for new trial is analyzed under
the Strickland standard, under which a petitioner must show actual prejudice as a result of
counsel’s deficient performance. See Howard, 604 S.W.3d at 63 (holding that when an
ineffective assistance of counsel claim is based on counsel’s deficient performance in
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failing to file a timely motion for new trial, prejudice is not presumed but instead should
be analyzed under the Strickland standard to determine if there is a reasonable probability
that counsel’s deficient performance changed the outcome of the case).
The post-conviction court concluded that the Petitioner was not prejudiced by
counsel’s failure to file a motion for new trial because the evidence in the case was
overwhelming. However, because of trial counsel’s failure to file a timely motion for new
trial, the Petitioner was unable to raise as an issue on direct appeal the trial court’s denial
of his motion to suppress the results of the search of his person. See State v. Bough, 152
S.W.3d 453, 460 (Tenn. 2004) (citations omitted) (“If a motion for new trial is not timely
filed, all issues are deemed waived except for sufficiency of evidence and sentencing.”).
Thus, in order to determine if the Petitioner was prejudiced by his inability to raise
the trial court’s denial of his motion to suppress as an issue on direct appeal, we must
review what occurred both at the suppression hearing and at trial. See State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998) (concluding that when reviewing the propriety of a trial
court’s decision to grant or deny a motion to suppress, an appellate court may properly
consider not only evidence presented at the suppression hearing, but also evidence at trial).
A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Questions of credibility, the weight and value of the evidence, and the
resolution of conflicting evidence are matters entrusted to the trial court, and this court will
not reverse the trial court’s factual findings unless the evidence preponderates against
them. Id. (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The evidence is to be
viewed in the light most favorable to the prevailing party on a motion to suppress with all
reasonable and legitimate inferences that may be drawn by the evidence. State v. Carter,
16 S.W.3d 762, 765 (Tenn. 2000). However, our review of the application of the law to
the facts is de novo. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).
Trial counsel argued in her motion to suppress that the officers created the alleged
exigent circumstances for their entry and protective sweep of the home by their warrantless
entry into the private back yard of the residence to search for the origin of the marijuana
odor.1 The State responded that the odor of the marijuana was alone sufficient to establish
probable cause for the search, and that the Petitioner lacked standing to complain about the
officers’ entry into the back yard because he was not the homeowner. Trial counsel
conceded at the hearing that the Petitioner may have lacked standing with respect to the
warrantless entry into the yard but argued that the Petitioner’s constitutional rights were
1
Although trial counsel’s motion to suppress and the State’s response is included in the
record on direct appeal, the search warrant for the home and its occupants is not.
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nonetheless violated by the officers’ protective sweep and detainment of the home’s
occupants while they waited for a search warrant to be issued.
At the suppression hearing, Ms. Holiday testified that the officers approached her
outside her home at about 8:00 p.m. and asked her several times for permission to conduct
a search of her home, but she never consented. She said they also asked her for permission
to conduct a protective sweep of the home. She stated that when she told the officers that
she did not want them to conduct a protective sweep, they told her that she had no choice
under the law and that they did not need her consent. She testified that, once inside, the
officers told her to have everyone come into the living room. She said the officers patted
everyone down, finding no weapons, and then told her that they were going to “put the
house on freeze” while they obtained a warrant. She estimated that she and her adult
companions were detained, with officers present the entire time, for approximately four or
five hours until the search warrant was issued.
At the conclusion of the hearing, the trial court found that there was no evidence
that the Petitioner was not free to leave the residence during that time. The court, therefore,
denied the motion to suppress.
At trial, however, both Officer Williams and Agent DelGiorno testified that the
home’s occupants were not free to leave during the time a search warrant was obtained.
Officer Williams testified that he first asked Ms. Holiday for consent to search her
residence, but she refused. He said he asked if he could come inside to talk to her, but she
offered to bring everyone outside. He said that the temperature was below freezing, that
he asked her again if he could come inside to talk so that she would not have to bring her
children outside into the cold, and that she consented. On cross-examination, he testified
that while he was still outside with her, he explained that he needed to conduct a protective
sweep of the home and that Ms. Holiday consented after he told her that a protective sweep
was not a search, but a check to see who was inside the residence.
Officer Williams testified that he had Ms. Holiday assemble the adults in the living
room, and then called Agent DelGiorno to explain the situation. Agent DelGiorno called
him back a short time later to tell him he was in the process of obtaining a search warrant.
Officer Williams estimated that he first approached Ms. Holiday outside the home at
approximately 9:00 p.m., and said that the search warrant was executed shortly after
midnight. He denied that anyone was searched or patted down until after the search warrant
was obtained, but agreed that no one was allowed to leave and that their movements inside
were restricted. He recalled that one individual was allowed to use the restroom, but that
he was accompanied by a police officer.
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For his part, Agent DelGiorno testified that the home was placed on freeze, with no
one allowed to enter or leave, while he obtained a search warrant.
Both the Fourth Amendment to the United States Constitution and Article 1, section
7 of the Tennessee Constitution protect citizens from unreasonable searches and seizures.
“The purpose of the prohibition against unreasonable searches and seizures under the
Fourth Amendment is to ‘safeguard the privacy and security of individuals against arbitrary
invasions of government officials.’” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)
(quoting Camara v. Municipal Ct., 387 U.S. 523, 528 (1967)). As such, a warrantless
search or seizure is presumed unreasonable under both the federal and state constitutions.
State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998) (citing Coolidge v. New
Hampshire, 403 U.S. 443, 454-55, (1971) and State v. Watkins, 827 S.W.2d 293, 295
(Tenn. 1992)). “Therefore, when a defendant seeks to suppress evidence allegedly
obtained as a result of an illegal seizure, the State bears the burden of proving that its
warrantless actions were justified, i.e., as a lawful investigatory stop or under some other
exception to the warrant requirement.” State v. Nicholson, 188 S.W.3d 649, 656-57 (Tenn.
2006). Among the exceptions to the warrant requirement are exigent circumstances, or
“‘those in which the urgent need for immediate action becomes too compelling to impose
upon governmental actors the attendant delay that accompanies obtaining a warrant.’”
State v. Hutchison, 482 S.W.3d 893, 916 (Tenn. 2016) (quoting State v. Meeks, 262
S.W.3d 710, 723 (Tenn. 2008)). Our courts have held that exigent circumstances include
“when immediate police action is necessary to prevent the destruction of evidence[.]” Id.Based on the unequivocal testimony of Officer Williams and Agent DelGiorno,
there is no question that the Petitioner was seized for fourth amendment purposes during
the time he was detained before the officers returned with the search warrant. See State v.
Daniel, 12 S.W.3d 420, 424 (Tenn. 2000) (observing that a seizure for fourth amendment
purposes occurs when an officer, either by physical force or show of authority, restrains
the liberty of a citizen) (citations omitted). Viewed in the light most favorable to the State,
the Petitioner and his companions were detained for approximately three hours before
Agent DelGiorno arrived with the search warrant. The question now becomes whether the
approximate three-hour detainment of the Petitioner at the home was reasonable under the
circumstances.
“Reasonableness is the ‘touchstone of the Fourth Amendment.’” State v. Keith, 978
S.W.2d 861, 865 (Tenn. 1998) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). In
Illinois v. McArthur, 531 U.S. 326 (2001), the United States Supreme Court found
reasonable a two-hour detention of a defendant on the front porch of his home while
officers obtained a search warrant for his residence based on his wife’s report that he had
“dope” hidden in the residence. Id. at 329. The Court balanced the “privacy-related and
law enforcement-related concerns to determine if the intrusion” caused by the two-hour
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detainment of the defendant was reasonable. Id. at 331. In concluding that it was, the
Court observed that the police had probable cause to believe that the defendant’s home
contained evidence of a crime and unlawful drugs, had good reason to fear that the
defendant would destroy the drugs before they could return with a warrant, “made
reasonable efforts to reconcile their law enforcement needs with the demands of personal
privacy[,]” and imposed the restraint for “no longer than reasonably necessary for the
police, acting with diligence, to obtain the warrant.” Id. at 331-3.
In this case, the officers had probable cause for a search warrant at the time they
detained the Petitioner and the other adult occupants of the home in the living room. “The
odor of an illegal substance alone can provide sufficient probable cause for the issuance of
a search warrant.” State v. Torsaunt Lamont Shanklin, No. M2019-01896-CCA-R3-CD,
2021 WL 1082043, at *9 (Tenn. Crim. App. Mar. 22, 2021), perm. app. denied (Tenn. May
12, 2021) (citations omitted). They also had a reasonable basis to believe that evidence
would be destroyed if the home’s occupants were not detained, made reasonable efforts
under the weather-related circumstances to balance the privacy and comfort interests of the
home’s occupants with their law enforcement concerns by holding the occupants in the
living room while they waited for the search warrant, and acted with due diligence in
obtaining the warrant as expeditiously as possible. Under these circumstances, we
conclude that the Petitioner has not met his burden of showing that the outcome of his trial
would have been different had he been able to raise the denial of his motion to suppress as
an issue in his direct appeal. Accordingly, we affirm the judgment of the post-conviction
court denying the petition.
CONCLUSION
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
____________________________________
D. KELLY THOMAS, JR., JUDGE
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