State v. Larry Wayne King a/k/a Key & Andrew Byers ( 1997 )

.
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FILED
August 22, 1997
FEBRUARY 1997 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9601-CC-00002
)
vs. ) Williamson County
)
ANDREW WILLIAM BYERS ) Honorable Donald P. Harris, Judge
and LARRY WAYNE KEY )
a/k/a LARRY WAYNE KING )
) (Aggravated Burglary,
Appellants. ) Theft of Property)
)
FOR THE APPELLANT BYERS: FOR THE APPELLEE:
JOHN HENDERSON CHARLES W. BURSON
District Public Defender Attorney General & Reporter
P.O. Box 68
Franklin, TN 37065-0068 DARIAN B. TAYLOR
Assistant Attorney General
Criminal Justice Division
FOR THE APPELLANT KEY: 450 James Robertson Parkway
Nashville, TN 37243-0493
D. STUART CAULKINS
Attorney at Law JOSEPH D. BAUGH, JR.
212 E. Main St. District Attorney General
Franklin, TN 37064
MARK PURYEAR
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendants, Andrew William Byers and Larry Wayne Key,1 were
convicted of aggravated burglary and theft of property by a jury of their peers in the
Williamson County Criminal Court. Byers received a 24 year effective sentence for
his crimes -- 12 years for aggravated burglary, a Class C felony, at Range 3, and
12 years for theft of property, a Class D felony, at Career Offender status. These
sentences were imposed consecutively, for an effective 24 year sentence. Key
received a 27 year effective sentence -- 15 years for aggravated burglary, a Class
C felony, at Range 3, and 12 years for theft of property, a Class D felony, at Career
Offender status. Both defendants' sentences were imposed consecutively to each
other and to the sentences they were serving at the time of the convictions. In this
appeal, both defendants raise issues pertaining to the sufficiency of the convicting
evidence. Byers also raises an issue pertaining to the trial court's denial of his pre-
trial motion to suppress evidence seized from his home. We affirm.
On March 11, 1993, numerous items were taken from the Brentwood
home of Dan and Tammy Beeler. Entry was obtained by prying open a back door.
Among the items taken from the home were a gold Cross pen and pencil set, a
Honda jacket, a fraternity jacket, several baseball caps with distinctive lettering and
markings, a pair of cowboy boots, a "paint ball" gun and "paint ball" equipment.
Mrs. Beeler discovered the burglary during the afternoon hours when she returned
home from work. She notified the Brentwood Police Department, and Detective
Thomas Campsey began an investigation.
As a result of surveillance activities growing out of an investigation of
1
Key has apparently used the alias "Larry Wayne King." He is named in
the presentment as "Larry Wayne Key." In accord with the policy of this court,
we use the defendant's name as it appears in the presentment. See, e.g., State
v. Jenny Wilson, No. 03C01-9508-CC-00221, slip op. at 2, n.1 (Tenn. Crim.
App., Knoxville, Apr. 24, 1996).
2
an unrelated offense, Nashville Metro officers were aware Defendant Byers was
living in a rental duplex in south Nashville, and Key had been seen entering and
leaving the Byers residence. Arrest warrants were obtained for the two, and they
were arrested on March 22, 1993, as they drove away from Byers' residence.
Within a few hours, a warrant authorizing the search for items relevant to the
unrelated offense was executed at Byers’ home by Nashville Metro officers.
According to the evidence adduced at the hearing on the motion to suppress, the
officers found other items which they suspected were the fruits of one or more
burglaries in Williamson County in the course of executing this search warrant. One
of the Nashville Metro officers involved in searching the Byers home was Detective
Mike Chastain, who was familiar with the burglaries on the Davidson/Williamson
County line, and who had been in contact with Det. Campsey regarding the crimes.
From these communications, Chastain was aware of the paint ball gun and
accessories missing from the Beeler home. He found items matching this
description in plain view in a bedroom of the Byers home, and he confirmed they
were those taken in the Beeler burglary by telephoning Campsey and confirming the
serial number on the paint ball gun. Other officers then inquired whether other
items which they had come across during the course of the Byers search matched
property which had been reported missing as a result of the Williamson County
burglaries. Campsey testified one such inquiry was from Det. Harry Boner, who
asked whether Campsey was missing any cowboy boots, as Boner found a pair of
boots in a boot bag during the search. Campsey advised a pair of size 10-1/2
brown leather Dan Post boots had been taken from the Beeler residence. The paint
ball equipment and boots were seized by the Metro officers. Additionally, one of
the officers spotted a fraternity jacket belonging to Dan Beeler in the Byers
residence, although he was unaware it was stolen property until he described it to
Det. Campsey after the search was completed.
3
A second search warrant was obtained for the Byers residence at the
request of Det. Campsey, probable cause being supported by stolen property
discovered in the first search. When that warrant was executed, no further
evidence was found, although additional items taken in the Beeler burglary were
recovered with the consent of a neighbor, James Gentry, who admitted moving
items from the Byers residence to his own residence after Byers was arrested.
These items consisted primarily of jackets and hats with unique markings.
At the time the defendants were arrested, a gold Cross pen was found
on the person of Key.
The defendants were charged in a four-count presentment with two
counts each of aggravated burglary and theft of property valued over $1,000 of the
Beeler residence and a second residence in the Beeler neighborhood. The counts
pertaining to the two residences were severed for trial.
At trial, the state's evidence consisted of the testimony of the Beelers,
James Gentry, who was Byers' cousin and neighbor, and various law enforcement
officers. Dan Beeler testified to the condition of his home following the burglary and
the items missing. He estimated 50 items valued at a total of $3,400.79 were taken.
He recovered some of the items taken from his home, including the paint ball
equipment, the cowboy boots, various jackets and hats, a gold Cross pencil, an air
compressor, and tools. He also testified he visited the Metro impound lot, where he
identified the air compressor, tools and a gold Cross pen or pencil which were inside
a Mazda truck seized from Byers' residence.
Tammy Beeler's testimony was essentially corroborative of that of her
ex-husband, Dan Beeler. She estimated the value of the stolen property at $3,200
4
to $3,400.
Detective Mike Chastain testified regarding his communication with
Det. Campsey about burglaries on the Davidson/Williamson County line during the
relevant time period. He also recounted his involvement as a member of the team
of officers who executed the first search warrant on the Byers residence and his
discovery of the paint ball equipment in plain view in the bedroom he was assigned
to search. He recognized it as the same type of property Det. Campsey had
previously described to him, and he confirmed that the property was stolen by
phoning Campsey and matching the serial number on the gun. He also testified
that as a result of an investigation of the defendants, he was aware Byers resided
at the address which was the subject of the two search warrants. Chastain also
testified about returning to the residence with the second search warrant, finding
nothing, and obtaining consent to search James Gentry's house next door, where
several items taken in the Beeler burglary were discovered. He testified that the
Mazda truck that was later searched at a tow-in lot and that is shown in the
photograph marked as Exhibit 22 was discovered in the driveway at the Byers
residence.
Norris Tarkington, another member of the Metro force, testified he
conducted a personal search of Key as part of the arrest process and inventoried
the items found. One of the items was a gold Cross pen that appears in the
photograph marked as Exhibit 14.
James Gentry testified he is Byers' cousin and lived next door to him
in March 1993. As a result of Byers' arrest, Gentry obtained a key to Byers' home
and entered the home to get Byers' bird for the purpose of feeding him. He also
took some personal property and put it in his own home. He saw the officers
5
conducting both searches of the Byers home, and he was asked by Campsey at the
time of the second search whether he had taken property from the Byers home.
Gentry admitted he had and allowed Campsey and Chastain into his home, where
they discovered additional stolen property.
Metro Detective Harry Boner testified he was involved in the
investigation of the defendants and participated in the first search. He found the
cowboy boots in a boot bag in the attic. He had not personally talked with Campsey
prior to execution of the search warrant, but he knew Chastain and Campsey had
been in communication about burglaries in Williamson County.
Detective Campsey testified he is often in communication with law
enforcement officials from other jurisdictions because much of the crime perpetrated
on the residents of Brentwood is committed by residents of other parts of
Williamson County or Davidson County, particularly South Nashville. He recalled
discussing with Chastain the paint ball gun taken from the Beeler burglary. This
was an unusual item. He confirmed his telephone conversation with Chastain about
the paint ball gun during the execution of the first search warrant. He corroborated
Chastain's and Gentry's testimony regarding the second search warrant and the
discovery of several items of stolen property in Gentry's home. He confirmed
additional stolen items were recovered from the truck impounded by Metro,
including a leatherette tool kit, an air compressor, and a gold pen. He testified that
both the pen and pencil were recovered, and he was present when one of the two
was returned to Mr. Beeler. He also testified the surface of a Cross pen or pencil
was not conducive to recovery of fingerprint evidence.
The trial court denied both defendants' motions for judgment of
acquittal. Neither defendant elected to present proof.
6
The jury returned findings of guilt of aggravated burglary and theft of
property valued at over $1,000 as to both defendants. The jury assessed fines of
$10,000 for each defendant for aggravated burglary and $5,000 for each defendant
for theft of property.
Byers, a Range 3 offender on the conviction of aggravated burglary,
a Class C felony, was sentenced to 12 years. For theft of property, a Class D
felony, he was classified as a Career Offender and given a 12 year sentence.
These sentences were imposed consecutively, for an effective 24 year sentence.
Key, a Range 3 offender for the aggravated burglary conviction, received 15 years.
He was classified a Career Offender for the theft of property conviction and
sentenced to 12 years. His sentences were likewise imposed consecutively, for a
27 year effective sentence. Both defendants were ordered to serve these
sentences consecutively to those for which they were incarcerated at the time of
sentencing, and the fines imposed by the jury were set aside.
I
Both Byers and Key allege the evidence adduced at trial is insufficient
to sustain their convictions. When an accused challenges the sufficiency of the
evidence, an appellate court’s standard of review is, whether after considering the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.
Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d
250, 253 (Tenn. Crim. App. 1990).
7
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court is required to afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. Cabbage, 571
S.W.2d at 835.
Moreover, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); Jones,
901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608
(Tenn. Crim. App. 1987). However, before an accused may be convicted of a
criminal offense based upon circumstantial evidence alone, the facts and
circumstances "must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470
S.W.2d 610 (1971); State v. Jones, 901 S.W.2d at 396. In other words, "[a] web
of guilt must be woven around the defendant from which he cannot escape and
from which facts and circumstances the jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable doubt." Crawford,
470 S.W.2d at 613; State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App.
1987).
A. Byers.
8
Byers contends there is no evidence he entered a habitation or any
portion thereof or that he obtained property owned by the victims, essential
elements of aggravated burglary and theft of property, respectively. Therefore, he
argues the state's proof at trial was fatally deficient and he is entitled to reversal of
his convictions. In support of this argument, he cites a passage from Corpus Juris
Secundum for the proposition that a conviction is not proper on circumstantial
evidence alone. This is not the law in Tennessee. See, e.g., Duchac, 505 S.W.2d
237.
The evidence in the light most favorable to the state is that several
items of the Beelers' stolen property were found in the Byers home, from which
Byers and Key had just departed when they were arrested. Byers' cousin led
authorities to additional stolen property he admitted removing from Byers' home.
A truck seized from Byers’ driveway likewise contained items belonging to Dan
Beeler.
The evidence presented by the prosecution was sufficient to show
Byers was in possession of property recently stolen in a burglary. It has long been
the law in this State that proof of the possession of recently stolen goods, if not
satisfactorily explained, gives rise to the inference that the possessor has stolen
them, Bush v. State, 541 S.W.2d 391 (Tenn. 1976); State v. Land, 681 S.W.2d
589, 591 (Tenn. Crim. App. 1984), and has committed the burglary antecedent to
the theft. State v. Hamilton, 628 S.W.2d 742, 746 (Tenn. Crim. App. 1981)
(citations omitted). In this case, no explanation whatsoever was offered, and the
jury was certainly within its province in finding Byers guilty of each and every
element of the offenses by inference from his possession of the stolen property at
9
a time proximate to the burglary and theft.2 In short, the facts and circumstances of
this case present no other reasonable hypothesis for Byers' possession of the
property save his guilt of the crimes of which he was convicted. Thus, the evidence
sufficiently supports Byers's guilt of the crimes of aggravated burglary and theft of
property.
B. Key.
Key contends his possession of a Cross pen or pencil at the time of
his arrest is insufficient proof he knowingly obtained the implement in the
Williamson County burglary of the Beeler residence. We agree. However, his mere
possession of a pen or pencil of the type stolen is not the only basis supporting his
convictions, and although the issue raised makes it a close case, we affirm for the
reasons given below.
The probative links between Key and the Beeler burglary are the
discovery of a gold Cross pen on his person at the time of his arrest, the discovery
of the second piece of the stolen Cross pen and pencil set, and his keeping
company with Byers. On March 22, 1993, he was seen at the Byers residence and
was with Byers when they were detained and arrested on that date. Concerning the
pen, some facts were clearly shown. After the burglary, Mr. Beeler reported the
theft of a number of items, including a box containing a gold Cross pen and pencil
set. The two pieces were matched and were not only similar in appearance to each
2
We have considered whether the eleven day period between the Beeler
burglary and law enforcement's discovery of the defendants in possession of the
Beelers' property constitutes possession of "recently stolen property." On the
facts of this case, we hold it does. See State v. Anderson, 738 S.W.2d 200,
202-05 (Tenn. Crim. App. 1987); cf. State v. Sheila Elaine Thomas, No. 01C01-
9304-CC-00131 (Tenn. Crim. App., Nashville, Feb. 23, 1996) (property
recovered in defendant's home two to three months after burglaries in question),
perm. app. denied (Tenn. 1996); State v. Donald Ray Veasley, No. 01C01-9404-
CC-00153 (Tenn. Crim. App., Nashville, Nov. 15, 1995) (12 days), perm. app.
dismissed (Tenn. 1996).
10
other but were similar in appearance to other gold Cross pens and pencils. They
bore no engraving, and Mr. Beeler could articulate no distinctive markings of any
kind. After the officers recovered some of the Beeler property, the pencil but not the
pen was returned to Mr. Beeler. Neither item was physically offered into evidence;
rather, the state offered photographs which Mr. Beeler and other witnesses testified
depicted one or the other piece of the Cross set. Exhibit 14 depicted a Cross
instrument in a plastic bag, but Mr. Beeler testified he could not discern from the
picture whether the bag, which was held by Metro Police at their evidence room,
contained a pen or a pencil. Exhibit 22 depicted some items placed on the top of
a side rail of a Mazda pick-up truck, and although the items depicted cannot be
discerned in the photograph, Mr. Beeler testified that the picture shows one of the
pieces of the Cross set that was found in the truck.
Beyond these facts, the state’s proof was chaotic, if not confusing.
While Detective Campsey testified that Mr. Beeler identified both Cross items, one
at the tow-in lot where the Mazda was located and one at the Metro evidence room,
Mr. Beeler did not specify in his testimony which of the two Cross items he viewed
at each location. He testified merely that one of the pieces was viewed at the tow-in
lot and one was viewed in the evidence room two days later, although at one point,
he casually says that the pen is depicted in Exhibit 22, the picture taken at the tow-
in lot. However, he does testify that one of the items was a pen and one was a
pencil. Detective Tarkington, who assisted in Key’s arrest, testified unequivocally
that he found a gold Cross pen on Key and that this pen is the item depicted in
Exhibit 14. On the other hand, Detective Campsey, who accompanied Beeler to the
tow-in lot and who apparently photographed the Mazda truck and then delivered to
Metro the personal items found in the truck, testified once that Exhibit 14 shows the
pencil and once that it shows the pen. Furthermore, he testified once that Exhibit
22 shows the pen or pencil and twice that it shows the pen. Compounding that
11
confusion, he testified that on April 8, 1993, he saw another detective return the pen
to Mr. Beeler but later testified that on April 8 the pencil was returned to Mr. Beeler.
The Mazda truck shown in Exhibit 22 was discovered in the driveway
at the Byers residence on March 22. It was towed to the lot where Campsey and
Beeler discovered inside the truck a tool kit and an air compressor belonging to Mr.
Beeler and a gold Cross pen or pencil. There was no proof as to the ownership of
the truck nor as to the use or control of it by either Byers or Key.
Mr. Beeler’s conclusory testimony that the Cross items shown in the
photographs were his property, as well as Campsey’s testimony that Beeler
personally inspected and identified each Cross item as being his (Beeler’s) own,
cannot be effective to establish Beeler’s ownership of these very items. There were
no distinguishing features. Mr. Beeler even had difficulty distinguishing between the
pen and the pencil. We conclude, therefore, that if the Cross item found on Key is
to be linked to the Beeler burglary, it must be done circumstantially, the fact that Key
possessed a pen or pencil of the type stolen being, of course, one of the
circumstances.
The evidence, viewed in the light most favorable to the state, supports
the following findings: (1) Based upon Tarkington’s unequivocal testimony, the item
found on Key’s person, being the one that appeared in Exhibit 14, was the pen. (2)
One item was a pen and one was a pencil, and consequently, the item recovered
from the truck, the one depicted in Exhibit 22, was necessarily the pencil. (3) The
pencil was discovered in a vehicle that was parked at the Byers residence. (4)
Other property items which were stolen from the Beelers were found in the truck
and in the Byers residence. (5) Eleven days after the Beeler burglary, Key was
seen at the Byers residence, and on that same day, Byers and Key were together
12
when they were arrested. Also, on the same day, the Mazda truck was seized.
Although the question of the sufficiency of the circumstantial evidence
supporting a finding that Key possessed Mr. Beeler’s pen is a close one, we
conclude that the evidence is sufficient based upon grounds that are not revealed
in the defendant’s brief and not argued by the state. The fact that we find to be
controlling is the juxtaposition of the two pieces of the Cross set. It is critically
important that the state established that one recovered Cross item was a pencil,
shown to have been found in the truck, and one was a Cross pen, found on the
defendant Key. The convergence of these facts justifies the trier of fact in finding
that it was Beeler’s pen that was found in Key’s possession. In our view this
conclusion could not be reached had not the pen and pencil have been accounted
for separately. It takes the presence of the pencil, found among other items known
to have been stolen from Mr. Beeler, to complement and supply meaning to the
discovery of the pen.
The state having proven to our satisfaction that defendant Key
possessed property stolen from Mr. Beeler, the same inference about the
possession of recently stolen property that supports Byers’ convictions supports the
convictions of Key. See Bush, 541 S.W.2d 391; Land, 681 S.W.2d at 591;
Hamilton, 628 S.W.2d at 746. Key chose to let the state’s case stand or fall based
upon its own strength. The possession of the pen was unexplained. Based upon
our finding that the state’s case “stands,” the conviction is supported by sufficient
proof.
II
In an issue raised by Byers alone, he challenges the trial court's denial
of his motion to suppress the evidence seized which was outside the scope of the
13
first search warrant, that is, the paint ball equipment and cowboy boots. On
appellate review, a trial court's denial of a motion to suppress will be upheld unless
the evidence preponderates against the lower court's findings. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996).
The first search warrant executed on Byers' house authorized a
search and seizure of
A semi-automatic pistol, shotgun, a Lima .22 semi-automatic pistol,
chrome plated, with engraving on the barrel and white grips, gray duct
tape, a gold nugget ring, brown leather style jacket, black sweatshirt,
black ski mask, brown with white stripe [sic] ski mask, sunglasses with
strings attached, flex cuffs.
Byers argues the officers' impermissibly broad search of his home beyond the
confines of the warrant constituted the execution of a general warrant, in
contravention of the U.S. and Tennessee Constitutions. However, in Tennessee,
the prohibition against general searches does not per se prohibit law enforcement
officers who are involved in the lawful execution of a search warrant from seizing
other property used in a crime which is not described in the warrant. See State v.
McColgan, 631 S.W.2d 151, 155 (Tenn. Crim. App. 1981) (citation omitted).
The state urges that the issue of the seizure of the paint ball
equipment is resolved by reference to the plain view doctrine. Byers does not
directly attack the applicability of the plain view doctrine; rather, he contends
generally the evidence at the suppression hearing did not establish the
reasonableness of the seizure of the property. We agree with the position
advanced by the state.
In its most general terms, the plain view doctrine allows law
enforcement officials to seize items in "plain view" while executing a search warrant
naming other objects. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.
14
2022 (1971). In Tennessee, the plain view doctrine applies where (1) the objects
seized were in plain view; (2) the viewer had a right to be in position for the view; (3)
the discovery of the seized object was inadvertent, and (4) the incriminating nature
of the object was immediately apparent. State v. Horner, 605 S.W.2d 835, 836
(Tenn. Crim. App. 1980) (citing Armour v. Totty, 486 S.W.2d 537, 538-39 (Tenn.
1972)). The Supreme Court dispensed with the inadvertent discovery requirement
in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990). In addition, the police
must have the right to be in the position to seize the item. Horton, 496 U.S. 137,
110 S. Ct. 2308.
Detective Chastain, who was in Byers' home executing a search
warrant, saw the paint ball equipment in plain view. He was aware from discussions
with Det. Campsey that this type of property was missing from a home in Williamson
County. According to Det. Campsey, the property was something out of the
ordinary. Based on this knowledge, Det. Chastain proceeded to confirm the
identification of the equipment by telephoning Det. Campsey while at Byers' home.
These facts sufficiently meet the test of the plain view doctrine. The seizure of this
property was supported by probable cause,3 and the trial court correctly declined to
suppress the evidence.
On the issue of suppression of the cowboy boots, Byers argues the
search went so far afield of the search warrant that it was an impermissible general
search. The state simply concedes there was no direct evidence at the suppression
hearing that the cowboy boots were in plain view, but their admission was harmless
error. We depart from the positions advanced by both parties and hold the search
for the items in question necessarily brought the cowboy boots into plain view.
3
See, e.g., Jennings v. Rees, 800 F.2d 72 (6th Cir. 1986).
15
A review of the search warrant discloses that by the very nature of
some of the items described, they are small and easily concealable in closed
containers or small spaces and would necessarily require officers to conduct a more
detailed search than would be mandated if the objects were larger items.4 This
court has previously said that law enforcement officers in the course of search
warrant execution "have lawful access to all locations on [the searched] property
which can reasonably contain the items specified in the . . . warrant." State v.
Meeks, 867 S.W.2d 361, 373 (Tenn. Crim. App. 1993) (in context of discussion of
where officers may search pursuant to a warrant that is only partially valid); see also
Horton, 496 U.S. 128, 110 S. Ct. 2301 (search not unreasonable where officers
searching for items including three gold coin rings discovered weapons of type used
in crime); 2 Wayne R. LaFave, Search and Seizure § 4.10(d) (police may look into
containers such as bags, pouches, bottles, briefcases, and the like "if at least one
of the items described in the warrant as an object of the search could be concealed
therein").
The evidence at the suppression hearing reflects Campsey talked with
Boner during the search, and Boner inquired whether Campsey was missing any
cowboy boots, as he found a pair of boots during the course of the search. The
record does not reflect whether Boner immediately inquired whether boots had been
stolen in Williamson County upon finding the bag or whether he opened the bag to
continue to search for the items covered by the warrant and thereafter inquired
about the boots. This discovery was made during the search. Several of the items
described in the search warrant could be concealed inside a pair of boots or a boot
bag. No matter whether Boner saw the boots and bag and made his inquiry or
whether he opened the bag to continue his search and later made the inquiry, the
4
For example, a law enforcement officer acts reasonably in conducting a
more intrusive search for a gold nugget ring than a lawnmower.
16
cowboy boots and their bag necessarily came into plain view during the lawful
execution of the search warrant. Under either set of circumstances, it is apparent
the seizure of the boots was based upon probable cause.
In reaching our conclusion that the search warrant execution in this
case was not unduly broad, we factually distinguish our decision from that in State
v. Meeks, 876 S.W.2d 121 (Tenn. Crim. App. 1993). In Meeks, the officers
executing the search warrant allowed an officer from another jurisdiction who was
in no way related to the investigation to which the search warrant pertained to
accompany them to the search situs. Thereafter, the searching officers seized
evidence at the direction of the non-searching officer which pertained to another
crime. In holding the lower court should have suppressed the evidence obtained
in this manner, we focused on the lack of a causal connection between many of the
seized items and the crime which was the subject of the search warrant, as well as
the lack of inadvertent discovery by the officers. Meeks presented a situation where
a limited search warrant was essentially converted into a general warrant because
the officers went into the premises with the apparent expectation of finding items
outside the warrant. They went so far as to allow an officer with no connection to
the search warrant to use their search warrant to further his own investigation of a
separate crime. In contrast, where the searching officers are aware of the
possibility of finding evidence of other crimes, and upon discovering such evidence
at the search situs proceed to seize it, the seizure is reasonable. See McColgan,
631 S.W.2d at 154-55.
In summary, the evidence does not preponderate against the trial
court's denial of Byers' motion to suppress.
The judgment of the trial court is affirmed.
17
______________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
GARY R. WADE, JUDGE
_______________________________
DAVID G. HAYES, JUDGE
18