State of Tennessee v. Carrie Lynn Ronewicz

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 10, 2012
STATE OF TENNESSEE v. CARRIE LYNN RONEWICZ
Appeal from the Circuit Court for Tipton County
No. 6723 Joe H. Walker, Judge
No. W2011-01332-CCA-R3-CD - Filed December 26, 2012
After a trial by jury, the defendant was convicted of one count of theft of property valued at
more than $1,000 but less than $10,000, a Class D felony. She was sentenced as a Range I,
standard offender to two years, with credit for time served and the balance to be served on
probation as an alternative sentence. The defendant now appeals, claiming that the evidence
is insufficient to support her conviction and that the trial court erred by denying her motion
to suppress evidence seized by police during a search of her property, both before and after
the issuance of a search warrant. For the reasons that follow, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, J.J., joined.
Gary Antrican, District Public Defender; and Parker O. Dixon, Assistant Public Defender,
for the appellant, Carrie Lynn Ronewicz.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Mike Dunavant, District Attorney General; and James Walter Freeland, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
On July 12, 2010, the defendant, Carrie Lynn Ronewicz, was indicted on one count
of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, in
violation of Tennessee Code Annotated section 39-14-103. On December 8, 2010, the
defendant filed a motion to suppress certain evidence seized by police during a search of her
residence conducted on December 3, 2009. On December 10, 2010, the trial court held a
preliminary hearing concerning the defendant’s motion.
At that hearing, the defendant presented testimony from three witnesses. Detective
Jack Howell of the Covington Police Department testified that he was aware of a report of
an extensive theft that had occurred at an address on Main Street in the latter part of
November of 2009. The victim, Christy Griffin, reported that at the time of the theft she was
in the midst of moving from one residence to another. As a result, she had stored an
extensive amount of property in boxes outside of her father’s home. Much of this property
was removed from that location. The items reported stolen included beds, chairs, furniture,
dishes, clothing, medications, and numerous miscellaneous household items.
Detective Howell testified that on December 1, 2009, he received information from
certain school officials that the defendant’s young son had informed the victim’s young son
that the defendant was in possession of a laptop belonging to the victim’s son. Based on that
information, on the morning of December 3, 2009, he drove to the defendant’s residence,
accompanied by the victim. As they drove by the defendant’s house, he and the victim saw
certain items of property located in the yard outside, which the victim identified as having
been stolen from her. Detective Howell testified that the specific items of property that he
was able to see when he drove past the defendant’s house with the victim included a black
dining room table, bed linens, three dog houses, a trash can, and some type of hat or coat
rack. He estimated that the time when this occurred was between 11:30 a.m. and 12:00 p.m.
Detective Howell testified that he did not immediately apply for a search warrant
based upon the statements the victim made as they drove by the defendant’s residence and
that he did not apply for a search warrant until approximately 2:30 p.m. He testified that
immediately after the victim identified certain items that he could see in the defendant’s yard
as stolen, he entered the defendant’s property in an attempt to perform a consensual “knock
and talk.” He testified that during this process, he went to both the “front” and “back” doors
of the defendant’s property and knocked on them. He testified that it was his normal
procedure to go to the back of a property and knock on the door located there if he received
no response from the front door. He testified that he heard multiple dogs inside the residence
but received no answer to his knock, and he remained unsure as to whether anyone was
inside of the residence.
After entering the defendant’s property with the victim, they were able to see
additional property that the victim identified as stolen. From the sidewalk, they saw a van
parked in the yard of the defendant’s residence. After stepping a few feet onto the
defendant’s property, the victim was able to look through the window of this van and identify
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family pictures, a box of assorted material, and an old wooden stove as belonging to her. The
witness testified that as they were surveying the area, the victim would tell him where various
unseen items or markings could be located in or on the property that was visible to them. For
example, the victim told him that a box that she saw underneath a table would contain canned
goods and that a dog house outside in the yard would contain a “Rolling Stones towel.”
These predictions proved correct.
The victim also identified a bed and other items that she could see through the
defendant’s window as belonging to her. While on the stand, Detective Howell was shown
some pictures of the defendant’s property, and he indicated on the photographs where various
items had been discovered. Detective Howell testified that the backyard of the defendant’s
residence was fenced in, and he did not enter that portion of the defendant’s property prior
to receiving a search warrant. He testified that he did enter the defendant’s front yard as well
as the side yard where the “back” door to the residence was located. This side yard was
visible from the street due to the fact that the property was located on a corner lot.
Detective Howell initially testified that he was concerned that the items that he had
discovered would be removed if he left the premises to get a warrant. Consequently, he
secured all of the property that was located outside of the residence that the victim had
identified as stolen that he could see in plain view before departing. However, he later
testified that there were officers of the Covington Police Department located on the
defendant’s property and he would not have had to worry about anyone removing property
from the scene at any point after he conducted the knock and talk because those officers
would have prevented anyone from removing the items.
Detective Howell testified that the defendant’s van was located approximately three
or four feet in front of the sidewalk by the residence. He testified that he called a tow truck
for the van at around 11:55 a.m. He testified that the tow truck driver arrived around 2:00
p.m., and he estimated that the van was towed around 3:00 p.m. While on the stand,
Detective Howell was shown a copy of a Covington Police Department “tow report,” which
listed the time that the defendant’s vehicle had been towed as 2:00 p.m. The document also
stated that the van had been inventoried, but the witness testified that this notation was
incorrect. The witness testified that the van had, in fact, been locked and was not inventoried
until he received the keys from the defendant’s husband sometime later.
Detective Howell testified that he filled out a “property receipt” for the items that he
seized. He testified that he was physically located on the defendant’s property while he was
securing these items and arranging to have the defendant’s van towed but that he did not
enter the defendant’s residence until after he had received the search warrant. Detective
Howell testified that he listed some items that he had already seized in his application for the
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search warrant, and relied on those items in seeking permission to search the defendant’s
property. Detective Howell testified that after the search warrant was signed, he entered the
defendant’s house with the victim and the victim walked room-to-room throughout the house
identifying items as belonging to her. He testified that approximately six or seven officers
entered the residence as well, and an officer accompanied the victim “almost everywhere”
she went throughout the house.
While on the stand, Detective Howell was shown a “property receipt” that listed an
inventory of the items seized by police. Detective Howell testified that over one hundred
items were listed on that inventory. Detective Howell testified that roughly seventy or
seventy-five percent of the items seized were claimed by the victim. Detective Howell
testified that some of the items listed as seized actually belonged to the defendant and her
family. He explained that these items had been located inside of property claimed by the
victim, such as personal items belonging to the defendant that were discovered inside of the
victim’s dresser drawers.
Detective Howell testified that between 2:30 p.m. and 2:45 p.m., the defendant and
her husband drove by the residence. Detective Howell testified that they continued to drive
around the block. He entered his vehicle and followed them. He testified that eventually the
defendant and her husband returned to their home.
Following Detective Howell’s testimony, the defendant attempted to call to the stand
the tow truck driver who had towed her van. However, when the State agreed to stipulate
that the van was towed at 2:00 p.m.¯prior to the issuance of the search warrant¯the witness
was excused.
The defendant’s daughter testified that she was fifteen years old. She testified that on
December 3, 2009, she arrived home from school at 2:00 p.m. to discover “a bunch of people
like scattered in our front yard.” She testified that these individuals were entering her house
and trying to remove items, claiming that the items did not belong to her family. She testified
that these individuals told her that the property was stolen and that her family had stolen it.
She testified that she believed that these individuals were detectives and police officers based
on their appearance. The defendant’s daughter testified that when she arrived her parents
were already at the residence and their van was missing.
She testified that when she entered her residence, the individuals informed her that
she was not allowed inside. She testified that she told the individuals “it’s my house, so I’m
allowed to do what I want.” She testified that the individuals inside of her house were “going
through my things, which really made me mad.” She testified that she tried to argue with one
of the individuals but was told that if she did not leave the residence, she would be placed
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in the back of a squad car.
The defendant’s daughter testified that while she was inside of the house, she saw “a
woman” running around claiming that all of their things were hers. The defendant’s daughter
testified that this woman entered her bedroom and began digging through her underwear
drawer. She testified that this woman was inside of her bedroom for approximately an hour
to an hour and a half and was alone for at least twenty minutes of that time without any
police officer present.
The defendant’s daughter also testified that the police seized their beds during the
search. She testified that when the police could not take these beds apart, they called in
“random” “worker men” to do so. She testified that one of these individuals was “scary in
a weird way” and he kept flirting with her, asking how old she was, and rifling through her
underwear. She testified that she became so afraid of this strange worker that she left her
room, and shortly afterward the men dropped part of one of the beds.
The defendant’s daughter testified that the entire search process took approximately
four hours and that her mother was arrested and placed in the back of a squad car
approximately halfway through the process. She testified that during the search process
someone called for a “giant” U-Haul type trailer, which arrived at their residence around 3:00
p.m. She testified that individuals began bringing items out of her family’s house and
placing them inside of the trailer. She testified that throughout this process, the individuals
involved acted “mean,” laughing about the fact that they were able to enter her home.
Someone knocked over their garbage can, and individuals started rummaging through it.
On cross-examination, the defendant’s daughter testified that her family had been
living at the residence for approximately three months when the search occurred. She
testified that sometime after November 21, 2009, her brother had received a “crappy”
computer which displayed the first name of the victim’s son. She testified that they had
obtained this computer at a yard sale, and she was aware that her brother had asked the
victim’s son for the computer’s password.
Lieutenant Allen Wilson of the Covington Police Department testified that he had
been with the department for twenty-four years. He testified that on December 3, 2009, he
was called to the defendant’s residence to assist with a search. He testified that he arrived
at the same time as Detective Howell¯which he estimated was between 1:00 p.m. and 2:00
p.m. He testified that it was not morning when they arrived.
Lieutenant Wilson testified that there were several household items located in the yard
surrounding the defendant’s house. These items included a laundry basket, an ironing board,
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a dog cage, and some shower curtains. He testified that when he walked onto the defendant’s
property he could see into the back of the defendant’s van, and it contained several
photographs. He testified that he believed that these items were stolen because Detective
Howell had a list of items that had been recently stolen from the victim’s house, and “it was
identical to the stuff that we were looking at in the back of this house.” However, Lieutenant
Wilson testified that these items were common household items, and it would have taken
someone familiar with them to recognize that they were stolen.
Lieutenant Wilson testified that he observed Detective Howell knock on the doors to
the residence, starting with the “back” door and then moving to the front door. Lieutenant
Wilson testified that the purpose of attempting this “knock and talk” was to determine if the
defendant could explain why there was stolen property located in her “backyard.” He
testified that no one responded to these knocks. He testified that because he had seen items
that had been allegedly stolen and because he had seen the victim’s family pictures in the
back of the defendant’s van, he and Detective Howell decided to obtain a search warrant.
He testified that they left to get the search warrant immediately after no one responded to the
knocks. He testified that the victim was not taken onto the property until after the issuance
of the search warrant. He testified that they did not enter or seize any property until after
they received the search warrant. He testified that he was not sure whether the van was
towed before the warrant arrived. However, he testified that they would not have searched
the contents of the van before receiving the search warrant.
Lieutenant Wilson testified that after the search warrant was signed and he had
returned to the defendant’s home, he saw the defendant’s car drive by the end of the street.
He testified that the defendant’s vehicle slowed down and he saw the defendant and her
husband look at him before departing up the street. He testified that Detective Howell and
another officer chased after them and eventually got them to circle around the block and
return to their residence. He testified that once they had located the defendant and her
husband, they had no reason to believe that anyone would remove any stolen property from
the residence.
Lieutenant Wilson testified that afterward, he participated in the execution of the
search warrant. He was shown a “property receipt” of items, which he claimed listed items
that were discovered in the defendant’s “backyard.” The witness acknowledged that the time
listed on this receipt was 1:51 p.m.
After receiving this evidence, the trial court denied the defendant’s motion to suppress
from the bench. In a written order issued December 16, 2010, the trial court explained that
the items located in the defendant’s yard were lawfully seized because they had been
discovered in plain view by lawfully positioned officers. The trial court reasoned that the
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officers had the legal right to approach the defendant’s house for purposes of knocking on
the door and speaking with anyone who answered. The trial court held that the incriminating
nature of the items they viewed from the street and from the defendant’s property while
conducting the knock and talk was immediately apparent to the officers involved, because
the victim was present and identified the property as stolen.
The trial court held that the observation of stolen items by the officers from the street
and during the knock and talk provided a lawful basis for the issuance of the ensuing search
warrant. The trial court found that there was no warrantless entry into the house, and
consequently held that none of the items found therein were subject to exclusion.
The trial court found that the defendant’s van was seized before the search warrant
was obtained but also found that there was no entry into the van until after the search warrant
had been issued. The trial court held that the observation of various stolen items located
inside the van provided “reasonable cause” for the police to have the van towed and that the
van was subsequently searched pursuant to a valid search warrant. The trial court also
reasoned that the van could have been searched without a warrant because it had been
lawfully impounded and was thus subject to a routine administrative inventory search.
Prior to trial, the charge against the defendant was amended to theft of property valued
at more than $1,000.00 but less than $10,000.00, in violation of Tennessee Code Annotated
section 39-14-103, a Class D felony. The defendant’s trial was held on December 15-16,
2010.
The first witness for the State was Detective Jack Howell, who testified concerning
his investigation in a manner generally consistent with his testimony at the pretrial hearing
concerning the defendant’s motion to suppress. In addition, Detective Howell added that the
defendant spoke with him when she was in the back of his squad car on the day of the search.
Detective Howell testified that the defendant claimed that the family pictures that police had
seen in the back of her van were pictures of her own grandparents. Detective Howell
authenticated numerous pictures of the defendant’s residence and various seized items, as
well as a list of seized property. These were entered into evidence.
Detective Howell testified that among the items seized by police was a Radio Shack
tape recorder with the victim’s voice on the tape and a Sony camera containing digital
photographs of the victim. In addition, Detective Howell testified that: (1) a computer that
was seized bore the name of the victim’s son; (2) a desk that was seized contained a
composition book bearing the name of the victim’s son; and (3) a box that was discovered
in the defendant’s bedroom contained multiple prescription pill bottles, each bearing the
victim’s name.
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On cross-examination, Detective Howell testified that he had never been to the
victim’s residence and that he had never seen any of the items that were seized by police at
that location. He testified that he did not know if the victim had ever been to the defendant’s
residence prior to the day of the search. Detective Howell testified that he believed that all
of the items that were removed from the victim’s property could have been removed by a
single moving van, because he knew that all of the items that were removed from the
defendant’s home fit into a single eighteen foot trailer. Detective Howell testified that when
he first arrived at the defendant’s house on the day of the search, he was accompanied by
“Lieutenant Wilson” and “Detective Ford.”
Detective Howell testified that he had no way of determining how long ago the voice
heard on the audio tape that was found inside of the seized tape recorder had been recorded.
He also had no way of determining if the defendant had ever heard that tape or if she had
ever turned on the digital camera and seen the pictures of the victim that it contained.
Detective Howell testified that the desk he discovered in the defendant’s living room bore
the victim’s son’s name on one of the inside drawers and also had an old antique design,
which was “pretty distinguishing” and which had been described to him by the victim in
advance. However, Detective Howell acknowledged that merely seeing a name written on
the inside of a desk would not necessarily reveal to the viewer that the desk was stolen
property.
Detective Howell testified that although the victim went room-by-room through the
defendant’s house on the day of the search and went through all of the defendant’s drawers,
she would not have been able to move items around or otherwise disturb the contents of those
drawers. Detective Howell explained that during the search process police officers would
open containers (such as the drawers of a desk), and afterward the victim would examine the
container’s contents and indicate which items were hers. After she had done so, any items
that she identified would be “set over to the side and then taken into the front room to be
added onto the property list.” Detective Howell admitted that more total items were returned
to either the victim or the defendant than were listed as seized on the inventory. Detective
Howell explained that this occurred because some additional items of property were
discovered located inside of other property. For example, inside of one small wooden chest
of jewelry, a watch belonging to the defendant’s husband and several dollar bill coins
belonging to the defendant’s children were discovered, and these items were returned to the
defendant’s family. Detective Howell testified that some property, including a set of
bunkbeds, had not been returned to either party and was still in the possession of the police
because they were still unsure which individual was the rightful owner.
The next witness for the State was the victim, Christy Griffin. The victim testified
that in November of 2009 she was in the process of moving. She testified that during that
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time she boxed up many of her belongings and stored them behind her father’s house in a
partially enclosed carport/garage area, because she was waiting for a new house to become
available. She testified that she last saw these belongings on November 21, 2009, and when
she went back to check on them on November 23, 2009, all of the items were gone with the
exception of a few of the heavier items, such as a washer and dryer. She testified that she
had given no one, including the defendant, consent to remove these items.
The victim testified that she was previously acquainted with the defendant, as the
defendant was a “notable” patron of the Tipton County Library, where she worked. The
victim testified that the last time the defendant was in the library, she (the defendant) refused
to leave at closing time. The victim testified that she (the victim) eventually shut off the
library’s Internet, causing the defendant to lose a lengthy document that she had been in the
process of typing. The victim testified that the defendant became very upset after losing her
document. After leaving the library that evening, the victim stopped by her father’s house
to retrieve some items for her dog out of the belongings she had stored there.
The victim was shown a list of items drawn from a “property list.” The victim
testified that all of the items on that list were taken from her. These items included a leather
chair, which the victim testified was valued at $250, a wooden desk, which the victim
testified was valued at $700, and a futon and mattress set, which the victim testified was
valued at $650. The victim testified that her children had two custom BMX bikes, which she
valued at $1100.00 each, which were also taken. She also testified that her son’s laptop
computer, which she valued at $650, was taken. The victim testified that many items with
sentimental value, which she testified were “priceless,” were also taken¯including her
children’s Christmas ornaments, one of which had been given to her oldest son by his
great-grandmother. The victim testified that in addition to the items appearing on the list that
she had been shown, numerous additional items were taken from her.
The victim testified that sometime after the theft, she was informed by her son that the
defendant’s son had indicated to him that he was in possession of her son’s computer. She
testified that she notified the Covington Police Department and was eventually contacted by
Detective Howell. She testified that Detective Howell asked her if she would be able to
identify the items stolen from her, and she told him that she would try to do so. She testified
that Detective Howell drove her by the defendant’s home, and she recognized several items
that were sitting to the side of the defendant’s house (between the house and the driveway)
as belonging to her. She testified that these items included a black table with a green floral
arrangement and an ironing board with a broken leg. She testified that after seeing these
items she remained in the car while Detective Howell went to knock on the front and “back”
door of the defendant’s residence. Afterward, Detective Howell walked her over onto the
defendant’s driveway, and she looked through the window of the defendant’s van and saw
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several additional items that belonged to her located in the back¯including a broken picture
frame with a picture of her great-grandparents and several boxes. She testified that after this,
she was told to leave until the police obtained a search warrant, and she did so.
The victim testified that when she returned to the defendant’s residence after the
police obtained a search warrant, the defendant’s van was already gone and the defendant and
her husband were outside. She testified that she went into the defendant’s house, saw a book
that she recognized, and picked it up. She testified that a police officer asked the defendant
if the book belonged to her, and the defendant replied: “Oh yes, that’s mine.” She testified
that she opened up the book and showed the police officer that the book had her son’s name
written in magic marker on the inside cover. In addition, the victim testified that she told
Detective Howell that a “Rolling Stones” beach towel would be found inside of a dog carrier
before she looked inside of it, and the towel was indeed found there. The witness testified
that her son had scratched his name into the side of his laptop computer and that marking was
found there when the computer was recovered. The victim testified that she discovered
items that belonged to her throughout the defendant’s house, in every room except the
bathroom.
The victim testified that while the search was being conducted the defendant was still
claiming ownership of all of her stolen items. The victim testified that the defendant
repeatedly stated: “You can’t take those” and “I have proof that I got that stuff from a yard
sale.” The victim testified that the defendant never told the officers where this yard sale was
located.
On cross-examination, the victim testified that the defendant had been banned from
the public library because of inappropriate behavior. The victim testified that on the evening
that she and the defendant had their encounter at the library, the defendant was still located
in her van in the library parking lot when she (the victim) left.
When defense counsel asked the victim why she left so many valuable
items¯including “priceless” items which she claimed held considerable sentimental
value¯outside and exposed to the weather in the middle of November, the victim avoided
answering the question. The victim also testified that she did not witness her property being
stolen, and consequently she could not state based on firsthand knowledge who had originally
removed the property.
Following this testimony, the State rested, and the defendant took the stand in her own
defense. The defendant testified that although she was not rich, shortly before Christmas she
had saved up some money that she intended to use to buy some extra things. She testified
that she and her daughter stopped at a yard sale on Highway 51 in Tipton County near a blue
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house trailer and looked around. She testified that she saw a desk and chair, two large chests,
and some TV trays that she wanted to purchase for her children, and she did so. She testified
that she returned home, took the seats out of her van, and returned to the yard sale to load the
items. The defendant testified that “the other lady” at the yard sale helped her load a black
table and some other furniture items into her van. The defendant testified that they left these
items in her van for two days.
The defendant initially testified that she did not purchase any other items that day,
claiming that it was too late in the evening to do so. A short while later, however, the
defendant testified that on the night of the yard sale she also purchased two bicycles, a
rocking chair, a broken ironing board, a lamp, and computer. The defendant also testified
that “the woman” at the yard sale told her that she could have several extra things because
she was a mother. The defendant testified that when she told “the woman” that she had five
children, “the woman” said “you can have these boxes of stuff,” and the defendant loaded
them into her van without knowing what was in them. She testified that she spent around
$400.00 in all that day and that she did not receive a receipt for any of the items that she
purchased. She testified that the “three women” who sold her the items left after helping her
load the items into her van, and she never saw them again.
The defendant testified that she did a lot of shopping at yard sales. She testified that
she had five children and she tried to give them everything that she could so they could have
a better life. The defendant testified that she had never seen this particular yard sale before
although she had seen yard sales at the same location frequently since she moved into the
area. The defendant testified that this location “was more or less not like just a yard sale but
a flea market,” and as a result she was able to return to the area to try to “find out who the
woman that took the stuff from [the victim] was.” She testified that despite returning to the
yard sale’s location on numerous occasions, she was never able to locate “the woman,” and
she was told in response to her inquiries that “people that do come up there do get run off.”
The defendant testified that she had never stopped to shop at any of the yard sales at
this particular location previously because she had never had any extra money with which
to shop. She testified that she would never take anything from a child. She testified that
while the events that had transpired had hurt the victim, they had also hurt her and her
children, and “it wasn’t my fault, and it’s not her fault.” Contrary to the victim’s testimony,
the defendant testified that she had “paid no attention” to the victim at the library at any
point.
The defendant testified that she first learned about “the computer” from her daughter.
She testified that her daughter started going through one of the boxes that they had been
given at the yard sale, discovered a laptop computer inside, and brought it to her attention.
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The defendant testified that her daughter plugged in the computer and her eight-year-old son
noticed the name of his classmate¯the victim’s son¯coming up on the screen. The
defendant testified that she told her son to go to school and ask his classmate concerning the
computer. She testified that she believed that her son had done so.
The defendant testified that she first became aware of police involvement in the matter
when police officers went to her children’s school and asked her children if she or her
husband had ever beaten or otherwise hurt them. She testified that she did not beat her
children. She testified that “DHS” came to her house as a result of the incident.
The defendant testified that the first time she actually encountered the police was
around 2:15 p.m. on December 3, 2009. She testified that on that date she returned home and
tried to pulled her Cadillac in behind her minivan, only to discover that her minivan was
gone. She testified that there were numerous police officers on the scene. She testified that
she initially assumed that the officers were there because her van had been stolen. The
defendant testified that the police informed her that they had a search warrant but never
showed it to her.
The defendant testified that the police officers told her that she had to put her dogs
away or they were going to shoot and kill them. She testified that as she was attempting to
secure the dogs, she discovered that the dog kennels that she had bought from Petco were
gone, and the bunkbeds that she had bought off of Craig’s List for her children were missing.
She testified that she never had a chance to tell any of the police officers that the items that
they were taking belonged to her, because when she got up from her sofa after the victim
came into her home she was placed into the back of a squad car. She testified that she was
in the squad car for about two hours watching her belongings being removed from her home.
She testified that at one point she became very irate because she saw the victim rolling out
luggage containing baseball cards that she and her husband had been collecting for fifteen
years. The defendant testified that many of the items that were taken from her house were
not listed on the police inventory of seized property. The defendant testified that as a result
of the wrongful seizure of her possessions by the police, her “babies” had to sleep on the cold
floor.
On cross-examination, the defendant claimed that she was “broke” and did not even
have the money necessary to file for bankruptcy. The State then asked the defendant about
numerous pictures and statements appearing on her MySpace account, including statements
such as “money is where it’s at,” and a picture depicting her in front of a wad of cash with the
caption “this is how I roll.” The defendant claimed that those pictures were taken and those
statements were made eight years earlier, before she lost over $30,000 investing on a home.
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The defendant was also questioned extensively concerning the yard sale about which
she had just testified. The defendant claimed that she had tried to give police officers details
concerning the yard sale while her home was being searched, but the officers would not listen.
The defendant also testified that she told Detective Howell the location of the yard sale when
she met with him in his office on the Monday following the search.
The State asked the defendant if the yard sale at issue was selling only items that had
been stolen from the victim. The defendant responded that she did not know. The defendant
testified that there was “a whole bunch of other stuff” located at the sale which she did not
purchase because most of it was “just plain junk that had been sitting outside in the rain.”
The defendant was asked concerning two boxes¯one labeled “house” and the other
labeled “books”¯that the State’s witnesses had testified had been discovered in her van. The
defendant testified that those boxes were not actually in her vehicle, and speculated that the
police had put them in her vehicle after they had towed it. When asked concerning other
items that the State’s witnesses had testified had been discovered inside of her house, the
defendant testified that she did not know whether these items had in fact been located at her
house because they were “a bunch of garbage.”
The defendant’s daughter also took the stand for the defense and testified concerning
the search of their home by the police. The defendant’s daughter testified, that during the
search, police officers removed numerous items that she and her mother had purchased at a
flea market. The defendant’s daughter testified that these items were sold to them by three
or four women. She testified that one of these women “had short, brownish looking hair and
glasses, and she was wearing pants, a longsleeved sweater/shirt thingy.” She testified that
they paid $420.00 in all for the items. Some of the items had price tags on them while others
did not.
The defendant’s daughter testified that after returning home with the newly-purchased
items, they put some of them away but left others sitting in their van. The defendant’s
daughter testified that she looked through one of the boxes one day because she was bored,
and she found a computer. She testified that this computer was damaged.
On cross-examination, the State asked the defendant’s daughter if she knew whether
her younger brother had told the victim’s son, his classmate, that he had the victim’s son’s
computer. The defendant’s daughter testified that she believed that her brother had done so
and that he had done so at their mother’s request. The State asked whether her mother had
punished her brother for doing so, and the defendant’s daughter testified that she had not. The
State then asked the witness whether there had been any investigation concerning whether her
brother had been punished, and the witness acknowledged that some police officers had come
-13-
to their school and asked them some questions that “did not make sense.” When the State
asked the witness whether the questions had to do with some bruises seen on her brother, the
witness explained that this bruising had resulted from her brother running around outside and
playing with animals.
The defendant’s daughter initially testified that during the police search she did not tell
any of the officers where the yard sale had been located “because they kept like telling me to
shut up and not talk.” She later testified that she told one of the officers that she could show
them the precise location of the yard sale, but he responded by telling her to be quiet. She did
not initially know the name of this officer, but she was able to identify him later in open court
as Lieutenant Alan Wilson of the Covington Police Department. She further testified that she
told this individual that “the ladies” might still be at that location.
The defendant’s daughter testified that she had been to yard sales with her mother on
two prior occasions in another county. The defendant’s daughter testified that the yard sale
at issue consisted of two or three small tents, a few tables, and a tarp on the ground. The
defendant’s daughter also testified in detail concerning the location of various items at the
yard sale. She testified that they moved everything from the yard sale in one trip of their van
after returning home and removing its seats. She testified that she and her mother loaded the
van by themselves and that her younger brother was not with them. She testified that she and
her mother purchased a chest of drawers at the yard sale and that they loaded this chest of
drawers into the van by themselves. She testified that there were a lot of items still remaining
at the yard sale after they finished loading their van.
The defendant’s daughter testified that she did not see the computer or digital camera
while they were at the yard sale. Instead, she found them later in one of two or three boxes
that had been given to them by “the ladies” “because basically they were done making money
for the day, had some leftover garbagy stuff, and they just said, here, take it with you.” The
defendant’s daughter agreed that they had been lucky to receive a digital camera and a laptop
in a garbage bag, but she testified that the computer basically didn’t work and the laptop was
“garbage.”
The defendant’s daughter testified that they did not buy a metal bunk bed, a futon, or
any mattresses, sheets, or dog carriers at the yard sale. When the State asked the defendant’s
daughter if she knew anything about a “Rolling Stone [sic]” towel that the victim had
identified as being in one of the pet carriers before seeing it, the witness testified that she
initially discovered this towel “in like the bottom of a box that we had got, and it was really
stinky and nasty.” She further testified that after initially moving the towel outside, one day
they decided to placed it in the bottom of a dog carrier, because their dogs were cold. She
testified that she had no idea how the victim could have discovered that they had done this
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simply by driving by their house.
Following this testimony, the defense rested, and the State recalled Detective Jack
Howell as a rebuttal witness. Detective Howell testified that he spoke with the defendant on
the Monday following the search of her residence, and she did not tell him that she knew the
location of the yard sale or flea market where she claimed to have bought the items belonging
to the victim¯nor did the defendant identify that yard sale as being “somewhere up 51
Highway.” Detective Howell further testified that the defendant never told him at any point
that she could take him or any other police officer to the location of the sale, nor did she ever
give him a physical description of “the ladies” that were at the sale. Detective Howell also
denied ever telling the defendant that he could take all of her property, put it into a judge’s
trust fund, and have it sold.
On cross-examination, Detective Howell testified that he never taped any of the
conversations that he had with the defendant despite the fact that it would have been easy for
him to have done so. The witness initially claimed that there was no reason for him to record
any of these meetings but later acknowledged that such tapes could have provided him with
“good” evidence.
Lieutenant Allen Wilson of the Covington Police Department testified in rebuttal that
he was involved in the execution of the search warrant of the defendant’s home on December
3, 2009. He testified that he saw the defendant’s daughter during that search. He denied that
she had ever told him that she could show him where the yard sale was located or had ever
claimed that “the ladies” might still be there. Lieutenant Wilson testified that while the
defendant had claimed that she had purchased many of the items that were seized at a yard
sale, she never provided him with any details that might help him locate that sale despite his
expression of interest on the subject.
Lieutenant Wilson also testified that he was present on several occasions when the
defendant came to the police station to talk with Detective Howell and that during those
meetings he never heard the defendant give Detective Howell the yard sale’s location or offer
to take them there. He testified that they would have gone to investigate the location if they
had received any such information.
On cross-examination, Lieutenant Wilson initially indicated that it was his normal
procedure to record statements made by the criminal suspects because such recordings could
be used against the suspects in court. He indicated that he did not tape any of the statements
made by the defendant during her meetings with Detective Howell because she was talking
to Detective Howell rather than to him. Later in his testimony, however, Lieutenant Wilson
testified that they generally (and he in particular) never taped statements made by criminal
-15-
defendants and only memorialized such statements in writing. He testified that he was not
aware of any written statements concerning any of the defendant’s multiple visits to the police
department.
Following this testimony, the State rested its rebuttal case, and the parties gave closing
statements. The trial court instructed the jury, and the jury retired to deliberate at 12:31 p.m.
on December 16, 2010. At 1:57 p.m. that same day, the jury returned with a verdict finding
the defendant guilty of theft of property valued at $1000 or more but less than $10,000. The
defendant’s bond was revoked, but the trial court allowed her to say goodbye to her children
in light of the fact that it was her birthday.
On January 11, 2011, the defendant was sentenced to two years, with credit for thirty
days served and the balance to be served on supervised probation as an alternative sentence.
The defendant filed a motion for new trial on February 8, 2011, which was denied following
a hearing on June 7, 2011. A notice of appeal was filed on June 15, 2011. Our decision
follows.
ANALYSIS
The defendant claims that the evidence is insufficient to support her conviction and that
the trial court erred by denying her motion to suppress evidence seized as a result of the police
search of her property on December 3, 2009. For the reasons that follow, we deny the
defendant’s claims and affirm the judgment of the trial court.
I.
The defendant claims that the evidence is insufficient to support her theft conviction.
The relevant law governing appellate review of this type of claim was recently summarized
by the Tennessee Supreme Court:
Appellate courts evaluating the sufficiency of the convicting evidence must
determine “whether, after viewing 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Because a guilty
verdict removes the presumption of innocence and replaces it with a
presumption of guilt, on appeal a defendant bears the burden of showing why
the evidence is insufficient to support the conviction. State v. Parker, 350
-16-
S.W.3d 883, 903 (Tenn. 2011). This Court affords the State the strongest
legitimate view of the evidence presented at trial and the reasonable and
legitimate inferences that may be drawn from the evidence. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997). “The credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.” State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292,
295 (Tenn. Crim. App. 1978)). This Court neither re-weighs the evidence nor
substitutes its inferences for those drawn by the jury. Bland, 958 S.W.2d at
659. Circumstantial and direct evidence are reviewed under the same
standard of review. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except
that of guilt. Id. at 381.
State v. Carl J. Wagner, 2012 Tenn. LEXIS 746, at **18-19 (Tenn. Oct. 12, 2012).
The defendant in this case was convicted of theft. “A person commits theft of property
if, with intent to deprive the owner of property, the person knowingly obtains or exercises
control over the property without the owner’s effective consent.” T.C.A. § 39-14-103(a)
(2009). “Theft of property or services is . . . [a] Class D felony if the value of the property or
services obtained is one thousand dollars ($1,000) or more but less than ten thousand dollars
($10,000). . . .” T.C.A. § 39-14-105(a).
In this case, the defendant herself acknowledged on the stand that she in fact exercised
control over numerous items belonging to the victim. The victim testified that she did not
give the defendant or anyone else her consent to exercise control over those items of property.
The victim also testified concerning the value of the various items that were stolen from her
and later discovered in the defendant’s possession, and the value of those items exceeded
$1,000.00. The jury’s conclusion with respect to each these elements is thus supported by the
record, and the defendant does not challenge the jury’s conclusion with respect to any of these
elements on appeal.
Rather, the defendant challenges only the jury’s conclusion concerning her intent,
claiming that she did not intend to deprive the victim of ownership of the property at issue.
In support of this contention, the defendant directs our attention to her own testimony (and
-17-
that of her daughter) to the effect that she bought all of the items at issue at a yard sale, and
was thus presumably unaware that they were stolen. The defendant claims that “[t]he State
produced no evidence that refuted [the defendant’s] reasonable explanation of the
circumstances under which she obtained [the victim’s] property.”
The defendant is correct that there is no direct evidence in the record bearing on her
mens rea or proving that she was the one who removed the property from its original location.
However, a conviction may be supported solely by circumstantial evidence, see Dorantes, 331
S.W.3d at 379, and the circumstantial evidence in the record suggesting that the defendant
intentionally dispossessed the victim of the property at issue is compelling.
The victim testified that the defendant became angry with her following a dispute at
the local library shortly before the theft. The victim further testified that the defendant was
still on the premises when she left the library to go to her father’s house to obtain some of the
items that she had stored there. From this testimony, a jury could reasonably conclude that
the defendant had both the means and the motive to commit the theft at issue.
Law enforcement witnesses testified that the defendant drove past them and circled the
block when she saw that the police were at her home on the day of the search, and did not
return until after they began pursuing her. From this, a jury could reasonably infer that the
defendant possessed a guilty mind. State witnesses also testified that the defendant was found
in possession of a desk, laptop computer, and prescription pill bottles clearly bearing the
victim’s name or the name of one of the victim’s family members. A law enforcement
witness also testified that the defendant was found in possession of a tape recorder bearing
a tape of the victim’s voice and a digital camera bearing pictures of the victim’s family. A
reasonable jury was free to infer from these facts that the reason that the defendant was in
possession of all of these personal items so soon after they were stolen from the victim was
because she was, in fact, responsible for taking them.
We note that there are some significant credibility problems with the defendant’s
version of events. For example, the defendant’s testimony conflicts with her daughter’s
testimony with respect to important details concerning how they acquired the stolen property,
such as whether they loaded all of the large pieces of furniture that they purchased that day
into their van by themselves or whether one of “the ladies” assisted them. In areas where their
testimony was consistent, it still failed to explain all of the events that even they acknowledge
transpired¯for example, while both witnesses agreed that they had previously purchased one
of the pet carriers at issue from Petco, neither one of them could explain how the victim knew
that this pet carrier contained a “Rolling Stones” towel before looking inside of it, and neither
witness disputed that this had occurred. Crediting the defendant’s testimony also requires a
belief in the occurrence of numerous individual, seemingly improbable events, such as that:
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(1) a thief would sell so many stolen items at the same time to the same person, and all in the
same vicinity as the theft; (2) the defendant just happened to spontaneously buy such a large
quantity of items¯so many of which had once belonged to the same
individual¯simultaneously at a yard sale; (3) the defendant would happen to be acquainted
with the individual who had once owned all of these items, and their sons would just happen
to be classmates; (4) “the ladies” who ran the yard sale would give away seemingly valuable
items¯including a laptop computer and digital camera¯to the defendant for free so soon
after charging her $5.00 for a broken ironing board and $20.00 for some used TV trays; and
(5) the defendant was able to buy all of these valuable personal items and furniture for a grand
total of $420.00, and also failed to obtain any sort of proof of purchase after she had done so.
These and other credibility issues are apparent even on a cold reading of the record on appeal.
However, the decisive factor in this case is simply the fact that the direct evidence
presented by the defendant conflicted with the circumstantial evidence presented by the State,
and when such a conflict occurs, we are not the ones who resolve it. The jury resolved the
conflicts in the evidence that was presented to it against the defendant, and this court does not
re-weigh credibility issues or reconsider a jury’s resolution of conflicts in the evidence on
appeal. Wagner, 2012 Tenn. LEXIS 746, at **18-19. Direct evidence is not entitled to more
deference than circumstantial evidence, and circumstantial evidence alone suffices to support
a conviction. Dorantes, 331 S.W.3d at 381. The defendant’s claim that the evidence is
insufficient to support her conviction is denied without merit..
II.
The defendant claims that the trial court erred by denying her motion to suppress
evidence that was discovered and seized by police during the search of her property that
occurred on December 3, 2009. We disagree.
On appeal, the losing party bears the burden of demonstrating that a trial court’s
decision concerning a motion to suppress was erroneous. State v. Harts, 7 S.W.3d 78, 84
(Tenn. Crim. App. 1999). We review a trial court’s decision concerning a motion to suppress
under the standard established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). See R.D.S. v.
State, 245 S.W.3d 356, 362 (Tenn. 2008). As our supreme court explained in Odom, with
respect to a trial court’s factual findings:
Questions of credibility of the witnesses, the weight and value of the evidence,
and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact. The party prevailing in the trial court is entitled to
the strongest legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences that may be drawn
-19-
from that evidence. So long as the greater weight of the evidence supports the
trial court’s findings, those findings shall be upheld. In other words, a trial
court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.
Odom, 928 S.W.2d at 23. “[I]n evaluating the correctness of a trial court’s ruling on a
pretrial motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
“[O]ur review of a trial court’s application of law to the facts is conducted under a de novo
standard of review.” R. D. S., 245 S.W.3d at 362.
Both the federal and state constitutions contain provisions protecting individuals from
unreasonable searches and seizures. See U.S. C ONST. A MEND. IV (“The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.”); T ENN. C ONST, A RT. 1, Sec. 7 (“[T]he people shall be secure
in their persons, houses, papers and possessions, from unreasonable searches and seizures.”).
A warrantless search or seizure is presumed to be unreasonable¯and any resulting evidence
may be subject to suppression under the well-known exclusionary rule¯unless the State
demonstrates that the search or seizure at issue was conducted pursuant to one of the
narrowly-defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218
(Tenn. 2000). Even evidence that has been discovered and seized by police pursuant to a
lawfully-issued warrant may be subject to exclusion, if the defendant can establish that this
evidence was “the fruit of the poisonous tree”¯meaning the direct result of a prior illegal act
by police See, e.g., Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Clark, 844
S.W.2d 597, 600 (Tenn. 1992) (“The exclusionary rule may operate to bar the admissibility
of evidence directly or derivatively obtained from an unconstitutional search or seizure.”).
One important exception to the warrant requirement is the “plain view” doctrine. As
the Tennessee Supreme Court has explained, under the auspices of this doctrine, “[i]t has long
been settled that objects which fall in the ‘plain view’ of an officer, who has the right to be
in that position, are subject to seizure.” Armour v. Totty, 486 S.W.2d 537, 538 (Tenn. 1972).
Stated another way, it is “the many times recognized rule that constitutional rights are not
violated when a law officer, without any trespass against the defendant, and while he is at a
place he has a right to be, looks and sees evidence against a defendant which is plainly
visible.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968). “[T]he plain view doctrine
applies when (1) the items seized were in plain view; (2) the viewer had the right to be in the
position to view the items; (3) the items seized were inadvertently discovered; and (4) the
incriminating nature of the items was immediately apparent.” State v. Cothran, 115 S.W.3d
513, 524-525 (Tenn. Crim. App. 2003); see also Totty, 486 S.W.2d at 537.
-20-
Another important exception to the warrant requirement is the doctrine that has become
known as the “automobile exception.” As the Tennessee Supreme Court has recently
explained:
The “automobile exception” to the warrant requirement permits an officer to
search an automobile if the officer has probable cause to believe that the
automobile contains contraband. Carroll v. United States, 267 U.S. 132, 149,
45 S. Ct. 280, 69 L. Ed. 543 . . . (1925). The rationale for the automobile
exception is two-fold. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct.
2485, 135 L. Ed. 2d 1031 (1996); California v. Carney, 471 U.S. 386, 392-93,
105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). First, it is often impractical for
officers to obtain search warrants in light of the inherent mobility of
automobiles. Carney, 471 U.S. at 393. Second, individuals have a reduced
expectation of privacy in their automobiles. Id. If the officer has probable
cause to believe that the automobile contains contraband, the officer may
either seize the automobile and then obtain a warrant or search the automobile
immediately. Chambers v. Maroney, 399 U.S. 42, 52, 90 S. Ct. 1975, 26 L.
Ed. 2d 419 (1970). “Given probable cause to search, either course is
reasonable under the Fourth Amendment.” Id.
State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009). Neither the federal nor the state
constitution requires the existence of exigent circumstances for the automobile exception to
apply.1
With these principles in mind, we proceed to review the defendant’s claim concerning
the specific seizures that occurred in this case. For analytical purposes, we divide the
numerous items of evidence seized by police into four categories: (1) items that were seen by
Detective Howell, other officers, and the victim while they were still located on the public
roadway (i.e. during their initial drive-by of the defendant’s home), which by his testimony
were seized prior to the issuance of a search warrant; (2) items that were seen by Detective
Howell while he was located on the defendant’s property as he approached the defendant’s
residence in an attempt to perform a consensual “knock and talk,” which by his testimony
were also seized prior to the issuance of a search warrant; (3) items seen as a result of
Detective Howell and the victims’ act of peering through the windows of the defendant’s van
1
Nolan v. State, 588 S.W.2d 777, 780-81 (Tenn. Crim. App. 1979), relied on by the defendant
for the proposition that an automobile may not be searched without a warrant absent exigent circumstances,
was overruled by State v. Leveye, 796 S.W.2d 948, 953 (Tenn. 1990) (adopting the federal interpretation of
the automobile exception and “overruling all cases to the contrary”).
-21-
and the van’s subsequent seizure, which the State has conceded occurred before the issuance
of the search warrant, and (4) items seen and seized on the defendant’s property and inside
of her residence after the issuance of the search warrant.2 For varying reasons, we conclude
that the trial court did not err by denying the defendant’s motion to suppress with respect to
each these categories of seized evidence.
With respect to the items seen by the officers while they were still located on public
property, the trial court correctly determined that these items could be seized without a
warrant pursuant to the plain view doctrine. The testimony of law enforcement witnesses
supports the trial court’s conclusion that these items were located in plain sight. Police
officers unquestionably have the right to be located on public roadways, and thus they were
lawfully positioned when they viewed the incriminating items. The defendant does not
dispute that these items were discovered inadvertently.
The defendant does claim that the incriminating nature of these items would not have
been immediately apparent to a reasonable officer, as all of these items were common
household items. However, the trial court properly concluded that this difficulty was
overcome by the fact that the victim was present with the officers at the time that they viewed
the items, and she immediately identified the property as stolen.3 All of the necessary
prerequisites for the plain view doctrine were thus satisfied and pursuant to that doctrine, the
police officers did not need to wait for a search warrant¯or establish the existence of exigent
circumstances or any other exception to the warrant requirement¯before seizing this
property.
2
While there is direct testimony in the record concerning the precise point in time that some of the
many items at issue were first seen and seized, the record is unclear with respect to the vast majority of the
evidentiary items. However, because we uphold the search and seizure with respect to each of these four
categories of evidence (albeit on slightly different grounds), it is unnecessary to determine precisely which
individual pieces of evidence fall into each of the four categories.
3
The defendant contends that even in light of the information conveyed to the officers by the victim,
the incriminatory nature of the items was not immediately apparent because of “a possibility that stolen
property had been transferred in the course of [the] two weeks or more” that had passed since the theft.
However, the “plain view” exception does not require that the incriminating nature of the items be evident
beyond all reasonable doubt at first glance; rather, the object as viewed must merely “give[] probable cause
to believe that it is associated with criminal activity.” United States v. Garcia, 496 F.3d 495, 510 (6th Cir.
2007); see also State v. Lillie Fran Ferguson, No. W2002-00638-CCA-R3-CD, 2002 Tenn. Crim. App.
LEXIS 996, at *10 (Tenn. Crim. App. Nov. 19, 2002) (“Probable cause [sufficient to permit seizure under
the “plain feel” doctrine] exists when the facts and circumstances within the officer’s knowledge are
sufficient to warrant a person of reasonable caution in the belief that the item may be contraband.”). We
believe that this condition was satisfied in this case.
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The plain view exception also applies to the category of items that were not initially
seen from the street but instead first seen by Detective Howell after he entered the defendant’s
property in an attempt to perform a “knock and talk.” Once again, there is no dispute that
these items were located in plain view from the officer’s position and that they were
discovered inadvertently.
Whether Detective Howell was lawfully positioned when he viewed these items
presents a more difficult issue. Certainly, with respect to any items that were seen while
Detective Howell was in the defendant’s driveway or on the way to the defendant’s front door,
he was lawfully positioned pursuant to the “knock and talk” (or consensual police-citizen
encounter) exception. Courts have generally recognized the right of police officers to enter
portions of a person’s property that are implicitly open to the public for purposes of seeking
an individual’s consent to perform a search, and furthermore this court has expressly
“recognize[d] that ‘it is not improper for a police officer to call at a particular house and seek
admission for the purpose of investigating a complaint or conducting other official business.’”
State v. Cothran, 115 S.W.3d 513, 522 (Tenn. Crim. App. 2003) (quoting 1 L AF AVE, S EARCH
AND S EIZURE § 2.3(b) (3d ed. 1996)). Police officers conducting official business have the
same rights as members of the general public, and as such they may enter any area of a
person’s property into which the general public is implicitly invited for purposes of pursuing
legitimate business or social interests¯such as a sidewalk or pathway leading from a public
street to the front door of a residence¯because individuals do not have a legitimate
expectation of privacy in such areas. See, e.g., State v. Harris, 919 S.W.2d 619, 623 (Tenn.
Crim. App. 1995) (“What an officer sees from a vantage point along the walkway between
the public road and the front door is not protected by either the Fourth Amendment or the state
constitution.”); State v. Baker, 625 S.W.2d 724, 727 (Tenn. Crim. App. 1981) (“It cannot be
said a person has an expectation of privacy in the area in the front of his residence which leads
from the public way to the front door.”). It is clear from the record that Detective Howell had
a legitimate investigative purpose for attempting to knock on the front door of the defendant’s
residence and speak with those inside. Consequently, Detective Howell was lawfully
positioned during his trip from the roadway to the defendant’s front door.
The officer’s decision to move from the front door to the “back” door of the
defendant’s residence while conducting the “knock and talk” is more troubling. This court
has cautioned on numerous occasions that the “knock and talk” exception is not an open
license for police officers to prowl through the yards of private citizens or peer through their
windows. “Any substantial and unreasonable departure from an area where the public is
impliedly invited exceeds the scope of the implied invitation and intrudes upon a
constitutionally protected expectation of privacy.” Harris, 919 S.W.2d at 624 (internal
quotation omitted). When Detective Howell stepped off the presumably well-worn path from
the street to the defendant’s front door, he began treading on constitutionally-dangerous turf.
-23-
However, it is plain from the testimony and exhibits we have reviewed in this case that
what the parties refer to as the “back” door of the defendant’s residence was actually more
akin to a side door, as it was visible from the public street (because the defendant’s house was
located on a corner lot), there was a path leading to it, and it was not fenced-in. The
undisputed testimony in the record is that police officers did not enter into the fenced-in
portion of the defendant’s backyard until after a search warrant had been obtained. Viewed
in the context of the record as a whole, we conclude that the portion of the defendant’s back
yard that was not fenced in was implicitly open to the public, and in this sense the door
located there functioned as a traditional front door for constitutional purposes. Consequently,
Detective Howell did not violate constitutional norms by moving from the front door to the
“back” door of the defendant’s residence in his continuing effort to effectuate a “knock and
talk.” As before, while the incriminating nature of the items seen during this attempted
“knock and talk” might not have been immediately apparent without the assistance of the
victim, we do not believe that there was any constitutional difficulty posed by the victim
assisting the officer by identifying the items as stolen once they came into view.4
With respect to the seizure of the defendant’s van and the items located inside, there
was conflicting testimony in the record concerning the van’s location as well as the position
of the officers and the victim when they looked inside of it. There is some testimony in the
record that the van was located in the defendant’s driveway and that the victim saw the stolen
property contained therein while still located on the public sidewalk or in the street. There
is also testimony in the record that the van was parked off the driveway behind the house, thus
implying that the officer and the victim must have stepped several feet onto the defendant’s
property in order to peer inside. There is some testimony in between, and some witness’s
pretrial testimony appears to conflict with their trial testimony on the subject. The trial court
made no express finding on the subject, and in the absence of sufficient factual findings, the
appellate court may decide where the preponderance of the evidence lies. Fields v. State, 40
S.W.3d 450, 457 n.5 (Tenn. 2001).
4
We note that Detective Howell’s testimony at the suppression hearing indicates that he and the
victim saw one of her missing beds through one of the defendant’s windows. As discussed above, peering
through windows located on portions of an individual’s property that are not implicitly open to the general
public is not authorized as part of an attempt to conduct a lawful “knock and talk.” However, there is no
evidence in the record concerning the location of this window and whether the items located beyond were
visible from the street, the front door, or elsewhere open to the public. Moreover, the victim testified at trial
that she did not enter the defendant’s property until after a search warrant was issued, and we observe that
there was no mention made of the missing bed in the affidavit accompanying the police application for a
search warrant. Consequently, we find nothing in record that contradicts the trial court’s conclusion that all
of the items “observed by the officer and the victim in this case before the warrant was obtained . . . were
in plain view from a position the viewer had the right to be in.”
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We find that the defendant’s van was parked in her driveway. In this regard, we
observe that the defendant testified at trial that when she arrived at her house on the day of
the police search, she “pulled around the corner to pull [her] Cadillac in behind [her] minivan
and [her] minivan was gone.” A short while later, she testified that she “couldn’t pull into the
driveway” that day because “they [the police] were all in the drive.” Taken together, these
statements would appear to plainly imply that the defendant believed that she had left her van
parked in the driveway. From our review of the testimony and exhibits contained in the
record, we conclude that the defendant’s driveway, like most suburban driveways, was an area
implictly open to the public. Consequently, neither the officer nor the victim 5 offended
constitutional norms by stepping into that driveway and viewing items contained in the van.
Once the victim informed Detective Howell that the van contained items that were
stolen from her, the officer had probable cause to believe that the van contained contraband.
Pursuant to the automobile exception, the officer was free to search the van immediately or
have it towed and searched later pursuant to either a search warrant or, as the trial court held,
pursuant to the inventory search exception, see South Dakota v. Opperman, 428 U.S. 364, 371
(U.S. 1976) (sustaining vehicle inventory procedures as reasonable police intrusions not
prohibited by the Fourth Amendment).
With respect to the final category of evidence¯the items seized from the defendant’s
residence and the fenced-in backyard following the issuance of a search warrant¯the
defendant does not challenge the existence of probable cause sufficient to support the issuance
of the warrant. Rather, the defendant urges that the evidence seized pursuant to the search
warrant must be suppressed because the warrant was issued “based upon observations, which
were made during an illegal entry onto the curtilage of the [defendant’s] property,” which
tainted the subsequently-issued warrant. Because we have held that no such illegal entry
occurred, it follows a fortiori that the evidence seized pursuant to the warrant is not subject
to exclusion as fruit of the poisonous tree.
In sum, the trial court correctly concluded that no illegal search of the defendant’s
property occurred and that the warrant was sufficiently supported by probable cause. The
defendant’s claim that the trial court erred by denying her motion to suppress is without merit.
5
The Fourth Amendment generally does not protect an individual against unreasonable searches
and seizures conducted by private individuals. Burdeau v. McDowell, 256 U.S. 465, 475 (1921). However,
constitutional protections may apply if the individual involved acts as “an agent of the state.” State v.
Burroughs, 926 S.W.2d 243, 246 (Tenn. 1996).
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CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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