State of Tennessee v. Lavon Douglas Robertson-separate concurring opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 22, 2012 Session
STATE OF TENNESSEE v. LAVON DOUGLAS ROBERTSON
Appeal from the Circuit Court for Lawrence County
No. 27993 Jim T. Hamilton, Judge
No. M2011-00868-CCA-R3-CD - Filed January 7, 2013
J AMES C URWOOD W ITT, J R., J., concurring.
Respectfully, I would not engage in an analysis of standing relative to the dirt
road leading from the public road to the defendant’s building.
First, the defendant apparently held some form of tenancy in the land that
allowed him to place a structure there and to occupy the same. As such, he impliedly, at
least, held an easement of ingress and egress over the dirt road. See, e.g., Cellco Parthership
v. Shelby County, 172 S.W.3d 574, 591-92 (Tenn. Ct. App. 2005).
Second, even if we assume that the legal form of the defendant’s occupancy
was merely a license, we should not create, for the purposes of applying the knock-and-talk
rule, an issue of analyzing ingress along the nuances of property law. This is especially true
when, as here, the contraband was located at the structure site and not along the road. The
doctrine of knock and talk is predicated upon the notion that
[a] sidewalk, pathway or similar passageway leading from a
public [way] to the front door of a dwelling represents an
implied invitation to the general public to use the walkway for
the purpose of pursuing legitimate social or business interests
with those who reside withing the residence.
State v. Harris, 919 S.W.2d 619, 623 (Tenn. Crim. App. 1995). In analyzing knock-and-talk
elements, we should restrict our concern with the right-of-way to whether the implied
invitation has been revoked or countermanded by the use of signs and/or impediments. To
do otherwise would ensnare investigating law enforcement officers in a quagmire of property
law determinations.
JAMES CURWOOD WITT, JR., JUDGE
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