State of Tennessee v. Randall Keith Smith and Nicholas Ryan Flood

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 2, 2010 Session
STATE OF TENNESSEE v. RANDALL KEITH SMITH AND NICHOLAS
RYAN FLOOD
Direct Appeal from the Circuit Court for Henry County
Nos. 14444 and 14446 Donald E. Parish, Judge
No. W2009-02678-CCA-R3-CD - Filed December 27, 2011
Following the discovery by police of numerous materials commonly used in the manufacture
of methamphetamine on property controlled by Defendant Randall Keith Smith, he was
convicted of manufacturing methamphetamine, a Class C felony, and possession of drug
paraphernalia, a Class A misdemeanor. He was sentenced as a Range II, multiple offender
to ten years in the Department of Correction for manufacturing methamphetamine and to a
concurrent eleven months and twenty-nine days for possession of drug paraphernalia.
Defendant Nicholas Ryan Flood, who was in the company of Defendant Smith when the
materials commonly used in the manufacture of methamphetamine were discovered on the
property, was convicted of a single count of manufacturing methamphetamine. Defendant
Flood was sentenced as a Range II, multiple offender to nine years in the Department of
Correction. On appeal, Defendant Smith claims that the trial court erred by admitting certain
evidence seized from his property under the auspices of a search warrant. Defendant Flood
claims that there was insufficient evidence to support his conviction and that the sentence
imposed by the trial court was excessive. After carefully reviewing the record and the
defendants’ arguments, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and C AMILLE R. M CM ULLEN, JJ., joined.
Paul Hessing, Paris, Tennessee, for the appellant, Randall Keith Smith.
Guy T. Wilkinson, District Public Defender, and W. Jeffrey Fagan, Assistant District Public
Defender, for the appellant, Nicholas Ryan Flood.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Hansel J. McCadams, District Attorney General; and James Williams, III, and Beth B. Hall,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
In the early morning hours of November 5, 2008, Henry County Sheriff’s Department
Deputy Jamie Myrick was patrolling along Pleasant Hill Road in Henry County, Tennessee.
As he passed the residence located at 2465 Pleasant Hill Road, he detected a chemical odor
which, from his law enforcement experience, he associated with the production of
methamphetamine. He parked his car and walked a short distance toward the residence.
While standing on the public road using night vision equipment, he observed a lit room
through an open window of the residence. Vapors and smoke were billowing out of that
open window, and the curtains inside appeared to be moving outward as if blown by a fan.
After watching for about ten minutes, Deputy Myrick observed an individual (later identified
as Defendant Flood) approach the open window from the back of the house with an object
which he either handed to someone inside or placed on the window’s ledge.
Deputy Myrick radioed headquarters and reported the situation to his supervisors, who
began the process of preparing an affidavit for a search warrant based on the information
they received from him. They instructed him to remain on the scene and continue
observation until additional backup arrived and the warrant could be secured. Soon
thereafter, Corporal Mellon arrived as backup for Deputy Myrick, and the two observed a
pickup truck arrive at the residence. The officers then heard two truck doors open and close,
and they surmised that two individuals had just left the vehicle and entered the residence.
These persons (later determined to be Mr. James Staveley and Mr. Gary Herrin)
subsequently attempted to leave in their vehicle. Pursuant to orders they received from
headquarters, the deputies unsuccessfully attempted to detain the vehicle at the entrance to
the public roadway as it left the premises. After narrowly missing the officers, the vehicle
sped off, but not before the officers were able to take down its license tag number and
visually identify its occupants.
Believing that their presence had been revealed to anyone inside the house by the
noises that had been made in their attempt to stop the escaping vehicle, the officers then
made the decision to leave the public road, enter private property, and approach the residence
in order to ensure that no other occupants escaped. As they neared, they heard a cell phone
ringing and a male voice exclaim, “the cops are outside.” Deputy Myrick could smell that
the noxious fumes were getting stronger as he approached the residence, and was also able
to hear scuffling, running, and the sounds of rattling glass. He reached the house and decided
to elevate himself several feet by climbing onto a rock foundation pier that extended out
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slightly from the house’s side so he could peer into the residence through the open kitchen
window. Inside, he observed three persons, at least two of whom were engaged in what he
believed to be the disposal of the remnants of a methamphetamine production by pouring
chemicals down the kitchen sink’s drain. Deputy Myrick shouted an order for them to
remain still. One of the individuals, Defendant Smith, complied, but Defendant Flood and
a woman later identified as Ms. Samantha Arnold fled the room. Deputy Myrick requested
permission to search the premises, but Defendant Smith denied this initial oral request.
Additional officers continued to arrive, and the police on the scene consulted with
police headquarters. Collectively, a decision was made to enter the premises due to safety
concerns pertaining to the close proximity of what police believed to be inflammable (and
potentially explosive) methamphetamine chemicals to a heated wooden stove. All three
individuals found inside the residence were arrested. Both prior to and during this entry,
police incidentally observed a modest amount of what they suspected to be contraband,
including a mason jar and coffee filters, but none of this property was actually seized.
Defendant Smith, Defendant Flood, and Ms. Arnold were handcuffed and placed in patrol
cars. Defendant Smith was read his Miranda rights and, sometime thereafter, signed a
“Permission to Search” form.
As these events were transpiring, the police on the scene stayed in contact with both
their superiors and Lieutenant Scott Wyrick of the Henry County Sheriff’s Office Metro
Crimes Unit. Lieutenant Wyrick, who was trained and certified in processing and dealing
with methamphetamine labs, crafted an affidavit in support of a search warrant for the
premises that generally included the facts described above. Afterward, he presented the
affidavit to a General Sessions Court judge, who signed the warrant shortly after Defendant
Smith gave his written consent to search the premises. Lieutenant Wyrick took the warrant
to Pleasant Hill Road and, armed with both the warrant and Defendant Smith’s written
consent, the police on the scene again entered the residence.
During the ensuing search, police found numerous incriminating items in and around
the residence. Police found a piece of burnt aluminum foil, a razor blade, and a lighter under
a sofa cushion in the living room. In that same room, they found a digital scale with a white
residue that field-tested positive for methamphetamine. In another room, a backpack
containing coffee filters was found (no coffee maker was found in the residence). Next to
the open kitchen window, a mason jar, a round glass bowl, and a turkey baster were found.
A blue cooler containing drain cleaner, starter fluid, and acetone was found in a barn on the
property. A blue metal gas can with a fabricated air hose attachment was found on a table
in the barn. Nearby were several stripped lithium batteries and a coffee filter that field tested
positive for methamphetamine. A Pyrex jug was also found containing wet pill sludge,
which later tested positive at the TBI lab for the presence of methamphetamine. A bag on
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the outskirts of the property contained “liquid fire” (a drain cleaner) and a red funnel. Near
a Ford Explorer belonging to Defendant Flood, police found an air compressor. Various
other items often associated with the production of methamphetamine were also found on the
property, including assorted glassware and some lye. With the exception of a few items
mentioned earlier, all of these items were seen by police for the first time during this
extensive search conducted pursuant to the search warrant. The police seized these items.
On March 2, 2009, Defendants Smith, Flood, and Samantha Arnold (who is not part
of this appeal) were each indicted on one count of manufacturing methamphetamine.
Defendants Smith and Flood were also indicted on one count of possession of drug
paraphernalia, and Defendant Smith was indicted on one count of tampering with evidence.
The State dismissed this last count prior to trial.
Defendant Smith filed suppression motions related to the warrantless search of his
premises, as well as to evidence obtained pursuant to the search warrant. On April 9, 2009,
the trial court held a hearing to parse through the relatively complex Fourth Amendment
issues raised by the facts of the case. Defendant Smith argued that the police lacked probable
cause when they entered and conducted a warrantless search of his premises and that
information obtained during this illegal search was then used to unlawfully obtain the
ensuing search warrant. However, the State responded that the initial entry onto the property
by the police and their initial entry into Defendant Smith’s residence were permissible. The
State argued that its officers were lawfully positioned on a public road when they detected
the distinct chemical odor of drug manufacturing, thereby giving them probable cause to
investigate further, and that, during the course of that investigation, the existence of exigent
circumstances (i.e., the possibility of an explosion of unattended chemicals) enabled them
to enter the premises without first needing to obtain either the owner’s consent or a search
warrant. The State further urged that both the search warrant and the defendant’s written
consent served to empower the police to conduct the later, more extensive search of the
property. After hearing the evidence, reviewing the relevant legal precedent, and carefully
listening to the parties’ arguments, the trial judge ruled that the officers had entered the
defendant’s property without constitutional authorization and granted Defendant Smith’s
motion to suppress the warrantless search. Because no evidence was actually seized by the
police during these entries, no actual evidence was suppressed, but the State was prohibited
from introducing at trial any testimony concerning events that transpired or observations
made by the police between the time Deputy Myrick left the public road and the time the
search warrant was executed.
Turning to Defendant Smith’s motion to suppress the evidence seized during the
extensive search of the premises, the trial judge first ruled that the defendant’s written
consent to the search was tainted by his improper arrest and detention. However, the trial
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court upheld the search as conducted under the auspices of the search warrant and declined
to suppress any of the seized evidence. The trial judge reached this conclusion by first
redacting the State’s affidavit in support of the warrant to remove any and all references to
information obtained by the police as a result of their unlawful entry (i.e., all references
pertaining to events that occurred after the time Deputy Myrick left the public roadway),
thereby purging the affidavit of any legally tainted information. However, the trial court
found that the search warrant affidavit, as redacted, sufficed to establish probable cause and
that this fact sufficed to render the ensuing search constitutionally permissible.
The defendants were tried by jury on August 19-21, 2009. The State presented the
testimony of Lieutenant Wyrick, who testified to his considerable experience and familiarity
with the operation and components of methamphetamine labs. Lieutenant Wyrick testified
that there is a unique smell associated with methamphetamine production and that this smell
is easily recognizable to trained officers. He testified that on the night in question, he
prepared an affidavit in support of a search warrant application for Defendant Smith’s
premises based on facts relayed to him by Officer Myrick. After submitting the affidavit and
receiving the search warrant, Lieutenant Wyrick testified that he arrived at the defendant’s
premises, executed the search warrant, and found the various items described above.
Lieutenant Wyrick explained to the jury how each of the items that were seized could be used
in the production of methamphetamine. He further testified that each of these individual
items, even if stored together in close proximity, would not create the aforementioned odor
that is unique to the manufacture of methamphetamine; this smell can only be created if and
when these various items are used in methamphetamine production. Finally, Lieutenant
Wyrick identified Defendant Smith as possessing the premises that were searched on the
night in question and identified Defendant Flood and Ms. Arnold as having also been present
at the scene.
Thereafter, the State presented the testimony of Ms. Melanie Johnson, Special Agent
of Forensic Science at the Tennessee Bureau of Investigation laboratory in Memphis,
Tennessee. She testified that she tested some sludge collected and sent to her by the Henry
County Police Department and that this material, which weighted 0.4 grams, tested positive
for the presence of methamphetamine. Following this testimony, the State presented the
testimony of Deputy Jamie Myrick, who gave lengthy testimony concerning the events he
witnessed on the night in question, as was described above.
Finally, the State presented the testimony of the two individuals who fled the premises
in the pickup truck on the night in question. Mr. Gary Herrin, who had all charges against
him dismissed in exchange for his testimony, testified that, at an earlier point in time, he
brought Defendant Smith three boxes of Sudafed (an over-the-counter cold medicine
commonly used as a methamphetamine precursor) with the understanding that he would be
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reimbursed for the items with either cash or finished methamphetamine product. Mr. Herrin
testified that both he and Mr. James Staveley returned to Defendant Smith’s residence on the
night in question in Mr. Staveley’s vehicle, so that he could receive his payment. Mr. Herrin
testified that Defendant Smith and Defendant Flood met them outside the residence and took
them inside, where Mr. Herrin smelled the strong odor of methamphetamine production.
They sat on the living room couch, and Defendant Flood went into the kitchen, where Ms.
Arnold was located. Later, Defendant Smith entered the kitchen, pulled out a set of scales,
separated out and weighed 1.5 grams of finished methamphetamine product, and gave it to
Mr. Herrin. Afterward, he, Defendant Smith, and Mr. Staveley smoked some of the drug,
and then Mr. Herrin and Mr. Staveley left in Mr. Staveley’s vehicle. When individuals with
flashlights attempted to stop their vehicle, they drove off and attempted to escape.
The last witness for the State was Mr. James Staveley, who began by detailing his
criminal history and explaining that all current charges against him would be dismissed in
exchange for his testimony. Mr. Staveley stated that: (1) he drove his truck with Mr. Gary
Herrin to Defendant Smith’s premises on the night in question; (2) Defendants Smith and
Flood took them into Defendant Smith’s residence; (3) he smelled a strong chemical odor
inside; and (4) while he was there, he smoked some methamphetamine with Defendant Smith
and Mr. Herrin. Mr. Staveley stated that when he attempted to leave the residence in his
vehicle, he was frightened by some men with flashlights and sped away. Sometime later, he
was arrested. Mr. Staveley testified that while he was in jail with Defendant Smith,
Defendant Smith stated to him that the police had “nothing they can charge me with,” in part
because he had put all of the methamphetamine in the house in the fireplace. At the
conclusion of this testimony, the State rested.
None of the defendants presented any evidence in their own defense. Each defendant
was advised of and waived his or her right to testify in his or her own defense, pursuant to
the procedures described in Momon v. State, 18 S.W.3d 152, 162-64 (Tenn. 1999). The case
was then submitted to the jury. On August 21, 2009, the jury found Defendants Smith and
Flood guilty of manufacturing methamphetamine and found Defendant Smith guilty of
possession of drug paraphernalia. Ms. Samantha Arnold was found guilty of the lesser
included offense of facilitation of the manufacture of methamphetamine.
On September 19, 2009, the trial court sentenced Defendant Smith to ten years as a
Range II, multiple offender for the manufacturing of methamphetamine conviction and to a
concurrent eleven months and twenty-nine days for possession of drug paraphernalia. The
trial court sentenced Defendant Flood to nine years as a Range II, multiple offender for his
manufacturing of methamphetamine conviction. Defendants Smith and Flood each filed a
timely motion for a new trial. These were denied on November 24, 2009. The requisite
notices of appeal were timely filed, and these appeals followed.
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I.
Defendant Smith raises a single challenge concerning the trial court’s denial of his
motion to suppress the evidence seized by police pursuant to the search warrant. Defendant
Smith agrees with the trial court that the initial warrantless entry by police onto his property
was unlawful but asserts that all items seized during the execution of the later search warrant
should have been suppressed under the Fourth Amendment pursuant to the well-known “fruit
of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).
Defendant Smith maintains that the search warrant obtained by the police cannot serve as an
independent, “unpoisoned” source of discovery for the items found during the search,
because the initial affidavit for the search warrant made reference to some facts and evidence
uncovered during the illegal entry. Defendant Smith contends that the trial court erred by
redacting the search warrant affidavit to eliminate any reference to these illegally-garnered
facts and evidence and, thereafter, considering whether the resulting redacted affidavit
sufficed to establish probable cause (thus supporting the General Sessions judge’s decision)
in order to uphold the search warrant. However, after reviewing the facts and relevant
precedent, we believe that the trial court not only acted appropriately on this score but keenly
parsed through the difficult legal issues involved. Consequently, we affirm its decision to
deny Defendant Smith’s motion to suppress the items found pursuant to the search warrant.
We must analyze Defendant Smith’s challenge to the trial court’s denial of his motion
to suppress under the standard established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
“Under this standard, ‘a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.’” State v. Hicks, 55 S.W.3d 515, 521 (Tenn.
2001) (quoting Odom, 928 S.W.2d at 23). However, Defendant Smith does not dispute the
trial court’s findings of fact. Under the Odom standard, a trial court’s conclusions of law are
reviewed “under a de novo standard without according any presumption of correctness to
those conclusions.” Hicks, 55 S.W.3d at 521. Because Defendant Smith challenges only the
trial court’s legal conclusion that it was permitted to redact the search warrant of any
reference to illegally-obtained information and evidence (and thereafter uphold the search
warrant because the affidavit as redacted still sufficed to established probable cause), we
review his claim de novo.
Both the United States Constitution and the Tennessee Constitution generally prohibit
(1) the police from searching a citizen’s home without first obtaining a search warrant, and
(2) judges from issuing such warrants in the absence of probable cause. See U.S. C ONST.
amend. IV ( stating “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated” and asserting that
search warrants shall issue only “upon probable cause, supported by Oath or affirmation”);
Tenn. Const. art. I, § 7 (stating “the people shall be secure in their persons, houses, papers
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and possessions, from unreasonable searches and seizures,” and precluding the issuance of
search warrants except upon “evidence of the fact committed”). “Probable cause” for
purposes of upholding a warrant has long been defined as a “reasonable ground of
suspicion,” supported by circumstances warranting the belief that an illegal act is occurring
or has occurred. Lea v. State, 181 S.W.2d 351, 352 (Tenn. 1944). If the State is found to
have violated the constitutional rights described above, the possible consequence is well-
known – any and all evidence discovered during the unlawful search may be suppressed
pursuant to the exclusionary rule. See, e.g., Murray v. United States, 487 U.S. 533, 536
(1988); Weeks v. United States, 232 U.S. 383, 398 (1914).
Almost simultaneously with the creation of the exclusionary rule, the United States
Supreme Court developed the “independent source” doctrine. See Murray, 487 U.S. at 537-
39. This doctrine permits the State to utilize any evidence that would otherwise be
suppressed pursuant to the exclusionary rule if that evidence is obtained through an
independent, lawful search or from other “activities untainted by the initial illegality.” Id.
at 537. The rationale behind the development of this doctrine is that “the interest of society
in deterring unlawful police conduct and the public interest in having juries receive all
probative evidence of a crime are properly balanced by putting the police in the same, not a
worse, position that they would have been in if no police error or misconduct had occurred.”
Nix v. Williams, 467 U.S. 431, 443 (1984). The independent source doctrine also applies to
claims brought under the Tennessee Constitution. State v. Clark, 844 S.W.2d 597, 600
(Tenn. 1992).
Following the independent source doctrine, “an unconstitutional entry does not
compel exclusion of evidence found within a home if that evidence is subsequently
discovered after execution of a valid warrant obtained on the basis of facts known entirely
independent and separate from those discovered as a result of the illegal entry.” Clark, 844
S.W.2d at 600 (citing Segura v. United States, 468 U.S. 796, 813-14 (1984)). After its
redaction by the trial court, it is undisputed that the affidavit for the search warrant of
Defendant Smith’s premises made reference only to facts discovered prior to (and therefore
separate from) the unlawful entry and that the redacted affidavit sufficed to establish
probable cause for the issuance of a search warrant. Consequently, if the redaction was
proper, the trial court’s denial of the motion to suppress was proper under the independent
source doctrine as expounded in Segura and Clark.
Defendant Smith urges that the practice of redacting an affidavit of material
discovered as a result of an illegal entry itself violates our state supreme court’s decision in
Clark, relying on language in that case to the effect that, “[i]n order for the subsequent
warrant and search to be found genuinely independent of the prior unconstitutional entry,
[Murray requires] that information obtained during the illegal entry may not have been
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presented to the issuing Magistrate.” Id. (emphasis added). Defendant Smith argues that
while the affidavit may have been subsequently redacted, the information obtained during
the illegal entry was, nonetheless, initially presented to the magistrate and, therefore, violates
the United State’s Supreme Court decision in Murray as interpreted by our supreme court in
Clark.
However, Defendant Smith’s argument reads this language in Clark too literally and
inconsistently with both federal practice and the practice of this court. The Clark decision
did not deal directly with the issue of redaction. While the phrase, “may not have been
presented,” if taken absolutely literally, would appear to entirely prohibit the common
independent-source-related practice of redacting any affidavit that includes both tainted and
lawfully obtained information, in practice, material that has been redacted from an otherwise
tainted affidavit is, for purposes of Clark and Murray, deemed to have never been presented
to the issuing authority, and any resulting search is deemed constitutional so long as the
redacted affidavit has been properly scrutinized and still suffices to establish probable cause.
Nothing in the practice of redacting affidavits is inconsistent with either Clark or
Murray. In Murray, the United States Supreme Court considered the situation of federal
agents who entered a warehouse without a warrant, saw illegal drugs, and then applied for
a warrant without mentioning the prior entry or making any reference to any information
gained as a result. 487 U.S. at 535-36. In the course of holding that the evidence seized
pursuant to that search warrant was admissible under Fourth Amendment principles, the
Supreme Court squarely accepted the argument that the independent source doctrine
permitted admission of “all evidence acquired in a fashion untainted by the illegal evidence-
gathering activity,” including “evidence initially discovered during, or as a consequence of,
an unlawful search, but later obtained independently from activities untainted by the initial
illegality.” Id. at 537-38. In ruling that the search warrant at issue was potentially an
“activit[y] untainted by the initial illegality,” the Court relied on the government’s contention
that the agents’ decision to seek the warrant was not prompted by what they had found during
the illegal search and that material from the illegal search was not included and relied upon
by the magistrate in his decision to issue the warrant. Id. at 542. It would appear to be the
Supreme Court’s assertion that the inclusion of tainted material must have “affected [the
magistrate’s] decision to issue the warrant” before any resulting search might be deemed
unconstitutional, id., which permits the practice of redaction for Fourth Amendment
purposes; if probable cause still exists for a warrant to be issued after an affidavit has been
redacted of all tainted material, then it is reasonable to infer that the magistrate did not rely
on the tainted material in issuing the warrant.
Since the Supreme Court’s decision in Murray, the Sixth Circuit has continued its
longstanding practice of redacting “mixed” affidavits that contain both tainted and untainted
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material. Beginning several years prior to Murray, the Sixth Circuit had applied the
independent source rule in such a manner that “when a search warrant is based partially on
tainted evidence and partially on evidence arising from independent sources, if the lawfully
obtained information amounts to probable cause and would have justified issuance of the
warrant apart from the tainted information, the evidence seized pursuant to the warrant is
admitted.” United States v. Smith, 730 F.2d 1052, 1056 (6th Cir. 1984) (quoting United
States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980) (internal quotation omitted)).
Following the Murray decision, the Sixth Circuit continued to apply this precedent unabated
in situations legally indistinguishable from the case at bar. See United States v.
Shamaeizadeh, 80 F.3d 1131, 1136 (6th Cir. 1996); United States v. Campbell, 878 F.2d 170,
173 (6th Cir. 1989). Without making explicit reference to Murray, the Sixth Circuit justified
its ongoing decision to redact mixed affidavits by analogizing the situation of affidavits
partially comprised of the fruits of an illegal search to the situation of affidavits partially
comprised of false statements, in which redaction was the established remedy, see Franks v.
Delaware, 438 U.S. 154 (1978), and noting that the Supreme Court “has also applied the
Franks principle where a warrant has been approved in reliance on an affidavit containing
information obtained through illegal surveillance.” Campbell, 878 F.2d at 172 (citing United
States v. Karo, 468 U.S. 705, 719 (1984)). Implicit in this reasoning would appear to be the
premise that, if the Supreme Court had intended to overrule Karo and change existing circuit
court practice in Murray, it would have done so explicitly. In the absence of any express
direction to the contrary, “irrespective of the legality of the initial entry into the residence to
secure the premises, we can nevertheless examine the balance of the underlying search
warrant affidavit for probable cause in order to determine whether the lawfully obtained
evidence was sufficient to determine that the search and seizure should be upheld.”
Shamaeizadeh, 80 F.3d at 1136 (quoting United States v. Korman, 614 F.2d 541, 547 (6th
Cir. 1980)).
In a similar vein, this court has never interpreted and applied the Tennessee Supreme
Court’s Clark decision, which only interpreted and applied Murray, as forbidding the
practice of redacting mixed affidavits. The Clark decision involved police officers who, in
the course of investigating a pair of stolen cars, entered a defendant’s home without probable
cause, consent, or exigent circumstances, and questioned him about the crimes. See 844
S.W.2d at 598. Following this illegal entry, this defendant made several incriminating
statements and was arrested. The police then sought and received a search warrant based on
these incriminating statements and found numerous incriminating items during the ensuing
search. The Tennessee Supreme Court ruled that these items should have been suppressed
under the Fourth Amendment, noting that the search warrant affidavit contained crucial
references to the incriminating statements made by the defendant following his arrest (which
apparently had never been redacted, as the trial court had upheld the search). As a result, the
Tennessee Supreme Court reached the unsurprising conclusion that the warrant violated the
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core principle of Murray that police may not profit from illegal activity by obtaining a
warrant where their probable cause has been established by presenting the fruits of an illegal
search or seizure to the magistrate. See id. at 600-01. Although the Clark court did not
expressly discuss the issue of the magistrate’s reliance on the tainted information or the
possibility of redaction as a remedy, that argument does not appear to have been raised by
the State, and no discussion appears to have been called for on the facts of the case.
Regardless, just like federal courts in the wake of the Murray decision, following
Clark, it has remained the practice of this court to analyze the reliance issue that was so
crucial to the Supreme Court in Murray by permitting trial courts to redact those search
warrant affidavits partially tainted by illegal material of any and all references to the same
and then to re-scrutinize the redacted affidavit in order to determine whether or not probable
cause remains nonetheless. See, e.g., State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn.
Crim. App. 1997); State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993).
Indeed, in State v. Stephen J. Udzinski and Donna Stokes a/k/a Donna Story, No.
01C01-9610-CC-00431, 1998 WL 44922 (Tenn. Crim. App. at Nashville, Feb. 5, 1998), we
were confronted with an argument virtually identical to the one made in this case – that
Murray and Clark “require exclusion of the evidence as a blanket remedy where an affidavit
in support of a search warrant application improperly informs the magistrate of the results
of an illegal search” because the effect “the tainted information [could] have on the
magistrate’s ability to perform his functions” is “immeasurable.” Id. at *23. We roundly
rejected that argument and also rejected the notion that Murray required a subjective inquiry
into what information the magistrate may have relied upon in issuing his or her decision.
Instead, we opted to follow the well-accepted practice of redacting any affidavit containing
both legally and illegally gathered evidence, excising all tainted material, and scrutinizing
whatever remains to confirm the continued presence of probable cause. Id. at *30.
We reaffirm this conclusion today. As a matter of law, we can discern no reason to
treat material that was improperly included by police in a search warrant affidavit as a result
of an illegal entry or search any differently than material that was improperly included in a
search warrant because it was obtained by police as a result of illegal surveillance (where
redaction was approved in Karo) or material that was improperly included because it was
false information that was recklessly included by police (where redaction was approved in
Franks). The harm to society sought to be prevented is no greater in the first instance than
it is in the others.
Accepting Defendant Smith’s present invitation to suppress the evidence at issue
would, of course, violate the core rationale underpinning the independent source doctrine –
that the police not be placed in a worse position than they would have been in if no
misconduct had occurred. In this case, police had all the incriminating information necessary
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to establish probable cause and receive a warrant prior to entering Defendant Smith’s
property. Had they chosen to wait to enter the property until after they had received a
warrant, all of the evidence now at issue would have been properly seized and admitted at
trial. Consequently, holding that this evidence must be suppressed would leave the police
in a far worse position than if they had never illegally entered the property, in direct
contravention of the teachings of Williams. 467 U.S. at 443. We decline to so hold.
Because we have ruled that the trial court did not err in denying Defendant Smith’s
motion to suppress the search warrant, we find it unnecessary to address the State’s
arguments that: (1) the trial court erred by concluding that Defendant Smith’s blanket consent
– given as a condition of his then-existing probation – to the search of his property “without
a warrant . . . at any time” was legally insufficient to uphold the search due to (a) the timing
of the search and (b) the fact that the officer involved was unaware of Defendant Smith’s
status as a probationer, (2) the trial court erred in concluding that Defendant Smith did not
have a diminished expectation of privacy on his premises due to his status as a probationer,
and (3) the trial court erred in concluding that Defendant Smith’s written consent to the
search given after his arrest was unconstitutional. Now rendered moot by our resolution of
Defendant Smith’s claim, we leave these potentially thorny issues for another day.
II.
Defendant Flood challenges the sufficiency of the evidence to support his conviction
for manufacturing methamphetamine. However, with respect to challenges concerning
sufficiency of evidence, a jury’s guilty verdict strips a defendant of the presumption of
innocence and replaces it with a presumption of guilt. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011). Defendants must strive to overcome this presumption on appeal. Id.
Defendant Flood has not met this burden. He generally claims that “the inconsistencies in
the State’s case are such that there was not a showing of sufficient evidence to convict the
defendant of Methamphetamine Manufacture.” Inconsistencies in the prosecution’s evidence
do not give rise to an insufficiency of the evidence claim. Regardless, reviewing the record
as a whole, we find the evidence sufficient to support the jury’s verdict.
“When the sufficiency of the evidence is challenged, the relevant question is whether,
after reviewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Dorantes,
331 S.W.3d at 379; see also Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319
(1979). Great weight is given to the result reached by the jury in a criminal trial; matters
such as the credibility of witnesses, the weight given their testimony, and the proper
resolution of any conflicts in the evidence are ordinarily left in their care. Dorantes, 331
S.W.3d at 379 (emphasis supplied). “On appeal, the State must be afforded the strongest
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legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.”
Id. (quoting State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007)). Under no circumstances
may an appellate court “substitute its inferences for those drawn by the trier of fact.” Id.
Defendant Flood was convicted of violating Tennessee Code Annotated section 39-
17-417(a)(1), which states that “[i]t is an offense for a defendant to knowingly . . .
[m]anufacture a controlled substance.” T.C.A. § 39-17-417(a)(1) (2011). A violation of this
statute that involves “methamphetamine in an amount of less than point five (.5) grams, is
a Class C felony.” Id. at § 39-17-417(c)(2)(A). Defendant Flood appears to challenge the
State’s proof concerning both (1) whether any manufacturing of a controlled substance was
occurring on the property and (2) whether he was aware of and knowingly participated in any
such manufacturing.
Concerning whether any controlled substance was being manufactured on the
premises, Defendant Flood points out that the State’s witnesses testified that: (1) all of the
items the police found during their search of the property, when combined together, were still
not enough to successfully manufacture methamphetamine, and (2) neither anhydrous
ammonia nor Sudafed (or any other form of Ephedrine), both of which are necessary
components for the manufacturing of methamphetamine, were found on the property.
Concerning his lack of participation in any methamphetamine manufacturing that may have
occurred on the premises and his general lack of mens rea, Defendant Flood observes that
both State’s witnesses Gary Herrin and James Stavely testified that he was not in the room
and did not participate when they smoked methamphetamine with Defendant Smith earlier
that morning. The State’s police witnesses further testified that the items used to smoke the
methamphetamine, as well as the scales and much of the other evidence, were hidden from
sight and were only uncovered during the ensuing search by police – and thus would not have
been in the plain view of Defendant Flood merely because he was in the house. Defendant
Flood urges that the State failed to disprove his contention that he was on Defendant Smith’s
property on the day in question solely for the purpose of deer hunting (and carried a crossbow
for that purpose) and that none of the State’s witnesses could place him in the barn where
many of the incriminating items were found or, for that matter, even state with any certainty
that the incriminating items found in the barn were not left over from an earlier
methamphetamine lab, which had existed and been quarantined on the property in 2007.
Finally, Defendant Flood urges that the pill sludge found by police in the barn could have
tested positive for methamphetamine due to cross-contamination by the police officers and
crime lab technicians handling the evidence.
These arguments, brought to light by the skilled cross-examination of the State’s
witnesses by Defendant Flood’s trial counsel, show that Defendant Flood was well-
represented during his trial. A reasonable jury might have accepted them and concluded that
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Defendant Flood was not guilty of the offense charged (and apparently did so with respect
to the charge of possession of drug paraphernalia). However, it is well established that,
based on the sufficiency of the evidence, these sorts of inconsistencies in the State’s evidence
and/or disagreements concerning the inferences to be drawn from circumstantial evidence
provide no basis for an appeal. See Dorantes, 331 S.W.3d at 379.
As the trial judge astutely noted in the course of denying certain defense motions,
viewing all of the evidence, and drawing all inferences in the light most favorable to the
State, the evidence suffices to support Defendant Flood’s conviction. With respect to
whether methamphetamine was, in fact, being manufactured on the premises on the night in
question, several witnesses testified that an odor uniquely associated with methamphetamine
production could be detected emanating from Defendant Smith’s residence and that this odor
was so strong that it could be detected from the public road a considerable distance away.
Following a search of the residence, numerous items associated with the production of
methamphetamine were found. The jury was free to infer from this evidence that
methamphetamine had been recently produced on the premises and reject the defense’s
contention that no such conclusion should be reached because some of the necessary
elements were never discovered. Moreover, several items field-tested, and some wet pill
sludge taken from the barn lab-tested, positive for the presence of methamphetamine. The
jury was free to infer that these items did so because methamphetamine had been recently
produced on the premises and was free to reject the defense’s implication that they did so
because of contamination by the police.
With respect to Defendant Flood’s mens rea pertaining to the offense, there is,
likewise, sufficient evidence to support the jury’s conclusion. Numerous witnesses testified
that Defendant Flood was on the premises and in the company of Defendant Smith during
the early morning hours of the night in question. Deputy Myrick testified that he initially
observed Defendant Flood appear from behind Defendant Smith’s residence and that
Defendant Flood placed an unidentified object through that house’s open window – a
window that had visible vapors emanating from it along with the detectable odor of
methamphetamine production. Two witnesses testified that Defendants Flood and Smith met
them outside Defendant Smith’s house and that Defendant Flood accompanied them inside
the house where the strong odor of methamphetamine production was present. Those same
witnesses further testified that Defendant Flood was in the kitchen of that residence when
Defendant Smith went into that same room and then returned with finished
methamphetamine product. Defendant Flood’s vehicle was found parked behind a barn in
which numerous incriminating items were discovered. A cooler located next to Defendant
Flood’s vehicle contained drain cleaner, acetone, starter fluid, and other items commonly
used in the production of methamphetamine (and contained no items that could not be used
in the process of manufacturing methamphetamine). An unusual air compressor, which one
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witness identified as belonging to Defendant Flood, was found on the property, and near
Defendant Flood’s vehicle, the police found a bucket with a spout that had been modified to
connect to that air compressor. Witnesses testified how these items could be used to produce
methamphetamine. Taken together, this circumstantial evidence was sufficient for a jury to
reasonably conclude that Defendant Flood was a knowing and active participant in any
methamphetamine production occurring on the premises.
In sum, Defendant Flood had his fair day in court to present these evidentiary
arguments to the jury, and the jury considered and rejected them. We will neither disturb a
jury’s resolution of conflicting evidence nor alter its evidentiary inferences on appeal. See
Dorantes, 331 S.W.3d at 379. Consequently, Defendant’s Flood’s challenge to the
sufficiency of the evidence to support his conviction must be denied.
III.
Defendant Flood claims that the nine-year sentence imposed by the trial judge was
“excessive.” However, this sentence was within the range established by the legislature for
his offender class and the crime for which he was charged, a Class C felony. As the
defendant concedes, his sentencing range was between six and ten years. Nine years is
between six years and ten years.
“The burden of demonstrating that a sentence is erroneous is [placed] upon the party
appealing.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). Our review of a trial court’s
sentencing decision is de novo, but as long as the trial court considered all the proper
sentencing principles and relevant facts and circumstances, we must presume that the trial
court’s determinations are correct. Id. at 344-45. If our review reflects that the trial court
properly considered all the relevant legal factors and that its findings of fact are adequately
supported by the record, we must affirm the sentence even if we would prefer a different
result. State v. Goodwin, 143 S.W.3d 771, 783 (Tenn. 2004); State v. Pike, 978 S.W.3d 904,
926-27 (Tenn. 1998). “If, however, the trial court applies inappropriate mitigating and/or
enhancement factors or otherwise fails to follow the Sentencing Act, the presumption of
correctness fails” and “our review is simply de novo.” Carter, 254 S.W.3d at 345 (internal
quotation omitted).
Here, the trial court appears to have followed the Sentencing Act and appropriately
applied all of the sentencing factors. Defendant Flood does not challenge the trial court’s
determination of his sentencing range. The offense of manufacturing methamphetamine in
an amount less than point five grams was a Class C felony under Tennessee Code section 39-
17-417(c)(2)(A). See T.C.A. § 39-17-417(c)(2)(A) (2009). Defendant Flood admitted to
three prior felonies, which served to properly establish his offender class as a Range II,
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multiple offender. See T.C.A. § 40-35-106. The sentence for a Range II offender for a Class
C felony is “not less than six (6) nor more than ten (10) years.” T.C.A. § 40-35-112(b)(3).
It is undisputed that the trial court properly determined and applied this range during
Defendant Flood’s sentencing. The nine-year sentence imposed by the trial court is within
this range. Therefore, we can grant no relief to Defendant Flood.
Before setting Defendant Flood’s sentence at nine years, the trial court carefully
considered all of the statutory factors and relevant circumstances. The trial court considered
the various statutory enhancement and mitigating factors urged by the parties. These factors,
however, are advisory only, and the weight a trial court gives to these factors does not
provide any basis for reversal. Carter, 254 S.W.3d at 345. As long as the trial court properly
finds and considers the appropriate statutory factors, the particular sentence that the court
imposes is essentially unreviewable on appeal as long as it falls within the appropriately
determined range.
In this case, the trial court properly found two enhancement factors applicable to
Defendant Flood: (1) he had prior criminal behavior (including prior criminal convictions)
at the time of his sentencing above that necessary to establish his sentencing range, and (2)
prior to sentencing, he failed to comply with the conditions of a sentence involving his
release into the community. See T.C.A. §§ 40-35-114(1), (8). The trial court found the
presence of one mitigating factor – that the defendant’s criminal conduct neither caused nor
threatened serious bodily injury. See T.C.A. § 40-35-113(1). The trial court considered and
balanced these factors and ultimately concluded that, under the circumstances, the defendant
presented a poor prospect for rehabilitation. The trial court accordingly imposed a sentence
toward the upper end of the range. It was well within its discretion to do so.
CONCLUSION
For the foregoing reasons, the judgments of the trial court are affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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