State of Tennessee v. Jay Burroughs Chandler

05/07/2026

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 10, 2026 Session

STATE OF TENNESSEE v. JAY BURROUGHS CHANDLER

Appeal from the Criminal Court for Sumner County

No. 2023-CR-17 Dee David Gay, Judge

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No. M2025-00381-CCA-R3-CD

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MATTHEW J. WILSON, J., concurring.

OPINION

I concur in the result reached by the majority. I write separately, however, because

I disagree with the majority’s analysis on three key points.

First, I do not agree that Defendant had a reasonable expectation of privacy in the

unlocked, semi-transparent plastic bin located in an office shared by at least ten other

people and accessible to restaurant employees. Ms. Kelso undertook two actions that

potentially implicated the Fourth Amendment: (1) the search of the plastic drawers inside

the office area of the restaurant and (2) the seizure of Defendant’s phone from one of the

drawers. Regarding the office area, Ms. Kelso testified that employees came in and out of

the office to hang purses, backpacks, or jackets on the hooks and that there were two

computer workstations where members of the management team could work. The door to

the office was not locked. Although Defendant, as kitchen manager, sometimes utilized

one of the workstations, he worked primarily behind the cook’s line in the kitchen.

Defendant and other members of the management team, including Ms. Kelso, used drawers

in a plastic storage bin to hold mail and other items. The fronts of the drawers were semi-

transparent such that many of the items inside could be plainly identified. Any other person

who walked into the office could not only see into the drawers but, because they were not

locked or secured in any way, could easily open them. Even though Defendant’s name was

on one of the drawers, the drawers themselves belonged to Texas Roadhouse and were

available for use by members of the management team. Indeed, the drawers were regularly

accessed by management staff, and Ms. Kelso stated that Defendant’s girlfriend (a line

cook) regularly placed her keys in Defendant’s drawer. Ms. Kelso testified that she

regularly accessed Defendant’s drawer for business paperwork and that she did not need

Defendant’s permission to do so Certainly, no evidence suggested that Defendant could

have excluded anyone from even the drawer with his name on it. See United States v.

England, No. 6:18-CR-056-CHB, 2020 WL 2110801, at *8 (E.D. Ky. May 4, 2020), aff’d,

No. 21-5273, 2023 WL 1777533 (6th Cir. Feb. 6, 2023) (observing that even when the

defendant “controlled access to the laptop” belonging to his employer, it was “undisputed

that his use and control was always subject to the authority and control of” his

supervisor/employer). .

The majority cites Mancusi v. DeForte, 392 U.S. 364 (1968), in support of its

conclusion that Defendant had a reasonable expectation of privacy in what it deems the

“shared office space.” In my view, Mancusi is distinguishable. Initially, I disagree with

the majority’s conclusion that the “office” described by Ms. Kelso was the same as the

shared office space described in Mancusi. There, DeForte “worked” and “spent ‘a

considerable amount of time in’ the office” space at issue, which “consisted of one large

room, which he shared with several other union officials.” Mancusi v. DeForte, 392 U.S.

364, 368-69 (1968). The office was locked, and DeForte “could reasonably have expected

that only those persons and their personal or business guests would enter the office, and

that records would not be touched except with their permission or that of union higher-

ups.” Id. at 369. By contrast, Defendant worked primarily in the kitchen and used the

office only occasionally, and there was no proof that he “spent considerable time” in the

office. Additionally, the office was not locked. The Supreme Court has observed that

employee “expectations of privacy in their offices, desks, and file cabinets . . . may be

reduced by virtue of actual office practices and procedures.” O’Connor v. Ortega, 480

U.S. 709, 717 (1987) (examining the expectation of privacy in the public workplace

setting). The “actual office practices and procedures” for the space at issue here militate

against a finding that Defendant had a reasonable expectation of privacy in either the space

itself or in the drawer where his phone was found. Thus, I would conclude that under these

circumstances, Defendant did not have a reasonable expectation of privacy in the drawer.

In State v. Talley, our supreme court concluded that, using the totality of the

circumstances test, the defendant did not have a reasonable expectation of privacy in the

common area of the condominium complex where he lived despite that he “had a 1/21st

ownership interest in the common areas of the building and the front entrance was locked

at all times” given that any resident “could grant entry into the common areas.” State v.

Talley, 307 S.W.3d 723, 734 (Tenn. 2010). Here, multiple people working at the restaurant

had access to the drawers, and other members of the management team, including Ms.

Kelso, routinely accessed drawers belonging to other team members. As our supreme court

observed, five federal circuit courts have found that “there is no reasonable expectation of

privacy in the common areas of an apartment building [because]tenants have little control

over those areas, which are available for the use of other tenants, friends and visitors of

other tenants, the landlord, delivery people, repair workers, sales people, postal carriers

and the like.” Id. at 733. In my view, the semi-transparent drawers are analogous to the

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common areas of an apartment complex in that they exist for the use of the management

team but are not areas that fall within the exclusive control of any member of the team.

Moreover, even if I could agree that Defendant maintained a reasonable expectation

of privacy in the drawer, I agree with the trial court that Ms. Kelso shared common

authority over the drawer and, accordingly, could have—and did—consent to the seizure

of any item therein. The question here, as the court observed in England, is “was it

reasonable to expect that” Ms. Kelso (or another employee) might consent to the search of

the drawers such “that Defendant assumed that risk?” England, 2020 WL 2110801, at *8

I would conclude, under the facts of this case, that Defendant assumed the risk of others

consenting to a search and that he “could not have expected” that the drawer “was his

personal property, free of any type of control by his employer.” Id. at *5 (citation omitted).

Valid consent exists when given “either by the individual whose property is searched or by

a third party who possesses common authority over the premises.” State v. Ellis, 89 S.W.3d

584, 592 (Tenn. Crim. App.2000) (citations omitted). “Co-user consent is effective

because the act of sharing property frustrates the owner’s reasonable expectation of privacy

with regard to the co-user.” United States v. King, 604 F.3d 125, 136 (3d Cir. 2010)

(holding that roommate’s consent to search and seizure of hard drive defendant placed in

shared computer was effective against defendant because defendant “assumed the risk that”

roommate would consent to its seizure (citing Georgia v. Randolph, 547 U.S. 103, 128

(2006) (Roberts, C.J., dissenting)). The principle of common authority or third-party

consent

does not rest upon the law of property . . . but rests rather on mutual use of

the property by persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of the co-inhabitants

has the right to permit the inspection in his own right and that the others have

assumed the risk that one of their number might permit the common area to

be searched.

United States v. Matlock, 415 U.S. 164, 172 n. 7 (1974); see Frazier v. Cupp, 394 U.S.

731, 740 (1969) (joint use of duffel bag validated third party’s consent to search).

Under the circumstances of this case, I would conclude that Detective Chambers'

request did not turn Ms. Kelso into a government agent such that her search of the drawers

and seizure of the phone violated the Fourth Amendment. The majority correctly observes

that our supreme court adopted a two-pronged test for when a private person qualifies as a

state agent. Here, Detective Chambers asked Ms. Kelso to see if Defendant’s phone was

inside the restaurant, but he did not ask her to search a particular area and, importantly, he

did not ask her to seize the phone. Instead, Ms. Kelso made the decision to go into the

office, retrieve Defendant’s phone from the drawer, and bring it to the detective. Based

upon the facts adduced below, it would be just as reasonable to conclude that Detective

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Chambers intended for Ms. Kelso search kitchen areas in plain view as it would be to

conclude that he intended for her to search an area that the police could not access without

a warrant. As the Sixth Circuit has explained, “[t]he private-search doctrine was imposed

to prevent the police from covertly deputizing private citizens to break the law, thereby

circumventing the state-action requirement and the Fourth Amendment’s strictures.”

United States v. Lang, 717 F. App’x 523, 541 (6th Cir. 2017). Only “when an ordinary

citizen invades another’s privacy at the government’s request and for the government’s

benefit” does he or she “become[] a government agent.” Id. (first citing United States v.

Boumelhem, 339 F.3d 414, 425 (6th Cir. 2003); and then United States v. Hardin, 539 F.3d

404, 418-19 (6th Cir. 2008)) (second emphasis in Lang). In my view, this situation is

analogous to that in Coolidge v. New Hampshire, where, upon being asked about the

presence of any guns in the home and the clothing Coolidge had been wearing on the

previous evening, Coolidge’s wife went into the couple’s bedroom, retrieved the guns and

clothing, and produced them for the police. Coolidge v. New Hampshire, 403 U.S. 443,

488-89 (1971). There, the Supreme Court found no Fourth Amendment violation. Id. at

489; see also United States v. Jacobsen, 466 U.S. 109, 119-20 (1984) (“The agent’s

viewing of what a private party had freely made available for his inspection did not violate

the Fourth Amendment.” (first citing Coolidge, 403 U.S. at 487-90; and then citing

Burdeau v. McDowell, 256 U.S. 465, 475-76 (1921)). I see no discernable difference

between Detective Chamber’s question whether Defendant’s phone might be in the

restaurant and the questions posed by police in Coolidge. Like Coolidge’s, wife, who

searched an area in which she had co-equal access and control, Ms. Kelso only searched

an area in which she shared the same degree of access and control as Defendant.

Additionally, I think that it is important that although Ms. Kelso seized Defendant’s

phone and gave it to the police, neither Ms. Kelso nor the police searched the contents of

Defendant’s phone without a warrant. As Justice Scalia stated when writing for the

majority in Arizona v. Hicks, “the interest protected by the Fourth Amendment injunction

against unreasonable searches is quite different from that protected by its injunction against

unreasonable seizures.” Arizona v. Hicks, 480 U.S. 321, 328 (1987) (citing Texas v. Brown,

460 U.S. 730, 747-48 (1983) (Stevens, J., concurring)). Justice Stevens explained:

Although our Fourth Amendment cases sometimes refer

indiscriminately to searches and seizures, there are important differences

between the two that are relevant to the plain view doctrine. The Amendment

protects two different interests of the citizen—the interest in retaining

possession of property and the interest in maintaining personal privacy. A

seizure threatens the former, a search the latter. As a matter of timing, a

seizure is usually preceded by a search, but when a container is involved the

converse is often true. Significantly, the two protected interests are not

always present to the same extent; for example, the seizure of a locked

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suitcase does not necessarily compromise the secrecy of its contents, and the

search of a stopped vehicle does not necessarily deprive its owner of

possession.

Brown, 460 U.S. at 747-48 (Stevens, J., concurring). “[O]ther circuits have recognized that

the third-party consent exception applies to seizures as well as searches and have applied

the same third-party consent analysis to both.” Bulfin v. Rainwater, 104 F.4th 1032, 1040

(8th Cir. 2024) (applying third-party consent analysis to seizure of family pet (first citing

United States v. Stabile, 633 F.3d 219, 232 (3d Cir.), cert. denied, 565 U.S. 942 (2011);

then United States v. James, 571 F.3d 707, 714 (7th Cir. 2009); and then United States v.

Hernandez-Zuniga, 215 F.3d 483, 487 (5th Cir. 2000)). Here, the seizure of Defendant’s

phone did not “compromise the secrecy of its contents,” which were only searched after

the police obtained a warrant. “[A] ‘seizure’ of property occurs when there is some

meaningful interference with an individual’s possessory interests in that property.”

Jacobsen, 466 U.S. at 113. Because Defendant was in jail when his phone was seized by

Ms. Kelso and given to detectives, I would conclude that the “temporary seizure of the

[phone] while the officers applied for a search warrant did not meaningfully interfere with

his possessory interests.” See United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012)

(holding that the defendant’s father [a former policeman] had common authority over the

defendant’s computers inside the family home such that he could consent to their seizure

even if he did not have common authority over the contents of the computers).

The police had probable cause to believe that Defendant’s phone would contain

evidence of a crime because he had been observed using a phone to record himself having

sex with a sixteen-year-old coworker. See United States v. Respress, 9 F.3d 483, 486 (6th

Cir. 1993) (stating that “because the officers obtained no new investigatory information

between the time of the seizure and the time they applied for the search warrant, if there

was probable cause to search the suitcase, there was ipso facto probable cause to seize the

suitcase”). “Where law enforcement authorities have probable cause to believe that a

container holds contraband or evidence of a crime, but have not secured a warrant, the

Court has interpreted the Amendment to permit seizure of the property, pending issuance

of a warrant to examine its contents, if the exigencies of the circumstances demand it or

some other recognized exception to the warrant requirement is present.” United States v.

Place, 462 U.S. 696, 701, 703 (1983) (approving brief seizure “to pursue further

investigation” when “the authorities possess specific and articulable facts warranting a

reasonable belief that a traveler's luggage contains narcotics”). The exception in this case

was Ms. Kelso’s voluntary consent to the seizure of the phone, which was in the drawer in

which Defendant had no reasonable expectation of privacy and over which Ms. Kelso had

common authority. See Fernandez v. California, 571 U.S. 292, 299-300 (2014) (stating

that “the consent of one who possesses common authority over premises or effects is valid

as against the absent, nonconsenting person with whom that authority is shared”) (citation

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omitted); see also State v. Woods, 806 S.W.2d 205, 209 (Tenn. 1990) (“A valid consent

may be given by third persons who have some type of joint authority over the area to be

searched.”); cf. Brown, 460 U.S. at 738 (stating that “‘plain view’ provides grounds for

seizure of an item when an officer’s access to an object has some prior justification under

the Fourth Amendment”).

Second, because I believe that the seizure of Defendant’s phone was valid, I do not

believe it is necessary to engage in an analysis of whether the police would have inevitably

discovered the phone during their investigation. Further, because neither party has raised

the issue of inevitable discovery on appeal, I believe that we are precluded from engaging

in such an analysis sua sponte. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (stating that

“[i]n our adversarial system of adjudication, we follow the principle of party presentation”

whereby the parties “frame the issues for decision” and the court serves as a “neutral arbiter

of matters the parties present” (quoting United States v. Sineneng-Smith, 590 U.S. 371, 375

(2020)).

Third, because I believe that the initial seizure of Defendant’s phone passes

constitutional muster, no constitutional issue arises from the inclusion of information

observed on the phone in the affidavit in support of the warrant to search Defendant’s

residence. I disagree with the majority’s assessment of the sufficiency of the affidavit, and

with the inclusion of the information gleaned from Defendant’s phone, under our

deferential standard of review, it is my view that the warrant contained sufficient

information to support the finding of probable cause to search the residence and that the

trial court did not err by denying the motion to suppress evidence seized from the residence.

See State v. Tuttle, 515 S.W.3d 282, 300 (Tenn. 2017) (observing that we “afford ‘great

deference’ to a magistrate’s determination that probable cause exists.” Id. at 300 (citations

omitted).

For these reasons, I concur in the results regarding the trial court’s denial of the

motion to suppress. I join the majority’s opinion regarding the remand to the trial court for

a new sentencing hearing for Defendant.

s/ Matthew J. Wilson

MATTHEW J. WILSON, JUDGE

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