State of Tennessee v. John A. Snider

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 4, 2015 Session

STATE OF TENNESSEE v. JOHN A. SNIDER

Appeal from the Circuit Court for Madison County

No. 13-473 Donald H. Allen, Judge

No. W2014-01848-CCA-R3-CD - Filed August 25, 2015

The Defendant, John A. Snider, pleaded guilty in the Circuit Court for Madison

County to three counts of possession of a controlled substance with the intent to sell,

simple possession of a controlled substance, possession of synthetic cannabinoid, and

possession of drug paraphernalia. See T.C.A. §§ 39-17-417 (Supp. 2012) (amended

2014) (possession of psilocybin, marijuana, diazepam, alprazolam with intent to sell), 39-

17-418 (2010) (amended 2014) (simple possession of oxycodone), 39-17-425 (2014)

(possession of drug paraphernalia), 39-17-438 (Supp. 2012) (amended 2013, 2014, 2015)

(possession of synthetic cannabinoids). The trial court sentenced the Defendant to an

effective ten years, ordered him to serve eleven months, twenty-nine days in

confinement, and ordered him to serve the remainder on community corrections. On

appeal, the Defendant presents a certified question of law regarding the legality of the

warrantless entry into the Defendant’s home and the seizure of the Defendant from his

doorway. We dismiss the appeal because the certified question is not dispositive of the

case.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and ROGER A. PAGE, JJ. joined.

Lee R. Sparks (on appeal), Jerry M. Mosier (at the guilty plea hearing), and David Camp

(at the suppression hearing), Jackson, Tennessee, for the appellant, John A. Snider.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to a “knock and talk” encounter at the Defendant’s home on

January 9, 2013, and to the seizure of the Defendant from his doorway by an officer. The

Defendant was detained and held in an officer’s vehicle while a search warrant for his

home was obtained. After the search warrant was executed, the Defendant was arrested

for multiple drug-related offenses. The Defendant filed a motion to suppress the

evidence obtained during the search, alleging that the search was tainted by the officer’s

prior unlawful warrantless entry into the Defendant’s home and by the unlawful detention

of the Defendant.

At the suppression hearing, Madison County Sheriff’s Office Investigator Tikal

Greer testified that on January 9, 2013, he and other officers went to the Defendant’s

home after receiving two anonymous tips from Crime Stoppers that the Defendant was

growing marijuana. Officer Greer arrived at the Defendant’s home around 6:25 p.m.

without a warrant to conduct a knock and talk.

Officer Greer testified that he and another officer went to the front door and

knocked several times. He heard music coming from inside the house. He said the

Defendant opened the door “[p]robably shoulder width.” Officer Greer said that he

immediately smelled the odor of marijuana once the door was opened. He said that he

had worked in the narcotics division for five years and that he had smelled marijuana

numerous times. The officers explained to the Defendant why they were there, and the

Defendant told the officers that he would not consent to a search of his home. Officer

Greer said they told the Defendant that they were not asking for his consent to search his

home. Officer Greer said that the Defendant attempted to close the door and that Officer

Greer “got [the Defendant] out” and detained him to prevent the Defendant from

destroying the marijuana Officer Greer suspected was inside the home. Officer Greer left

the scene to obtain a search warrant.

Officer Greer returned with the warrant and the home was searched. He said that

officers found 6.2 pounds of marijuana and seventy-three jars of fermented psilocybin

mushrooms. In four or five of the jars, the mushrooms were growing. The police also

found equipment for cultivating marijuana and mushrooms, six ounces of “hashite,” 2.5

ounces of synthetic cannabinoids, 169 pills of assorted controlled substances, and

approximately $2000 in cash.

On cross-examination, Officer Greer testified that he received the first anonymous

tip regarding the Defendant around December 18, 2012. The officers began driving past

the Defendant’s home twice daily and also conducted nighttime surveillance. Officer

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Greer said the surveillance was unproductive. He said that the officers discussed a “trash

pull” but that they decided to conduct a knock and talk instead. The officers did not

conduct regular surveillance between Christmas and New Year’s.

Officer Greer testified that he received the second anonymous tip on January 3,

2013. Surveillance resumed, but no unlawful activity was observed. Officer Greer stated

that he was not frustrated or irritated at the lack of suspicious activity at the Defendant’s

home and agreed that he had no specific reason to conduct the knock and talk on January

3.

Officer Greer agreed that a weather report from the day of the search showed

temperatures in the low 50’s with rain and 5.8 to 6.9 m.p.h. wind speeds. He said he

smelled the marijuana despite the weather.

Officer Greer testified that he knocked for two or three minutes before the

Defendant opened the door. Officer Greer agreed music was playing inside the home and

said it was possible the Defendant did not hear the initial knock.

Officer Greer testified that he placed his foot inside the front door to “grab” the

Defendant and to ensure the Defendant did not close the door. He said the Defendant

was standing at the door. Officer Greer said that it took about two hours to obtain the

search warrant and return and that the other officers reported no one entered or left the

home while he obtained the warrant.

Officer Greer testified that the raw marijuana he smelled initially was found in the

Defendant’s bedroom, ten to fifteen feet from the front door. The Defendant’s bedroom

door was open when officers entered. Marijuana was found in plastic containers, in jars,

and loose on the bedroom dresser.

On redirect examination, Officer Greer testified that he was approximately two

feet from the front door when the Defendant opened it, that he leaned in closer to smell,

and that the home smelled of raw marijuana.

The trial court denied the Defendant’s motion to suppress. The court reviewed the

search warrant and credited Officer Greer’s testimony. The court stated that an officer

“has a right to detain someone who the officer believes is attempting to perhaps destroy

evidence.” The court found that Officer Greer’s testimony supported a conclusion that

the marijuana would have been destroyed if the Defendant had closed the door. The

court noted that the detention was brief and concluded that based on the totality of the

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circumstances, the officers did not violate the Defendant’s rights. The court stated that

the officers had a right to approach the Defendant’s home. The court also stated,

They approached the residence and smelled marijuana coming from inside .

. . it would appear that there’s quite a bit of carpeting . . . fabric and

material of that nature would absorb the odor of marijuana and it would be

apparent, so I credit the testimony when the officer said he could smell

marijuana[.]

After the suppression hearing, the Defendant pleaded guilty on all counts, and

pursuant to his plea agreement reserved one certified question for appeal:

Whether the warrantless entry and subsequent search of the Defendant’s

home by officers . . . on or about January 9, 2013, violated the

defendant’s rights granted pursuant to the Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution and Article I, Sections 7,

8, and 9 of the Tennessee Constitution and whether any evidence

obtained as a result of said search should be suppressed as the fruits of an

unconstitutional search in that:

a. The original forcible entry and detention of the Defendant was made

without a warrant and without the consent of the defendant,

b. There were no exigent circumstances present to justify the original

warrantless entry and search [the Court having found that exigent

circumstances existed because of the strong odor of marijuana

coming from inside the Defendant’s residence which was detected

by the officers as they stood just outside the front door of the

defendant’s residence], and

c. The consensual nature of the knock and talk procedure was

effectively nullified by the action of the officers, resulting in the

Defendant’s unlawful detention and ultimate unlawful search [the

Court having found that the Defendant attempted to close the front

door of his residence which caused the officers to enter the residence

to prevent possible destruction of evidence of drug activity].

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Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can be

taken from a plea of guilty if the Defendant enters into a plea agreement and explicitly

reserves with the consent of the State and the trial court a certified question of law that is

dispositive of the case. See Tenn. R. Crim. App. 37(b)(2)(A)(i)-(iv); State v. Armstrong,

126 S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either

affirm the judgment or reverse and dismiss. An issue is never dispositive when we might

reverse and remand[.]” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).

Furthermore, the fact that the defendant, the State, and the trial judge have agreed the

issue is dispositive does not bind this court. State v. Preston, 759 S.W.2d 647, 651

(Tenn. 1988). “[T]he appellate courts must . . . determine if the record on appeal

demonstrates how that question is dispositive of the case . . . If the appellate court does

not agree that the certified question is dispositive, appellate review should be denied.”

Id. (citing State v. Jennette, 706 S.W.2d 614, 615 (Tenn. 1986)); see State v. Dailey, 235

S.W.3d 131, 134-5 (Tenn. 2007).

The record reflects that the trial court confirmed the dispositive nature of the

certified question in an order and the judgments. It appears that the court and the parties

assumed that the initial entrance and seizure and detention of the Defendant affected the

validity of the search warrant. However, even if the investigator detained the Defendant

in a manner that exceeded constitutional limits, we conclude that the search warrant

remained valid.

The search warrant was based on the anonymous tips and the smell of marijuana,

all of which were known before the officer placed his foot inside the residence and

physically seized the Defendant.1 A neutral and detached magistrate determined that the

anonymous tips, as corroborated by Officer Greer’s observations, gave rise to probable

cause that the house contained marijuana. This court treats that determination with

deference. See Illinois v. Gates, 462 U.S. 213, 236 (1983), State v. Jacumin, 778 S.W.2d

430, 431 (Tenn. 1989). Furthermore, the police obtained no information or evidence to

secure the warrant as a result of seizing and detaining the Defendant before execution of

the search warrant. Because the legality of the initial detention does not affect the

admissibility of the evidence obtained pursuant to the search warrant, the certified

question is not dispositive. The Defendant is not entitled to relief.

1

At oral argument, defense counsel raised for the first time whether the Defendant was seized

before opening the door due to the authoritative nature of the knocking, which affected the validity of the

warrant. Issues which are raised for the first time on appeal will be treated as waived. See Tenn. R. App.

P. 36(a); State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996).

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In consideration of the foregoing and the record as a whole, we conclude that the

certified question is not dispositive of the case. As a result, we lack jurisdiction and

dismiss the appeal.

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ROBERT H. MONTGOMERY, JR., JUDGE

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