State of Tennessee v. Bruce Wayne Sutton

05/19/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 15, 2017 Session

STATE OF TENNESSEE v. BRUCE WAYNE SUTTON

Appeal from the Circuit Court for Lincoln County

No. 2014-CR-135 Forest A. Durard, Jr., Judge

___________________________________

No. M2016-00284-CCA-R3-CD

___________________________________

Defendant, Bruce Wayne Sutton, pled guilty to attempted initiation of a process to

manufacture methamphetamine and received a sentence of nine years and six months. As

part of his plea agreement, Defendant reserved two certified questions of law pursuant to

Tennessee Rule of Criminal Procedure 37(b)(2)(A) with regard to the trial court’s denial

of his motion to suppress evidence obtained during a warrantless search of a residence.

Upon our review of the record and applicable authorities, we determine that based upon

his disclaimer of interest in the property, Defendant was without standing to complain

about the search. Therefore, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Elizabeth A. Russell (on appeal), Franklin, Tennessee, and M. Wesley Hall IV (at

hearing), Unionville, Tennessee, for the appellant, Bruce Wayne Sutton.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Robert Carter, District Attorney General; and Ann L. Filer, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

On June 19, 2013, officers with the Lincoln County Sheriff’s Department

conducted a warrantless search of a residence on Village Park Drive in Fayetteville,

Tennessee. As a result of evidence discovered during that search, Defendant was

indicted by the Lincoln County Grand Jury of one count of initiating a process to

manufacture methamphetamine, one count of promotion of methamphetamine

manufacture, one count of possession of .5 grams or more of methamphetamine for sale,

one count of possession of .5 grams or more of methamphetamine for delivery, and one

count of possession of drug paraphernalia.1

The procedural history of this case is quite extensive and complicated given the

fact that Defendant was represented by no less than four attorneys in the trial court, the

case was continued numerous times, some documents were filed under different case

numbers because of the superseding indictment, and Defendant filed multiple pro se

motions relating to both this case and two other unrelated cases. For the sake of clarity,

we will attempt to summarize the procedural history and hearing testimony with regard to

only the issue presently before this Court under the certified questions of law, namely the

suppression of evidence obtained from the search of the residence on Village Park Drive.

On February 20, 2014, Defendant, represented by the Public Defender’s Office,

filed a motion to suppress the evidence from the search on the grounds that his wife’s

consent to search was invalidly obtained over Defendant’s refusal. On April 3, 2014,

retained counsel filed a motion to reinstate and resume the motion to suppress. This

motion references a hearing that was commenced on March 4, 2014, during which

Defendant supposedly withdrew his motion to suppress, but no transcript of that hearing

appears in the record.2 The trial court denied the motion to reinstate on May 20, 2014.

After the issuance of the superseding indictment and the appointment of subsequent

counsel, the trial court allowed Defendant to renew any previously filed motions,

including the motion to suppress. On January 6, 2015, subsequent counsel filed a motion

to suppress, contending that Defendant did not consent to the search and that his wife’s

consent was invalid. Subsequent counsel eventually withdrew and trial counsel was

appointed. After Defendant filed a plethora of pro se motions while represented by

1

Case number 2014-CR-135 is a superseding indictment issued on September 23, 2014. The

original indictment, case number 2013-CR-128, does not appear in the record on appeal.

2

We remind Defendant that he, as the appellant, bears the burden of preparing an adequate record

on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have

prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate

and complete account of what transpired with respect to those issues that are the bases of appeal,” see

Tenn. R. App. P. 24(b).

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counsel, the trial court allowed Defendant to represent himself over the objection of the

State, appointing trial counsel as advisory counsel. An evidentiary hearing was held on

the motion to suppress on December 18, 2015.3

At the evidentiary hearing, Detective Mike Pitts testified that he was a narcotics

investigator with the Lincoln County Sheriff’s Department. Detective Pitts noticed

Defendant’s name on a list of pseudoephedrine purchases. The list indicated two

addresses for Defendant, one in Hamilton County and one on Village Park Drive in

Lincoln County. Detective Pitts learned that Defendant had prior methamphetamine-

related charges. The report also indicated that Heather Hill4 resided at the Village Park

address. Detective Pitts stated that he was not aware of Ms. Hill’s relationship with

Defendant at the time.

Detective Pitts went to the residence on Village Park Drive to conduct a knock and

talk “around lunchtime” on June 19, 2013. As Detective Pitts parked his vehicle, Ms.

Hill exited the front door of the residence and walked toward her vehicle parked in the

driveway; Detective Pitts observed a child inside of the vehicle. Detective Pitts identified

himself and asked if Defendant was there. Ms. Hill indicated that Defendant was inside

the house, and Detective Pitts asked her to bring him outside. Defendant came outside

and spoke to Detective Pitts. Detective Pitts identified himself, explained why he was

there, and asked for consent to search the residence. According to Detective Pitts,

Defendant responded that “he could not consent to a search of the residence, due to the

fact it was not his residence to allow [Detective Pitts] to search.” Because Defendant

“also provided information that there could possibly be items inside the residence to

make meth with,” Detective Pitts sought consent to search from Ms. Hill. Ms. Hill

agreed and signed a consent to search form, which was entered into evidence.

3

At the suppression hearing, the trial court stated that “the motion to suppress that I have is stamp

filed October 26th of this year,” which was apparently filed under the original case number rather than the

superseding case number. However, while there are numerous references in the record to a pro se motion

to suppress, we can find no such motion filed after January 6, 2015, specifically addressing the

suppression of evidence found during the allegedly unconstitutional search. However, the issue litigated

at the suppression hearing appears to be the same as the issue presented in both the February 20, 2014 and

January 6, 2015 motions. Additionally, the trial court’s order thoroughly details its findings of fact and

conclusions of law. Therefore, we do not deem the issue waived for failure to provide an adequate record

on appeal. See Ballard, 855 S.W.2d at 560.

4

The woman identified by Detective Pitts as Heather Hill testified at the suppression hearing and

identified herself as Heather Hill Sutton, Defendant’s wife. However, the consent form entered into

evidence shows that she signed her name as Heather Lynn Hill. Therefore, for consistency, we shall refer

to her as Ms. Hill throughout this opinion. We mean no disrespect thereby.

-3-

Detective Pitts then entered the residence with Ms. Hill, Defendant, and Deputy

Patrick Murdock, who had arrived at the residence a few minutes after Detective Pitts.

Detective Pitts was told that no one else was in the residence. Defendant and Ms. Hill

remained in the living room with Deputy Murdock. Detective Pitts entered the master

bedroom and discovered a man sitting on the bed; the man was later determined to be

Mark Kindred, who was charged as a codefendant. Detective Pitts brought Mr. Kindred

into the living room and then returned to search the bedroom because he smelled “an

odor of chemicals . . . close to the bed.” Detective Pitts discovered the evidence at issue

in the master bedroom and bathroom, including lithium batteries, wet coffee filters with a

“fuel smell,” and “a jar that contained a liquid that you could see methamphetamine sunk

to the bottom in.” Ms. Hill denied having ever seen those items before and denied any

knowledge of methamphetamine being produced in the house. As Defendant was being

arrested and escorted out of the house, he “sarcastically” thanked Ms. Hill for consenting

to the search and stated that “she was putting him back in prison.”

During cross-examination, Defendant attempted to enter his marriage certificate

into evidence to show that Ms. Hill was his wife and that her name was in fact Heather

Sutton. Detective Pitts testified that he reviewed the report on pseudoephedrine

purchases for people in Lincoln County who make multiple purchases. The report listed

the person’s name, driver’s license number, date of birth, and known associated

addresses. Detective Pitts testified that he went to the Village Park address to speak to

Defendant because that was the only listed address in Lincoln County. Defendant entered

the arrest warrant into evidence which listed his address as the residence on Village Park

Drive. Detective Pitts agreed that he obtained that information from Defendant’s driver’s

license after he was arrested. Detective Pitts testified that Defendant was not under arrest

at the time Ms. Hill signed the consent form and the officers conducted the search.

Detective Pitts denied threatening Ms. Hill in order to obtain her consent to search.

Detective Pitts agreed that there were no exigent circumstances. Detective Pitts testified

that the evidence was ultimately destroyed due to its volatility.

When Defendant attempted to ask Detective Pitts about the presence of his

belongings inside the house, such as male clothing or photographs, the State objected to

the question being irrelevant and outside the scope of the consent issue. The trial court

overruled the objection as follows:

Well, you know, that kind of gets to a standing issue. I think it’s

relevant whether it’s his house or not.

Here’s the problem. You’ve got - - whether it’s your house or not,

it’s called the doctrine of disclaimer.

And that’s a big problem in this case.

-4-

Deputy Patrick Murdock testified that in June of 2013, he worked as a canine

handler with the Lincoln County Sheriff’s Department. On June 19, 2013, Deputy

Murdock went to the Village Park residence with his canine to assist Detective Pitts.

When Deputy Murdock arrived, Detective Pitts was in the yard and Defendant was

“about to come out, or he might have already been on the porch.” Ms. Hill was also

present; Deputy Murdock did not know her relationship to Defendant. Deputy Murdock

did not observe anyone inside the vehicle in the driveway. Deputy Murdock’s canine

remained inside of his patrol vehicle.

Deputy Murdock observed Detective Pitts talking to Defendant and asking for

consent to search the house. As to Defendant’s response, Deputy Murdock testified, “I

remember he said that he couldn’t give consent. And I believe he said that he maybe

didn’t live there. That for whatever reason, he couldn’t give consent to search the

house.” Detective Pitts then went to Ms. Hill and obtained written consent to search the

house while Deputy Murdock stood by Defendant on the porch. Deputy Murdock did not

remember if Defendant said anything but described him as “looking in their direction,

and kind of basically like kind of telling her, maybe without telling her, don’t do this. I

mean, his body language and, you know, what he was doing gave me the impression that

he was trying to say don’t sign it.” The following colloquy then occurred:

[Prosecutor]: And to make sure I’m clear on your testimony. Did you hear

what the [D]efendant told [Detective] Pitts, when [Detective] Pitts

asked permission to search the house?

[Deputy Murdock]: He said that he couldn’t give consent. I remember that.

[Prosecutor]: Did you say he could not give consent or he would not give

consent?

[Deputy Murdock]: One of the - - I’m not sure.

Deputy Murdock did not remember hearing Defendant explain to either himself or

Detective Pitts who the house belonged to or why Defendant was staying there.

Deputy Murdock denied saying anything to Ms. Hill about her children, anything

about the Department of Children’s Services (“DCS”), or anything to attempt to influence

her to sign the consent form. Deputy Murdock signed the consent form as a witness.

While Detective Pitts searched the residence, Deputy Murdock remained in the living

room “to make sure, you know, everybody kind of stayed where they were.” Defendant

sat on a couch in the living room along with the person Detective Pitts discovered in the

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bedroom. At the conclusion of the search, both Defendant and the other person were

placed into custody.

On cross-examination, Deputy Murdock testified that he did not remember having

Defendant’s driver’s license but that it would not surprise him if one of the officers had it

in order to run Defendant’s information through their database. Deputy Murdock could

not remember if Ms. Hill signed the consent form by the vehicles or by the front porch.

Deputy Murdock remembered Defendant’s “making some kind of gestures . . . . [t]rying

to get her maybe not to do it, not to sign it.” Deputy Murdock agreed that Defendant did

not appear to want Ms. Hill to sign the consent form and that Defendant did not sign it

himself. Deputy Murdock explained:

You [Defendant] were saying that you couldn’t give consent for whatever

reason, it was Heather Hill’s house. And [Detective] Pitts went and talked

to her, with it being her house. And she gave consent to search the house.

Deputy Murdock denied mentioning Ms. Hill’s children or hearing “any comments about

threatening to arrest everybody if they didn’t get the consent paper signed[.]”

Defendant called Ms. Hill to testify, and she identified herself as his wife, Heather

Hill Sutton. She testified that when Detective Pitts arrived on June 19, 2013, she had just

pulled into the driveway and parked in front of the garage. She explained that she was

going to an appointment but had returned to the house to get something. She could not

remember where Detective Pitts parked his vehicle but believed that it was in the

driveway. Ms. Hill testified that she purchased the home on Village Park Drive before

she married Defendant, that Defendant was living in the home in June of 2013, and that

Defendant kept at the house his clothing and “most of [his belongings], what [he] didn’t

have at [his] mother’s.” Ms. Hill could not remember why she had signed the consent

form with the name Heather Hill instead of Heather Sutton but explained that she had

“been signing that name for 15 years.” Ms. Hill stated that “the whole day [was] a blur”

and that she could not remember why she signed the consent form other than the fact that

it was presented by a police officer. Ms. Hill denied that any threats or promises were

made to get her to sign the form.

Defendant asked Ms. Hill if she had told him over the phone that Detective Pitts

threatened to take her kids away if she did not sign the consent form, which Ms. Hill

denied. Defendant attempted to enter into evidence a letter written by Ms. Hill to his

former attorney, but she could not recall if the letter pertained to this case or a case out of

Hamilton County. Defendant asked Ms. Hill about several statements she supposedly

made during phone calls with him, specifically that Detective Pitts told her that she

would sit there until he got a warrant if she did not sign the consent form, that she was

worried that her kids would be taken away, that Detective Pitts bullied her, and that

-6-

Defendant told her not to let the officers into the house. Each time, Ms. Hill responded

that she could not remember “if it’s been in the last two years.”

While Defendant was attempting to play recorded phone calls to impeach Ms.

Hill’s testimony, the trial court stated that it “question[ed] whether this is relevant” based

on the facts in evidence thus far. The trial court noted that Detective Pitts did not need

probable cause to conduct a knock and talk. The trial court also noted that once

Defendant “[d]isclaimed possessory interest in the house,” Detective Pitts went to Ms.

Hill to obtain consent to search. The trial court then stated, “the question in my mind is,

all right, once he disclaimed the ownership or any possessory interest in the property,

then it doesn’t matter whether her consent was overborne by anything that [Detective]

Pitts did, because [Defendant] disclaimed his interest. So therefore, he lost his standing.”

After Defendant played a recording of one of the recorded phone calls, Ms. Hill

still did not remember making any of those statements. She explained that she had been

in a car wreck and “had memory loss pertaining to everything.” She agreed that

Defendant did not tell her what to say on the phone call and that it was her voice in the

recording. Ms. Hill stated that she told Defendant what she thought he wanted to hear

and that she had read about illegal searches and seizures in a law book. Ms. Hill stated

that she lied to Defendant during the phone call because she “didn’t want your sister or

your mother burning my house down.”

Defendant then called Chelsea Seibers, his step-daughter, to testify. Ms. Seibers

stated that when Detective Pitts pulled up, she was in the car with her two brothers.

Detective Pitts pulled up behind the car. Ms. Seibers was sitting in the front passenger

seat and the engine was not running. Ms. Seibers explained that her mother, Ms. Hill,

was going to take her to a disability hearing in Tullahoma but that they got a call to return

to the house. Ms. Seibers agreed that they were running late for the appointment. Ms.

Seibers testified that she was fifteen at the time and that she was scared when the police

showed up. Ms. Seibers agreed that Defendant was inside the house when Detective Pitts

pulled up and that Detective Pitts spoke to her mother to bring Defendant outside. Ms.

Seibers denied seeing Defendant’s driver’s license that day.

The trial court asked Defendant about the relevance of Ms. Seibers’s testimony.

Defendant explained that he wanted to introduce a phone call in which she stated that she

had seen his license and that his license listed his address as Village Park Drive. The trial

court stated, “it doesn’t seem to me that that issue is contested that your driver’s license

said . . . Village Park Drive on it.” Ms. Seibers testified that she saw Deputy Murdock

exit the house with something in his hands but that she could not see what it was from

inside of the car.

-7-

Defendant then recalled Deputy Murdock to ask if he placed a call to dispatch

while he had Defendant’s license. The trial court again stated that the address on the

license was not a contested issue. Defendant explained that he was trying to impeach the

officers’ testimony that they did not know the Village Park residence was his home

address.

Defendant then testified on his own behalf. He denied telling Detective Pitts that

he did not live at the Village Park residence. He stated that Detective Pitts asked him if

“there [were] any chemical or methamphetamine components in the house.” He stated

that Detective Pitts did not show him the consent form or allow him to read it. Defendant

explained that when the consent form was signed, he and his wife were sitting on the

front porch and Detective Pitts and Deputy Murdock were standing over them and that

his three step-children were in the car less than fifteen feet away. When Detective Pitts

asked Defendant to sign the consent form, Defendant responded “No, I will not sign the

consent paper.” Defendant stated that Detective Pitts threatened that, if the consent form

was not signed, he was going to call DCS on Ms. Hill’s children or force them to stay on

the porch while he obtained a warrant. Defendant stated that when Detective Pitts first

arrived, he asked Defendant for his identification, and Defendant gave Detective Pitts his

driver’s license with the Village Park address on it. Defendant stated that while they

were sitting on the front porch, he asked his wife not to sign the consent form. Defendant

stated that he did not feel free to leave either while the consent form was being signed or

while he was sitting on the couch during the search. Defendant stated that he never got

his license back and that he had to go to the “DMV” to get another one.

On cross-examination, Defendant testified that even though he did not know

Detective Pitts prior to that day, Detective Pitts was out to get him “[b]ecause he’s a

cop.” Defendant believed that Detective Pitts was lying about what happened that day

and that Deputy Murdock, Ms. Hill, and Ms. Seibers had all lost their memory about

what happened. Defendant stated that while he was sitting on the front porch with the

officers standing over him, he felt threatened. Defendant did not feel coerced because

when Detective Pitts asked him to sign the consent form, Defendant said “no.” When

Detective Pitts asked Ms. Hill to sign the form, Defendant believed that she was being

threatened and coerced. Defendant told Ms. Hill not to sign the form.

The trial court filed a written order denying the motion to suppress on January 5,

2016. The trial court accredited the testimony of Detective Pitts that Defendant stated he

could not give consent to search because it was not his residence. The trial court

concluded that Defendant did not have standing to challenge the search because he

disclaimed his interest in the property, citing State v. Ross, 49 S.W.3d 833 (Tenn. 2001),

and Christopher A. Davis v. State, No. M2005-02146-CCA-R3-PC, 2007 WL 1174903

(Tenn. Crim. App. Apr. 19, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The trial

court noted that had Defendant simply denied consent without disclaiming a possessory

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interest, Ms. Hill’s consent to search would have been invalid against Defendant under

Georgia v. Randolph, 547 U.S. 103, 120 (2006) (holding that consent by one resident

cannot justify a warrantless search of a dwelling over the express refusal of a present co-

resident).

Defendant then pled guilty to the amended charge of attempted initiation of a

process to manufacture methamphetamine, a class C felony, with an agreed sentence of

nine years and six months to be served at 35%. Defendant’s sentence was to run

concurrently with his sentences in two unrelated cases. The remaining counts of the

indictment were dismissed. At the plea acceptance hearing on January 5, 2016, advisory

counsel stated that “there is another material component to this plea agreement; and that

is, that [Defendant has] two certified questions of law that he’d like to reserve for

appeal.” The trial court stated that it would “approve the certification of the question of

law regarding the search.” All of the parties agreed that the question was dispositive

because suppression of the evidence obtained during the search would result in dismissal

of the prosecution. Defendant also referenced an issue with regard to the destruction of

the evidence and his inability to independently test it, but the trial court stated that it did

not believe that issue was dispositive. At the conclusion of the hearing, the trial court

agreed to delay entering final judgments in order to allow advisory counsel time to draft

an order containing the certified questions of law with the assistance of appellate

counsel.5 However, the judgment forms show that they were entered and filed on January

5, 2016, and do not contain any reference to the certified questions of law.

On January 21, 2016, Defendant filed a pro se motion to withdraw his guilty plea

on the ground that the judgment forms did not contain the agreed upon certified questions

of law and that he entered his guilty plea under duress. On February 4, 2016, the trial

court filed an order, pursuant to Tennessee Rule of Administrative Procedure 37(b),

preserving the following certified questions of law for review:

1.) Whether the trial court properly determined the [D]efendant abandoned

his privacy or possessory interest in his residence under the “doctrine of

disclaimer” and, thereby, allowing the use by the State of all evidence

seized in the residence for prosecution for initiation to manufacture

methamphetamine, overruling [D]efendant’s “Motion to Suppress.”

2.) Whether the tr[ia]l court properly determined that the warrantless

(consent) search by law enforcement of the home of the [D]efendant

was proper as required by the 4th and 14th Amendments to the United

5

This Court eventually allowed Defendant’s original appellate counsel to withdraw and

appointed current appellate counsel.

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States Constitution and Article I, sections 7 and 8 of the Tennessee

Constitution[.]

The order stated that the trial court, the State, and Defendant were all of the opinion that

the certified questions were dispositive of the case. Defendant, through appellate

counsel, filed a notice of appeal on February 8, 2016.

On February 16, 2016, the trial court held a hearing on Defendant’s motion to

withdraw his guilty plea, during which the trial court stated that the judgments were

actually entered on February 8 rather than on January 5, 2016.6 The trial court denied the

motion to withdraw the guilty plea, finding that Defendant did not enter his plea under

duress due to lack of sleep or missed medications. The trial court noted that the certified

questions with regard to the constitutionality of the search had been preserved and

reiterated that the issue with regard to the subsequent destruction of the evidence was not

dispositive.7 On June 24, 2016, the trial court entered an order setting aside a previously

entered waiver of appeal that was inadvertently entered in this case. See Tenn. R. Crim.

P. 36 (allowing the trial court to correct clerical errors in the record at any time).

Analysis

Certified Questions of Law

Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows for an appeal from any

order or judgment on a conditional plea of guilty or nolo contendere if the defendant

reserves, with the consent of the State and the trial court, the right to appeal a certified

question of law that is dispositive of the case, so long as the following four requirements

are met:

(i) the judgment of conviction or order reserving the certified question that

is filed before the notice of appeal is filed contains a statement of the

certified question of law that the defendant reserved for appellate review;

6

Perhaps because of this confusion over the actual filing date of the final judgments in this case,

the State has not asserted that the notice of appeal was untimely. See Tenn. R. App. P. 4(a). Regardless,

the notice of appeal is not jurisdictional in criminal cases and may be waived in the interest of justice. Id.

7

On February 17, 2016, Defendant filed an amended motion to withdraw his plea in order to add

the case numbers from his other unrelated cases, which the trial court had refused to consider at the

February 16 hearing. The amended motion was denied April 19, 2016.

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(ii) the question of law as stated in the judgment or order reserving the

certified question identifies clearly the scope and limits of the legal issue

reserved;

(iii) the judgment or order reserving the certified question reflects that the

certified question was expressly reserved with the consent of the state and

the trial court; and

(iv) the judgment or order reserving the certified question reflects that the

defendant, the state, and the trial court are of the opinion that the certified

question is dispositive of the case[.]

Tenn. R. Crim. P. 37(b)(2)(A). For a certified question to be dispositive, “this [C]ourt

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).

The Tennessee Supreme Court further detailed the requirements for certified

questions of law in State v. Preston:

Regardless of what has appeared in prior petitions, orders, colloquy in open

court or otherwise, the final order or judgment from which the time begins

to run to pursue a T[ennessee] R[ule of] A[ppellate] P[rocedure] 3 appeal

must contain a statement of the dispositive certified question of law

reserved by [the] defendant for appellate review and the question of law

must be stated so as to clearly identify the scope and the limits of the legal

issue reserved. For example, where questions of law involve the validity of

searches . . ., the reasons relied upon by [the] defendant in the trial court at

the suppression hearing must be identified in the statement of the certified

question of law and review by the appellate courts will be limited to those

passed upon by the trial judge and stated in the certified question, absent a

constitutional requirement otherwise. Without an explicit statement of the

certified question, neither the defendant, the State nor the trial judge can

make a meaningful determination of whether the issue sought to be

reviewed is dispositive of the case. . . . Also, the order must state that the

certified question was expressly reserved as part of a plea agreement, that

the State and the trial judge consented to the reservation and that the State

and the trial judge are of the opinion that the question is dispositive of the

case. Of course, the burden is on [the] defendant to see that these

prerequisites are in the final order and that the record brought to the

appellate courts contains all of the proceedings below that bear upon

whether the certified question of law is dispositive and the merits of the

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question certified. No issue beyond the scope of the certified question will

be considered.

759 S.W.2d 647, 650 (Tenn. 1988). These requirements are mandatory in order to confer

jurisdiction on an appellate court following the entry of a guilty plea. State v.

Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); see also State v. Armstrong, 126

S.W.3d 908, 912 (Tenn. 2003) (rejecting “substantial compliance” with the Preston

requirements). The burden of properly “reserving, articulating, and identifying the issue”

reserved for appellate review rests solely on the defendant. Pendergrass, 937 S.W.2d at

838.

The judgment forms in this case make no mention of the reservation of a certified

question of law, even though it was discussed at the plea acceptance hearing as being a

“material component” of the agreement. The judgment is marked “Pled Guilty” rather

than “Pled Guilty – Certified Question Findings Incorporated by Reference,” and the only

notation in the “Special Conditions” box are the words “To Serve.” Likewise, the

accompanying plea petition and order accepting the guilty plea make no mention of the

certified questions of law. In apparent recognition of this oversight, Defendant filed a pro

se motion to withdraw his guilty plea, noting that “the plea w[as] entered pre-mature as to

the certified question of law.” On February 4, 2016, the trial court entered a

supplemental order preserving the certified questions of law and stating that the trial

court, the State, and Defendant were all of the opinion that the certified questions were

dispositive of the case. The notice of appeal was then filed on February 8, 2016. Our

supreme court has held that even when the judgment forms do not contain or specifically

incorporate the certified questions, the trial court may file a supplemental order while it

retains jurisdiction prior to the filing of the notice of appeal. Armstrong, 126 S.W.3d at

912; see also Pendergrass, 937 S.W.2d at 837 (holding that the filing of the notice of

appeal vests jurisdiction in the appellate court and the trial court may not thereafter

amend its judgment). Therefore, the certified questions of law in this case have been

properly reserved for review by this Court.

Standard of Review

Both of Defendant’s certified questions of law relate to the trial court’s denial of

his motion to suppress evidence obtained from the warrantless search of the residence on

Village Park Drive. In reviewing a trial court’s ruling on a motion to suppress, this Court

will uphold the trial court’s findings of fact unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing in the trial court is

afforded “the strongest legitimate view of the evidence and all reasonable and legitimate

inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998). Questions concerning the “credibility of the witnesses, the weight and

value of the evidence, and resolution of conflicts in the evidence are matters entrusted to

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the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. However, our review of the

trial court’s application of the law to the facts is de novo, with no presumption of

correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

Question 1: Standing and the “Doctrine of Disclaimer”

Defendant’s first certified question of law states:

1.) Whether the trial court properly determined the [D]efendant abandoned

his privacy or possessory interest in his residence under the “doctrine of

disclaimer” and, thereby, allowing the use by the State of all evidence

seized in the residence for prosecution for initiation to manufacture

methamphetamine, overruling [D]efendant’s “Motion to Suppress.”8

Both the Fourth Amendment to the United States Constitution and Article I,

section 7, of the Tennessee Constitution prohibit unreasonable searches and seizures.

Under both provisions, “a warrantless search or seizure is presumed unreasonable, and

evidence discovered as a result thereof is subject to suppression” unless conducted

pursuant to one of the exceptions to the warrant requirement. State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997). However, warrantless searches and seizures of

abandoned property do not violate the Fourth Amendment. See Abel v. United States,

362 U.S. 217 (1960).

Fourth Amendment rights are personal in nature and “‘may not be vicariously

asserted.’” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (quoting Alderman v. United

States, 394 U.S. 165, 174 (1969)). “[T]he state and federal constitutional protections ‘are

implicated only when a police officer’s interaction with a citizen impermissibly intrudes

upon the privacy or personal security of the citizen.’” Ross, 49 S.W.3d at 839 (quoting

State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)). Thus, “only at the instance of one

whose own protection was infringed by the search and seizure” may evidence seized in

violation of the Fourth Amendment be excluded. Simmons v. United States, 390 U.S.

377, 389 (1968).

8

We agree with the parties that this question is dispositive because the trial court made the

alternate finding that if Defendant had simply denied consent without disclaiming his interest in the

property, then Ms. Hill’s consent to search would have been invalid as to him; therefore, were we to

disagree with the trial court on the standing issue, we would not need to remand the case for further

hearing on the consent issue. Cf. State v. Larry David Tharpe, No. 02C01-9302-CC-00018, 1994 WL

51423, at *2 (Tenn. Crim. App. Feb. 23, 1994) (holding that validity of warrant was not properly

presented for review under a certified question when the only issue litigated at the suppression hearing

and ruled upon by the trial court was defendant’s standing).

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“The ‘capacity to claim the protection of the Fourth Amendment depends . . . upon

whether the person who claims the protection of the Amendment has a legitimate

expectation of privacy in the invaded place.’” State v. Willis, 496 S.W.3d 653, 720

(Tenn. 2016) (quoting Rakas, 439 U.S. at 143); see also State v. Cothran, 115 S.W.3d

513, 520-21 (Tenn. Crim. App. 2003).9 “One who challenges the reasonableness of a

search or seizure has the initial burden of establishing a legitimate expectation of privacy

in the place where property is searched.” State v. Oody, 823 S.W.2d 554, 560 (Tenn.

Crim. App. 1991) (citing Rawlings v. Kentucky, 448 U.S. 98 (1980); State v. Roberge,

642 S.W.2d 716, 718 (Tenn. 1982)). In determining whether an individual’s Fourth

Amendment rights have been infringed, we must determine “(1) whether the individual,

by his conduct, has exhibited an actual (subjective) expectation of privacy and (2)

whether the individual’s subjective expectation of privacy is one that society is prepared

to recognize as reasonable.” Ross, 49 S.W.3d at 840 (citing Katz v. United States, 389

U.S. 347, 361 (1967) (Harlan, J., concurring) and Bond v. United States, 529 U.S. 334,

338 (2000)) (internal quotations omitted).

Because the Fourth Amendment protects people and privacy rather than places and

property, “[a]ctual ownership or possession of the place or thing searched is alone

insufficient to manifest a subjective expectation of privacy.” Ross, 49 S.W.3d at 840-41

(citing United States v. Salvucci, 448 U.S. 83, 91 (1980)). “[A] ‘person can lose his

reasonable expectation of privacy in his real property if he abandons it.’” State v.

Ledford, 438 S.W.3d 543, 553 (Tenn. Crim. App. 2014) (quoting United States v.

Harrison, 689 F.3d 301, 307 (3d Cir. 2012)). The Tennessee Supreme Court has held

that abandonment under the Fourth Amendment, unlike under property law, “may be

shown merely by an intent voluntarily to relinquish a privacy interest.” Ross, 49 S.W.3d

at 842 (internal quotation omitted); see also United States v. Veatch, 674 F.2d 1217,

1220-21 (9th Cir. 1981). Abandonment is not limited to personal property; “‘a person

can, as he can with any other property, sufficiently manifest an intent to abandon his

house.’” Ledford, 438 S.W.3d at 553 (quoting Harrison, 689 F.3d at 307); see also State

v. Michael Anthony Logan, No. M2013-02701-CCA-R3-CD, 2015 WL 4515141, at *12

(Tenn. Crim. App. July 27, 2015), perm. app. denied (Tenn. Nov. 24, 2015).

In Ross, the Tennessee Supreme Court held that “a disclaimer or denial of

ownership demonstrates sufficient intent of disassociation to prove abandonment.” 49

S.W.3d at 842 (internal quotation omitted). The Ross court rejected the contention that

9

Although the United States Supreme Court has held that the inquiry into an individual’s

reasonable expectation of privacy “is more properly subsumed under substantive Fourth Amendment

doctrine . . . rather than on any theoretically separate, but invariably intertwined concept of standing,”

Rakas, 439 U.S. at 139, courts in this state continue to refer to this issue as one of standing. See, e.g.,

Willis, 496 S.W.3d at 720; State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996). For the sake

of consistency, we shall also refer to this issue as one of standing.

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“mere disclaimer of ownership, unlike actual abandonment of ownership, should not

defeat an expectation of privacy.” Id. at 841 (citing 5 Wayne R. LaFave, Search and

Seizure § 11.3(a), at 128, 187 (3d ed. 1996)). Instead, the court continued to hold with “a

long line of cases from this Court” as well as the “vast majority of jurisdictions . . . [that]

have equated a denial or disclaimer of an interest in the object of a search with formal

abandonment.” Id.; see id. at 841 n.5 (citing state cases), 842 n.7 (citing federal cases).

A disclaimer of ownership is tantamount to a declaration of indifference, thus negating

the existence of any privacy concern. See United States v. Zapata, 18 F.3d 971, 978 (1st

Cir. 1994). Therefore, “‘when one disclaims interest in the premises or possessions

searched or in the articles seized[,] he cannot question the legality of the search and

seizure.’” Ross, 49 S.W.3d at 841 (quoting Bowman v. State, 362 S.W.2d 255, 257

(Tenn. 1962)).

In Ross, the defendant stated to police that a hotel room key found in his sock did

not belong to him. Id. at 837. The Tennessee Supreme Court held that this “disclaimer,

combined with his assertion that the room actually belonged to someone else, is sufficient

evidence that he abandoned his otherwise reasonable expectation of privacy in the room.”

Id. at 842-43; see also Harrison, 689 F.3d at 307 (“In most cases, disclaiming ownership

or physically relinquishing the property is sufficient to establish abandonment.”). While

the Ross court recognized a “list of specific factors relevant to” determining an

individual’s subjective expectation of privacy, it also made clear that a defendant’s

disclaimer of ownership “is more than just another factor to consider.” 49 S.W.3d at 841-

42 (citing State v. Turnbill, 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982)). The court

specifically stated that “when a defendant disclaims an interest in the object of a police

investigation at the time of the search, then this fact alone will deprive a defendant of any

expectation of privacy, irrespective of considerations such as ownership or possession.”

Id. at 841 (emphasis added) (citing Miller v. State, 520 S.W.2d 729, 733-34 (Tenn.

1975)). In fact, the Tennessee Supreme Court later clarified that Ross “carved out an

exception” to the totality of the circumstances test described in Turnbill by “holding that

when a defendant disclaims any interest in the object of a governmental search, the

expectation of privacy is lost.” State v. Talley, 307 S.W.3d 723, 731 (Tenn. 2010) (citing

Ross, 49 S.W.3d at 840-42).

Initially, we must address Defendant’s contention on appeal that the State has

either waived or conceded his standing to challenge the search. The certified questions of

law preserved for review in this case make no mention of concession or waiver, and

neither were argued in the trial court. Therefore, this argument is outside the scope of the

certified questions. See State v. John Wayne Wright, No. W2009-00976-CCA-R3-CD,

2010 WL 3489185, at *5 (Tenn. Crim. App. Sept. 3, 2010) (citing Preston, 759 S.W.2d at

650) (holding that defendant’s challenge to the legality of his arrest, argued for the first

time on appeal, was outside the scope of his certified questions of law), no perm. app.

filed. Moreover, Defendant’s arguments with regard to the State’s supposed waiver or

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concession of the standing issue are misplaced. Both the United States Supreme Court

and the Tennessee Supreme Court have recognized that there is no logical inconsistency

for the State to argue that a defendant disclaimed his privacy interest such that he lacked

standing to challenge the search while simultaneously asserting that he had a possessory

interest sufficient to bring criminal charges. See Salvucci, 448 U.S. at 88-89; Ross, 49

S.W.3d at 843. Additionally, while the State may not argue that a defendant lacked

standing for the first time on appeal, see Steagald v. United States, 451 U.S. 204, 208-09

(1981); State v. White, 635 S.W.2d 396, 398-400 (Tenn. Crim. App. 1982), Defendant

has cited no statute or case law that requires the State to file some sort of written response

prior to the suppression hearing or to raise an objection at the beginning of the hearing in

order to preserve its challenge to the defendant’s standing. The State maintained

throughout the proceedings in the trial court that Defendant had disclaimed his interest in

the house, prompting the officers to seek consent to search from Ms. Hill.

Furthermore, we also disagree with Defendant’s characterization of the record as

showing that the issue of standing was first raised by the trial court instead of by the

State. The State elicited testimony with regard to Defendant’s disclaimer during its direct

examination of both Detective Pitts and Deputy Murdock. Moreover, there is a reference

in Defendant’s own motion to proceed pro se, filed October 19, 2015, to prior testimony

of the officers with regard to Defendant’s disclaimer, presumably obtained during the

original March 4, 2014 suppression hearing which transcript is not in the record. The

prosecutor also referenced this earlier hearing during closing argument by stating, “when

we first had this motion to suppress come up, our response was that the [D]efendant

lacked standing to bring the motion in the first place.” Therefore, even if the State failed

to provide some kind of proper pre-hearing notice, Defendant had actual knowledge that

his standing would be an issue.

In this case, the trial court found that when Defendant spoke to Detective Pitts,

“Defendant replied he could not give permission [to search] because it was not his

residence.” Even though Defendant denied stating that it was not his residence, the trial

court accredited the testimony of Detective Pitts. We will not reassess the credibility of

witnesses or the trial court’s factual findings on appeal. See Odom, 928 S.W.2d at 23.

By disclaiming his interest in the house, Defendant “effectively gave the authorities the

green light to proceed insofar as his own Fourth Amendment rights were concerned.”

Ross, 49 S.W.3d at 842 (internal quotation omitted). The fact that Detective Pitts initially

chose to conduct a knock and talk at the Village Park residence because that address was

associated with Defendant’s name on the report of pseudoephedrine purchases does not

negate Defendant’s subsequent disclaimer of his interest in the property. See United

States v. Sanders, 130 F.3d 1316, 1318 (8th Cir. 1997) (rejecting argument that that

defendant did not abandon his expectation of privacy “because officers knew he was

lying when he claimed not to own the brown bag”). Therefore, we affirm the judgment

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of the trial court that Defendant lacked standing to challenge the search of the Village

Park residence.

Question 2: Consent to Search

Even though we affirm the trial court’s judgment with respect to the standing

issue, we will also address Defendant’s second certified question of law in the case of

further appellate review. Defendant’s second certified question of law states:

2.) Whether the tr[ia]l court properly determined that the warrantless

(consent) search by law enforcement of the home of the [D]efendant

was proper as required by the 4th and 14th Amendments to the United

States Constitution and Article I, sections 7 and 8 of the Tennessee

Constitution[.]

We can gather from the proceedings in the trial court and the parties’ appellate

briefs that this question is meant to address the validity of Ms. Hill’s consent to search

the residence over Defendant’s objection. As an initial matter, we note that even though

the trial court denied the motion to suppress based on Defendant’s lack of standing, this

issue was “passed upon by the trial judge” as required by Preston. See 759 S.W.2d at

650. Specifically, the trial court found that if Defendant had not disclaimed his interest in

the residence, then Ms. Hill’s consent would not be valid as to him under Georgia v.

Randolph, 547 U.S. 103 (2006). On the other hand, Defendant’s contention on appeal

that Ms. Hill’s consent was invalid because she was illegally seized was not passed upon

by the trial court and is outside the scope of the certified question. See Preston, 759

S.W.2d at 650.

Regardless of what we can gather from “prior petitions, orders, colloquy in open

court or otherwise,” we must determine whether the certified question, as framed,

“clearly identif[ies] the scope and the limits of the legal issue reserved.” Id. “Certified

question[s] are overly broad when they mention a violation of a defendant’s right but do

not clearly outline the question beyond the right allegedly violated.” State v. William G.

Barnett, Jr., No. M2013-01176-CCA-R3-CD, 2014 WL 1632080, at *5 (Tenn. Crim.

App. Apr. 23, 2014), no perm. app. filed. As explained in Preston, when reserving

“questions of law involv[ing] the validity of searches . . ., the reasons relied upon by [the]

defendant in the trial court at the suppression hearing must be identified in the statement

of the certified question of law.” 759 S.W.2d at 650.

The second certified question in this case is overly broad. While Defendant

narrows the question somewhat by the insertion of the word consent in parentheses, the

question would still “‘potentially require a complete dissertation of the law of search and

seizure of which this [C]ourt is not willing to engage in absent specific boundaries

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circumscribed by the [Defendant].’” State v. Kale J. Sandusky, No. M2008-00589-CCA-

R3-CD, 2009 WL 537526, at *3 (Tenn. Crim. App. Mar. 4, 2009) (quoting State v.

Nicholas J. Johnson, No. M2000-03162-CCA-R3-CD, 2001 WL 1356369, at *2 (Tenn.

Crim. App. Nov. 6, 2001), perm. app. denied (Tenn. Apr. 8, 2002)), perm. app. denied

(Tenn. Aug. 24, 2009). The question does not identify whose consent is being analyzed,

whether that person has common authority over the residence to give consent, or whether

that consent may be limited by the presence of a non-consenting co-resident. Without

clearly identifying the scope and limits of the legal issue, the question does not meet the

strict requirements of Preston and Rule 37. See State v. Long, 159 S.W.3d 885, 887

(Tenn. Crim. App. 2004). Therefore, the second certified question is not properly before

this Court.

Conclusion

We hold that Defendant’s first certified question of law with regard to his standing

is dispositive. Because Defendant disclaimed his interest in the property, he lacked

standing to challenge the subsequent search. Additionally, we hold the Defendant’s

second certified question is overly broad and is not properly before this Court. We affirm

the trial court’s ruling denying the motion to suppress.

____________________________________

TIMOTHY L. EASTER, JUDGE

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