The opinion
02/27/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
October 2, 2019 Session
STATE OF TENNESSEE v. NICHOLAUS JONES
Appeal from the Criminal Court for Shelby County
No. 15-02733 Chris Craft, Judge
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No. W2018-01421-CCA-R3-CD
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A Shelby County Criminal Court Jury convicted the Appellant of possession of heroin
with intent to sell, a Class B felony; possession of heroin with intent to deliver, a Class B
felony; two counts of possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony, Class D felonies; and two
counts of simple possession of Alprazolam, Class A misdemeanors. After a sentencing
hearing, the trial court merged the possession of heroin convictions, merged the
possession of a firearm convictions, and merged the simple possession convictions and
sentenced the Appellant to an effective sentence of nineteen years in confinement. On
appeal, the Appellant contends that the trial court erred by denying his motion to suppress
evidence and that the evidence is insufficient to support the convictions. Based upon the
oral arguments, the record, and the parties’ briefs, we conclude that the evidence is
insufficient to show that the Appellant actually or constructively possessed the drugs or
gun. Accordingly, the Appellant’s convictions are reversed, and the charges against him
are dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.
Eric J. Montierth, Memphis, Tennessee, for the appellant, Nicholaus Jones.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
This case relates to the police finding drugs and a handgun in a motel room in
which the Appellant and his codefendant, Roy Brandon, were present. In June 2015, the
Shelby County Grand Jury indicted the Appellant and Brandon for possessing heroin with
intent to sell, possessing heroin with intent to deliver, possessing Alprazolam with intent
to sell, possessing Alprazolam with intent to deliver, and four corresponding counts of
possession of a firearm with the intent to go armed during the commission of or attempt
to commit a dangerous felony. The defendants filed a motion to suppress evidence,
which the trial court denied, and they proceeded to a joint trial.
At trial, Officer Hardy Savage of the Memphis Police Department (MPD) testified
that on January 23, 2015, he and his partner, Officer Steven Burk, were conducting an
investigation and went to a motel room at the Americas Best Value Inn near Interstate 55.
They knocked on the door but got no response. Five to seven minutes later, Officer
Savage saw the blinds in the room move and told Officer Burk, “‘I’m going to get the
key.’” Officer Savage explained to the jury that he was not really going to get the key
but that he made the statement loud enough for the individuals inside the room to hear it.
After Officer Savage made the statement, Brandon opened the door. Officer Savage saw
a table or a dresser behind Brandon and saw a plate on the table. A razor blade and a
white powdery substance were on the plate, and a second individual was “further on in
the back of the room . . . sitting over to the right.” Upon seeing the white powdery
substance, which appeared to be cocaine, Officer Savage detained Brandon “[t]o preserve
the evidence and for further investigation.”
Officer Savage testified that while he was handcuffing Brandon at the door,
Officer Burk went into the room and detained the second individual, who was the
Appellant. Officer Savage said that men’s clothing was “laying around” the room, that
men’s shoes were lined up against the wall, and that the two beds in the room were
“disheveled.” Officer Savage saw “a lot of baggage” such as suitcases and duffle bags.
He patted down Brandon for officer safety and found $409 on his person. The money
was in the following denominations: three one-hundred-dollar bills, four twenty-dollar
bills, two ten-dollar bills, and nine one-dollar bills. Officer Savage put Brandon into the
back seat of his patrol car.
On cross-examination, Officer Savage estimated that he and Officer Burk knocked
on the motel room door for five to seven minutes. He acknowledged that he testified at
the defendants’ preliminary hearing in March 2017. Officer Savage did not say at the
hearing that he told Officer Burk he was going to get a key to the room. Instead, Officer
Savage said at the hearing that he told Officer Burk, “‘[L]ook I’m fixing to go.’”
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Officer Steven Burk of the MPD testified that on January 23, 2015, he went with
Officer Savage to room 210. The officers knocked on the door, but no one answered.
After “a few minutes at least,” Brandon answered the door. Officer Savage detained him,
and Officer Burk saw a plate inside the room. A razor blade and a white powdery
substance were on the plate, and a clear plastic bag containing a white powder was “in
the vicinity of that plate.” Officer Burk detained the Appellant. He said that he did not
remember where the Appellant was standing when he detained the Appellant but that the
Appellant “was inside the room when we initially saw him.”
Officer Burk testified that he patted down the Appellant for officer safety, that the
Appellant had $118 “in different denominations” on the Appellant’s person, and that
“[t]here was at least one $50 bill in there and two $20 bills.” Officer Burk put the
Appellant into the back of his patrol car and filled out an arrest ticket. Officer Burk
asked the Appellant for his biographical information such as his name, address, and date
of birth, but the Appellant gave Officer Burk “an incorrect identity.” Officer Burk said
that the Organized Crime Unit (OCU) arrived at the motel and that he went with one of
the OCU officers to “type up a warrant.” Officer Burk obtained a search warrant for the
room and returned to the motel.
On cross-examination, Officer Burk testified that he did not remember whether he,
Officer Savage, or both of them knocked on the door. Defense counsel asked if both of
them were standing at the door when Brandon opened it, and Officer Burk answered,
I know at one point Officer Savage started to walk away, because we
thought, okay, nobody’s going to answer the door. And when the door was
opened, I don’t know if he had made his way back up the staircase and was
there, but I know I was right there near the doorway.
Detective Brandon Evans of the MPD’s OCU testified that he went with Officer
Burk to obtain the search warrant for room 210 and helped execute the warrant. A
television and a dresser were just inside the doorway of the room. A small black safe was
on the dresser, and the safe was open. A large, clear bag tied with a knot also was on the
dresser and contained a white powdery substance consistent with cocaine. A plate with a
razor blade was beside the safe. Detective Evans said that during the search, officers
found a silver compressor, which was used to compress cocaine or heroin; a marijuana
grinder; bags of what appeared to be heroin; pills that appeared to be Alprazolam; a
handgun; and a digital scale. He stated that the heroin was wrapped in individual,
twenty-dollar packages and that the packaging was consistent with the distribution and
sale of narcotics. The officers did not find any syringes or rubber bands to indicate the
heroin was for personal use.
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On cross-examination, Detective Evans testified that the officers did not find any
identification in the room. He said the heroin was in “tenth of a gram” packages that
would sell for twenty dollars each and that buyers “might use two 5’s and a 10” or “might
spend a $20 bill.” He explained that “if you’ve got a lot of narcotics individually
packaged, you’ve got a lot of different currency, generally that goes together as
distribution and selling of narcotics.”
Sergeant Darryl Dotson of the MPD’s OCU testified that he was one of the
officers who secured the motel room while Officer Burk and Detective Evans obtained
the search warrant. When they returned with the warrant, Sergeant Dotson helped search
the room. He said that officers found a digital scale, a grinder, a compressor for
compressing drugs into small bricks, a “cutting agent” for drugs, a loaded nine-millimeter
handgun, ten Alprazolam pills, and thirty-nine packs of heroin. The officers found the
gun in a brown bag that was under the bathroom sink. The officers found the Alprazolam
pills, the heroin, and the cutting agent in a black suitcase that was under a clothes rack in
a closet. The officers did not find any syringes or lighters.
Rachel Strandquist, a special agent forensic scientist with the Tennessee Bureau of
Investigation, testified as an expert in forensic chemistry that she performed chemical
analysis on the substances found in the room. One of the white pills was Alprazolam.
Agent Strandquist did not analyze the other nine pills because they were consistent in
appearance to the Alprazolam pill. Chemical analysis on the white powder did not
identify a controlled substance, but chemical analysis on a tan powder showed that the
substance was heroin. The total weight of the tan powder was 9.99 grams. Chemical
analysis on a tan rock-like substance showed that the substance also was heroin. The
rock-like material weighed 0.50 grams.
At the conclusion of Agent Strandquist’s testimony, the State rested its case. The
defendants did not present any proof, and the jury convicted them of possessing heroin
with intent to sell and possessing heroin with intent to deliver as charged in the
indictment and the two corresponding counts of possessing a firearm with the intent to go
armed during the commission of or attempt to commit a dangerous felony. The jury also
convicted the defendants of two counts of simple possession of Alprazolam as lesser-
included offenses of possessing Alprazolam with intent to sell and possessing
Alprazolam with intent to deliver. The jury acquitted the defendants of the remaining
two counts of possession of a firearm with the intent to go armed during the commission
of or attempt to commit a dangerous felony. After a sentencing hearing, the trial court
merged the Appellant’s convictions of possession of heroin, Class B felonies; merged the
convictions of possession of a firearm, Class D felonies; and merged the convictions of
simple possession, Class A misdemeanors. The trial court sentenced the Appellant to
fourteen years, five years, and eleven months, twenty-nine days, respectively, and
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ordered that he serve the five-year sentence consecutive to the other two sentences for a
total effective sentence of nineteen years in confinement.
II. Analysis
A. Motion to Suppress
The Appellant contends that the trial court erred by denying his motion to suppress
evidence because he and Brandon were seized without a warrant and without any
suspicion or probable cause when the officers remained at the door of room 210 and
repeatedly knocked on the door for several minutes. He also contends that the seizure
was not supported by reasonable suspicion because the anonymous tip lacked
corroboration. The State argues that the trial court properly denied the motion. We agree
with the State.
Before trial, the defendants filed a motion to suppress the evidence found in the
motel room because the officers illegally seized them when they knocked on the motel
room door for three or four minutes. At the outset of the suppression hearing, the
defendants testified for the limited purpose of establishing that they had standing to
challenge the search of the motel room. Brandon testified that he had a key to room 210,
that he had been staying in the room “[a]bout a week, seven days at most,” and that he
had an expectation of privacy in the room. He said that he obtained the key “[f]rom the
lady who had the room.” The Appellant testified that on January 23, 2015, the police
knocked on the door of the room at 8:00 or 9:00 a.m. and that they knocked “about two or
three minutes.” The officers did not announce that they were the police, and the
defendants did not know the police were knocking on the door. The defendants did not
feel free to leave the room. The Appellant said that he spent just one night in the room,
that he did not have a key to the room, and that he did not have any belongings there. He
arrived at the room about midnight, and Brandon let him in. The woman who had rented
the room was there, but the Appellant did not know her. At the conclusion of the
defendants’ testimony, the trial court ruled that both of the defendants had an expectation
of privacy in the motel room and standing to challenge the search.
Relevant to this appeal, Officer Savage testified that on January 23, 2015, the
MPD received a “warrant tip” that Brandon was in room 210 at the Americas Best Value
Inn. Officer Savage described the motel as having two levels with about sixty rooms on
each level. He said he and Officer Burk went to the motel, saw a red Monte Carlo “that
was known to belong” to Brandon, and went upstairs to room 210 to conduct a “knock
and [talk].” He explained that a “knock and talk” meant that “they basically knock on the
door and see who comes to the door.” The State asked if Officer Savage announced who
was at the door, and Officer Savage responded, “Yes, as you knock on the door, you
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knock on the door, ‘Memphis Police Department, open the door,’ of course it doesn’t
work.” At some point, though, Brandon answered the door. Officer Savage recognized
him as “the one we’re looking for” and immediately took him into custody. Officer
Savage said that he saw “somebody in the back of the room, stick their head around the
corner” and that Officer Burk “went to the back” of the room to detain the Appellant.
Officer Savage testified that while he was detaining Brandon, he noticed a table
with a plate on it. A razor blade and a white substance were on the plate. Officer Savage
and Officer Burk took Brandon and the Appellant out of the room, and Officer Savage
verified that Brandon had an outstanding warrant. The officers tried to identify the
Appellant, but the Appellant initially gave them a false name. The officers ultimately
learned the Appellant’s identity and that he also had outstanding warrants. The officers
put Brandon and the Appellant into their patrol cars, and the OCU arrived on the scene.
Brandon and the Appellant refused to give consent to search the room, so Officer Burk
and the OCU officers went to get a search warrant.
Officer Savage testified that about three days before the defendants’ arrest, the
MPD received a tip that Brandon was at the motel. Officer Savage and Officer Burk
went to the motel’s front desk, asked if Brandon was registered there, and learned that
Brandon was not a registered guest. On January 23, the MPD received a second tip that
included the room number. Officer Savage said that as he and Officer Burk approached
room 210, they saw “the car that was actually registered to” Brandon. Officer Burk
knocked on the door of room 210 several times but got no answer. Officer Savage said
that he saw the blinds in the room move and that he told Officer Burk, “[L]ook I’m fixing
to go.” Officer Savage started downstairs and heard Officer Burk say, “‘Savage.’”
Officer Savage turned around, went back upstairs, and saw Brandon standing in the
doorway of room 210.
On cross-examination, Officer Savage testified that the motel room had only one
door and that the hinges were on the left side. Three days before the defendants’ arrests,
Officer Savage went to the front desk of the motel to find out if a room was registered to
Brandon. The owner or manager of the motel told him that Brandon was not registered
there. Officer Savage wrote on one of his business cards, “‘Roy Brandon, red Monte
Carlo SS, Officer Savage.’” He left the card at the desk so that the motel staff would call
him if they saw a red Monte Carlo or if Brandon rented a room. Officer Savage said that
he did not know if the Monte Carlo was registered to Brandon but that “I just know that
that was, per the crime stopper’s tip, what he is known the drive.”
Officer Savage testified that on January 23, a second tip was received by “the
Shelby County Sheriff’s Warrant tip site.” Officer Savage did not know who placed the
tip or whether the tip was credible. The officers returned to the motel because they were
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looking for Brandon, not the Appellant. Brandon opened the door to the room, and
Officer Savage handcuffed him at the door. Officer Burk then went into the room to
detain the Appellant for officer safety and “to identify him and find out who he is, that is
all.” At that point, the door to the room was “wide open.” Officer Savage said the
Appellant was very cooperative, except for giving them the wrong name.
Detective Evans testified that he went to the motel on January 23, 2015, “to assist
uniformed patrol.” He and Officer Burk then went to Detective Evans’ office. Based on
Officer Burk’s information, Detective Evans typed a search warrant for room 210. A
magistrate signed the warrant, and Detective Evans and Officer Burk returned to the
motel. On cross-examination, Detective Evans testified that the magistrate signed the
warrant at 11:23 a.m. Detective Evans estimated that one to one and one-half hours
elapsed from the time he and Officer Burk left the motel until they returned with the
warrant. During the search of the room, Detective Evans found a silver compressor, a
digital scale, a bag of white powder, and a marijuana grinder. Officers also found a
weapon, heroin, and Alprazolam pills.
Sergeant Dotson testified that he also responded to the scene and that Detective
Evans obtained a search warrant for the room. A bed was on the right side of the room,
and a table, a television, and a dresser were on the left side of the room. A plate with a
razorblade was on the table or the dresser. Sergeant Dotson said that even if the door to
the room was “cracked” open, a person could still see the table and the dresser.
Officer Burk testified for the Appellant that he went to the motel on January 23,
2015, because “[he] had researched on the Shelby County WASP system that a possible
wanted party was staying at that hotel.” The “wanted party” was Brandon. Officer Burk
said that “[t]he tip had mentioned that the wanted party would be operating a red
Chevrolet Monte Carlo and that he would be, possibly, selling drugs out of the hotel.”
The tip did not mention the Appellant.
Officer Burk acknowledged that he and Officer Savage contacted the motel staff
and that the staff directed them to room 210. Officer Burk knocked on the door, and
Brandon opened it. Defense counsel asked Officer Burk, “How long did you stand at the
door knocking?” Officer Burk said he did not know. Defense counsel asked if Officer
Burk knocked on the door more than one minute, and he said that he did not recall. He
acknowledged testifying at the preliminary hearing that he knocked on the door for three
to four minutes.
Officer Burk testified that when Brandon opened the door, the defendants “were
close together.” Officer Savage detained Brandon, and Officer Burk detained the
Appellant. Officer Burk acknowledged that he did not have to go into the room to take
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the Appellant into custody. While the officers were detaining the defendants, they saw
“in plain view, a razorblade with some white powdery substance in its vicinity.” Officer
Burk searched the Appellant and found $118 on his person in the following
denominations: one fifty-dollar bill, two twenty-dollar bills, one ten-dollar bill, two five-
dollar bills, and eight one-dollar bills.
On cross-examination, Officer Burk testified that he did not know who provided
the tip to the MPD. He said that he did not remember how long he knocked on the door
of room 210 but that the defendants “were free not to open the door.” In addition to
knocking, Officer Burk announced, “Memphis Police.” At some point, he saw a curtain
in the room move. When Brandon finally opened the door, Officer Burk and Officer
Savage did not enter the room to take the defendants into custody. Officer Burk
acknowledged that the defendants came out of the room “on their own” and said that he
and Officer Savage arrested them at the door.
At the conclusion of the hearing, counsel for the Appellant argued that the
defendants were not seized when the officers initially knocked on the door but that the
“encounter matured into a seizure” when the officers remained outside the door and
continued knocking because the defendants did not feel free to leave the room. Defense
counsel also argued that it would have been physically impossible for the officers to have
seen the mirror, white powder, and razor blade in plain view while they were arresting
the Appellant at the door. The State responded that the defendants were not seized when
the officers continued knocking because the defendants were under no obligation to open
the door. The State also contended that as soon as Brandon opened the door and the
officers saw the white powder with the razor blade, they had reasonable suspicion to
detain the defendants.
In a written order, the trial court denied the motion to suppress. First, the trial
court found that the officers were engaged in a consensual encounter based on the “knock
and talk” exception to the warrant requirement. Moreover, when Brandon opened the
door and Officer Savage recognized him, Officer Savage properly seized him pursuant to
a valid warrant. Finally, the trial court accredited the officers’ testimony that they could
see the plate with the razor blade and white powder on it in plain view from the doorway
of the room; therefore, the officers lawfully obtained the information used in the affidavit
to acquire the search warrant.
On December 1, 2017, almost nine months after the defendants’ suppression
hearing and almost seven months after the trial court denied the motion to suppress, the
defendants filed a motion to reconsider the trial court’s ruling in light of State v. Holly N.
Hilliard, No. E2015-00967-CCA-R3-CD, 2017 WL 3738470 (Tenn. Crim. App. at
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Knoxville, Aug. 29, 2017). At a pretrial motions hearing, the trial court again denied the
defendants’ motion to suppress.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of
law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate
view of the evidence adduced at the suppression hearing as well as all reasonable and
legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
Moreover, we note that “in evaluating the correctness of a trial court’s ruling on a pretrial
motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause.” Likewise, article 1, section 7 of the Tennessee Constitution
provides that “the people shall be secure in their persons, houses, papers and possessions,
from unreasonable searches and seizures.” Therefore, warrantless searches and seizures
inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586
(1980). However, “law enforcement officers are not required to seek a search warrant,
even if there might be sufficient information and ample time to do so, before they
conduct a knock and talk investigation.” Id. at *6 (citing Florida v. Jardines, 569 U.S. 1,
8 (2013). That is because a knock and talk is generally regarded as a consensual
encounter. State v. Cothran, 115 S.W.3d 513, 521 (Tenn. Crim. App. 2003) (citing Latta
v. State, 88 S.W.3d 833, 838 (2002)). As this court has explained,
“‘Absent express orders from the person in possession against any possible
trespass, there is no rule of private or public conduct which makes it illegal
per se, or a condemned invasion of the person’s right of privacy, for anyone
openly and peaceably, at high noon, to walk up the steps and knock on the
front door of any man’s ‘castle’ with the honest intent of asking questions
of the occupant thereof-whether the questioner be a pollster, a salesman, or
an officer of the law.’”
Id. at 521 (quoting United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000)
(quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964))). Law enforcement
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may “approach the home by the front path, knock promptly, wait briefly to be received,
and then (absent invitation to linger longer) leave.” Jardines, 569 U.S. at 8.
That said, a consensual encounter at the door to a person’s residence may turn into
a “constructive entry when the police, while not entering the house, deploy overbearing
tactics that essentially force the individual out of the home.” United States v. Thomas,
430 F.3d 274, 277 (6th Cir. 2005). “The difference between the two—between a
permissible consensual encounter and an impermissible constructive entry—turns on the
show of force exhibited by the police.” Id. Under the “fruit of the poisonous tree”
doctrine, evidence that is obtained through exploitation of an unlawful search or seizure
must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). “It is the
defendant’s burden to establish, by a preponderance of the evidence, that a knock and talk
conducted by the police was invalid.” Holly N. Hilliard, No. E2015-00967-CCA-R3-CD,
2017 WL 3738470, at *8 (citing State v. Christensen, 517 S.W.3d 60, 72 (Tenn. 2017)).
The Appellant asserts that he and Brandon were seized when the officers
continued to knock on the motel door for several minutes. In support of his argument, he
relies on Holly N. Hilliard. In that case, Detective Ray Hayes received a telephone call
from a confidential informant (CI), who advised Detective Hayes that the defendant, her
codefendant, and two minor children were in a home in which the CI had seen the
production of methamphetamine that morning. No. E2015-00967-CCA-R3-CD, 2017
WL 3738470, at *1. Detective Hayes decided to conduct a “knock and talk” and
assembled a group of five officers to assist him. Id. The six officers went to the home
and parked their four vehicles in the driveway, on the adjacent property, and on the road
in front of the residence. Id. Detective Hayes and two officers went to the front door
while three officers went to the side and rear of the home so they could monitor the
home’s other doors. Id. At the suppression hearing, Detective Hayes testified that the
house was “surrounded . . . with officers” but that the officers did not have their weapons
drawn. Id. A uniformed patrol officer knocked on the front door “‘multiple times’” and
announced “‘Sullivan County Sheriff’s Office.’” Id. Detective Hayes said that he heard
“scattering’” inside the home when the patrol officer knocked and that “they continued
knocking and announcing . . . ‘[p]robably about ten minutes.’” Id. Finally, the defendant
opened the door. Id. She was holding a small child, and Detective Hayes smelled a
chemical odor associated with the manufacture of methamphetamine. Id. He asked for
consent to search the home, but the defendant refused. Id. Due to the dangerousness of
methamphetamine laboratories, Detective Hayes decided to conduct a “‘protective
sweep’” inside the home to look for other children or subjects. Id. at *2. During the
sweep, the officers found items commonly used in the manufacture of methamphetamine.
See id.
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The defendant filed a motion to suppress the evidence, arguing that the
“‘protective sweep’” was an illegal search. Id. at *1. The trial court found that sufficient
exigent circumstances did not exist to justify the officers’ protective sweep and that their
entry into the residence was an illegal warrantless search. Id. On appeal by the State to
this court, the defendant argued that the trial court correctly determined that sufficient
exigent circumstances did not exist to justify the warrantless entry of the home and that
the officers exceeded the scope of a permissible knock and talk because they knocked on
the door for ten to fifteen minutes. Id. at *5. This court agreed with the defendant that
the knock and talk exceeded a consensual encounter, explaining:
The officers did not “knock promptly, wait briefly to be received, and then
(absent invitation to linger longer) leave.” Jardines, [569 U.S. at 8]. Rather,
the officers deployed overbearing tactics that we conclude essentially
forced Ms. Hilliard to open the door and exit the residence. No reasonable
person would have believed that they were free to ignore the officers’
prolonged and persistent knocking while announcing their badge of
authority. The knock and talk procedure employed by the officers in this
case destroyed the consensual nature of the encounter and was unlawful
based on the totality of the circumstances.
Id. at *8. Moreover, this court upheld the trial court’s ruling that exigent circumstances
did not justify the warrantless entry because there was no proof that the officers smelled
an odor associated with the manufacture of methamphetamine before the defendant
opened the door. Id. at *9.
Turning to the instant case, we agree with the Appellant that the officers’ knock
and talk went beyond a consensual encounter. The uniformed officers knocked on the
door, announced “Memphis Police,” and told the occupants to open the door. Although
no one answered, the officers remained at the door and continued knocking. Officer Burk
testified at the suppression hearing that they knocked for three to four minutes, and
Officer Savage testified at trial that they knocked for five to seven minutes. Officer
Savage saw the blinds in the room move, indicating that someone was in the room. At
the suppression hearing, Officer Savage testified that he told Officer Burk that he was
“fixing to go” and that he started going downstairs. Yet, Officer Burk remained at the
door. At trial, Officer Savage testified that he told Officer Burk that he was going to get
a key to the room. Officer Savage explained to the jury that he was not really going to
get the key but that he made the statement loud enough for the person in the room to hear
it. At that point, Brandon finally opened the door. Regardless of what Officer Savage
said to Officer Burk, the officers’ actions demonstrate that they were not going to leave
the door until someone opened it. Therefore, as this court found in Holly N. Hilliard, we
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conclude that the officers used overbearing tactics that went beyond a consensual knock
and talk and that those tactics essentially forced Brandon to open the door.
Nevertheless, we conclude that the Appellant is not entitled to relief on this issue.
“For Fourth Amendment purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603.
Here, the officers had a warrant for Brandon’s arrest. On or about January 20, 2015, the
officers received a tip that Brandon was staying at the Americas Best Value Inn and that
he was driving a red Monte Carlo. Three days later, the officers received a second tip
that Brandon was staying at the motel and that he may be selling drugs out of the motel.
The tip included the room number. When the officers went to the motel and approached
the room, they noticed a red Monte Carlo. In our view, the officers had reason to believe
that Brandon was in the room. Accordingly, they could enter the room to arrest him
pursuant to the warrant.
B. Sufficiency of the Evidence
The Appellant contends that the evidence is insufficient to support his convictions
because the evidence does not show that he actually or constructively possessed the drugs
or the gun. In support of his argument, he notes that neither the drugs nor the gun were
on his person, that neither he nor Brandon said anything to indicate the drugs or gun
belonged to them, and that the room was not registered to either defendant. The State
argues that the evidence is sufficient to show that the Appellant constructively possessed
the drugs and the gun because he was in the motel room with the contraband, he had $118
in cash on his person, and he lied to the police about his identity. We conclude that the
evidence is insufficient.
When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
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cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” Dorantes,
331 S.W.3d at 379 (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
It is an offense for a defendant knowingly to possess a controlled substance with
intent to deliver or sell the controlled substance. Tenn. Code Ann. § 39-17-417(a)(4). It
is also an offense for a defendant knowingly to possess or casually exchange a controlled
substance. Tenn. Code Ann. § 39-17-418(a). Heroin is a Schedule I controlled
substance, and Alprazolam is a Schedule IV controlled substance. Tenn. Code Ann. §§
39-17-406(c)(11), -412(c)(2). Finally, it is an offense for a defendant to possess a firearm
with the intent to go armed during the commission of or attempt to commit a dangerous
felony. Tenn. Code Ann. § 39-17-1324(a). Possession of a controlled substance with
intent to deliver or sell is a dangerous felony. Tenn. Code Ann. § 39-17-1324(i)(1)(L).
Our case law establishes that possession of an object can be either actual or
constructive. See State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014) (possession of a
firearm); State v. Transou, 928 S.W.2d 949, 955 (Tenn. Crim. App. 1996) (possession of
drugs). “[A]ctual possession refers to physical control over an item.” Fayne, 451 S.W.3d
at 370. To find constructive possession, the State must show that the person accused had
the power and intention at a given time to exercise dominion and control over the object
directly or through others. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). “In other
words, ‘constructive possession is the ability to reduce an object to actual possession.’”
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987) (quoting State v.
Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)). As this court has explained,
The mere presence of a person in an area where drugs are discovered is not,
alone, sufficient to support a finding that the person possessed the drugs.
Likewise, mere association with a person who does in fact control the drugs
or property where the drugs are discovered is insufficient to support a
finding that the person possessed the drugs.
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Id. (Citations omitted.)
Taken in the light most favorable to the State, the evidence at trial shows that on
January 23, 2015, Memphis police officers were conducting an investigation and went to
the Americas Best Value Inn near Interstate 55. The officers knocked on the door of
room 210, and Brandon opened the door. Officer Savage noticed a razor blade and a
white powdery substance on a plate in the room and detained Brandon. The officers also
noticed the Appellant in the room, and Officer Burk detained him for officer safety.
Officers obtained a search warrant for room 210 and found heroin, Alprazolam, items
used to package drugs for sale and delivery, and a handgun.
In our view, this evidence is insufficient to support the Appellant’s convictions.
The police did not find any contraband on the Appellant’s person, and fingerprint
analysis was not conducted on any of the items seized. Although both of the beds in the
room were disheveled, suggesting that both of the defendants had slept there, the State
did not present any proof as to who had rented the room or who possessed a key to the
room. The State also did not present any proof as to how long the Appellant had been in
the room, how long he intended to stay in the room, or whether any of the bags or
clothing in the room belonged to him. While the State claims that the $118 found on the
Appellant’s person was a “significant amount,” $118 is not a particularly large quantity
of money. In contrast, Brandon had more than $400 on his person. Moreover, Detective
Evans testified that the heroin was packaged in twenty-dollar quantities and that many
different denominations of currency indicated the selling of narcotics, but Officer Burk
only recalled the Appellant’s having one fifty-dollar bill and two twenty-dollar bills. The
State also claims that the Appellant’s giving the police a false name supports his guilt.
However, the Appellant’s having outstanding warrants, which the jury did not know, just
as likely explains his lying to the police about his identity. “[A] conviction for a criminal
offense cannot be predicated solely upon conjecture, guess, speculation, or a mere
possibility that [the accused] may be guilty.” Transou, 928 S.W.2d at 955. We conclude
that the State failed to present any proof that the Appellant actually or constructively
possessed the drugs or gun in this case and that his convictions must be reversed.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we conclude
that the evidence is insufficient to support the Appellant’s convictions. Accordingly, the
Appellant’s convictions are reversed, and the charges against him are dismissed.
_________________________________
NORMA MCGEE OGLE, JUDGE
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