holding that a search “under the circumstances shown in this record was a far cry removed from a free consent search,” when the defendant had refused “to permit a search when arrested and placed in custody in the squad car. His consent came about only when told they (police) would go get a warrant if he did not consent and started the squad car to do so”
How later courts described this case
- holding that a search “under the circumstances shown in this record was a far cry removed from a free consent search,” when the defendant had refused “to permit a search when arrested and placed in custody in the squad car. His consent came about only when told they (police) would go get a warrant if he did not consent and started the squad car to do so”
- applying “totality of the circumstances” test to determine whether the defendant, who was in custody, voluntarily consented to the search of his residence
- consent which came only after a threat to obtain a warrant not a voluntary consent
Written by the judges who cited it.
The opinion
TATUM, Judge,
dissenting.
Although I concur with the majority in their holding insofar as the search of the appellant’s premises are concerned and the disposition made by the majority on this proposition, I would reverse and remand as to all defendants on Assignment of Error III.
This assignment is as follows:
“The Court erred in refusing to instruct the jury that in order to return a verdict of guilty, the jury must find that the defendants knew or had knowledge of such facts that they should reasonably have known that the prosecuting witness, Jenny Goodrich, was a minor, under eighteen (18) years of age.”
The prosecuting witness testified that she told at least one of the appellants that she was 18 years of age and that she had previously been married. The majority describes the prosecuting witness as “a girl 17 years of age, with physical attributes of a much older woman”. Having viewed the photographs of the prosecuting witness, I am in full agreement with the majority in their description of her.
The State concedes that the Trial Judge did not instruct the jury concerning the appellants’ knowledge of the prosecuting witness’s true age, but the State says that this is harmless error because the appellants not only caused the minor to violate T.C.A. § 39-3013(A) but because they also caused her to commit delinquent acts by violating T.C.A. § 39-707 (crime against nature statute) and that T.C.A. § 37-254 does not require “knowledge" of the age of the minor.
It is true that the Trial Judge charged the jury the applicable law under T.C.A. § 37-254. If the Trial Judge had stopped there, then I could agree with the majority, but the jury was instructed on T.C.A. §§ 39-3010 — 39-3013 as follows:
“Now, as applied to this case, the State charges these three defendants with contributing to the delinquency of a minor or a child.
I charge you with regard to obscene material that under Section 39-3ol0, [sic] there is defined a certain matter or things that are declared to be obscene by the Statute. The definitions under that particular Statute, Section, 39-3010, says that obscene means that the average persona [sic] applying contemporary community standards will find that the work, taken as a whole, appeals to the Prurient interst [sic], that the work depicts or describes in an offensive way, sexual conduct, and that the work taken as a whole lacks serious literary, artistic or political or scientific value.
*782 The term Prurient interst [sic] means a shameful or morbid interest in sex. The term matter, as applied to obscent [sic] matter includes any number of things, including books or drawings or photographs or picutres [sic] or films. Under this act it is declared to be unlawful and a criminal offense, to knowingly send into the State or to prepare in this State, for sale, distribution, exhibition or display, any matter which is declared to be obscene; which as the statute describes it means that the average person applying contemporary stanrds [sic] would find obscene under this statute.
I charge you further that if an adult encourages, aids or abettes [sic] or contributes to a minor to bring about or to display or take part in the exhibitiion [sic] or display of obscene matter under the Statute in the State of Tennessee, this person sould [sic] be guilty of contributing to the delinquency of a minor.” The pertinent portion of T.C.A. § 39-3013
is as follows:
“39-3013. Importing or preparing in state for sale, distribution, or exhibition — Distribution to or employment of minors — Penalties.—(A) It shall be unlawful to knowingly send cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter. It shall be unlawful to direct, present, or produce any obscene theatrical production or live performance and every person who participates in that part of such production which renders said production or performance obscene is guilty of said offense.
sfc * * ⅜ ⅜ ⅜
(C) It shall be unlawful to hire, employ, or use a minor to do or assist in doing any of the acts described in subsection (A) with knowledge that a person is a minor under eighteen (18) years of age, or while in possession of such facts that he or she should reasonably know that such person is a minor under eighteen (18) years of age.” (Emphasis added).
Since the Trial Judge instructed the jury on the violation involved in T.C.A. § 39-3013, I would hold that it was incumbent upon him to also charge the jury that before the appellants could be convicted under this Code Section, the State must prove beyond a reasonable doubt that the appellants had knowledge that the prosecuting witness was under the age of 18 years or that they were in possession of such facts that they should reasonably know that she was under the age of 18 years.
I cannot justify instructing the jury on the portion of T.C.A. § 39-3013 that would be harmful to the appellants and failing to instruct the jury on the portion of the same Code Section that might be beneficial to the appellants.
As above stated, the prosecuting witness said that she was 18 years of age and her physical appearance would buttress anyone’s reliance upon her statement. I am convinced that the Trial Judge’s rejection of the special request could very well have affected the results and I do not think that this was harmless error.
I would sustain Assignment III and would reverse and remand as to all three appellants.