# State v. McCall > Court of Criminal Appeals of Tennessee · July 19, 1985 · 698 S.W.2d 643 URL: https://www.frixlaw.com/law-library/cases/9682337 ## Case - **Full name:** STATE of Tennessee, Appellee, v. Frank Andrew McCALL, Appellant - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** July 19, 1985 - **Citations:** 698 S.W.2d 643; 1985 Tenn. Crim. App. LEXIS 3185 - **Precedential status:** Published - **Opinion:** On rehearing by O'Brien - **Judges:** O'Brien, Walker, Dwyer - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682337 ## Opinion text OPINION ON PETITION TO REHEAR O’BRIEN, Judge. A timely motion to supplement the record in this case, coupled with a petition to rehear, was considered and, in pertinent part, granted. The record was supplemented to submit to this Court the transcript of the proceedings in the trial court relative to pretrial motions which were heard on July 18,1983. The petition to rehear was granted, limited to the issue of the admission of evidence found in the search of defendant’s automobile. Appropriate records, briefs and arguments of counsel have been filed and the petition is now properly before us for disposition. Defense counsel had filed a pretrial motion to suppress evidence obtained in a purported search of defendant’s automobile. It is insisted here that counsel was unable to proceed on July 18, 1983, on a factual basis or introduce any proof as to the search and seizure because the State had not furnished discovery of the names of the persons making any such search or seizure. It is further contended the court continued a hearing on the motion to a later date and ordered the State to provide counsel with the information requested, and, apparently confusing the import of his earlier order, denied the motion on August 22, 1983, the day of trial, without any further hearing on the issue. The State does not refute any of the foregoing, but on the other hand, declares that all of the evidence found within the passenger compartment of the vehicle was properly admitted in evidence under the doctrine of plain view. Alternatively they argue the search of the passenger area of the vehicle was incident to a lawful arrest, and finally that the search was authorized under the probable cause and exigent circumstances exception to the warrant requirement. It is argued the search of the trunk of the vehicle as well as the passenger compartment was justified under the rule laid down in United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), holding that police may conduct a warrantless search of a vehicle “as thorough as a magistrate could authorize in a warrant”, when they have probable cause to believe contraband is present in the vehicle. This trial resulted from the homicide of a Roane County Deputy Sheriff which occurred on Highway 58 in Roane County, not far removed from the northern boundary line of McMinn County. The facts surrounding the homicide were related in our original opinion. The victim, Deputy Dennis Armes, was found lying in the road *650 way, beside his patrol car. No one else was in the vicinity when his body was found. While authorities were investigating the homicide they received a report that an injured person had attempted to get into a grocery store in McMinn County, near the Roane County line. The trail ultimately led to defendant who was badly wounded, and in custody. A white Toyota automobile bearing a Knox County license was parked in the area. Defendant admitted he had been wounded at the scene of the homicide and informed the police that a companion, Steve Dotson, had shot the officer. The scene at the place where defendant was captured became extremely hectic. At one time it was reported there were fourteen or fifteen officers present. It appears that numbers of the officers looked at or examined defendant’s automobile, which was sitting in close proximity to the trailer where defendant was captured. The investigator from the Roane County Attorney General’s Office reported he saw what appeared to be blood on the driver’s side of the automobile, blood on the floor board, a pillow on the passenger seat, a hat in the floor board on the passenger side, and two or three beer cans on the rear floor board. Pictures of these items were introduced as exhibits. Highway Patrolman Paul Jarni-gan, who assisted Investigator Clarence Robbins in the examination of defendant’s automobile, testified they looked in the trunk of the vehicle and found a box containing a set of scales. These, apparently of the type commonly used for dividing drugs from large into smaller portions, were displayed to the jury. Other evidence indicated there was a cocaine residue on the scales. Defendant’s contention that he was unable to proceed on his motion to suppress evidence of the search of his automobile, or introduce any proof as to the search and seizure, because the State had not provided discovery of the names of persons who had made the purported search is an erroneous conception. It is undisputed that there was no search warrant for the automobile. A warrantless search and[or] seizure is presumed to be illegal, and the State bears the burden of showing any such search or seizure to be reasonable. See Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022, 2032 , 29 L.Ed.2d 564 (1971); State v. Crabtree, 655 S.W.2d 173, 179 (Tenn.Cr.App.1983). A warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant, Michigan v. Tyler, 436 U.S. 499 , 98 S.Ct. 1942, 1949 , 56 L.Ed.2d 486 (1978), and when entry is made under exigent circumstances, a search is reasonable so long as it is necessary to effectuate the purpose of the entry. See Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642, 1645 , 18 L.Ed.2d 782 (1967). If the warrantless entry is reasonable under the circumstances, then officers may seize what is in plain view. Harris v. United States, 390 U.S. 234 , 88 S.Ct. 992 , 19 L.Ed.2d 1067 (1968). If, however, the war-rantless entry is unreasonable, then the seizure is illegal and evidence seized cannot be used against an accused. Crabtree, supra. We are in complete accord with the State’s position that any evidence found in the passenger compartment of defendant’s vehicle was certainly admissible under the doctrine of plain view. An officer had been slain. The authorities were in pursuit of his assailant. Defendant was admittedly fleeing from the scene of the homicide when he attempted to assault another person while endeavoring to seek assistance in his escape. Evidently weakened from his wounds, he was overcome by the second victim, who called the police. In short order the area was teeming with police officers who completely surrounded defendant’s automobile. It was impossible for the officers not to observe that which was exposed for all the world to see. “[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate the property with criminal activity.” Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535, 1542 , 75 L.Ed.2d 502 (1983) citing Payton v. New York, 445 U.S. *651 573 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d 639 (1980). (Emphasis in Brown text). We are also satisfied that the search of the trunk of defendant’s vehicle was justified. There can be no doubt that there was probable cause to search as well as exigent circumstances although in this case probable cause alone was sufficient to make the search reasonable as an exception to the Fourth Amendment proscription against unreasonable searches and seizures. See United States v. Ross, supra. Although the trial judge in this case did not articulate his reasons for overruling the motion to suppress the evidence obtained from defendant’s automobile, we conclude that the most extensive hearing would not have justified a suppression of evidence under the facts contained in this record. In our original opinion we held that a complaint relating to the admission of atomic absorption test results was without merit, stating that if there was error in the admission of the evidence it was harmless under the circumstances. The test was made in an effort to determine whether or not defendant had recently fired a gun. Although our order granting the petition to rehear limited the issue for review to be the question of admission of evidence found in the search of defendant’s automobile, at defendant’s request we now reconsider our previous ruling relative to the admission of atomic absorption test results and hold that the evidence was properly admitted under the authority of California v. Trombetta, 467 U.S. 479 , 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984). Having reconsidered those matters raised in the petition to rehear which we consider pertinent, we reaffirm our prior judgment as augmented by this order. The judgment of the trial court must stand affirmed. WALKER, P.J., and DWYER, J., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682337. Public record. Not legal advice.