# State v. Jennette

> Tennessee Supreme Court · January 20, 1986 · 706 S.W.2d 614

URL: https://www.frixlaw.com/law-library/cases/9778097

## Case

- **Full name:** STATE of Tennessee, Appellant, v. Jerry JENNETTE and Marita Jennette, Appellee
- **Court:** Tennessee Supreme Court
- **Decided:** January 20, 1986
- **Citations:** 706 S.W.2d 614
- **Precedential status:** Published
- **Opinion:** Dissent by Drowota
- **Judges:** Harbison, Cooper, Fones, Brock, Drowota
- **Cited by:** 32 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/9778097

## How later opinions describe it (automated extraction)

- concluding that the question was not dispositive because, even if the search were invalid, the testimony of officers who had observed the marijuana while flying over the property was “alone was sufficient to convict the appellees”

## Opinion text

DROWOTA, Justice,
dissenting.
Because I believe that the decision of the majority in this case seriously erodes some of the most fundamental protections of the Tennessee Constitution and cannot be supported under the longstanding case law of this State, I respectfully dissent. Although the majority addresses the procedural issues as well as the search and seizure issues, I focus solely on the substantive requirements of Article I, § 7 of the Tennessee Constitution, which provides:
“[t]hat the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.”
As a result of the majority opinion, a significant encroachment is made upon the security of Tennesseans from general, unrestrained powers of government agents to search and seize. Regardless of whether the overflight of the helicopter is constitutionally acceptable, under the Tennessee Constitution, a warrant is still required to effect a search or seizure on private property absent exigent circumstances. Moreover, Article XI, § 16 of the State Constitution provides that the rights guaranteed under Article I “shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the General powers of government, and shall forever remain inviolate.” I cannot forget that not only is ours a government of laws rather than humans, but it is also a limited government whose legitimacy and survival depend on its remaining within the letter and spirit of the Constitution. See Hughes v. State, 176 Tenn. 330, 339 , 141 S.W.2d 477, 480 (1940); Hampton v. State, 148 Tenn. 155, 159 , 252 S.W. 1007 , 1008 (1923). With this in mind, I now address the reasoning of the majority.
The majority states that only unreasonable searches and seizures are prohibited by either the state or federal constitutions, and that the reasonableness of the investigating officers’ conduct is to be judged under all the circumstances of the incident involved. Even if "this is accepted as a general proposition, this is not the law as to searches of private, occupied premises under the Tennessee Constitution. In a long and uninterrupted line of cases, to which this Court is bound by stare decisis, this Court has repeatedly held that a warrant is the standard of reasonableness and is generally required to invade private, residential premises, which includes not just the house but the area used and fenced by the occupants, regardless of the existence *624 of probable cause to enter the land. See, e.g., Chico v. State, 217 Tenn. 19 , 394 S.W.2d 648 (1965); Allison v. State, 189 Tenn. 67 , 222 S.W.2d 366 (1949); Peters v. State, 187 Tenn. 455 , 215 S.W.2d 822 (1948); Welch v. State, 154 Tenn. 60 , 289 S.W. 510 (1926). The framers of Article I, § 7 intentionally included the word “possessions” “to limit searches of real and personal property which was in actual possession and occupancy. ‘Actual possession’ is usually evidenced by occupation, substantial enclosure, cultivation or use. The word ‘possessions’ would not include wild or waste lands, or other lands that are unoccupied.” 22 Tennessee Jurisprudence, Searches and Seizures, § 2, pp. 280-281. See Allison v. State, supra. Absent some exception to the warrant requirement, a warrantless search is presumed unreasonable under Tennessee law. See, e.g., Fuqua v. Armour, 543 S.W.2d 64, 66 (Tenn.1976); Robertson v. State, 184 Tenn. 277, 283 , 198 S.W.2d 633, 635 (1947); Kelley v. State, 184 Tenn, 143, 145, 197 S.W.2d 545, 547 (1946); Lawson v. State, 176 Tenn. 457, 459 , 143 S.W.2d 716, 717 (1940); Hughes v. State, 176 Tenn. 330, 334 , 141 S.W.2d 477, 481 (1940); Byrd v. State, 161 Tenn. 306, 309 , 30 S.W.2d 273 (1929); Lucarini v. State, 159 Tenn. 373, 376-377 , 19 S.W.2d 239, 240 (1928); Cravens v. State, 148 Tenn. 517, 518 , 256 S.W. 431 , 432 (1923); Hampton v. State, 148 Tenn. 155, 159 , 252 S.W. 1007 , 1008 (1923); Hughes v. State, 145 Tenn. 544, 565-566 , 238 S.W. 588 , 594 (1921). See also, e.g., State v. Doelman, 620 S.W.2d 96 (Tenn.Crim.App.1981); State v. Shaw, 603 S.W.2d 741 (Tenn.Crim.App.1980); Chadwick v. State, 1 Tenn.Crim.App. 72, 429 S.W.2d 135 (1968). 1 As recently as State v. Lakin, 588 S.W.2d 544 (Tenn.1979), and Fuqua v. Armour, supra, this Court has reiterated that under Tennessee law “[a] search or a seizure without a warrant ... is the exception, and it exists only under exceptional circumstances.” 543 S.W.2d at 66 . The majority states that a finding of exigency is not necessary to its decision, but this is manifestly contrary to the law of this State.
Moreover, State v. Lakin, supra, also recognized that the Tennessee Constitution is more protective of property interests than the Fourth Amendment to the United States Constitution. Although this Court has said the two provisions are identical in intent and purpose, Sneed v. State, 221 Tenn. 6 , 423 S.W.2d 857, 860 (1967), and that the two constitutions should be construed alike where possible, State v. Lakin, 588 S.W.2d at 549 n. 2, there are “pronounced linguistic differences in the two provisions.” State v. Berry, 592 S.W.2d 553, 563 (Tenn.1980) (Henry, J., separate opinion), cert. denied, 449 U.S. 887 , 101 S.Ct. 241 , 66 L.Ed.2d 112 (1980). Appellate courts have also recognized that the Tennessee Constitution is “more protective of private property rights than the Federal Constitution.” State v. Doelman, supra, 620 S.W.2d at 99 . Furthermore, states may provide more expansive rights than those provided by the federal constitution, but a state may not impose greater restrictions on police activity as a matter of federal constitutional law than those which the United States Supreme Court holds to be necessary under federal constitutional standards. Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975). See also, 1 W. Ringel, Searches & Seizures, Arrests and Confessions, § 2.6, at 2-16.1-2-22 (2d ed. 1984).
In 1926, this Court decided Welch v. State, supra. In Welch , the sheriff entered a one acre tract of land possessed by the defendant in search of an illegal whiskey operation. The lot was more than 300 yards from the defendant’s residence and was used by defendant for confining livestock. The trial judge charged the jury that as a matter of law no search warrant was required. This Court reversed, stilting *625 that the word “possessions” as used in the state constitution refers to “property, real or personal, actually possessed or occupied.” 154 Tenn. at 62 , 289 S.W. at 510 . The Court reasoned that the word “possessions” was added to the constitution for a purpose and “means more than houses or mansions_” Id. at 62 , 289 S.W. at 510 . Concluding that the word “houses” in the Tennessee Constitution would include the “curtilage,” the framers must have, therefore, intended the word “possessions” to have included more than the “curtilage.” The Court noted that the word “possessions” would not include wild or waste lands, or other lands that were unoccupied; but would include the grounds adjoining the dwelling house, and the building thereon, within the same common fence, in daily use in connection with the conduct of family affairs. 154 Tenn. at 63 , 289 S.W. at 511 .
The holding in Welch, supra, has been repeatedly adhered to in subsequent decisions of this Court. In Peters v. State, supra, the Court reaffirmed the proposition that “possessions” “includes more than the curtilage.” 187 Tenn. at 457 , 222 S.W.2d at 823 . Similarly, in Allison v. State, supra, this Court invalidated a war-rantless search where “[t]he wood-lot where the still and nine gallons of illicit whiskey were found was a half-mile from Defendant’s dwelling, but the lot was a fenced enclosure used for pasture.” 189 Tenn. at 68 , 222 S.W.2d at 366 .
Departing from such well-established Constitutional law, the decision of the Court in this case takes us a step closer to recreating a general power to search in executive officials without the required sanction or supervision of the judiciary. This Court recognized in Fuqua v. Armour, supra, that
“[t]he rights secured by these constitutional provisions are to be regarded as of the very essence of constitutional liberty; they express the conviction that the right to search and seize should not be left to the discretion of the police but should be subject to the requirement of previous judicial sanction wherever possible.
543 S.W.2d at 66 (citations omitted).
While I agree that, under Oliver v. United States, 466 U.S. 170 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984), and its companion case, the Fourth Amendment provides no protection to these defendants, I cannot agree that the Tennessee Constitution does not protect them. By following the United States Supreme Court in this area, this Court is effectively overruling the long-settled Constitutional Law of Tennessee. Absent a warrant properly obtained, an intrusion so radical as a physical invasion by armed police officers is unreasonable; just such a coercive incursion is precisely what Article I, § 7 is aimed at preventing:
“A ‘search’ as applied under the provisions of these Constitutions means searches and seizures by an examination of a man’s home, buildings, premises, his person, or what not, with a view to the discovery of contraband ... or some evidence of guilt to be used in a criminal prosecution ... and implies invasion and quest which in turn implies some sort of force, actual or constructive, much or little.”
Lester v. State, 216 Tenn. 615, 619 , 393 S.W.2d 288, 290 (1964). As the Court noted in Cravens v. State, supra, Mr. Justice Green writing:
“The history of our ancestors for 300 years has demonstrated that police officers cannot be permitted to ransack at will the properties of the people. Intolerable conditions have always followed such practices. A revolution in England and the revolution of the American colonies are said by high authorities to have been largely influenced by promiscuous seizures and searches of the houses and effects of the people — efforts by the constituted authorities to procure evidence of the violation of regulations deemed wise by those in power, but unpopular with many, and constantly transgressed.”
148 Tenn. at 518-519, 256 S.W. at 432. In this context of a physical invasion by police *626 officers, the view from the helicopter, which is not recognized as a search, should be analyzed separately from the actual entry onto the Jennette property to obtain evidence, which is undoubtedly a search. Again, the Court stated as much in Hughes v. State, supra:
“Security from unlawful search is the right guaranteed to the citizen, even for the discovery of the citizen’s sins.... The experience of our forefathers with unlawful searches and seizures was deemed by the people who framed the Constitution sufficient to warrant the provision by which in instances even the guilty might escape detection and punishment.”
145 Tenn. at 565-566 , 238 S.W. at 594. The framers of' our Constitution believed that, while contraband would incidentally be shielded by the search and seizure provisions, the greater evil would be a general power to search vested in the government.
Clearly, a forced entry by trespassing, armed police officers onto fenced, occupied, residential premises is not only within the spirit but the letter of Article I, § 7 of the Tennessee Constitution. A warrantless seizure of contraband sighted by aerial surveillance should not ordinarily follow, regardless of how reasonably the officers believe themselves to be acting, absent the requisite exigent circumstances justifying a warrantless entry. This Court recognized in Lakin v. State, supra, that
“[ojrdinarily officers searching occupied, fenced, private property must first obtain consent or a warrant; otherwise they proceed at the risk that evidence obtained may be suppressed. When a warrantless search is challenged, an exception to the search warrant requirement must be shown.”
588 S.W.2d at 549 (emphasis added).
In the case at bar, the property in question was not “wild and waste land” which might be roamed at will without a search warrant. See State v. Chico, supra; and State v. Welch, supra. The property was part of the Defendants’ farm and they had attempted to keep the property private through the use of a locked gate and no trespassing signs. Although the officers had probable cause to believe contraband was being grown on the property, probable cause alone can never justify a warrantless search. See, e.g., Fuqua v. Armour, 543 S.W.2d at 67 . Some sort of emergency or exigent circumstances must also exist. State v. Byerley, 635 S.W.2d 511 (Tenn.1982); State v. Longstreet, 619 S.W.2d 97 (Tenn.1981); see also United States v. Fultz, 622 F.2d 204 (6th Cir.1980), cert. denied, 449 U.S. 834 , 101 S.Ct. 105 , 66 L.Ed.2d 40 (1980). Moreover, while the majority argues that State v. Roode, 643 S.W.2d 651 (Tenn.1982), was not bottomed on the existence of exigent circumstances, their presence clearly distinguishes Roode , as well as State v. Layne, 623 S.W.2d 629 (Tenn.Crim.App.1981), from this case. In those cases, the physical presence of individuals and other activities seen by the officers during the overflight of the property justified their proceeding without a warrant under the exigent circumstances exception. All that was seen by the officers during the overflight in the instant case were the unattended patches of marijuana. Not until the police had actually entered upon the Jennette property could they see Mrs. Jennette do anything that would be interpreted as an impending destruction of evidence — but they had no right to be there to see it at all. See State v. Byerley, 635 S.W.2d at 514 (where officers’ knowledge of the location or existence of evidence rises to that of probable cause, a warrant is required). Without a warrant and absent exigent circumstances, these officers stood in no better shoes than those of trespassers. See Hughes v. State, 176 Tenn. at 339, 141 S.W.2d at 480 ; Chadwick v. State, 1 Tenn.Crim.App. at 81 , 429 S.W.2d at 139 . Cf. Sneed v. State, 221 Tenn. at 13 , 423 S.W.2d at 860 (“[the] recognized rule that constitutional rights are not violated when a law officer, without any trespass against a defendant, and while he is at a place where he has a right to be, looks and sees evidence ... which is plainly visible.”) (emphasis added).
*627 In addition, the majority contends that a valid warrant might have been difficult for these officers to obtain, since they did not have the particularized knowledge necessary to support a warrant, and thus any attempt to do so would have risked loss of the evidence. For the majority, this mitigates in favor of the officers, but to me, permitting officers to invade a person’s home and property without knowing whether that person is the likely perpetrator is a general search, against which Article I, § 7 is surely aimed:
“[0]ur laws prescribe the procedure through which officers may search suspected persons and places, and seize things. There is no writ more calculated to be abused in its use than the search warrant, for with it any home may be entered and the inmates disturbed, humiliated, and degraded. To prevent such a possibility from false informants made to officers inspired by overzeal, or acting from expediency, or obeying the command uttered by a mob impulse, the provisions of the Constitution and statutes found force and command observance.”
Hampton v. State, 148 Tenn. at 160-161, 252 S.W. at 1008. Further, a local deputy was in the helicopter with Officer Dover and was able to direct the sheriff to the property with sufficient specificity. The case is, as the majority concedes, a close one, and the State — on whom the burden of showing an exception to the warrant requirement falls — has failed to demonstrate any danger that “the administration of the criminal laws of the State [would suffer] had these patrolmen followed the statutory practice instead of taking the law into their own hands.” Hughes v. State, 176 Tenn. at 341, 141 S.W.2d at 481 . Since this is a close case, our cases require that “it is essential that this constitutional guaranty be liberally construed in favor of the individual.” Hughes, 176 Tenn. at 339 , 141 S.W.2d at 480 . Thus, cases of doubt must be decided solicitously for the individual and not for the government. These officers had ample opportunity to obtain a warrant while maintaining their surveillance and keeping a contingent prepared to seize the contraband should any exigent circumstances arise during the interim. Cf. State v. Shaw, 603 S.W.2d 741, 743-744 (Tenn.Crim.App.1980) (exigent circumstances can arise at any time). At the least, these officers’ actions are not clearly reasonable or required under any exigency apparent on these facts, and less intrusive methods could have been used. In Rippy v. State, 550 S.W.2d 636 (Tenn.1976), this Court stated that “[t]he mere existence of [exigent] circumstances does not necessarily validate a warrantless search. As pointed out in Nelson [ 459 F.2d 884 (6th Cir.1972)], the exceptions [to the warrant requirement] are ‘jealously and carefully drawn’ ... there must be a showing by those asserting the exception that the exigencies of the situation made the search imperative_” Id., at 641.
Despite its distinctions regarding the facts in Lakin v. State from those of the present case, the majority has all but overruled Lakin sub silentio. Nothing in La-kin, nor in any of the eases cited, indicates that, apart from the recognized exceptions to the warrant requirement, the protections of Article I, § 7 depend so definitively on the facts of the case. See Rippy v. State, supra. Just such vagaries in factual settings has produced the often confusing and unmanageable case law of the Fourth Amendment to the Federal Constitution. Such after-the-fact review of cases permits a result-oriented analysis that rationalizes the validity of the search by what is found rather than on the purposes of the Constitutional protections from warrantless intrusions.
“The Constitution of this State protects citizens of this State against unreasonable searches and seizures, and it has been held consistently that officers may not search premises without having a proper search warrant, and that, if such search is made in defiance of the rights of the owner of the premises, any evidence obtained through such unlawful search is inadmissible against the owner in any prosecution.”
*628 Kelley v. State, 184 Tenn. at 145, 197 S.W.2d at 546 .
Further, although the majority asserts that Fuqua v. Armour, supra, permits law officers to seize contraband summarily, even if their conduct violates a person’s constitutional rights, I do not read Fuqua as going that far, and on the contrary that case held that a statute may not authorize any conduct by officers in excess of what the Constitution allows:
“The fact that probable cause exists for seizure is not enough; there must also exist ‘exigent circumstances’; therefore, [T.C.A. § 53-11-409] should be construed as authorizing a seizure without a warrant, upon probable cause, only when ‘exigent circumstances’ exist justifying summary seizure. ‘No amount of probable cause can justify a warrantless search or seizure, absent ‘exigent circumstances.’ Coolidge v. New Hampshire, supra. Thus construed and restricted, [T.C.A. § 53-11-409] may constitutionally be applied.”
543 S.W.2d at 68 . As stated in Cravens v. State, supra, “[t]he enforcement of no statute is of sufficient importance to justify indifference to the basic principles of our government.” 148 Tenn. at 520, 256 S.W. at 432. 2
I am constrained to emphasize the fundamental nature of the rights involved in these cases and repeatedly return to basic concepts upon which our government operates. In Hughes v. State, supra, this Court, quoting Gouled v. United States, 255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 , reaffirmed that
“Such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property;’ that they are to be regarded as of the very essence of constitutional liberty_ It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.”
145 Tenn. at 560-561 , 238 S.W. at 592-593. See also Hughes v. State, 176 Tenn. at 339-340, 141 S.W.2d at 480 ; Hampton v. State, 148 Tenn. at 163, 252 S.W. at 1008-1009.
Under the settled, consistent development of state law interpreting the search and seizure provision of our state constitution, the warrantless search and seizure of property on the Jennette’s farm cannot be upheld. I have reconsidered the decisions of this Court construing Article I, Section 7 of the Tennessee Constitution in light of Oliver, supra, and do not find them to be erroneous. We should decline to follow Oliver because it would require overruling approximately 60 years of well-reasoned case law in this State. Accordingly, I must respectfully dissent.
I am authorized to state that BROCK, J., concurs in this dissent.
. The Cravens Court also noted that "[w]e can conceive of no exigency in time of peace that could induce this court to weaken the barriers put up by our fathers to prevent the abuse of [search warrants].” Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778097. Public record. Not legal advice.