Petition for Writ of Certiorari — Brian Anthony Wiley, Petitioner v. Tennessee

NO. 20-_____

In the

Supreme Court of the United States

BRIAN ANTHONY WILEY,

Petitioner,

v.

STATE OF TENNESSEE,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Tennessee

PETITION FOR A WRIT OF CERTIORARI

CHARLES LELAND DAVIS

COUNSEL OF RECORD

DAVIS & HOSS, P.C.

850 FORT WOOD STREET

CHATTANOOGA, TN 37403

(423) 266-0605

LEE.DAVIS@DAVIS-HOSS.COM

COUNSEL FOR PETITIONER

JUNE 25, 2020

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Whether the Fourth Amendment of the United

States Constitution permits police to enter a privately

rented campsite without probable cause or invitation,

question and detain the campsite’s resident in a tent

within the campsite, and conduct a warrantless search

of the resident’s car parked within the rented campsite?

ii

PARTIES TO THE PROCEEDINGS

Petitioner

●

Brian Anthony Wiley

Respondent

●

State of Tennessee

iii

LIST OF PROCEEDINGS

Supreme Court of Tennessee

No. M2018-01817-SC-R11-CD

State of Tennessee v. Brian Anthony Wiley

Date of Final Order: April 15, 2020

_________________

Court of Criminal Appeals of Tennessee

No. M2018-01817-CCA-R3-CD

State of Tennessee v. Brian Anthony Wiley

Date of Final Opinion: January 21, 2020

_________________

Circuit Court of Coffee County

Case No. 43,093

State of Tennessee v. Brian Anthony Wiley

Date of Orders: May 18, 2017, September 20, 2018

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

LIST OF PROCEEDINGS ......................................... iii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISION ............................. 2

STATEMENT OF THE CASE .................................... 2

I.

Factual History ................................................ 2

II. Procedural History ........................................... 8

REASONS FOR GRANTING THE PETITION ....... 10

I.

A RENTED AND DESIGNATED CAMPSITE ON

PRIVATE PROPERTY IS PROTECTED BY THE

FOURTH AMENDMENT OF THE U.S. CONSTITUTION. ............................................................ 11

A. An Expectation of Privacy in a Privately

Rented Campsite is One That Society

Recognizes as Reasonable ....................... 13

B. Mr. Wiley Exhibited an Actual (Subjective) Expectation of Privacy in His

Campsite by Exercising Control Over

His Assigned Space and Setting Up

Living Quarters to Reside There for

Several Days ............................................. 21

II. NO EXCEPTIONS TO THE FOURTH AMENDMENT’S WARRANT REQUIREMENT APPLY ......... 24

v

TABLE OF CONTENTS – Continued

Page

A. The Automobile Exception Does Not

Apply Given the Location of the Vehicle,

Parked Within the Constitutionally

Protected Campsite................................... 24

B. A Drug-Sniffing Dog Cannot Justify the

Warrantless Search of a Vehicle Parked

Within a Constitutionally Protected

Campsite ................................................... 27

C. No Other Commonly Recognized Exceptions to the Warrant Requirement Apply ... 28

CONCLUSION.......................................................... 30

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Per Curiam Order Denying Application for

Permission to Appeal of the Supreme Court

of Tennessee at Nashville (April 15, 2020)........ 1a

Opinion of the Court of Criminal Appeals of

Tennessee at Nashville (January 21, 2020) ...... 2a

Judgment of the Court of Criminal Appeals of

Tennessee at Nashville (January 21, 2020) .... 33a

Judgment Order of the Circuit Court of

Coffee County (September 26, 2018) ............... 35a

Judgment Order Reserving Certified Question of

Law (September 26, 2018) ............................... 60a

Order of the Circuit Court of Coffee County

Denying Motion to Reconsider

(September 20, 2018)........................................ 63a

Order of the Circuit Court of Coffee County on

Defendant’s Motion for Suppression

(May 18, 2017) .................................................. 66a

COURT PROCEEDINGS

Indictment

(June 9, 2016) ................................................... 73a

Motion to Suppress Hearing, Transcript

(April 12, 2017) ................................................. 84a

Oral Argument Transcript, Court of Criminal

Appeals of Tennessee (June 18, 2019) ........... 163a

vii

TABLE OF CONTENTS – Continued

Page

SELECT DEFENSE MOTIONS

Defendant’s Motion to Suppress and

Memorandum of Law

(February 23, 2017) ........................................ 195a

Defendant’s Motion to Reconsider

(May 30, 2018) ................................................ 221a

Supplemental Memorandum to Motion to

Reconsider (September 10, 2018) .................. 225a

viii

TABLE OF AUTHORITIES

Page

CASES

Bond v. United States,

529 U.S. 334 (2000) ........................................... 13

Byrd v. United States,

138 S.Ct. 1518 (2018) ...................... 19, 20, 21, 22

California v. Ciraolo,

476 U.S. 207 (1986) ........................................... 27

Collins v. Virginia,

138 S.Ct. 1663 (2018) ................................ passim

Coolidge v. New Hampshire,

413 U.S. 443 (1971) ..................................... 25, 28

Florida v. Jardines,

569 U.S. 1 (2013) .................................. 11, 27, 28

Katz v. United States,

389 U.S. 347 (1967) ....................................... 13, 28

Kelley v. State,

245 S.E.2d 872 (Ga. Ct. App.1978) ............. 12, 16

People v. Hughston,

85 Cal. Rptr. 3d 890 (Cal. Ct. App. 2008) ... 14, 25

People v. Schafer,

946 P.2d 938 (Colo. 1997) ............................ 14, 25

Rigsby v. United States,

943 F.2d 631 (6th Cir. 1991) ............... 12, 17, 25

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) ........................................... 24

State v. Beck,

336 P.3d 809 (Idaho 2014) ................................ 19

ix

TABLE OF AUTHORITIES – Continued

Page

State v. Pruss,

181 P.3d 1231 (Idaho 2008) ........................ 14, 25

Stoner v. California,

376 U.S. 483 (1964) ................................ 12, 13, 21

Terry v. Ohio,

392 U.S. 1 (1968) ............................................... 28

United States v. Basher,

629 F.3d 1161 (9th Cir. 2011) ....................... 18, 19

United States v. Dunn,

480 U.S. 294 (1987) ..................................... 17, 18

United States v. Gooch,

6 F.3d 673 (9th Cir. 1993)....................... 12, 14, 25

United States v. Howard,

752 F.2d 220 (6th Cir. 1985) ............................. 24

Vale v. Louisiana,

399 U.S. 30 (1970) ............................................. 25

Walter v. United States,

447 U.S. 649 (1980) ........................................... 22

West v. Shelby Cty. Healthcare Corp.,

459 S.W.3d 33 (Tenn. 2014) .............................. 23

Zap v. United States,

328 U.S. 624 (1946) ........................................... 24

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ...................................... passim

U.S. Const. amend. XIV ............................................ 24

x

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1257 .......................................................... 1

Tennessee Code Annotated § 39-17-417 ...................... 8

Tennessee Code Annotated § 39-17-425 .................... 8

JUDICIAL RULES

Sup. Ct. R. 10(b) ........................................................ 11

Sup. Ct. R. 10(c) ...................................................... 11

OTHER AUTHORITIES

Black’s Law Dictionary (6th ed. 1996) ..................... 20

CHM Government Services,

Campground Industry Analysis

http://nps.gov/subjects/policy/upload/FinalCampground-Trends-Analysis.pdf.

(Jan. 10, 2020).................................................... 11

James C. Smith,

“Common Law Property Rights,”

Neighboring Property Owners § 7.2 (2018) 20, 21

W. Blackstone,

Commentaries on the Laws of England ........... 20

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Brian Anthony Wiley respectfully

petitions for a writ of certiorari to review the judgment

of the Tennessee Criminal Court of Appeals.

OPINIONS BELOW

The Tennessee Supreme Court denied Mr. Wiley’s

application for permission to appeal. A copy of that

order is attached in the Appendix (“App.”) 1a. The

decision of the Tennessee Criminal Court of Appeals

denying Mr. Wiley’s appeal is attached at App.2a.

This opinion is also available electronically at State v.

Wiley, No. M2018-01817-CCA-R3-CD, 2020 WL 290841

(Tenn. Crim. Ct. App. Jan. 21, 2020). The decisions of

the Criminal Court of Coffee County, Tennessee are

attached at App.63a and App.66a.

JURISDICTION

The Tennessee Criminal Court of Appeals denied

Mr. Wiley’s appeal on January 21, 2020. App.2a. The

Tennessee Supreme Court denied Mr. Wiley’s application for permission to appeal on April 15, 2020.

App.1a. Therefore, this Court has jurisdiction under

28 U.S.C. § 1257 as Mr. Wiley has filed this petition

for writ of certiorari within 90 days of the Tennessee

Supreme Court’s judgment.

2

CONSTITUTIONAL PROVISION

U.S. Const. amend. IV.

The 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, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

I.

Factual History

On Wednesday, June 8, 2016, Brian Wiley arrived

by car at the Bonnaroo Music and Arts Festival

(“Bonnaroo”), an annual event located on a 700-acre

private farm in Coffee County, Tennessee. App.127a,

151a. Mr. Wiley’s sister, Andrea Anthony, followed

him in another car. App.133a.

Bonnaroo is a four-day music event, often with

more than 90,000 people in attendance. In addition

to purchasing a general admission ticket to attend

concerts at Bonnaroo, attendees may opt to pay a

separate car camping fee that allows for camping in

designated car camping locations. These campsites

become temporary living accommodations for the duration of the four-day event. These campsites are apart

and separate from the music stages, but within the

3

700-acre venue that is Bonnaroo. There are separate

general parking areas for concertgoers that do not

pay for overnight camping. App.126a-127a, 136a-137a,

151a, 198a, 217a-220a.

A month prior to the event, on May 6, 2016, Mr.

Wiley purchased a general admission ticket to attend

Bonnaroo 2016 for $349.50. Mr. Wiley separately

purchased a car camping pass for $59.75. App.150a,

217a-220a. The terms of admission printed on the

ticket state, in pertinent part:

This ticket is a revocable license for the

time listed on the front hereof. Management

reserves the right, without refund of any

portion of the ticket purchase price, to refuse

admission or eject any person who fails to

comply with the rules of the venue, local,

state, or federal law, or whose conduct is

deemed illegal, disorderly, or offensive by

management. Persons entering the facility

are subject to search for contraband, alcohol,

controlled substances, weapons, firearms, fireworks, cameras, video equipment or recording

devices, which are expressly forbidden and

subject to confiscation . . . .

App.218a.

To enforce its entry-search policy, Bonnaroo

management operates controlled entry points to the

festival in the form of “tollbooths” wherein vehicles

and persons entering the facility are subject to search.

App.125a, 133a-134a. Mr. Wiley’s vehicle was searched

upon entry at one such tollbooth and afterwards he

proceeded to the car camping area as directed by

Bonnaroo staff. App.135a, 151a-152a.

4

Once in the car camping area, in a location known

as “Pod 9,” Bonnaroo staff directed Mr. Wiley and his

sister to park in a specific fashion, assigning each car

a 20’ x 20’ campsite.1 The cars were lined up bumper

to bumper with Mr. Wiley parking behind another

vehicle and his sister parking behind him (with her

front bumper facing Mr. Wiley’s back bumper). App.

126a-127a, 135a, 141a, 151a-153a, 198a, 202a. Near

each pod were lanes of travel where people could walk.

App.89a.

After Bonnaroo staff directed Mr. Wiley to his

campsite, he erected an easy-up canopy tent equipped

with tapestry walls on the sides.2 This was adjacent

to his car, which held his personal effects. He also set

up another tent for sleeping. Together the tent, the

easy-up canopy tent, and Mr. Wiley’s vehicle served as

his temporary home—where he slept, kept belongings,

and generally lived for the duration of the festival.

Mr. Wiley’s sister set up a similar accommodation at

1 The court of appeals found that campers were given “squares,”

rather than 20’ x 20’ spaces. App.6a; Wiley, 2020 WL 290841 at

*2, n.1. However, this fact was never disputed and the record

below supports this specific dimension, which is, of course, square.

Mr. Wiley testified that the spaces had the 20’ x 20’ square

dimension, Officer Sherrill did not dispute the dimension, and

Mr. Wiley’s sister confirmed that the dimension was a square.

Based on this evidence, the trial judge made a factual finding

that Mr. Wiley was assigned a 20’ x 20’ campsite. App.67a,

112a, 143a-144a, 151a-153a.

2 The court of appeals noted that Officer Sherrill did not recall

tapestry sides hung on the easy-up tent. App.9a; Wiley, 2020

WL 290841 at *3. However, both Mr. Wiley and his sister

described the tent as having tapestry walls at the motion to

suppress hearing and the trial judge found that tapestries could

be hung on such a tent. App.67a, 134a-137a, 153a-154a.

5

a campsite location adjacent to his. Mr. Wiley, his

sister, and his girlfriend (who met him at the festival)

spent their first night at the campsite and the next day

at Bonnaroo without incident. App.110a, 134a-137a,

153a-154a.

The next evening, Thursday, June 9, 2016, six

Coffee County Sheriff’s Deputies: James Sherrill,

Blake Simmons, Stephen Sharketti, Wendell Norton,

Brandon Reed and reserve deputy Justin McIntosh

were on routine patrol in Bonnaroo walking in the

area known as Pod 9. These uniformed officers were

working in the scope of their employment as Coffee

County Sheriff’s Department employees. They were

not employees of Bonnaroo. App.98a-99a, 126a-127a,

198a.

During this patrol, Deputy Sherrill overheard a

young man, identified as Trevor Watson, making

claims about the quality of acid he was attempting to

sell to other attendees of Bonnaroo. As Deputy Sherrill

heard this statement, he “latched hold of [Watson’s]

backpack and introduced [him]self,” sitting Mr. Watson

down on the ground. App.105a. Deputy Sherrill proceeded to search Mr. Watson’s backpack, in which he

found plastic, multi-colored pouches containing

narcotics. App.87a.

While on the ground in police custody, Mr. Watson

allegedly told Deputy Sherrill, “if [we] just let him go

he would help [us] get a bigger bust.” App.106a. Mr.

Watson then purportedly mentioned “a guy named

Brian” from Chattanooga in another place in Pod 9.

App.106a. Mr. Watson was then transferred to the

custody of Investigator Jason Dendy and Deputy Toby

Alonso. App.91a.

6

Based on what Mr. Watson told Deputy Sherrill,

he and Deputies Reed, Sharketti, Simmons, Norton,

and McIntosh left Mr. Watson and sought this “guy

named Brian” elsewhere in Pod 9. Sometime later,

the six deputies approached Mr. Wiley’s campsite

and entered uninvited. Mr. Wiley, his girlfriend, his

sister, and two other young men were present. Mr.

Wiley was standing by his car within his 20’ x 20’

campsite. No one was engaged in illegal activity.

App.98a-99a, 104a-105a.

Deputy Sherrill approached and asked Mr. Wiley

where he was from. Mr. Wiley said, “Chattanooga.”

Hearing that word, Deputy Sherrill grabbed Mr. Wiley

by the back of his shirt, forcibly walked him into the

canopy tent, and sat him down. App.108a-111a. Deputy

Sherrill then asked Mr. Wiley for consent to search

his vehicle and Mr. Wiley refused. App.109a. Mr. Wiley

was stood up and patted down and searched. No

weapons or contraband were found on him. Deputy

Sherrill testified that Mr. Wiley was not free to leave

and was under arrest at the campsite at that time.

Mr. Wiley chose not to answer any further questions,

exercising his constitutionally protected right to remain

silent. App.113a, 130a, 154a-155a.

Approximately two minutes after he arrived on

the campsite, Deputy Sherrill directed that Officer

Dale Robertson with the Manchester Police Department

be called and ordered to bring his K-9 unit to search

Mr. Wiley’s car. App.92a, 97a-98a, 130a.

Meanwhile, the other deputies instructed Mr.

Wiley’s girlfriend, sister, and two other young men to

sit down under the canopy tent in the living area of

the campsite. Deputies searched Mr. Wiley’s girlfriend,

his sister, and the two young men. No contraband

7

was found. No weapons were found. Mr. Wiley’s sister

was asked for consent to search her vehicle, which

she gave. Her car was searched, and no contraband

or weapons were found in her vehicle. App.112a-113a,

137a-138a.

Deputy Sherrill testified that, at some point, he

looked into Mr. Wiley’s vehicle using a flashlight and

saw some empty plastic pouches.3 Deputy Sherrill

testified that he thought that the pouches were

similar to the kind found in Mr. Watson’s backpack.

However, there was no actual contraband observed

by Deputy Sherrill. App.93a, 98a, 100a, 118a-119a.

Deputy Sherrill testified that he did not have probable

cause to search Mr. Wiley’s car at that time. App.119a121a.

Sometime later, the K-9 unit arrived at Mr. Wiley’s

campsite and performed a sniff search, alerting on

Mr. Wiley’s vehicle. An officer took Mr. Wiley’s keys,

without Mr. Wiley’s consent, and unlocked and

searched Mr. Wiley’s car. Officers found marijuana

and a large amount of cash before driving the car to

the command center for a further search. The following

evidence, in pertinent part, was recovered from the

search: THC oil, MDMA, marijuana, mushrooms, LSD,

xanax, and approximately $29,000 in cash. App.94a96a. No search warrant was ever sought or obtained

in the search of Mr. Wiley’s campsite or vehicle found

therein.

3 In its description of events, the court of appeals assumed that

Deputy Sherrill looked into the car prior to detaining Mr. Wiley

in the easy-up tent. App.9a; Wiley, 2020 WL 290841 at *3 & n.

2. However, the evidence indicated otherwise—Deputy Sherrill

ultimately admitted: “I honestly don’t remember if I went to the

passenger door first or not.” App.100a.

8

II.

Procedural History

In July of 2016, the Coffee County Grand Jury

returned an Indictment charging Defendant Brian

Wiley with seven counts of possessing controlled substances with intent to sell or deliver, in violation of

Tennessee Code Annotated § 39-17-417, and one count

of possessing drug paraphernalia, in violation of

Tennessee Code Annotated § 39-17-425. App.73a.

Counsel for Mr. Wiley filed a Motion to Suppress

on February 23, 2017, on grounds that evidence was

recovered in violation of the Fourth Amendment.

App.195a. On April 12, 2018, Judge Vanessa Jackson

of the Coffee County Circuit Court held a hearing on

the Motion to Suppress. App 84a. Following that

hearing, the trial court denied the motion, finding

that the search of Mr. Wiley’s automobile fell within

the “automobile exception” to the warrant requirement

of the Fourth Amendment. App.66a.

On May 29, 2018, following this Court’s decision

in Collins v. Virginia, 138 S.Ct. 1663 (2018), counsel

for Mr. Wiley filed a Motion to Reconsider the trial

court’s Order on the Motion to Suppress, again on

Fourth Amendment grounds. App.221a. Counsel for

Mr. Wiley also filed a Supplemental Memorandum,

further citing the Fourth Amendment, on September

10, 2018. App.225a. On September 20, 2018, the trial

court denied Mr. Wiley’s Motion to Reconsider, finding

that Fourth Amendment protections did not apply

to Mr. Wiley’s campsite/temporary accommodation.

App.63a.

On September 26, 2018, Mr. Wiley pled guilty to

five counts of possessing controlled substances with

intent to sell or deliver. App.56a. Pursuant to the plea

9

agreement, Mr. Wiley reserved the following certified

question of law:

Whether the trial court erred in denying

defendant’s motion to suppress alleging

Defendant’s Fourth Amendment rights were

violated by police who, without probable

cause, entered a tent on Defendant’s privately

rented campsite (a temporary accommodation)

at Bonnaroo without invitation, questioned

him, detained him, and when he refused to

consent to a vehicle search, conducted a

warrantless search of his car parked within

the 20’ x 20’ rented campsite, an area where

the Defendant had a reasonable expectation

of privacy?

App.60a.

On September 26, 2018, Mr. Wiley timely filed a

Notice of Appeal to the Tennessee Court of Criminal

Appeals. On January 21, 2020, and following oral

argument, the Tennessee Court of Criminal Appeals

affirmed the judgments of the trial court. App.2a.

In its opinion, the court of appeals recognized

varying degrees of Fourth Amendment privacy protections within Mr. Wiley’s 20’ x 20’ campsite. The

court held that Mr. Wiley’s “tent structure” where he

slept was afforded Fourth Amendment protections.

App.24a-25a; Wiley, 2020 WL 290841 at *10. However,

the court held that the 20’ x 20’ campsite surrounding

the sleeping tent was not protected by the Fourth

Amendment as curtilage. App.29a-31a; Wiley, 2020

WL 290841 at *11. And, the court refused to determine

whether the other tent structure (the easy-up canopy

10

tent) was protected by the Fourth Amendment at all.

App.25a; Wiley, 2020 WL 290841 at *10-12 & n.10.

On March 18, 2020, Mr. Wiley timely filed a Rule

11 Application for permission to appeal to the

Tennessee Supreme Court. On April 15, 2020, the

Tennessee Supreme Court entered an order denying

Mr. Wiley’s Application for permission to appeal.

App.1a.

REASONS FOR GRANTING THE PETITION

In this case, there are two basic legal issues: (I)

whether a rented and designated campsite on private

property is protected by the Fourth Amendment of the

U.S. Constitution; and, (II) if so, whether any exceptions allow for an officer to enter said campsite, arrest

a camper, and conduct a warrantless search of the

campsite (and vehicle parked therein) without a

warrant or probable cause.

Accordingly, the Fourth Amendment is central to

this case. It was raised initially in Mr. Wiley’s Motion

to Suppress. App.195a. And, the lower courts all ruled

on Fourth Amendment grounds. In its two orders,

the trial court focused on the automobile exception

and the scope of the Fourth Amendment, respectively.

App.63a, 66a. The Court of Criminal Appeals also

focused on the scope of the Fourth Amendment (in

varying degrees). App.2a. The lower court decisions

addressing these Fourth Amendment questions

resulted in serious constitutional error.

The application of the Fourth Amendment in the

context of camping has not been addressed by this

11

Court. It merits consideration given the large number

of people that camp in the United States. According

to a study commissioned by the National Park Service,

there are approximately 13,900 privately operated

campgrounds in the United States and 12,200 public

sector campgrounds. See CHM GOVERNMENT SERVICES,

CAMPGROUND INDUSTRY ANALYSIS 15, 56, http://nps.

gov/subjects/policy/upload/Final-Campground-TrendsAnalysis.pdf. (Jan. 10, 2020). And, 62% of U.S. households identify themselves as campers. Id. at 51.

Therefore, certiorari is warranted under Supreme

Court Rule 10(c) as a state court has decided an

important Fourth Amendment question that has not

been, but should be, settled by the United States

Supreme Court. Certiorari is also warranted under

Supreme Court Rule 10(b) as the Tennessee Court of

Criminal Appeals’ decision conflicts with the relevant

decision of the Supreme Court in Collins v. Virginia,

138 S.Ct. 1663 (2018). As set forth below, the vehicle

parked within Mr. Wiley’s rented campsite was, at

the very least, within its curtilage, and should have

been afforded constitutional protection like the

motorcycle in Collins.

I.

A RENTED AND DESIGNATED CAMPSITE ON PRIVATE

PROPERTY IS PROTECTED BY THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION.

It is well settled that “when the Government

obtains information by physically intruding on persons,

houses, papers or effects, a search, within the original

meaning of the Fourth Amendment has undoubtedly

occurred.” Florida v. Jardines, 569 U.S. 1, 5 (2013)

(internal quotation marks and citations omitted).

And, “when it comes to the Fourth Amendment, the

12

home is first among equals. At the Amendment’s very

core stands the right of a man to retreat into his own

home and there be free from unreasonable governmental intrusion.” Id. Further, the home’s curtilage

or the area “immediately surrounding and associated

with the home” is considered “part of the home itself

for Fourth Amendment purposes.” Id. at 6. In sum,

when law enforcement intrudes into the home or its

curtilage to gather evidence, a search within the Fourth

Amendment has occurred and is presumptively unreasonable absent a warrant. Id. at 11.

This Court has long recognized that Fourth

Amendment privacy protections surrounding one’s

home cover more than permanent dwellings (or places

where individuals have a traditional property interest)

and extend to temporary accommodations like hotel

or motel rooms. See Stoner v. California, 376 U.S. 483,

490 (1964). Further, Fourth Amendment protection of

tents and tent-like structures has consistently been

recognized in many jurisdictions. See United States v.

Gooch, 6 F.3d 673, 678 (9th Cir. 1993). Because temporary structures like tents are legitimate dwelling places

afforded the protection of the Fourth Amendment,

the curtilage surrounding such dwelling places is also

an area in which individuals may have reasonable

expectations of privacy. Kelley v. State, 245 S.E.2d

872, 875 (Ga. Ct. App.1978) (reversing trial court’s

denial of motion to suppress and finding a clearing

and garden adjacent to two tents to be within the

curtilage). See also Rigsby v. United States, 943 F.2d

631, 636 (noting that had there been evidence that

the tent in question was being used as a home or a

temporary accommodation, the defendant may have

13

had a reasonable expectation of privacy in said tent

and its curtilage (a picnic area on private property)).

In light of the aforementioned legal principles,

courts look to two inquiries in evaluating whether a

particular defendant’s Fourth Amendment rights have

been violated: whether the individual, by his conduct,

has exhibited an actual (subjective) expectation of

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

recognize as reasonable. Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring); Bond v. United

States 529 U.S. 334, 338 (2000)) (internal quotation

marks omitted). Here, both subjective and objective

inquiries demonstrate that Mr. Wiley’s Fourth Amendment rights were violated.

A. An Expectation of Privacy in a Privately Rented

Campsite is One That Society Recognizes as

Reasonable.

i. Privately Rented and Designated Campsites

are Entitled to Constitutional Protection as

Temporary Accommodations.

With regard to the types of homes protected, it is

well settled that “the most frail cottage in the kingdom

is absolutely entitled to the same guarantees of

privacy as the most majestic mansion.” Collins, 138

S.Ct. at 1675 (citations omitted). Accordingly, this

Court has long recognized that Fourth Amendment

privacy protections surrounding one’s home cover more

than permanent dwellings (or places where individuals have a traditional property interest) and extend

to more temporary accommodations like hotel or

motel rooms. Stoner, 376 U.S. at 490.

14

In the context of camping, Fourth Amendment

protection of tents and tent-like structures has consistently been recognized in many jurisdictions. See

Gooch, 6 F.3d at 678 (holding that a person can have

an objectively reasonable expectation of privacy in a

tent on private property); State v. Pruss, 181 P.3d

1231, 1235 (Idaho 2008) (holding that a person using

a temporary shelter—a tent and a wooden structure

on public lands as living quarters has a reasonable

expectation of privacy in that shelter); People v.

Schafer, 946 P.2d 938, 940 (Colo. 1997) (a person

camping on unimproved and apparently unused land

that is not fenced or posted against trespassing, and

in the absence of personal notice against trespass, has

a reasonable expectation of privacy in a tent used for

habitation and personal effects therein); People v.

Hughston, 85 Cal. Rptr. 3d 890, 896-98 (Cal. Ct. App.

2008) (holding a tent structure erected on land specifically set aside for camping during a music festival

protected under the Fourth Amendment).

In this case, Mr. Wiley’s entire 20’ x 20’ rented

campsite was his temporary accommodation and possession and, as such, he was entitled to constitutional

protection. Bonnaroo staff directed Mr. Wiley to a

campsite that he contracted to rent on private land.

Therein he erected an easy-up canopy tent equipped

with tapestry walls on the sides. This was adjacent

to his car, which held his personal effects. He also set

up another tent for sleeping. Together the easy-up

canopy tent, sleeping tent, and Mr. Wiley’s vehicle

served as his temporary home—where he slept, kept

belongings, and lived for the duration of the festival.

App.110a, 134a-137a, 152a-154a.

15

Rather than affording the campsite its constitutional protections, however, the Criminal Court of

Appeals chose to parse the campsite, applying different

levels of Fourth Amendment protection to different

items. The court of appeals correctly held that the “tent

structure itself, where [Mr. Wiley] slept, along with

any personal belongings kept therein” was protected

by the Fourth Amendment. App.24a; Wiley, 2020 WL

290841 at *10. However, the court found the remainder

of the campsite was not curtilage and, therefore, not

subject to Fourth Amendment protection. App.25a;

Wiley, 2020 WL 290841 at *10. And, the court of

appeals refused to determine whether the canopy tent

structure was subject to constitutional protection at

all. App.25a; Wiley, 2020 WL 290841 at *10-11 & n.10.

With regard to the canopy tent structure, the

appellate court stated that addressing it was unnecessary because “none of the incriminating evidence

came from therein.” App.25a; Wiley, 2020 WL 290841

at *10, n.10. However, no incriminating evidence came

from the sleeping tent either. Further, the status of

the easy-up canopy tent is highly important not only

because of its living-area function, but because so

many events material to this case took place there. It

was within the canopy tent where Mr. Wiley was

immediately detained and arrested. App.108a, 110111a. It was within the canopy tent that Mr. Wiley

was interrogated, refused consent to search his vehicle,

and was patted down and searched. App.109a, 113a,

130a, 154a-155a. It was also within this tent that an

officer ultimately took Mr. Wiley’s keys, without Mr.

16

Wiley’s consent, and unlocked and searched Mr. Wiley’s

car. App.93a-94a.4

The appellate court’s parsing of areas within a

small 20’ x 20’ campsite is unworkable. In a car camping situation such as this one, with small, designated

areas, persons use the entire site as their home. They

sleep, eat, sit, talk, and store belongings in all areas. It

can be difficult to ascertain where a person is sleeping

(sometimes opting for the enclosed tent, sometimes

open air, and sometimes inside a vehicle in bad

weather). As such, the entire campsite (including both

tent structures and the vehicle) is the temporary

accommodation. It is, therefore, entitled to the protection of the Fourth Amendment.

ii. In the Alternative, Designated Campsites

Surrounding Tents (Like the 20’ X 20’

Area in Mr. Wiley’s Case) Are Entitled to

Constitutional Protection as Curtilage.

Even if the Court refuses to find the entire 20’ x

20’ site to be protected as a temporary accommodation,

the area surrounding Mr. Wiley’s sleeping tent (to

include the easy-up canopy tent and vehicle) should

at least be protected as curtilage. The appellate court

erred in finding otherwise. App.25a; Wiley, 2020 WL

290841 at *10-11 & n.10. Because temporary structures

like tents are legitimate dwelling places afforded the

protection of the Fourth Amendment, the curtilage

surrounding such dwelling places is also an area in

which individuals may have reasonable expectations

of privacy. Kelley, 245 S.E.2d at 875 (reversing trial

4 Deputy Sherrill testified that these events took place inside

the canopy tent, and not in an open field or an alley. App.111a.

17

court’s denial of motion to suppress and finding a

clearing and garden adjacent to two tents to be within

the curtilage). See also Rigsby, 943 F.2d at 636 (noting

that had there been evidence that the tent in question

was being used as a home or a temporary accommodation, the defendant may have had a reasonable

expectation of privacy in said tent and its curtilage (a

picnic area on private property)).

In United States v. Dunn, this Court established

four factors to consider in resolving questions of

curtilage: (1) the proximity of the area claimed to be

curtilage to the home; (2) whether the area is included

in an enclosure surrounding the home; (3) the nature

of the uses to which the area is put; and (4) the steps

taken by the resident to protect the area from observation by people passing by. 480 U.S. 294, 301

(1987). This Court stressed that these factors cannot

be “mechanically applied,” but are merely “useful

analytical tools” to determine whether an area is to be

protected from constitutional searches and seizures—

in other words, “whether the area in question is so

intimately tied to the home itself that it should be

placed under the home’s umbrella of Fourth Amendment protection.” Id. (internal citations omitted).

The recent case of Collins v. Virginia, 138 S.Ct.

1663 (2018), is also instructive. In Collins, this Court

found that a motorcycle was entitled to constitutional

protection as it was parked in an area properly

considered curtilage—at the top portion of the defendant’s driveway, abutting the house, reasoning that “just

like the front porch, side garden, or area ‘outside the

front window’, the driveway enclosure where [the

officer] searched the motorcycle constitutes an area

adjacent to the home and to which the activity of home

18

life extends, and so is property considered curtilage.”

Id. at 1671. With regard to observation and visibility,

this Court further made clear that “[t]he ability to

observe inside curtilage from a lawful vantage point

is not the same as the right to enter curtilage

without a warrant for the purpose of conducting a

search to obtain information not otherwise accessible.”

Id. at 1675 (finding that “so long as it is curtilage, a

parking patio or carport into which an officer can see

from the street is no less entitled protection from

trespass and warrantless search than a fully enclosed

garage.”).

In this case, the Dunn factors and the recent

Collins case favor a finding of curtilage. First, the

area including the canopy tent and vehicle were close

in proximity to the sleeping tent-the entire campsite

was small: a 20’ x 20’ plot. Second, though not attached

to the sleeping tent, the canopy tent was itself

enclosed and nearby (as was the vehicle). Third, Mr.

Wiley used the entire 20’ x 20’ area to live for the

duration of the festival: sleeping in a tent, eating

under the enclosed canopy tent, getting in and out of

his car to access belongings/food etc. Finally, Mr.

Wiley made efforts to give himself additional privacy—

he zipped his sleeping tent, covered his living area

(and hung tapestries), and locked his car.

The court of appeals, however, held that the area

surrounding Mr. Wiley’s sleeping tent was not protected as curtilage but it was instead in an “open field,”

relying on a Ninth Circuit case: United States v.

Basher, 629 F.3d 1161 (9th Cir. 2011). App.25a; Wiley,

2020 WL 290841 at *10-11 & n.10. However, the

facts in Basher are easily distinguishable from the facts

of this case. In Basher, the defendant was camping in

19

Washington State in a dispersed, undeveloped, wild and

“ill-defined” area on public land (a National Forest).

629 F.3d at 1163, 1169. In refusing to extend the

curtilage analysis to the facts of Basher, the Ninth

Circuit reasoned that: “[p]arkland campsites often have

layouts that are vague or dispersed, and individuals

often camp in areas that are not predetermined

campsites.” Id. at 1169.5

In this case, however, Mr. Wiley was camping in

a much different scenario. He contracted to camp on

private property in a defined 20’ x 20’ foot plot as

assigned and directed by a private entity—Bonnaroo.

The layout was not wild, vague or undefined nor could

it be. App.126a-127a, 135a-136a, 151a-152a, 198a,

202a. Accordingly, and at the very least, Mr. Wiley’s

campsite should be protected as curtilage.

iii. Concepts of Property Law Under Byrd v.

United States Further Justify Reasonable

Privacy Expectations in a Designated and

Privately Rented Campsite.

In addition to the aforementioned case law, Mr.

Wiley’s reasonable privacy expectations are further

justified by concepts of property law as outlined by

this Court in the recent decision Byrd v. United

States, 138 S.Ct. 1518 (2018). In Byrd, this Court

made clear that “a person need not always have a

recognized common-law property interest in the place

5 The court of appeals also references a case out of Idaho, State

v. Beck, 336 P.3d 809 (Idaho 2014). App.27a. However, Beck is

inapposite for the same reasons—the defendant was camping in

Idaho on public land in an open, undefined camping area (on a

path leading to a fishing area). Beck, 336 P.3d at 811, 814.

20

searched to be able to claim a reasonable expectation

of privacy in it.” Id. at 1527 (citations omitted).

In Byrd, this Court held that even though the

driver of a rental car was not listed as an authorized

driver on the rental agreement, he maintained a reasonable expectation of privacy in the rental car. Id.

at 1528-29. This Court explained that a property

interest in the area searched is not required, but

instead there must just be some “source outside of

the Fourth Amendment, either by reference to concepts

of real or personal property law or to understandings

that are recognized and permitted by society.” Id. at

1527. For example, “one of the main rights attaching

to property is the right to exclude others” and “one

who owns or lawfully possesses or controls property

will in all likelihood have a legitimate expectation of

privacy by virtue of the right to exclude.” Id. (citing 2

W. Blackstone, Commentaries on the Laws of England,

ch. 1). In applying this law to the facts in Byrd, this

Court reasoned that, although the driver had no

property interest in the vehicle, he was in control of

the vehicle and would have been permitted to exclude

an unwanted third party (like a carjacker) from the

rental car. Id. at 1528-29.

In this case, Mr. Wiley entered into a legally

binding contract—obtaining a license6 to camp on

the 20’ x 20’ piece of property for the duration of the

festival in exchange for a fee. App.150a-151a, 217a6 A license is defined as “a personal privilege to do some particular act or series of acts on land without possessing any estate

or interest therein.” Black’s Law Dictionary, 919-20 (6th ed. 1996).

Contractual licenses are common with short-term accommodations

like hotels and motels. James C. Smith, “Common Law Property Rights,” Neighboring Property Owners § 7.2 (2018).

21

220a. Although such licenses do not confer any common

law property interest, the Court in Byrd made clear

that such interest is not required for Fourth Amendment protections to apply. Byrd, 138 S.Ct. at 1527.

This is in line with the reasoning in the cases

recognizing that privacy protections extend to temporary accommodations like hotel or motel rooms (which

often involve licenses rather than actual property

interests). See Stoner, 376 U.S. at 490. See also

James C. Smith, “Common Law Property Rights,”

Neighboring Property Owners § 7.2 (2018).

Similar to the defendant in Byrd, Mr. Wiley

clearly would have been permitted to exclude unwanted

third parties from his campsite. Persons that go

camping expect to be able to have such privacy—to

set up temporary living quarters and be able to exclude

unwanted individuals from intruding. Accordingly,

Mr. Wiley’s expectation of privacy was objectively

reasonable.

B. Mr. Wiley Exhibited an Actual (Subjective)

Expectation of Privacy in His Campsite by

Exercising Control Over His Assigned Space

and Setting Up Living Quarters to Reside

There for Several Days.

In addition to his general admission concert

ticket, Mr. Wiley purchased a car camping pass for

$59.75. App.150a-151a, 217a-220a. In exchange for

these funds, he was entitled to a specific and exclusive

campsite as assigned by the Bonnaroo staff—much

like a license for a room in a hotel or motel. App.135a.

Once Mr. Wiley was given his assigned 20’ x 20’

space, he set up and arranged his living quarters in

order to reside there for several days—erecting an

22

easy-up canopy tent equipped with tapestry walls (a

living area), a tent (a sleeping area), and his car (a

storage area). Mr. Wiley made efforts to give himself

additional privacy-he zipped his sleeping tent, covered

his living area by erecting an easy up canopy tent

(and hung tapestries), and locked his car or storage

area. All of these components were in close proximity

of each other within the assigned campsite and, as is

typical with “car camping,” Mr. Wiley used and

accessed all components of his campsite regularly

during his stay. App.110a, 134a-137a, 152a-154a.

Mr. Wiley treated this area like his home and remained

in control of it, per Byrd, to the exclusion of others.

It is undisputed that, on June 9, 2016, Mr. Wiley

further exhibited his subjective expectation of privacy

by refusing to consent to the search of his campsite

or vehicle contained therein. App.109a. There is no

evidence that Mr. Wiley somehow waived his Fourth

Amendment rights upon entry to Bonnaroo. The

State relied on vague statements by Officer Sherrill

that patrons “know they’re subject to search” and

that he’d overheard Bonnaroo security tell patrons

(at some unknown time and place) that they would

be removed unless they consented to search. App.124a125a. This is hardly enough evidence to suggest that

Mr. Wiley knowingly waived his Fourth Amendment

rights under the United States Constitution.

Furthermore, the terms of admission to Bonnaroo

do not diminish or waive any of his Fourth Amendment

protections. This Court has made clear that “[w]hen

an official search is authorized—whether by consent

or by the issuance of a valid warrant—the scope of

the search is limited by the terms of its authorization.”

Walter v. United States, 447 U.S. 649, 656 (1980).

23

And, basic contract law requires that “[i]f the contractual language is clear and unambiguous, the literal

meaning of the contract controls the dispute . . . and

the language used in the contract is construed using

its ‘plain, ordinary, and popular sense.’” West v.

Shelby Cty. Healthcare Corp., 459 S.W.3d 33, 42 (Tenn.

2014).

Here, a plain reading of the contract language

indicates that the terms of the contract are narrow—

the terms notify patrons that “Persons entering the

facility are subject to search.” App.218a (emphasis

added). Similar language is often posted in airports

and at the borders of the United States. And, as the

language clearly indicates, individuals are subject to

search upon arrival/entry only. The terms do not

extend any further. In other words, the posted language

does not result in a waiver of Fourth Amendment

rights after leaving the airport or crossing the border

and returning home.

Of course, in this case, an entry search by

Bonnaroo staff is much different from a broad warrantless search, without probable cause, by Coffee County

deputies a day later at Mr. Wiley’s campsite. Such

narrow contractual language does not diminish Mr.

Wiley’s reasonable expectation of privacy in his

campsite, nor does it amount to a waiver of Fourth

Amendment protections for the entirety of the multiday festival. To the degree that the State argues that

this provision is somehow ambiguous, it is well

established that ambiguous contract provisions are

construed against the drafter. West, 459 S.W.3d at 42.

Finally, the ticket to Bonnaroo is a contract

between Mr. Wiley (the purchaser of the ticket) and

Bonnaroo (a private company). The State is not a

24

party to the contract. Bonnaroo has no authority to

assign any of Mr. Wiley’s privacy rights to the State.

See United States v. Howard, 752 F.2d 220, 227 (6th

Cir. 1985), vacated on other grounds (citing Zap v.

United States, 328 U.S. 624, 629 (1946), vacated on

other grounds (noting that a consent clause in contract

does not insulate from Fourth Amendment a search

by a Government agent). Moreover, because a concertgoer may feel compelled to agree to a consent provision

to obtain a concert ticket, any consent to search was

not necessarily voluntary. See id. (citing Schneckloth

v. Bustamonte, 412 U.S. 218, 248 (1973) (“[T]he

Fourth and Fourteenth Amendments require that

[the state] demonstrate that the consent [to search]

was in fact voluntarily given, and not the result of

duress or coercion, express or implied.”).

Mr. Wiley’s behavior demonstrates that he had an

actual (subjective) expectation of privacy in his campsite. His expectation is one that society has recognized

as reasonable. Accordingly, when Officer Sherrill

entered Mr. Wiley’s private campsite and sought to

gather evidence, a search within the meaning of the

Fourth Amendment occurred. Given the applicability

of the Fourth Amendment here, this search is

presumptively unreasonable without a warrant.

II.

NO EXCEPTIONS TO THE FOURTH AMENDMENT’S

WARRANT REQUIREMENT APPLY.

A. The Automobile Exception Does Not Apply

Given the Location of the Vehicle, Parked

Within the Constitutionally Protected Campsite.

Where a warrantless search is conducted, the

government bears the burden of demonstrating that

25

the search was conducted pursuant to only a few specifically established and well delineated exceptions.

Coolidge v. New Hampshire, 413 U.S. 443, 454-55

(1971); Vale v. Louisiana, 399 U.S. 30, 34 (1970).

With regard to the automobile exception, this Court

has recently made clear that “an officer must have

lawful right of access to a vehicle in order to search it

pursuant to the automobile exception.” Collins, 138

S.Ct. at 1672. In Collins, the vehicle at issue was a

motorcycle parked in the top portion of the defendant’s

driveway, abutting the house. Id. At 1671. Given its

location, this Court found that the motorcycle was in

an area properly considered curtilage. Id. This Court

went on to explain that “[t]he automobile exception

does not afford the necessary lawful right of access to

search a vehicle parked within a home or its curtilage

because it does not justify an intrusion on a person’s

separate and substantial Fourth Amendment interest

in his home and curtilage.” Id.

Like the home in Collins, Mr. Wiley’s privately

rented campsite is protected by the Fourth Amendment.

See Gooch, 6 F.3d at 678; Pruss, 181 P.3d at 1235;

Schafer, 946 P.2d at 940; Hughston, 85 Cal. Rptr. 3d

at 897-98; See also Rigsby, 943 F.2d at 636. The

components of Mr. Wiley’s campsite included a tent

for sleeping, an easy-up tent equipped with tapestry

walls for general living, and the car for storage. It

was here that Mr. Wiley slept, kept belongings, and

generally lived for the duration of the festival.

App.110a, 134a-137a, 152a-154a.

Even if Mr. Wiley’s car is not considered part of

the actual living quarters, it was clearly parked within

the curtilage of such living quarters given its close

proximity to the other components of the camp.

26

App.135a, 151a-153a, 202a. Like the motorcycle in

Collins, Mr. Wiley’s car was, at the very least, parked

in “an area adjacent to the home and to which the

activity of home life extends.” Collins, 138 S.Ct. at 1671.

As such, Officer Sherrill’s intrusion into the campsite

to search Mr. Wiley’s car was unconstitutional and

cannot be justified by the automobile exception.7

Finally, it is worth noting the automobile exception

exists because it is often practically impossible to

secure a warrant to stop a moving or readily movable

automobile. See id. at 1669-70. In this case, however,

Mr. Wiley’s vehicle was being used for camping and

was not in transit. Furthermore, Mr. Wiley’s vehicle

was encamped in a gridded area and neither Mr.

Wiley nor his vehicle nor the contents therein could

have gone anywhere easily. This was not a traffic

stop.8 This was Mr. Wiley’s temporary accommodation—his home. There were at least six officers

present on or near the campsite. Simply put, a warrant

could have been obtained.

7 It is undisputed that police did not have probable cause to search

Mr. Wiley’s vehicle at the time of their intrusion into his campsite

(prior to the K-9 alert). App.119a-121a.

8 When asked if this was a traffic stop, Deputy Sherrill demurred,

stating “patrons know they are subject to search once they come

onto Bonnaroo grounds.” App.124a. It appears that Deputy Sherrill

was under the impression that Fourth Amendment rights are

waived upon entry. If that is true, however, it is unclear why

police bothered to call the K-9 unit or asked for consent to search

at all.

27

B. A Drug-Sniffing Dog Cannot Justify the

Warrantless Search of a Vehicle Parked Within

a Constitutionally Protected Campsite.

Justice Scalia applied the law to a similar set of

facts in Florida v. Jardines, 569 U.S. 1 (2013). In

Jardines, police took a drug-sniffing dog to the defendant’s front porch, where the dog gave a positive alert

for narcotics. Id. at 3-4. Based on the alert, the officers

obtained a warrant for a search, which revealed marijuana plants. Jardines was charged with trafficking

in marijuana. Id. at 4-5. The Supreme Court overturned

the conviction finding that the drug sniffing dog at the

area immediately surrounding and associated with

the home was a Fourth Amendment violation. As

Justice Scalia reasoned, the curtilage or area around

the home is “intimately linked to the home, both

physically and psychologically,” and is where “privacy

expectations are most heightened.” Id. at 6-7 (citing

California v. Ciraolo, 476 U.S. 207, 213 (1986)).

Much like Jardines, the Coffee County deputies

learned what they learned only by physically intruding

on Mr. Wiley’s campsite to gather evidence. As a

temporary accommodation, Mr. Wiley’s campsite and

its curtilage are recognized and afforded Fourth

Amendment protections. Coffee County Sheriff’s deputies cannot defeat those protections without a warrant.9

More specifically, the drug-sniffing dog cannot justify

the warrantless search given that the vehicle was

9 In Jardines, police obtained a warrant based on the drugsniffing dog and the Court held that the resulting search was

impermissible. Jardines, 569 U.S. at 5, 11. In this case, this

search is an even greater constitutional violation than Jardines

because the police searched Mr. Wiley’s car without a warrant

once the drug-sniffing dog alerted.

28

parked within the rented campsite and/or its curtilage.

These are the types of areas that the Fourth Amendment most highly protects—areas where, per Jardines,

“privacy expectations are most heightened.” 569 U.S.

at 6-7.

C. No Other Commonly Recognized Exceptions to

the Warrant Requirement Apply.

In addition to the automobile exception, commonly

recognized exceptions to the warrant requirement

include (1) a search incident to a lawful arrest; (2)

the plain view doctrine; (3) a consent to the search;

(4) a Terry stop and frisk; and (5) the existence of

exigent circumstances. See Coolidge, 413 U.S. 455-73;

Katz, 389 U.S. at 357-58; Terry v. Ohio, 392 U.S. 1,

28-30 (1968). None of these apply here.

Here, the search incident to lawful arrest exception

cannot apply because Mr. Wiley was unlawfully

arrested without probable cause—it is undisputed

that Mr. Wiley was under arrest at the campsite

prior to the search of his vehicle. App.113a. It is also

undisputed that there was no probable cause at the

time of his arrest, prior to the K-9 alert and subsequent

search of his vehicle. App.119a-120a.

Second, it is undisputed that there was no illegal

contraband in plain view. App.119a-120a. Third, it is

undisputed that Mr. Wiley refused to consent to the

search of his campsite/vehicle. App.97a-98a. Fourth,

it is undisputed that the officer’s actions went beyond

a mere Terry stop and frisk once Deputy Sherrill

physically moved the defendant into the canopy tent

and arrested him. App.113a.

29

Finally, there was no evidence of any exigent circumstances that would justify failing to secure a

warrant. There were at least six officers present. Mr.

Wiley and his companions offered no resistance nor

did anyone attempt to flee. The police observed no

illegal activity or contraband. Mr. Wiley’s companions

were questioned, searched, and released. Their search

revealed no contraband or weapons. As a practical

matter, Mr. Wiley was encamped in a gridded area and

neither he nor his vehicle nor the contents therein

could have gone anywhere easily. With Mr. Wiley in

custody, and at least six officers nearby, there was no

risk of destruction of evidence.

In sum, Mr. Wiley’s campsite was constitutionally

protected and no exceptions to the warrant requirement

allowed for police to enter said campsite, arrest Mr.

Wiley and conduct a search of the campsite (and vehicle

parked therein) without a warrant or probable cause.

30

CONCLUSION

Certiorari is warranted here as a state court has

decided an important Fourth Amendment question that

has not been, but should be, settled by the Supreme

Court. The Tennessee Court of Criminal Appeals’ decision also conflicts with the relevant decision of the

Supreme Court in Collins v. Virginia, 138 S.Ct. 1663

(2018). For the reasons set forth herein, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

CHARLES LELAND DAVIS

COUNSEL OF RECORD

DAVIS & HOSS, P.C.

850 FORT WOOD STREET

CHATTANOOGA, TN 37403

(423) 266-0605

LEE.DAVIS@DAVIS-HOSS.COM

COUNSEL FOR PETITIONER

JUNE 25, 2020