Petition for Writ of Certiorari — Ware v. Tennessee

) Tra.

991298 JAN 5 1 200

NO. OFRCE OF THE GLERK

In The

Supreme Court of the United States

October Term, 2000

WILLIAM DEAN WARE,

Petitioner,

versus

STATE OF TENNESSEE,

Respondent

Petition For A Writ of Certiorari

To the Tennessee Supreme Court

John S. Colley, Til

Colley & Colley

710 N. Main Street, Suite 200

P.O. Box 1476

Columbia, TN 38402-1476

(931) 388-8564

Counsel for Petitioner

II.

Ii.

QUESTIONS PRESENTED FOR REVIEW

WAS THE SEARCH WARRANT OBTAINED

GENUINELY INDEPENDENTLY AND WHOLLY

ASIDE AND APART FROM THE STATE’S

INITIAL ILLEGAL ENTRY OF PETITONER’S

RESIDENCE AND CURTILAGE?

DID PETITIONER HAVE A_ LEGITIMATE

EXPECTATION OF PRIVACY THAT WAS

INVADED BY THE STATE’S SEARCH OF THE

MORGAN RESIDENCE?

WAS THE STATE OFFICER REQUIRED TO

DISCONTINUE HIS SEARCH AFTER LEARNING

THE MORGAN RESIDNECE WAS NOT PART OF

THE PROPERTY DESCRIBED IN THE SEARCH

WARRANT?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..........:-:0s0e00+ 2

TABLE OF CITED AUTHORITIEG............::s:sesssseseteeneeserees 4

CITATIONS OF THE OPINIONS AND ORDERS

ENTERED IN THIS CASE..........:cccscessecessesessseesesnsenenssennenanes 5

STATEMENT OF JURISDICTION.............s:esceesessseeseeeesrees 6

CONSTITUTIONAL PROVISIONS INVOLVED................ 6

STATEMENT OF THE CASE........::.:ccssseessssersensensensensenssnaes 7

00000000 000506500 000000000555 00S00000008S9S009090090099098 0009000000008

PPT TTT TTT TTT eae

iii

4

TABLE OF CITED AUTHORITIES

CASES

Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013,

Q4 L.Ed.2d 72 (1987) ........ssssccesseeessessresseeeeessessenees 19

Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120,

20 L.Ed.2d 1154 (1968) ...........:ccccceeeesseesenreeeeeteneeees 18

Murray v. United States, 487 U.S. 533, 108 S.Ct.

2529, 101 L.Ed.2d 472 (1988) ......-:cseeesesesereserseerees 14

Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978) .......sscsssesscesseesseereesrenenecensenssnees 18

United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93,

99 L.Ed.2d 59 (1951) ........cssscesseeesreserseeeseneseereessens 18

OTHER AUTHORITIES

United States Constitution, Fourth Amendment.................--+ 6

QB U.S.C. 51257 (a) .....cscsescecssscsscercsceescsencsscsscsssseesssenssesesses 6

CITATIONS OF THE OPINION AND ORDERS

ENTERED IN THIS CASE

STATE v. WARE, TN C.C.A. No. 01001-9803-CC-00129

(June 11, 1999, at Nashville) (memorandum opinion)

STATE v. WARE, TN C.C.A. No. 01C01-9803-CC-00129

(June 11, 1999, at Nashville) judgment affirming trial court)

STATE v. WARE, TN C.C.A. No. 01C01-9803-CC-00129

(Nov. 1, 1999 at Nashville) (Supreme Court per curiam order

denying permission to appeal)

STATEMENT OF JURISDICTION

DATE JUDGMENT ENTERED. The Tennessee Supreme

Court denied Petitioner’s application for permission to appeal

on November 1, 1999.

STATUTORY PROVISIONS CONFERRING

JURISDICTION. This Court has jurisdiction to hear this

cause pursuant to 28 U.S.C. § 1257(a). This cause is an

appeal of a final judgment rendered by the highest court in

Tennessee in which a decision could be had (the Tennessee

Supreme Court having denied Petitioner permission to

appeal) where Petitioner’s rights under the Fourth

Amendment to the Untied States Constitution have been

violated.

CONSTITUTIONAL PROVISION INVOLVED

CONSTITUION OF THE UNITED STATES

AMENDMENT 4

Unreasonable searches and seizures. - The right of the

people to be secure in their person, house, 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 person or thing to

be seized.

STATEMENT OF THE CASE

FACTS

The following recitation of the facts is taken verbatim

from the decision of the Tennessee Court of Criminal

Appeals decision:

Around noon on September 29, 1994, Trooper Dennis

Peevehouse of the Tennessee Highway Patrol and Agent Jim

Lawson of the Tennessee Alcoholic Beverage Commission

were flying in a helicopter over rural Wayne County in a

search for marijuana. While they were flying above

Appellants’ property at an altitude of approximately 900 feet,

Peevehouse saw rows of plants that were covered by a white

cheesecloth-type material. At one end of a row, Peevehouse

saw that part of the cloth had blown back and exposed what

he recognized through training and experience as a marijuana

plant. Lawson could also see what he recognized as

marijuana plants touching the cheesecloth.

After spotting the marijuana, Peevehouse followed

standard procedure and took the helicopter down to an

altitude of 300 feet so that he could confirm his observation.

Peevehouse and Lawson then radioed some officers that were

on the ground several miles away and directed them to

Peas Seastaee RLeon en. Cece te ke. Se oe .

Appellants’ property. The officers on the ground arrived at

Appellants' property approximately ten minutes later and

parked in both driveways leading to the residence.

When the officers arrived at Appellants’ residence,

they followed standard procedure and some officers moved

to surround the house while others approached the residence

to request consent for a search. When Agent Bond Tubbs

went toward the back of the residence on the left, he

observed a marijuana patch covered with cheesecloth. Tubbs

did not touch the cloth or move it, but he could see through it

and could recognize the marijuana plants growing

underneath. Tubbs then reported on the radio that he had seen

marijuana.

When some other officers approached the residence,

they encountered Appellants’ daughter, Summer Ware, who

was leaving the residence in what appeared to be a hurry. The

officers then identified themselves, and Summer stated that

her mother was at home. The officers then allowed Summer

to enter the residence to secure a dog, and they then asked her

to open the door. She complied, and the officers entered the

residence.

Upon entering the residence, the officers encountered

Ms. Ware and they asked her for consent to search. Ms. Ware

refused and told the officers to leave the property. The

officers then secured the scene by blocking all exits to the

residence and checking the other rooms for any other

individuals who might be in the home. Shortly thereafter, the

officers located Mr. Ware walking down the road. The

officers then arrested both Appellants and Summer Ware.

Lawson and Agent Barry Callahan then prepared an

affidavit based on the observations of Peevehouse and took

the affidavit to a magistrate to obtain a search warrant. When

they returned, the officers began a search of Appellants’

residence, outbuildings, and the surrounding gardens and

fields.

The search of Appellant’s property also included a

search of a building owned by Appellants’ neighbor, Jeff

Morgan, who allowed Appellants to use the building in return

for watching the building while he was gone.

During the search of the Appellants’ property and

Morgan’s building, the officers found numerous items

associated with the cultivation of marijuana, $990.75 in

coins, twenty-two firearms, a video camera, two videotapes

showing marijuana cultivation, assorted gold and silver coins,

silver bars, 153 marijuana plants, and a container with LSD

in it.

PROCEDURAL HISTORY

Petitioner was indicated in the Circuit Court for

Wayne County, Tennessee in February, 1995 for

10

manufacturing a Schedule VI controlled substance and

manufacture of a Schedule I controlled substance (Transcript

of the Record, Vol. I, pp. 7-12). Petitioner moved to

suppress all evidence seized from his residence and his

adjoining neighbor’s house because of violations of the his

rights against unreasonable searches and seizures under the

state and federal constitutions (Supp. Rec., pp. 6-7).

The Motion to Suppress was heard on July 3, 1996

(Transcript of Hearing on Motion To Suppress). In a letter

opinion filed August 15, 1996, the trial court found

Petitioner’s constitutional guarantees had not been violated

by the search, and there would be no suppression of those

items seized with the search warrant (Supp. Rec., p. 11).

Petitioner then asked the Court to address the search of the

neighbor’s home where the Schedule I controlled substance

was found (Supp. Rec., p. 12). The Court subsequently

entered an order on the search issues, resolving all issues but

standing against the Petitioner Ware (Supp. Rec., p. 13).

Petitioner entered guilty pleas pursuant to T.R.Cr.P.

37{b)(2)(i) on August 13, 1997 (Supp. Rec., pp. 14-15) and

he received a sentence of eight (8) years in case number

105832 in the Department of Correction for the amended

charge of Possession of a Scheduled I Controlled Substance

for Resale—to serve one year, day for day (Transcipt of the

Record, Vol. I, p. 23)}—and a concurrent sentence of two (2)

11

years (seven months to be served) in case number 10583 for

Possession of Schedule VI for Resale (Id. p. 24). Mr. Ware

was fined a total of $7,000.00 (Id. pp. 23-24).

Petitioner timely appealed the certified issues. The

issue of his “standing” (his legitimate expectation of privacy)

was not certified as an issue and was conceded and even

urged by the State of Tennessee throughout the appellate

process (Brief of State, pp. 19-20).

The Tennessee Court of Criminal Appeals held the

initial illegal entry upon and into Petitioner’s residence was

harmless “because the warrant was obtained without any

reference to evidence uncovered during the initial entry,

because the evidence was subsequently discovered during the

execution of a lawful warrant, and because the police would

have obtained the warrant even if they had not made the

initial entry.” State v. Ware, TN C.C.A. 01C01-9803-CC-

00129 (June 11, 1999, at Nashville) (slip opinion at p. 13).

As to the search of the Morgan residence where the

LSD was found, the Court of Criminal Appeals held

Petitioner had no reasonable expectation of privacy in the

building (Id., slip op. at p. 15). Alternatively, the Court

found (in a footnote) that the search of the Morgan property

was reasonable because the agent “believed it was part of

their (the Wares’) property or at least was connected with it”

(Id. at footnote 9).

12

Petitioner’s timely application for permission to

appeal to the Tennessee Supreme Court was denied on

November 1, 1999. No rehearing was sought.

STAGE WHERE FEDERAL QUESTIONS _ FIRST

RAISED, METHOD, MANNER, AND HOW DISPOSED

OF. The issue of the illegality of the search and seizure in

question under federal law was first raised during the hearing

on Petitioner’s oral Motion to Suppress, held July 3, 1996 in

the Circuit court for Wayne County, Tennessee (Transcript of

Suppression Hearing, pp. 168-174). Petitioner also expressly

relied upon the protections guaranteed by the Fourth

Amendment to the Untied States Constitution in his written

Motion to Suppress filed July 12, 1996 (Supplemental

Motion to Suppress, Supp. Rec. pp. 6-7), and the State of

Tennessee cited federal caselaw in its response filed July 24,

1996 (Response to Motion to Suppress, Supp. Rec. pp. 8-9).

The trial court relied upon both federal and state precedent in

denying Petitioner’s Motion to Suppress (Court’s letter of

August 14, 1996, Supp. Rec. p. 11). The trial court’s order

certifying the issues for appellate review under Tennessee

Rule of Criminal Procedure 37(b)(2)(i) identified those issues

as “all alleging violations of these defendants’ guarantees

against unreasonable searches and seizures under the Fourth

Amendment to the U.S. Constitution and analogous

13

provisions of the Tennessee Constitution.” (Order of October

9, 1997, Supp. Rec. p. 13).

ARGUMENT

This Court should grant a writ of certiorari because

the Tennessee courts have decided not one, but three,

important questions of federal law in ways that conflict with

relevant decisions of this Court. The most troubling aspect of

these constitutional violations is that they occurred as part of

the Government’s Task Force for the Eradication of

Marijuana’s “Standard Operating Procedures.”

I. WAS THE SEARCH WARRANT OBTAINED

GENUINELY INDEPENDENTLY AND

WHOLLY ASIDE AND APART FROM THE

STATE’S INITIAL ILLEGAL ENTRY OF

PETITIONER’S RESIDENCE AND

CURTILAGE?

The Tennessee Court of Criminal Appeals concluded

the evidence seized with a warrant in the second entry of the

Ware residence was legal because the warrant was issued

based solely on the observations of Peevehouse that were

completely independent of anything observed by officers on

the ground, deigning to discuss the role of the officer’s initial

illegal entry in their decision to procure the subsequent

warrant. There is no evidence of any intention by the officers

14

to obtain the warrant if they had not made the initial entry.

The trial court made no such finding of fact. Actually, the

State’s witnesses each testified the decision to procure a

¥

3

search warrant was not made until after the initial, illegal

entry (Transcript of Suppression Hearing: Agent Peevehouse,

p. 14; Agent Callahan, pp. 64, 88; Agent Lawson, pp. 101-

102, 118-119). All of the same State agents (and witnesses)

testified that one of the agents (Agent Tubbs) confirmed via

A SERIA NAR Nai Sa Std:

radio the presence of marijuana during the initial entry (Id.

Agent Peevehouse, pp. 11-12, 35-36, 163-165; Agent Tubbs,

pp. 53-54, 56-62; Agent Callahan, pp. 81-83, 161-162; Agent

Lawson, pp. 106-111).

These facts are strikingly similar to those of Murray

v. US., 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472

(1988), where this Court remanded the cause to the district

court after the First Circuit Court of Appeals—in an act of

literary largess similar to the liberties taken by the Tennessee

Court of Criminal Appeals—summarily concluded that no

causal link 2xisted between the initial illegal search and the

issuance of the subsequent search warrant, despite the

absence of the factual findings by the trial court to support

such a conclusion. Murray, supra, 487 U.S. at 543. The case

against such an inference—that the initial illegal entry

provided no impetus to secure a warrant—is even stronger in

the case at bar, where every State witness asked told the trial

15

court the decision to seek a search warrant was not made

until after the agents had entered the Ware curtilage and

home—after the agents had confirmed marijuana was on the

premises, and lots of it.

Petitioner submits the holding of Murray leaves no

alternative but to reverse the decisions upholding the search

warrant in the case and vacate the convictions herein.

Il. DID PETITIONER HAVE A LEGITIMATE

EXPECTATION OF PRIVACY THAT WAS

INVADED BY THE STATE’S SEARCH OF THE

MORGAN RESIDENCE?

The Tennessee appellate courts, sua sponte, decided

Petitioner had no legitimate expectation of privacy in the

Morgan residence. This was after the trial court implied he

did (“the search of residence, and curtilage, including the

building owned by a Mr. Morgan but used by the Wares, was

valid”) (Order of March 4, 1997, Supp. Rec. p. 13).

This was after the trial court certified the issues for

appeal—and never mentioned “standing” or Petitioner’s

expectations of privacy as an issue. (Order of Oct. 9, 1998,

Supp. Rec. pp. 14-15).

This was after the State arguéd

“In this case, the storage house was occupied and

apparently did not contain property of anyone other

than the Ware family. Thus, the search did not

%

Pf

%

fe

intrude upon the privacy interest of anyone other

than the Wares.”

Brief of State of Tennessee, filed

Sept. 22, 1998, p. 21

The Court of Criminal Appeals weighed the various

factors as follows:

“This Court has held that the following seven factors

are applicable to the standing inquiry:

(1) property ownership;

(2) whether the defendant has a possessory interest in

the things seized;

(3) whether the defendant has a possessory interest in

the place searched;

(4) whether he has a right to exclude others from that

place;

(5) whether he has exhibited a subjective expectation

that the place would remain free from governmental

invasion;

(6) whether he took normal precautions to maintain

his privacy; and

(7) whether he was legitimately on the premises.

State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991)

(quoting United States v.Haydel, 649 F.2d 1152, 1154-55

(5th Cir. 1981)).

In reviewing the applicable factors, we conclude that

Appellants failed to establish that they had a reasonable

expectation of privacy in Morgan's building. It is true that

Appellants had a possessory interest in Morgan's building

and they were legitimately entitled to use the building.

17

Indeed, Ms. Ware testified that Morgan had given Appellants

permission to use the building for storage in return for

keeping the building in repair. It is also true that Appellants

had manifested a subjective expectation that the building

would remain free from governmental invasion and had taken

normal precautions to maintain their privacy by keeping the

building locked. However, we conclude that those factors are

outweighed by the other factors which indicate that

Appellants had no legitimate expectation of privacy in

Morgan's building. First, it is undisputed that Morgan, and

not Appellants, owned the building, In fact, Appellants did

not have a lease or any other kind of written agreement that

entitled them to use the property; their use was merely

pursuant to a verbal agreement. Second, there is no

indication in the record that Appellants over claimed

ownership of the property that was seized from Morgan's

building. In fact, Ms. Ware specifically testified that she did

not know who owned the marijuana growing equipment or

the LSD that was found In the building. Third, and most

importantly, there is no indication in the record that

Appellants had the right to exclude others from Morgan's

building. There is no indication that Appellants’ agreement

with Morgan gave them the exclusive right to use the

building. Certainly, the record indicates that Morgan had a

key to the building and nothing indicates that he could not

18

have used the building anytime he was in the area. Further,

there is nothing in the record to indicate that Morgan could

not have given his key to any number of people and also

permitted them to use the building for storage. Under these

circumstances, we conclude that Appellants did not have a

legitimate expectation of privacy in Morgan’s building.

State v. Ware, TN C.C.A. No. 01C01-

9803-CC-00129 (June 11, 1999, at

Nashville), slip. op. at pp. 14-16.

Petitioner simply submits that under the correct test

for his expectation of privacy as developed in Rakas v.

Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978);

Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L-Ed.2d

1154 (1968); and U.S. v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 99

L.Ed.2d 59 (1951), he did have a legitimate expectation of

privacy in the Morgan building. How is the Morgan building

any different from Jeffers’ aunts’ hotel room, to which

Jeffers had been given a key? How is Jeffers’ key different

from the key given to Petitioner by Mr. Morgan?

Petitioner is entitled to object to the search of the

Morgan residence; his privacy was invaded thereby.

Ill. WAS THE STATE OFFICER REQUIRED TO

DISCONTINUE HIS SEARCH AFTER

LEARNING THE MORGAN RESIDNECE WAS

NOT PART OF THE PROPERTY DESCRIBED

IN THE SEARCH WARRANT?

19

Probably the most blatant and _ egregious

constitutional violation committed by the State agents was

kicking in the door to the Morgan residence after being

informed by a local law enforcement officer that the building

was not owned by the Petitioner and his family (Transcript of

Suppression Hearing, pp. 121-124). Common sense and

decency, and Maryland v. Garrison, 480 U.S. 79, 107 S.Ct.

1013, 94 L.Ed.2d 72 (1987) demand condemnation of such

an act: isn’t this the very type of act the Fourth Amendment

warrant requirements were meant to prevent?

As Garrison taught us, the officer was required to

discontinue his search as soon as he was “put on notice of the

risk” that he “might be” in a residence (or “unit”) erroneously

included within the terms of the warrant. Garrison, supra,

480 U.S. at 87. If the officer had known, or should have

known, that the Morgan building was not Ware property

before he entered it, he would have been obligated to limit

his search to Ware property—and not kick in the locked front

door to the Morgan residence. Id. 480 U.S. at 86.

The officer’s mistake was not one of the “honest

mistakes that are made by officers in the dangerous and

difficult process of making arrests and executing search

warrants.” Id. 48 U.S. 87. To the contrary, all the Wares

had been taken to jail; their residence was a football field

away through the woods; and the Moran building was

a

4

a

a

J

"

4

20

unoccupied that day (Transcript of Supp. Hearing, pp. 117,

124). This officer simply ignored the local officer and kicked

in the door. Will this Court stand idly by while such actions

are approved by the Tennessee judicial system?

This the Bl Fay of January, 2000.

a NS

JOHN S. COLLEY, Ill

COLLEY & COLLEY

Cé for Petitioners

P. ‘ox 1476

Columbia, TN 38402-1476

(931) 388-8564

FILED

JUN 11 1999

Clerk of the Coerte

Rava By

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

STATE OF TENNESSEE,

Appellee,

VS.

WILLIAM D. WARE and

VIRGINIA WARE,

Appellant.

FOR THE APPELLANT:

JOHN S. COLLEY, Ill

P. 0. Box 1476

Columbia, TN 38402-1476

OPINION FILED

JUN 11 1997

AFFIRMED

JERRY L. SMITH

C.C.A. NO. 01C01-9803-CC-

00129

WAYNE COUNTY

HON. WILLIAM B. CAIN

)

)

)

)

)

)

) JUDGE

)

)

(Direct Appeal)

FOR THE APPFLLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

DARYLJ.BRAND

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

THOMAS BOTTOMS

District Attorney General

JESSE DURHAM

Assistant Attorney General

252 N. Military Ave., Ste. 202

Lawrenceburg, TN 38464

: ’ ‘ Se See

TF tags PES p28 ae SO RE RRS

OPINION

In February of 1995, the Wayne County Grand Jury

indicted Appellants William D. Ware and Virginia Ware for

manufacture of marijuana and also indicted Mr. Ware for

manufacture of LSD. Appellants subsequently filed a motion to

suppress all evidence that was seized from their property and from

an adjoining neighbors property by the police on September 29 and

30, 1994.' The trial court conducted a hearing on the motion to

suppress on July 3, 1996. Appellants then filed a supplemental

motion to suppress on July 12, 1996. By letter dated August 14,

1996, the trial court denied the motion to suppress. On August 15,

1996, Appellants asked the trial court to address the search of the

adjoining neighbors property where the LSD was found. The trial

court subsequently entered an order on March 4, 1997, that denied

the motion to suppress in its entirety. Appellants pled guilty to the

above charges on August 13, 1997. That same day, the trial court

sentenced Mr. Ware to a term of eight years for the LSD

conviction, with one year of confinement followed by seven years

of probation. The trial court also sentenced Ms. Ware to two years

of probation for the marijuana conviction. After a sentencing

hearing on October 9, 1997, the trial court sentenced Mr. Ware to a

term of two years for the marijuana conviction, with seven months

of confinement followed by one year and five months of probation.

Both Appellants challenge their convictions and Mr. Ware

challenges his sentence for the marijuana conviction, raising the

following issues:

'This motion does not appear in the record.

3

1) whether the helicopter surveillance of their property from

an altitude of 300 feet violated Appellants’ constitutional

rights;

2) whether the search warrant was tainted by an earlier

warrantless entry onto Appellants’ property;

3) whether the search of an adjoining neighbors property

violated Appellants’ rights; and

4) whether the trial court should have imposed full probation

for the sentence for Mr. Ware's marijuana conviction.

After a review of the record, we affirm the judgment of the trial

court.

1. FACTS

Around noon on September 29, 1994, Trooper Dennis

Peevehouse of the Tennessee Highway Patrol and Agent Jim

Lawson of the Tennessee Alcoholic Beverage Commission were

flying in a helicopter over rural Wayne County in a search for

marijuana. While they were flying above Appellant's property" at

an altitude of approximately 900 feet, Peevehouse saw rows of

plants that were covered by a white cheesecloth-type material. At

one end of a row, Peevehouse saw that part of the cloth had blown

back and exposed what he recognized through training and

experience as a marijuana plant. Lawson could also see what he

recognized as marijuana plants touching the cheesecloth.

After spotting the marijuana, Peevehouse followed

standard procedure and took the helicopter down to an altitude of

300 feet so that he could confirm his observation. Peevehouse and

Lawson then radioed some officers that were on the ground

several miles away and directed them to Appellants’ property.

The officers on the ground arrived at Appellants’ property

A-3

4

approximately ten minutes later and parked in both driveways

leading to the residence.

When the officers arrived at Appellants’ residence, they

followed standard procedure and some officers moved to surround

the house while others approached the residence to request consent

for a search. When Agent Bond Tubbs went toward the back of

the residence on the left, he observed a marijuana patch covered

with cheesecloth. Tubbs did not touch the cloth or move it, but he

could see through it and could recognize the marijuana plants

growing underneath. Tubbs then reported on the radio that he had

seen marijuana.

When some other officers approached the residence, they

encountered Appellants’ daughter, Summer Ware, who was leaving

the residence in what appeared to be a hurry. The officers then

identified themselves, and Summer stated that her mother was at

home. The officers then allowed Summer to enter the residence to

secure a dog, and they then asked her to open the door. She

complied, and the officers entered the residence.

Upon entering the residence, the officers encountered Ms.

Ware and they asked her for consent to search. Ms. Ware refused

and told the officers to leave the property. The officers then

secured the scene by blocking all exits to the residence and

checking the other rooms for any other individuals who might be

in the home. Shortly thereafter, the officers located Mr. Ware

walking down the road. The officers then arrested both Appellants

and Summer Ware.

Lawson and Agent Barry Callahan then prepared an

affidavit based on the observations of Peevehouse and took the

affidavit to a magistrate to obtain a search warrant. When they

A-4

5

returned, the officers began a search of Appellants’ residence,

outbuildings, and the surrounding gardens and fields.

The search of Appellants’ property also included a search

of a building owned by Appellants’ neighbor, Jeff Morgan, who

allowed Appellants to use the building in return for watching the

building while he was gone.

During the search of Appellants’ property and Morgan’s

building, the officers found numerous items associated with the

cultivation of marijuana, $990.75 in coins, twenty-two firearms, a

video camera, two videotapes showing marijuana cultivation,

assorted gold and silver coins, silver bars, 153 marijuana plants,

and a container with LSD in it.

Il. HELICOPTER SURVEILLANCE

Appellants contend that the helicopter surveillance of their

property from an altitude of 300 feet violated their constitutional

right to be protected from unreasonable searches.” We disagree.

The United States Constitution guarantees "[t]he right of

the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures....” U.S. Const.

amend. IV. The Tennessee Constitution similarly provides "[t}hat

the people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures...” Tenn.

Const. art 1, § 7. The touchstone of unreasonable search and

seizure analysis is "whether a person has a “constitutionally

2A ppellants have not challenged the constitutionality of the

helicopter surveillance of their property from an altitude of 900

feet.

6

protected reasonable expectation of privacy." State v. Bowling,

867 S.W.2d 338, 341 (Tenn. Crim. App. 1993) (quoting California

v. Giraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d

210 (1986)). This determination involves a two-part inquiry. First,

has the individual manifested a subjective expectation of privacy in

the object of the challenged search? Second, is society willing to

recognize that expectation as reasonable? Bowling, 867 S.W.2d at

341 (citing Ciraolo, 476 U.S. at 211, 106 S.Ct. at 1811). Ia this

case, there is no real dispute that Appellants had manifested a

subjective expectation of privacy in the property viewed from

helicopter. Thus, the determinative question is whether that

expectation of privacy is one that society is willing to recognize as

reasonable.

In Ciraolo, the United States Supreme Court held that it

was unreasonable for the defendant to expect that marijuana

growing in his fenced-in back yard was protected by the Fourth

Amendment from aerial observation at an altitude of 1,000 feet.

476 U.S. at 213-15, 106 S.Ct. at 1813-14. The Court emphasized

that the observations by the officers took place within public

navigable air space in a physically non-intrusive manner. Id., 476

U.S. at 213, 106 S.Ct. at 1813. The Tennessee Supreme Court has

held that the Tennessee Constitution provides no greater protection

in these circumstances than was stated by the Court in Ciraolo.

State v. Prier , 725 S.W.2d 667, 671 (Tenn. 1987).

In Florida v. Riley, the United States Supreme Court riled

on Ciraolo and held that it was unreasonable for the defendant to

expect that the marijuana growing in his partially open-roofed

greenhouse was constitutionally protected from police observation

by helicopter flying at an altitude of 400 feet. 488 U.S. 445, 450-

A-6

7

51, 109 S.Ct. 693, 697, 102 L.Ed.2d 835 (1989). The four-Justice

plurality stated that

that it is of obvious importance that the helicopter

in this case was not violating the law, and there is

nothing in the record or before us to suggest that

helicopters flying at 400 feet are sufficiently rare

in this country to lend substance to respondent's

claim that he reasonably anticipated that his

greenhouse would net be subject to observation

from that altitude. Neither is there any intimation

here that the helicopter interfered with respondents

normal use of the greenhouse or of other parts of

the curtilage. As far as this record reveals, no

intimate details connected with the use of the

home or curtilage were observed, and there was no

undue noise, and no wind, dust, or threat of injury.

In these circumstances, there was no violation of

the Fourth Amendment. is

Id., 488 U.S. at 451-52,109 S.Ct. at 697.°

We conclude that under Ciraolo and Riley, Appellants had no

reasonable expectation that the marijuana on their property was

protected from observation by the police from a helicopter flying at

an altitude of 300 feet. First, the police were operating the

*In a separate concurring opinion, Justice O'Connor stated

that the key inquiry is not the altitude of the aircraft, it is the

reasonableness of the expectation of privacy. Riley 488 USS. at

454, 109 S.Ct. at 699 (O'Connor, J., concurring). Justice O'Connor

then stated that because there is reason to believe that there is

considerable public use of airspace at altitudes of 400 feet and

above and because the defendant had failed to introduce any

evidence to the contrary, the defendant's expectation that his

property was protected from aerial observation from an altitude of

400 feet was not reasonable. Id. 488 U.S. at 455, 109 S.Ct. at 699

(O'Connor, J., concurring).

2 Sd shnula aie ak Mi .

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8

helicopter at a permissible altitude.4 Second, there is nothing in

the record to suggest that helicopter overflights at 300 feet are

sufficiently rare in rural Wayne County so as to support

Appellants’ theory that they reasonably believed that their property

would not be observed by helicopter. In fact, Ms. Ware testified at

the suppression hearing that before the helicopter observation at

issue here, she had already received notice from Champion Paper

Company that helicopters would be in the area to spray during

August and September. Further, Ms. Ware testified that part of the

reason the marijuana was covered with cheesecloth was because in

addition to the Champion helicopters, there might be “marijuana

helicopter[s]" in the area. Third, there is no evidence in the record

that the police helicopter interfered with Appellants’ use of their

property. Finally, there is no evidence in the record that the

helicopter surveillance at an altitude of 300 feet caused any undue

noise, or any wind, dust, or threat of injury. Under these

circumstances, we conclude that the helicopter surveillance at 300

feet did not violate Appellants' rights under the Fourth Amendment

or under Article 1, Section 7. 5 This issue is meritless.

4While Federal Aviation Administration regulations

generally prohibit the flying of fixed-wing- aircraft below certain

altitudes, helicopters may be operated lower than the minimum

altitudes “if the operation is conducted without hazard to persons

or property on the surface.” 14 CFR § 91.119 (1994).

SWe note that the only authority Appellants cite for the

proposition that the helicopter surveillance at 300 feet was

unconstitutional Is the unpublished Sixth Circuit opinion of United

States _v. Saltzman, 992 F.2d 1218, 1993 WL 100082 (6th Cir.

1993). However, that case is distinguishable because the court

found that the helicopter had flown at an altitude of 125 to 150 feet

and had disturbed both the defendant's family and the surrounding

neighbors. Id. 1993 WL 100082, at 3.

A-8

fll. SEARCH WARRANT

a

Appellants content that the search warrant was obtained

for their property was tainted by the prior warntless enty onto their

property by the police. We disagree.

A. Warrantless Entry

Initially, we note that the warntless entry of Appellant’s

property was improper.6 Unless it falls within a specifically

established and well- delineated exception, a search conducted

without a warrant is per se unreasonable. Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d

854 (1973) (citations omitted). One of these exceptions is "[a]

warrantless search conducted pursuant to probable cause and

exigent circumstances." State v.Moore, 949 S.W.2d 704, 706

(Tenn. Crim. App. 1997). However, “(t]he burden is on the State to

show that exigent circumstances ma[d]e the search imperative.”

State v. Yeargan, 958 S.W.2d 626, 641 (Tenn. 1997).

It Is clear that the police had probable cause to believe that

there was marijuana on Appellants’ property. Trooper Peevehouse

testified at the suppression hearing that while he was at an altitude

6There is no dispute that the part of Appellants’ property

that contained the growing marijuana plants was “curtilage” rather

than “open field.” In State v. Jennette, the Tennessee Supreme

Court held that police officers do not need a warrant to enter an

open field and seize marijuana that they have observed by lawful

helicopter surveillance (emphasis supplied). 708 S.W.2d 614, 618-

21 (Tenn. 1986). However, the supreme court held in State v. Prier

that absent exigent circumstances, police officers must have a

warrant in order to enter curtilage and seize marijuana that they

have observed by lawful helicopter surveillance. 725 S.W.2d 667,

671-72 (Tenn. 1987).

A-9

spegh ZEA act ie ARC ALA A eds Ss ee ORT Dine! base

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10

of 900 feet, he saw an uncovered plant which he recognized

through training and experience as a marijuana plant. Peevehouse

then went down to an altitude of 300 feet and confirmed that what

he had seen was marijuana. Because Peevehouse had observed

what he knew through training an experience to be marijuana, it is

clear that the initial entry was supported by probable cause.

However, it is also clear that the State failed to meet its

burden of showing that the initial entry was due to exigent

circumstances. First, there is no evidence in the record that there

was a danger that the evidence would be destroyed before a

warrant could be obtained. Peevehouse testified that he never saw

anyone who would have been in the position to destroy the

marijuana plants he had observed. Agent Lawson also testified that

he had not seen anyone attempt to destroy evidence and he had no

reason to believe that anyone was about to destroy the evidence.

As this Court has previously stated, generalized fears that someone

may destroy evidence is insufficient to establish the existence of

exigent circumstances. State v. Curtis, 964 S.W.2d 604, 610-11

(Tenn. Crim. App. 1997). Second, the record does not indicate that

the initial entry was necessary for officer safety. Agent Callahan

testified that, as the leader of the officer who initially entered the

property, he had not received any information that Appellants were

armed and dangerous. In addition, Agent Lawson also testified that

he had received no information that Appellants had any weapons.

Further, it is obvious that there could have been no threat to officer

safety as long as the officers remained off of Appellants’ property.

Thus, we agree with Appellants that the initial entry of their

A-10

11

property was an unreasonable search under the Fourth Amendment

and Article 1, Section 7.

B. Impermissible Taint

Although we agree with Appellants that the initial entry of

their property was unlawful, we disagree that the warrant was

tainted by the entry.

Although the exclusionary rule may operate to bar the

admissibility of evidence directly or derivatively obtained from an

unconstitutional search or seizure, it has long been recognized that

evidence obtained by means genuinely independent of the

constitutional violation is not subject to the exclusionary rule. See

Wong Sun _ v. United States, 371 U.S. 471, 485-87, 83 S.Ct. 407,

416-17, 9 L_Ed.2d 441 (1963). "This ‘independent source doctrine’

rests upon the policy that ‘while the government should not profit

from its illegal activity, neither should it be placed in a worse

position than it would otherwise have occupied.” State v. Clark

844 S.W.2d 597, 600 (Tenn. 1992) (quoting Murray v. United

States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2535, 101 L.Ed.2d 472

(1988)). The Tennessee Supreme Court has stated that

Pursuant to this doctrine, an unconstitutional entry does not

compel exclusion of evidence found within a home if that

evidence is subsequently discovered after execution of a

valid warrant obtained on the basis of facts known entirely

independent of the illegal entry. Further, even “plain view”

evidence observed during the warrantless entry will not be

excluded so long as (1) the evidence is later discovered

during a search pursuant to a valid warrant, (2) this valid

warrant was obtained without referenced to evidence

uncovered during the illegal search, and (3) the government

agents would have obtained the warrant even had they not

made the illegal entry.

“vei

12

In order for the subsequent warrant and search to

be found genuinely independent of the prior

unconstitutional entry, the...information obtained during the

illegal entry may not have been presented to the issuing

Magistrate.

Clark, 844 S.W. 2d at 600 (citations omitted).

We conclude that the evidence found during the search

was admissible because it was discovered after the execution of a

valid warrant obtained on the basis of facts known entirely

independent of the initial unlawful entry. The search warrant

affidavit in this case set forth the following grounds for a

warrant:

affiant has received information from Tennessee Highway

Patrol Trooper Dennis Peevyhouse [sic] that on September

29, 1994, he observed marijuana growing on the premises

belonging to William Dean Ware located at Route #4, Box

928, Waynesboro, Tennessee. The Marijuana was

approximately 100 feet from the house. Trooper

Peevyhouse [sic] observed the marijuana while conducting

an aerial search of Wayne County. Trooper Peevyhouse

[sic] has been trained in the aerial detection of marijuana

growing and has observed marijuana growing many times

in the past that has lead [sic] to arrests and convictions.

Furthermore, it has been the experience of your affiants

that person [sic] who grow marijuana tend to keep

marijuana, marijuana seeds, pictures and records in their

residences.

In its letter of August 14, 1996, in which it denied the

motion to suppress, the trial court found that the warrant in this

case was supported by probable cause that resulted from the

observation by helicopter. The trial court also found that the

affiant was based solely on the aerial observations. Although not

expressly stated, the trial court’s ruling necessarily required a

13

finding that the warrant was not tainted by the initial entry onto

Appellants’ property.7

It is clear from the express terms of the affidavit that the

grounds for the warrant contained therein came entirely from the

observations of Trooper Peevehouse and not from anything

observed by officers on the ground. Althought Appellants make

much of the fact that Agent Tubbs reported to Peevehouse that he

had observed marijuana when he made the warrantless entry onto

Appellants’ property, that fact is simply not a part of the affidavit.

Thus, the magistrate who issued the warrant could not have

considered anything observed by Tubbs or any of the other officers

on the ground in deciding to issue the warrant. The affidavit stated

that Peevehouse had special training and experience in spotting

marijuana during aerial observations and that he had successfully

detected marijuana from the air on many occasions. Furthermore,

the affidavit stated that Peevehouse’s information about the

presence of marijuana on Appellants’ property was based on his

own direct, personal observations. Therefore, the affidavit, on its

face, provided ample grounds for a neutral and detached magistrate

to issue a warrant for Appellants’ property.

Appellants’ claim that Peevehouse’s observations as

recounted in the affidavit were not independent of the unlawfu!

entry because Peevehouse directed Tubbs to enter the property and

confirm his belief that he had seen marijuana. Essentially,

Appellants contend that Peevehouse could not possibly have

determined that marijuana was growing under the cheesecloth from

7 Indeed, in an order dated October 9, 1997, the trial court

stated that it had previously found that the warrant was not based

on information obtained from the warrantless entry.

A-13

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14

an altitude of 300 feet without the confirmation he received from

Tubbs. However, Appellants’ argument ignores the fact that

Peevehouse expressly testified that he saw a marijuana plant that

was not covered with cheesecloth and he was able to identify it as

a marijuana plant by observing its color and texture and relying on

his training and experience. It is true that Agent Callahan testified

that he recalled that Peevehouse had directed Tubbs to the left of

Appellants’ residence to confirm the presence of marijuana.

However, although Peevehouse testified that he told Tubbs that the

marijuana was on the left, he specifically denied ever directing

Tubbs to go to the spot to confirm the presence of marijuana.

Further, although Tubbs testified that he had reported seeing

marijuana, he specifically denied that he had been told to go to

where the marijuana was or to confirm its presence. In addition,

Agent Lawson also specifically denied that Tubbs had been

directed by anyone to go to where Peevehouse had seen the

marijuana. The trial court obviously resolved any conflicts in the

evidence in favor of finding that Peevehouse was sure that he had

seen marijuana and he did not need any confirmation. The

evidence does not preponderate against this finding.

In short, we conclude that the warrant was issued based

solely on the observations of Peevehouse that were completely

independent of anything observed by the officers on the ground. In

addition, because the warrant was obtained without any reference

to evidence uncovered during the initial entry, because the

evidence was subsequently discovered during the execution of a

lawful warrant, and because the police would have obtained the

warrant even if they had not made initial entry, the trial court

correctly concluded that all evidence discovered during the search

A-14

15

of Appellants’ property was admissible. See Clark, 844 S.W.2d at

600. This issue has no merit.

IV. SEARCH OF MORGAN’S PROPERTY

Appellants contend that the trial court should have

suppressed the evidence found in the building owned by Morgan

because the building was not covered by the warrant. We disagree.

When challenging the reasonableness of a search or

seizure, the defendant has the burden of first establishing a

legitimate expectation of privacy in the place or property which is

searched. Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct.

2556, 65 L.Ed.2d 633 (1980). Although relevant to the standing

inquiry, an ownership interest in the property searched is not a

prerequisite to establishing a legitimate expectation of privacy

because on individual may posses a legitimate expectation of

privacy in other person’s residence. State v. Turnbill, 640 S.W.2d

40, 45 (Tenn. Crim. App. 1982). This Court has held that the

following seven factors are applicable to the standing inquiry:

(1) property ownership;

(2) whether the defendant has a possessory interest in

the thing seized;

(3) whether the defendant has a possessory interest in

the place searched;

(4) whether he has a right to exclude others from that

place;

(5) whether he has exhibited a subjective expectation

that the place would remain free from

governmental invasion;

(6) whether he took normal precautions to maintain

his privacy; and

(7) whether he was legitimately on the premises.

State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991)

(quoting United States v. Haydel, 649 F.2d 1152, | 154-55 (Sth Cir.

1981)).

Pee Ee TO ae

re ee ee eT

16

In reviewing the applicable factors, we conclude that

Appellants failed to establish that they had a reasonable

expectation of privacy in Morgan's building. It Is true that

Appellants had a possessory interest in Morgan's building and they

were legitimately entitled to use the building. Indeed, Ms. Ware

testified that Morgan had given Appellants permission to use the

building for storage in return for keeping the building in repair. It

is also true that Appellants had manifested a subjective expectation

that the building would remain free from governmental invasion

and had taken normal precautions to maintain their privacy by

keeping the building locked. However, we conclude that these

factors are outweighed by the other factors which indicate that

Appellants had no legitimate expectation of privacy in Morgan's

building. First, it is undisputed that Morgan, and not Appellants,

owned the building. In fact, Appellants did not have a lease or any

other kind of written agreement that entitled them to use the

property; their use was merely pursuant to a verbal agreement.

Second, there is no indication in the record that Appellants ever

claimed ownership of the property that was seized from Morgan's

building. In fact, Ms. Ware specifically testified that she did not

know who owned the marijuana growing equipment or the LSD

that was found in the building. Third, and most importantly, there

is no indication in the record that Appellants had the right to

exclude others from Morgan's building. There is no indication that

Appellants' agreement with Morgan gave them the exclusive

right to use the building. Certainly, the record indicates that

Morgan had a key to the building and nothing indicates that he

could not have used the building anytime he was in the area.

Further, there is nothing in the record to indicate that Morgan

A-16

17

could not have given his key to any number of people and also

permitted them to use the building for storage. Under these

circumstances, we conclude that Appellants did not, have a

legitimate expectation of privacy in Morgan's building. This issue

is meritiess.9

V. DENIAL OF FULL PROBATION

Mr. Ware contends that the trial court erred when it failed

to impose full probation for the sentence for his marijuana

conviction. We disagree.

Under Tennessee law, a defendant is eligible for probation

if the sentence imposed is eight years or less and further, the trial

court is required to consider probation as a sentencing alternative

for eligible defendants. Tenn. Code Ann. § 40-35-303(a)-(b)

(1997). However, even though probation must be automatically

considered, “the defendant is not automatically entitled to

9We note that this Court held that evidence discovered

under similar circumstances was admissible in State v. Brewer,

640 S.W.2d 33 (Tenn. Cdrn. App. 1982). In Brewer the officers

who were executing a search warrant for the defendants'property

wandered over an indistinct property line and discovered a

marijuana patch and a partially constructed house that contained

marijuana. This Court held that the search was reasonable under

the circumstances because the officers had not strayed far from

the defendants’ property and further, the defendants had failed to

establish a privacy interest in their neighbors property. Id, at 34-

35. Similarly, Agent Lawson testified that even though a local

officer had expressed the opinion that the building was not owned

by Appellants, Lawson believed that it was part of their property

or at least was connected with it because it was connected to one

of Appellants’ marijuana patches by a "well-worn path" that had

marijuana cultivating equipment and cut marijuana stalks

scattered along its entire length. (II 123-24) Thus, we conclude

that, as was the search in Brewer, Lawson's search of Morgan's

building was likewise reasonable under the circumstances.

A-17

Aa SS a tnntemto tase

18

probation as a matter of law." Tenn. Code Ann. § 40-35-303(b)

(1997), Sentencing Commission Comments; State v. Hartley, 818

S.W.2d 370, 373 (Tenn. Crim. App. 1991). Indeed, a defendant

seeking full probation bears the burden on appeal of showing that

the sentence actually imposed is improper and that full probation

will be in both the best interest of the defendant and the public.

State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995).

When determining suitability for probation, the sentencing court

considers the following factors: (1) the nature and circumstances of

the criminal conduct involved; (2) the defendant’s potential or lack

of potential for rehabilitation, including the risk that, during the

period of probation, the defendant will commit another crime; (3)

whether a sentence of full probation would unduly depreciate the

seriousness of the offense; and (4) whether a sentence other t than

full probation would provide an effective deterrent to others likely

to commit similar crimes. Tenn. Code Ann. §§ 40-35-210 (b)(4),

40-35-103(5S), 40-35-103 (1)(B) (1997 & Supp. 1998); State v.

Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); Bingham,

910 S.W.2d at 456.

As a Range I standard offender convicted of a Class E

felony and sentenced to two years, Mr. Ware was presumed to be a

favorable candidate to receive an alternative sentence for his

marijuana conviction. Tenn. Code Ann. § 40-35-102(5) +6)

(1997). Indeed, Mr. Ware received an alternative sentence of

seven months of confinement followed by one year and five

months of probation. However, Mr. Ware contends that the trial

court should have imposed probation for the entire two year period

of his sentence.

A-18

19

The record indicates that in imposing the sentence for Mr.

Ware’s marijuana conviction, the trial court considered the fact

that Mr. Ware had no previous record of criminal convictions and

that manufacture of marijuana is not a violent crime. However, the

trial court concluded that these factors were outweighed by other

considerations. The trial court noted that the evidence presented

during the sentencing hearing indicated that Mr. Ware had been

involved in the manufacture and sale of marijuana for at least five

years before he was caught. The trial court also noted that Mr.

Ware's operation was well-planned and sophisticated and that Mr.

Ware had supported himself, his wife, and their two children with

the proceeds of his marijuana growing operation. Thus, the trial

court concluded that full probation was not appropriate because the

seriousness of the offense would be depreciated if the sentence did

not include some period of confinement.

We conclude that the trial court properly denied full

probation based on the seriousness of the offense. The general rule

is that "[i]n order to deny an alternative sentence based on the

seriousness of the offense, "the circumstances of the offense as

committed must be especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or

exaggerated degree,” and the nature of the offense must outweigh

all factors favoring a sentence other than confinement." Bingham,

910 S.W.2d at 455. We conclude that the circumstances of Mr.

Ware's offense do not meet this standard. However, this Court has

recognized that although the circumstances of the offense may not

be sufficient in themselves to completely deny alternative

sentencing, they may still be sufficient to deny full probation. See

Id., at 456. This is the case here. The photographs, videotapes, and

A-19

hs a ee ae

20

documents seized from Appellants' home indicate that Mr. Ware

was engaged in a well-organized marijuana growing and selling

operation from at least 1989 until his arrest in 1994. Indeed, the

record indicates that Mr. Ware had developed a fairly refined

system for "cloning" and raising marijuana plants that were a cross

between “M-39” and “Skunk #1” types of marijuana. In fact,

Agent Callahan testified that Mr. Ware had the most sophisticated

operation that he had ever seen and Callahan estimated that Mr.

Ware had made up to $100,000.00 in one year through the

marijuana operation. Further, the record indicates that Appellants

had 153 marijuana plants on their property when it was searched

on September 29 and 30, 1994. Under these circumstances, we

agree with the trial court that some period of confinement was

necessary in order to avoid depreciating the seriousness of the

offense.

In short, Mr. Ware has simply failed to meet his burden of

showing that the sentence actually imposed is improper and that

full probation will be in both his own best interest and in the best

interest of the public. See Id. Therefore, we conclude that a

sentence of seven months of confinement followed by one year and

five months of probation is entirely appropriate in this case. This

issue has no merit.

According, the judgment of the trial court is AFFIRMED.

/S/

JERRY L. SMITH, JUDGE

CONCUR:

a

JOHN H. PEAY, JUDGE

/S/

DAVID H. WELLES, JUDGE

A-20

;

IN THE COURT OF CRIMINAL APPEALS OF

TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

STATE OF TENNESSEE, _ ) C.C.A. No. 01C01-9803-

) CC-00129

Appellee, )

) NO. 10,579-83, 10,680-82

VS. ) BELOW

)

WILLIAM D. WARE and ) WAYNE COUNTY

VIRGINIA WARE, ) AFFIRMED

)

Appellant. ) (Direct Appeal)

JUDGMENT

Came the Appellants, William D. Ware and Virginia

Ware, by counsel and also came the Attorney General on

behalf of the State, and this case was heard on the record on

appeal from the Circuit Court of Wayne County; and upon

consideration thereof, this Court is of the opinion that there

is no reversible error in the judgment of the trial court.

A-21

'

q

It is, therefore, ordered and adjudged by this Court

that the judgment of the trial court is affirmed, and the case is

remanded to the Circuit Court of Wayne County for

execution of the judgment of that Court and for collection of

costs accrued below. The Appellants bond shall remain in

) effect pending appeal with a twenty-five percent increase.

| Costs of appeal will be paid by the Appellants,

| __ William D. Ware and Virginia Ware for which let execution

issue.

Per Curiam

Smith, Peay, Welles

A-22

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FILED |

roy 1 1999 :

Clerk of the Courts

Rec'd By.

STATE OF TENNESSEE,

APPELLEE

WAYNE COUNTY

wi

WILLIAM D. WARE AND

)

)

)

)

) i

) NO. 01CO1-9803-CC-00129

)

VIRGINIA WARE, )

)

)

APPELLANTS

ORDER

Upon consideration of the application for permission

to appeal and the record before us, the application is denied.

PER CURIAM

A-23

Ak, raed eR len a told

oi i ata a ARAM d

nates Ade ART che ORS Tre

po

IN THE CIRCUIT COURT OF WAYNE COUNTY, TENNESSEE

THE TWENTY-SECOND JUDICIAL DISTRICT

STATE OF TENNESSEE

vs - CASES NO. 10,579-83,

: 10, 680-82

GABRIEL WARE, VIRGINIA WARE, . ee —

SUMMER WARE, WILLIAM D. WARE, FILED

MARK 25 1998

TRANSCRIPT OF THE EVIDENGE

Clerk of the Courts

PRE-TRIAL MOTION TO SUPPRESS”

VOLUME I

JULY 3, 1996

Before the Honorable, WILLIAM B. CAIN,

Circuit Judge.

APPEARANCES :

FOR THE STATE OF TENNESSEE:

MR. THOMAS M. BOTTOMS, DISTRICT ATTORNEY GENERAL

MR. JESSE DURHAM, ASST. DIST. ATTY. GEN.

252 N. MILITARY AVE., SUITE 202

LAWRENCEBURG, TN. 38464

FOR THE PETITIONER:

MR. JOHN S. COLLEY

COLLEY AND COLLEY

ATTORNEYS AT LAW

Suite 200

710 North Main Street

Post Office Box 1476

COLUMBIA, TN. 38402-1476

Dirthy McFall

CERTIFIED OFFICIAL CRIMINAL COUR’) REPORTER

STATE OF TENNESSEE

(615) 292-7422

4215 Harding Road--Apt .1109

Nashville, Tennessee 37205

A-24

N

was to go to the back of the residence to see if

anybody ran out. That's what he did and when he went

by this marijuana, I guess he's supposed to close his

eyes and say, "Oops, I didn't see that." Well, he

didn't say that. He saw it and he said, "Yep, that's

marijuana”.

They secured the house, they made sure

no one else was in there, they withdrew the people, and

they went and got a search warrant. I think it's

exactly what they should have done and we would ask the

court to overrule their motion to suppress.

As I said, Mr. Durham is more

experienced and educated in the law on these type cases

and I'd ask to split our argument with him.

THE COURT: All right, Mr. Durham.

MR. DURHAM: Judge, I'ma little -- I've been

here listening, but I have to admit that I'ma little

bit confused. You know they say, they used to teach us

in law school that join the issues, and I've been

trying all day long to do that. What are we joining

the issues for because I thought we might be here in

connection with the suppression of the search warrant.

But a lot of the things that was said and done, that

apparently wasn't Crue. Apparently, I guess, we were

more concerned about what went on before.

Page 168

A-25

re ee ee

Now, I think it's clear, you can go back

and you can read State v._bayton, you can read State v,

Jeannette, you can read State v, Pryor, and you can go

to the federal cases and like all the way back to the

case in 1986 of California v, Ciraolo -- I think I'm

pronouncing that right, it's C-i-r-a-o-l-o, anyway, and

all of those hold that what they were doing in.

connection with flying over is all right. They all had

this been consistent since the early 80's saying that

aerial surveillance is all right.

Now if you're flying over open fields

and you find something, you can invade those open

fields. The only thing that comes up, Judge, from all

of these cases, if you spot something and you've got

probable cause and if it's in the curtilage or if you

think it's in the curtilage, then you have to go back

to those things, of course that we talked about, the

unreasonable search and seizures. And as the court

knows that the way that a search that's unreasonable

would be one without a warrant -- or you might have

consent. If you have consent, it's not unreasonable --

or if you have prebable cause connecting the

circumstances. And so that's what these officers did.

They had their probable cause. The moment the officers

saw this marijuana when they were flying over it, which

Page 169

A-26

BLE COPY

1 is where they could be -- is where, like I said, our

2 Supreme Court and the United States Supreme Court has

3 said you cal. And I might say that in Florida v.

4 Riley, they were down to four hundred feet. Four

5 hundred feet flying over the curtilage, and the court

6 says, "That's all right." You wouldn't expect there to

7 be any flights and that you don't own that space above

8 you. If it comes into where you're hovering down over

9 the house and interfering with the privacy of the

10 people -- looking in the windows and things like that

11 - I think the courts wouldn't have found it probable.

12 THE COURT: Let me try to focus a little bit.

13 The first information came from an anonymous somebody

14 who called himself a tipster, some kind of a "Tennessee

15 Tipster” Or something.

16 MR. DURHAM: Yes, sir.

17 THE COURT: By way of an anonymous letter,

18 describing essentially marijuana, guns, matters of that

19 character. Obviously at that point, nobody had any

20 probable cause to do anything.

Z1 MR. DURHAM: No, sir.

22 THE COURT: The next item in line is the fly

23 over. In the fly over in which the agent in the

24 helicopter, the Trooper flying the helicopter, the

25 Trooper particularly, looks down from an area of

Page 170

ee ee ener CE

A-27

en Meree

Pr AS

24

25

approximately nine hundred feet and views, at what he

describes and identifies as a marijuana plant. Now, at

that stage, you have probable cause to issue a warrant.

Now, tell me the law as it relates to

what you can do to secure perishable property while you

get such a warrant.

MR. DURHAM: Judge, there's a number of cases

to where officers had got into position to observe and

prevent the destruction of evidence, and that's all

right. And even if you have to invade the curtilage,

if you don't get something new from going on the

curtilage without a warrant or without consent, that

helps you with your probable cause. If you already

have your probable cause -- Murray for instance, U.S.

v. Murray or Murray v. U.S is I believe the way it is

cited -- they were already in the warehouse if the

court remembers. They were already in the warehouse,

but they had independent probable cause and they were

out getting the search warrant and the U.S. Supreme

Court said that the fact that they had gone in there --

and they say to preserve -- to keep anything from being

destroyed because they knew they were there and so if

they left, the evidence would be destroyed -- so the

court said, "Well, certainly they can stay there.” And

Page 171

A-28

10

11

even if it had beeu seized, if you bad a warrant that

was independent of the information that was obtained

when you entered the warehouse, that you reseize, or!

however you want Lo call it they said, that 1s

perfectly all right. ‘That's Murray

In Dungy there was an invasion of the

curtilage, and again in State v. Dunn the court says,

"If the independent probable cause, i.e. the flying

over and seeing tie marijuana, which is already done,

the fact that the curtilage is invaded to preserve or

protect the evidence, does not change the fact that you

have a probable cause and you can go and get it, as

long as you don't make a search until after you get it.

They said that you're not going on there to make a

search and that's what these officers said, if you

recall, your honor They said they were going up there

to one, try to get consent, and secondly, was the

safety factor and to secure the premises, in which they

had a right to do under all the cases.

In Ciragle, your honor, they had the big

high fences. There was no question that it was

connected to the house and was inside and they had to

get a plane to go Up to go over to where they could see

it. They knew it was there or they had very good

information that it was there, but they didn't think

Page 172

they had enough probable cause and so they sent a plane

up. ‘The plane flew over and so then they moved up and

secured the area while they went and got the search

warrant.

The California court now suppressed

that, but it went up te the U.S. Supreme Court and they

said, "No, the probable cause was obtained from where

they could be", that is in the air. And they also

stated that if they were standing in an open field they

could see it. And they also said that you could

normally approach the house -- that you could normally

approach the front door, for instance, Or go around the

back if it was a case to where you were looking to see

if someone else was there.

Now, I would think, Judge, that they had

the probable cause and they were going to seek, and

they did try to get consent, failed in that, they went

and got their warrant. If you see from the affidavit

they use as the probable cause what they had observed

from the air and what they observed from where they had

a right to be.

THE COURT: 1 need the search warrant and the

affidavit. It's an exhibit.

MR. DURHAM: Yes, sir, is this it?

I would think it would be an arguable

Page 173

position, again from the law, that when they were

approaching the house, whatever they saw I believe

it was Agent Tubbs, as he was going up to the house, as

the General says, he's not required to cover up his

eyes or whatever. He's walking up towards the house,

which he has a right to, and he sees something.

Now, after they got to the house and they

found a belligerent person ~~ this person is there and

a belligerent person who is trying to drive them off,

the officers would have been absolutely stupid and

would have been subject to someone considered mal -

feasance if they hadn't secured it because certainly if

they had left, when they come back there wouldn't have

been anything there for them to see. There wouldn't

have been anything for them to get. So once they had a

person there that was belligerent and saying, “Get off

my property. I'm growing herbs and you're violating my

rights", there was actually circumstances. So it would

be my position that they could have searched then, but

again, these officers did what they had been taught to

do -- to go get a warrant and that's what they did.

Judge I would have a number of cases

that I could submit to the court. I don't have all of

them here today.

HE COURT: All right, counselor.

FILED

JUL 1 2 1996

TeML —_

CIRCUIT COURT CLERK

warta COUNTY, Tam.

IN THE CIRCUIT COURT FOR WAYNE COUNTY,

TENNESSEE

AT WAYNESBORO

STATE OF TENNESSEE

VERSUS

WILLIAM WARE,

)

)

) DOCKET NO. 10679-10683

)

)

VIRGINIA WARE, )

)

)

)

)

SUMMER WARE, and

GABRIEL WARE,

Defendants.

SUPPLEMENTAL MOTION TO SUPPRESS

Come now the Defendants and supplement their

Motion to Suppress made in open court on July 3, 1996 as

follows:

l. Defendants move the Court to suppress any

and all evidence seized from their residence and persons on

or about September 29 and 30, 1994, by agents of the State of

Tennessee for the following reasons:

A-32

a. The initial entry on their property was made without a

search warrant, without probable cause, without exigent

circumstances, and without any other lawful reason, excuse,

or justification, all in violation of their nights against

unreasonable searches and seizures under the Fourth

Amendment to the United States Consultation and analogous

provisions of the Tennessee Constitution;

b. The search warrant ultimately used to continue

the search and seizure of their premises the afternoon of

September 29, 1994, was based on information from Trooper

Peevyhouse which was "confirmed" in the initial intrusion

onto the Wares’ premises by one or more agents of the State

of Tennessee, and thus the search warrant is "tainted";

C. The storage house/Morgan residence was not

included in the premises to be searched with the search

warrant, yet was forcibly entered without a search warrant,

consent, exigent circumstances, or other legal excuse,

justification, or cause by special agent Jim Lawson with the

full knowledge that said residence was not on the Ware

premises and was thus not covered by the search warrant.

d. Flying over Defendants' property at a height of

300 feet was a violation of their rights against unreasonable

searches and seizures.

For the same reasons set forth’ above, Defendants

move the Court to suppress any and all statements given by

them as a result of the illegal search and seizure set forth

above as well as their illegal arrest resulting during said

seizures.

This the 11th day of July, 1996.

COLLEY & COLLEY

By:/s/

JOHN S. COLLEY, Ill

BPR # 12029

Counsel for Defendants

P.O. Box 1476

Columbia, TN 38402-1476

(931) 388-8564

CERTIFICATE OF SERVICE

I, John S. Colley, III, hereby certify that I have sent a

true and exact copy of the foregoing Motion to Mr. Mike

Bottoms, District Attorney General, P.O. Box 459,

Lawrenceburg, Tennessee 38464-0459 by first class mail,

postage prepaid, this the 11" day of July, 1996.

_/S/

JOHN S. COLLEY, Ill

A-34

IN THE CIRCUIT COURT FOR WAYNE COUNTY,

TENNESSEE

STATE OF TENNESSEE )

) Dockets 10,579,

versus ) 10,582, 10,583,

) 10,680, 10,681,

WILLIAM DEAN WARE, et al. ) 10,682

RESPONSE TO MOTION TO SUPPRESS

Comes the State of Tennessee through the Office of

the District Attorney General for the 22" Judicial District,

and submits to the Court that the Defendant’s Motion To

Suppress should be denied. |

It is well established in both Federal and State Court

that observations made from flights over a person’s property

in an unintrusive manner is not a violation of the Fourth

Amendment protection of the Constitution. This was so

stated in State v. Prier, 725 S.W.3d 667, and in California v.

Ciraolo, 476 US 207.

The observation of contraband (marijuana) gives rise

to probable cause for further search and possible seizure.

However, if the contraband is within a residence or the

curtilage of the residence, a warrant must be secured, consent

obtained from the appropriate person, oF exigent

circumstances must exist before the officers may proceed

with their search and seizure.

A-35

Here the officers saw the marijuana from the air as

they flew over the Ware property at about 900 to 1100 feet.

This was certainly not intrusive. They then had probable

cause to obtain a warrant, or they could attempt to secure

consent from the owner. They did attempt to get consent,

failing in that they obtained a search warrant.

The officers in the helicopter directed the officers on

the ground to the Ware property, not to search, but to provide

security to the officers and to prevent the destruction of the

evidence. The Officers did not obtain any evidence or

information to be used in a probable cause affidavit for a

warrant as a result of going on the property.

Miss Ware, a daughter, and Mrs. Ware, the mother,

were located at the house. Permission to search was sought

from Mrs. Ware, this was rejected. The decision was made

to obtain a warrant prior to the search for and seizure of the

evidence. The probable cause for this warrant came from the

observation from the air, not from anything gained from the

agents going physically on to the Ware property. This

procedure was approved in Murray v. U.S., 487 US 533, and

in US v. Johnson, 8994 F2D 1153, 1157, that “It does not

matter that officers first trespass upon property that is

obviously curtilage...while investigating a tip, as long as the

incriminating observation themselves take place outside the

protected curtilage.” Here the incriminating observations

were made before the officers entered the protected curtilage,

and a proper warrant obtained before seizure of the

contraband and other evidence.

There was a building, used by the Ware’s for storage

and other things, which belonged to someone else. It may be

argued that it was outside the curtilage, and hence not

covered by the warrant. However, there was a trail of

evidence that led up to the building which presented

overwhelming probable cause that the building was being

used in ongoing illegal activities, and with exigent

circumstances, the building not being occupied, justified the

search of the building and the seizure of the contraband

found.

It could also be argued that the Wares gave up any

legitimate expectation of privacy in the things they put in the

house, because others had access to the house, and the Wares

did not reside there. This was essentially the reasoning the

Court had in Matthews v. State, 805 S.W.2D 776.

The search and seizure in this case was conducted in a

proper manner, in accordance with Constituticmal and

Statutory law.

The Motion to Suppress should, therefore, be denied.

A-37

Respectfully submitted

/S/

DISTRICT ATTORNEY GENERAL

A copy of this Response has been furnished to the Honorable

John Colley, Columbia, Tennessee.

A-38

22 PUBUC SQUARE, SUITE I I

POST OFFICE BOX 413

COLUMBIA. TENNESSEE 38402-0413

615 380-3325

. SENNES

<< F 5Be.

-3

WILLIAM B. CAIN

CIRCUIT JUDGE

STATE OF TENNESSEE

TWENTY-SECOND JUE)ICIAL DISTRICT, DIVISION 11

FILED

AUG 1 5 1996

a

4)

SERVING GILES,

LAWRENCE,MAURY

AND WAYNE COUNTIES

August 14, 1996

Mr. John S. Colley Ii

Colley and Colley

P.0 "Box 1476

Columbia- TN 38402-1476

Mr. Jesse Durham

Assistant District Attorney General

P.O. Box 1619

Columbia, TN 38402-1619

Re: State v. William Dean Ware, et al

Wayne Circuit Nos. 10,579,

10,582, 10,583, 10,680, 10,681,

10,682

A-39

Gentlemen:.

In this case the aerial observations of growing marijuana

within the curtilage of the residence was made from

helicopter in open air space 900 to 1100 feet above the

ground. These naked eye observations from open air space

created probable cause for the issuance of a search warrant.

California v. Ciraolo, 90 L.Ed.2d 210 (1986); State v. Prier,

725 S.W.2d 667, 671.

Officers on the ground, subsequent to the aerial

observations, sought and were refused consent to search the

Ware premises. The aerial observations, however, were the

basis of the probable cause affidavit and the issuance of the

search warrant which was used to search the premises.

The motion to suppress will be denied, and Mr. Durham will

prepare an appropriate order and submit same for approval.

With every good wish, I remain

Sincerely yours,

/s/

William B. Cain

WBC/mt

ce: Circuit Court Clerk

A-40

IN THE CIRCUIT COURT FOR WAYNE COUNTY,

TENNESSEE

AT WAYNESBORO

STATE OF TENNESSEE

VERSUS DOCKET NOS. 10581,

)

)

)

) 10582, 10583

WILLIAM WARE and )

VIRGINIA WARE, )

)

)

Defendants.

FILED

OCT 0 9 1999

CIRCUIT COURT CLERK WAYNE COUNTY, TENN

ORDER

This cause came on to be heard on August 13, 1997,

upon the Defendants’ petitions to enter pleas of guilty

pursuant to Rule 37(b)(2)(i).

Pursuant to Rule 11, Tennessee Rules of Criminal

Procedure, the Court finds that the

Defendants’ pleas are knowingly and voluntarily entered, and

the Court accepts same. The Defendant William Dean Ware

is therefore found guilty of Possession of a Schedule VI

Controlled Substance for Resale in Case Number 10583, and

Possession of a Schedule I Controlled Substance for Resale

in Case Number 10582; the sentence imposed totals eight (8)

years, as is more particularly stated in the judgments of

conviction entered this day,

The Defendant Virginia Ware is found guilty of

Possession of a Schedule VI Controlled Substance for Resale

in case number 10581, and the sentence imposed is two (2)

years, as is more particularly stated in the judgment of

conviction entered this day in her case.

With the consent of the Court and the consent of the

District Attorney, these Defendants’ pleas explicitly reserve

the right to appeal certain certified questions of law that are

dispositive of their cases, all alleging violations of these

defendants guarantees against unreasonable searches and-

seizures under the Fourth Amendment to the US.

Constitution and analogous provisions of the Tennessee

Constitution, to wit:

l. Defendants complained of, and asked the

Court to exclude all evidence from, the initial entry on their

property made without a search warrant, without probable

cause, without exigent circumstances, and without any other

lawful reason, excuse, or justification. On March 4, 1997, the

Court denied the Defendants’ motion, finding the search

warrant was issued on good and sufficient probable cause.

2 The Defendants complained of, and asked the

Court to exclude all evidence seized under, the search

A-42

warrant ultimately used to continue the search and seizure of

their premises the afternoon of September 29, 1994, which

was based on information from Trooper Peevyhouse which

was "confirmed" in the initial intrusion into the Wares’

premises by one or more agents of the State of Tennessee,

allegedly "tainting" the search warrant. This ground for

suppression was likewise denied by the Court on March 4,

1997

3. The Defendants complained of, and asked the

Court to suppress all evidence seized from, the building

owned by Mr. Morgan which was not included in the

premises to be searched with the search warrant, but which

was forcibly entered without a search warrant, consent,

exigent circumstances, or other legal excuse, justification or

cause by special agent Jim Lawson, with the full knowledge

that said resident was not on the Ware premises and was thus

not covered by the search warrant. The Court denied this

ground of the Defendants’ Motion to Suppress as well on

March 4, 1997.

4. Defendants complained of, and asked the

Court to exclude all evidence seized as a derivative of, the

State flying over Defendants’ property at a flight of 300 feet,

alleging said over-flights to be a violation of their rights

against unreasonable searches and seizures. This ground was

also denied by the Court on March 4, 1997.

Defendants, the State, and the Court expressly agree

that the foregoing issues are dispositive of these cases as

follows:

a) Issues 1, 2 and 4 are each dispositive

of the charges against William Dean Ware in Docket

Numbers 10582 and 10583. Issue No. 3 is dispositive of the

charge in Docket Number 10582 against William Dean Ware.

b) Issues 2, and 4 are each dispositive of

the charges against Virginia Ware in Docket Number 1058.

Defendants have been placed on probation pending

the outcome of the appeal in these matters. These cases shall

be consolidated on appeal to the Tennessee Court of Criminal

Appeals at Nashville. Defendant William Dean Ware shal]

serve his one year incarceration within thirty (30) days of the

exhaustion of this appeal, and shall remain on supervised

probation during the appeals process

It is so ORDERED this the 9" day of October, 1997.

/s/

HONORABLE ROBERT L. JONES

CIRCUIT JUDGE

APPROVED FOR EN'FRY:

/s/

JIM WHITE, Asst. D.A.

/s/

JOHN S. COLLEY, Ill, for Defendants

A-44

CERTIFICATE OF SERVICE

I, John S. Colley, III, hereby certify that I have sent a

true and exact copy of the foregoing Petition For A Writ of .

Certiorari, to Mr. Daryl J. Brand, Associate Solicitor General,

Tennessee Attorney General’s Office, 425 Fifth Avenue

North, Nashville, Tennessee 37243, by first-class mail,

postage prepaid, this the -3\__ day of January, 2000.

QMS. =

we, COLLEY, III