        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 10, 2015


                JASON LEE FISHER v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Marshall County
                    No. 2014-CR-6     Robert G. Crigler, Judge




                No. M2014-02327-CCA-R3-PC – Filed October 2, 2015
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Jason Lee Fisher (“the Petitioner”) was convicted of four counts of burglary, four counts
of theft of property, and three counts of vandalism. The Petitioner filed a petition for
post-conviction relief alleging, among other things, that he received ineffective assistance
of counsel when trial counsel and co-counsel failed to file a motion to suppress evidence
found during the inventory search of the Petitioner’s vehicle. Following a hearing where
only the Petitioner, trial counsel, and co-counsel testified, the post-conviction court found
that the Petitioner failed to show that he was prejudiced by counsels’ alleged deficiencies.
On appeal, the Petitioner argues that the State failed to prove that impounding the
Petitioner’s car was necessary and, therefore, the inventory search was invalid.
Accordingly, he contends that, had trial counsel and co-counsel filed a motion to
suppress, it would have been successful, and all the evidence against the Petitioner would
have been excluded. Upon review of the record and applicable law, we affirm the
judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Andrew Love (on appeal), Nashville, Tennessee, and James R. Tucker (at hearing),
Shelbyville, Tennessee, for the appellant, Jason Lee Fisher.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                                OPINION

                               Factual and Procedural Background

       In September and October 2011, four burglaries occurred on Woodbridge Drive in
Marshall County.1 On October 3, 2011, Detective Jimmy Oliver and Captain Bob
Johnson of the Marshall County Sheriff’s Department were leaving the home of one of
the burglary victims when they observed the Petitioner driving a vehicle without tags.
The officers stopped the vehicle and asked for the Petitioner’s driver’s license. The
Petitioner’s driver’s license had been suspended, so the officers arrested the Petitioner.
While they were waiting for a tow truck and another police cruiser to transport the
Petitioner, the officers performed an inventory search of the Petitioner’s vehicle. During
that search, they found items in the trunk which were later identified by one of the
burglary victims as having been stolen from her home.

       This evidence caused the police to investigate the Petitioner as a suspect in the
burglaries. As part of their investigation, officers went to the Petitioner’s mother’s home,
where the Petitioner had been staying and which was in the same neighborhood as the
burglaries. The Petitioner’s mother gave her consent for the police to search her house,
and during that search, police found items from all four of the burglaries.

       The Petitioner was charged with four counts of aggravated burglary, three counts
of theft of property valued at $1,000 or more but less than $10,000, one count of theft of
property valued at more than $500 but less than $1,000, and three counts of vandalism
valued at $500 or less. Following a trial, the jury convicted the Petitioner as charged.
This court affirmed his convictions on direct appeal. State v. Jason Lee Fisher, No.
M2013-00220-CCA-R3-CD, 2013 WL 582652, at *11 (Tenn. Crim. App. Oct. 29, 2013),
no perm. app. filed.

       The Petitioner subsequently filed a Petition for Post-Conviction Relief alleging
that he received ineffective assistance of counsel because trial counsel and co-counsel
failed “to competently argue to suppress evidence” found during the search of his car.2


        1
          To assist in the resolution of this proceeding, we take judicial notice of the record from the
Petitioner’s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn.
2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
        2
         In his petition for post-conviction relief, the Petitioner also alleged that the search of his vehicle
was not a valid search incident to arrest and that he received ineffective assistance of counsel when trial
counsel and co-counsel did not file a motion to suppress the evidence found in the Petitioner’s mother’s
house. However, the only issue raised on appeal is whether trial counsel and co-counsel were ineffective
                                                    -2-
No amended petition was filed. At the post-conviction hearing, the Petitioner testified
that he spoke with both trial counsel and co-counsel seven or eight times before trial. He
stated that he did not feel good about their representation. The Petitioner explained that
he had concerns about the search of his car because he never gave consent for Detective
Oliver and Captain Johnson to search the trunk of the car. However, he never expressed
those concerns to trial counsel or co-counsel because he “didn’t know much about the
law at the time or think even to question them . . . .” On cross-examination, the Petitioner
said he was standing outside of his car when the officers searched the trunk and that he
was not given an option to leave. The Petitioner agreed that, at the time, he was under
arrest. The Petitioner said he was not present when his car was towed. The Petitioner
explained that he was concerned about the search because “[he] believe[d] they had no
reason to go in the trunk. [He] was arrested for driving on suspended, not anything to do
with the trunk of the vehicle.”

       Trial counsel testified that he discussed the search of the car with the Petitioner.
Trial counsel acknowledged that the Petitioner was not pulled over in connection with the
burglaries and that he was not a suspect in the burglary investigation until officers
searched his car. However, trial counsel did not file a motion to suppress the evidence
found in the car. Trial counsel explained that the police arrested the Petitioner for driving
on a suspended license and that there was no passenger in the Petitioner’s car that could
drive the car from the scene. Based on these facts, trial counsel concluded that the
officers performed a valid inventory search before they towed the car. On cross-
examination, trial counsel also stated that he did not know of any way that he could have
suppressed the evidence. On re-direct examination, trial counsel said he did not know of
any law that would prevent officers from searching a locked trunk during an inventory
search. Trial counsel also stated that he did not know whether it was common practice
for the police to offer an arrestee the opportunity to make arrangements for someone to
pick up their vehicle before the police performed an inventory search and towed the
vehicle.

       Co-counsel testified that he spoke with the Petitioner about the stop of his vehicle
and the search of his vehicle. Co-counsel explained that “[t]here was no non-frivolous
way to try to suppress the stop.” Co-counsel stated that the officers conducted an
inventory search, but he did not recall seeing the inventory sheet. However, even without
seeing the inventory sheet, co-counsel concluded based on the preliminary hearing
testimony and his conversations with Detective Oliver that the police had conducted an
inventory search.



for failing to file a motion to suppress the evidence found during the inventory search of the Petitioner’s
car. We will review only the facts relevant to the issue presented on appeal. See Tenn. R. App. P. 13(b).
                                                   -3-
       At the conclusion of the hearing, the Petitioner argued that the search of his
vehicle was not a valid inventory search. The State argued that the Petitioner had not
presented any proof to show that the inventory search was invalid. The post-conviction
court noted that, had a motion to suppress been filed prior to trial, the State would have
had to prove that the search of the vehicle fell within a valid exception to the warrant
requirement. However, because this issue arose during post-conviction proceedings, the
burden of proof “flip[ped]” to the Petitioner to show that the search was invalid.

       In a written order, the post-conviction court accredited the testimony of trial
counsel and co-counsel. Regarding the search of the vehicle, the post-conviction court
found that the Petitioner had failed to show that there was a reasonable probability that a
motion to suppress would have been granted. The post-conviction court noted that
neither side presented proof as to the road conditions or whether the Petitioner knew of
anyone who could readily move his vehicle to avoid towing. Accordingly, the post-
conviction court denied relief, concluding that the Petitioner had failed to show that the
search was not a valid inventory search and “it would be sheer speculation to find that
there is a reasonable probability that a motion to suppress the search of the trunk would
have prevailed.” This timely appeal followed.

                                         Analysis

       On appeal, the Petitioner argues trial counsel and co-counsel were deficient when
they failed to file a motion to suppress the evidence found during the inventory search of
the Petitioner’s vehicle. He contends that he was prejudiced by trial counsels’ deficiency
because, had a motion to suppress been successful, the evidence found during and
subsequent to the inventory search of his trunk would have been excluded as fruit of the
poisonous tree, leaving no evidence to support his convictions.

                                  A. Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial
court’s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court’s
conclusions of law are reviewed “under a purely de novo standard, with no presumption
of correctness . . . .” Id.

      When reviewing the trial court’s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Id. at
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456. Additionally, “questions concerning the credibility of the witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge.” Id. (citing Henley, 960 S.W.2d at 579).

                           B. Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel’s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not
satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
Additionally, review of counsel’s performance “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-
guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
                                             -5-
                                  C. Motion to Suppress

       In his appellate brief, the Petitioner argues that trial counsel and co-counsel should
have filed a motion to suppress the evidence found in the trunk of his car because the
search was not a valid inventory search. He claims that Detective Oliver and Captain
Johnson were required to advise the Petitioner that his car would be impounded unless he
could provide a reasonable alternative to having the car towed. Because the officers did
not give the Petitioner an opportunity to hire his own tow truck or to call his mother to
request she come get the car and there was no proof that the car could not be safely
parked on the side of the road, the Petitioner avers that the search did not fall within the
inventory search exception to the warrant requirement. The Petitioner further contends
that the State bears the burden of proving that the impoundment of his vehicle was
necessary in order to justify an inventory search.

       Both the United States and Tennessee Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Tenn. Const. Art. I, § 7.
“[A] warrantless search or seizure is presumed unreasonable, and evidence discovered as
a result thereof is subject to suppression unless the State demonstrates that the search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v.
New Hampshire, 403 U.S. 443, 454-55 (1971)). However, when the police impound a
vehicle, a routine inventory search is permissible because it protects the owner’s property
while it is in police custody, protects the police against claims of stolen property, and
protects police from potential danger. Drinkard v. State, 584 S.W.2d 650, 652-53 (Tenn.
1979). Further, it is well-settled law that officers may search the trunk of a vehicle and
inventory its contents during an inventory search. State v. Roberge, 642 S.W.2d 716, 720
(Tenn. 1982); Capps v. State, 505 S.W.2d 727, 729 (Tenn. 1974).

       However, inventory searches may not be appropriate in all cases. In Drinkard, our
supreme court set forth guidelines to determine the validity of an inventory search of a
vehicle:

       [I]f the circumstances that bring the automobile to the attention of the
       police in the first place are such that the driver, even though arrested, is
       able to make his or her own arrangements for the custody of the vehicle, or
       if the vehicle can be parked and locked without obstructing traffic or
       endangering the public, the police should permit the action to be taken
       rather than impound the car against the will of the driver and then search it.
       Just cause to arrest the driver is not, alone, enough; there must also be
       reasonable cause to take his vehicle into custody.


                                            -6-
Drinkard, 584 S.W.2d at 653. In other words, the State must show that impounding the
vehicle was necessary. State v. John Beasley Seay, No. M2011-02769-CCA-R3-CD,
2013 WL 3777169, at *6 (Tenn. Crim. App. Jul. 16, 2013). In Drinkard, our supreme
court held that impounding the vehicle was not necessary because the defendant had a
passenger in the car when he was arrested and the passenger reasonably could have
driven the car away. Drinkard, 584 S.W.2d at 653-54.

        Before performing an inventory search, the officer should advise the defendant
that the car will be towed unless the defendant can provide a reasonable alternative. State
v. Lunsford, 655 S.W.2d 921, 924 (Tenn. 1983). However, there is no “mandate” that a
defendant “must be advised of all available options to impoundment[.]” Id. Further, this
court has held that “[w]here there are no reasonable alternatives for the disposition of the
car, the appropriate action is to impound the vehicle, despite the officer’s failure to ask
the defendant if he had an alternative to towing the vehicle.” State v. Jeffrey L.
Hammons, No. M1999-00756-CCA-R3-CD, 2000 WL 924633, at *3 (Tenn. Crim. App.
Jun. 30, 2000), perm app. denied (Tenn. Feb. 20, 2001).

       In this case, had trial counsel filed a motion to suppress the evidence found in the
Petitioner’s vehicle, the burden would have been upon the State to show that the
inventory search complied with the guidelines set out in Drinkard. Lunsford, 655 S.W.2d
at 924. However, at a hearing on a post-conviction claim of ineffective assistance of
counsel, the Petitioner bears the burden of proving that he was prejudiced by trial
counsel’s alleged deficiency. Keven Scott v. State, No. W2010-02515-CCA-R3-PC,
2011 WL 5903933, at *10 (Tenn. Crim. App. Nov. 22, 2011), perm. app. denied (Tenn.
Apr. 12, 2012). This court has previously addressed the evidence necessary at a post-
conviction hearing in order to demonstrate that trial counsel’s failure to file a motion to
suppress prejudiced the petitioner:

        It is well settled that when a [p]etitioner in post-conviction proceedings
       asserts that counsel rendered ineffective assistance of counsel by failing to
       call certain witnesses to testify, or by failing to interview certain witnesses,
       these witnesses should be called to testify at the post-conviction hearing;
       otherwise, Petitioner asks the [c]ourt to grant relief based upon mere
       speculation. Black v. State, 794 S.W.2d 752, 757 (Tenn. 1990). The same
       standard applies when a [p]etitioner argues that trial counsel was
       constitutionally ineffective by failing to file pre-trial motions to suppress
       evidence. In order to show prejudice, Petitioner must show by clear and
       convincing evidence that (1) a motion to suppress would have been granted
       and (2) there was a reasonable probability that the proceedings would have
       concluded differently if counsel had performed as suggested. Vaughn v.
       State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466 U.S. at

                                            -7-
         687, 104 S. Ct. at 2064-65). In essence, the petitioner should incorporate a
         motion to suppress within the proof presented at the post-conviction
         hearing. On issues such as the ones in the case sub judice, it is likely a rare
         occasion indeed when the testimony of only the Petitioner and the trial
         counsel could provide proof of the merit of a suppression motion based
         upon a warrantless search. If trial counsel had filed the motions to suppress
         evidence that Petitioner claims should have been filed, there is no evidence
         in the record to justify granting the motions.

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8 (Tenn.
Crim. App. Sept. 12, 2011), no perm. app. filed.

        Similarly, in this case the Petitioner failed to present sufficient proof to show that
a motion to suppress would have been granted. It appears that the police called a tow
truck before the Petitioner was escorted from the scene, but there is no indication whether
the officers told the Petitioner that his car would be towed unless he could provide a
reasonable alternative, whether the Petitioner could have provided a reasonable
alternative to towing, or whether the car could have been safely be parked nearby.
Because the search was not at issue at trial or on direct appeal, there is nothing in the
direct appeal record to show that impounding the Petitioner’s car was inappropriate under
the Drinkard guidelines. Therefore, “it was incumbent on the Petitioner to establish an
adequate record at his post-conviction hearing upon which this [c]ourt could determine
the likelihood of success of a motion to suppress.” Keven Scott, 2011 WL 5903933, at
*10. The testimony of only the Petitioner and his trial counsels was insufficient to
provide such foundation for review. Instead, the Petitioner needed other witnesses, such
as Detective Oliver and Captain Johnson, to establish the factual circumstances of the
Petitioner’s arrest and the inventory search of his vehicle. See id. Without such
evidence, the Petitioner cannot establish that a motion to suppress would have been
successful. Accordingly, the Petitioner failed to prove that he was prejudiced by trial
counsels’ failure to file a motion to suppress the evidence found in his vehicle. Having
determined that the Petitioner failed to establish prejudice, we need not address the
question of whether trial counsel and co-counsel were deficient in failing to file a motion
to suppress. See Finch, 226 S.W.3d at 316. The Petitioner is not entitled to relief.

                                          Conclusion

         For the aforementioned reasons, we affirm the judgment of the post-conviction
court.


                                                    _________________________________
                                                    ROBERT L. HOLLOWAY, JR., JUDGE
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