                                                                                        08/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 May 1, 2018 Session

           STATE OF TENNESSEE v. DARRIN KEITH WARD, JR.

                   Appeal from the Circuit Court for Dyer County
              No. 14-CR-369, 15-CR-273       R. Lee Moore, Jr., Judge
                      ___________________________________

                           No. W2017-01516-CCA-R3-CD
                       ___________________________________


The Defendant, Darrin Keith Ward, Jr., appeals the trial court’s revocation of his
community corrections sentence, arguing that the trial court abused its discretion by
relying on stale information and insufficient evidence in deciding to revoke his sentence.
After review, we affirm the revocation of the alternative sentence.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.

James E. Lanier, District Public Defender; and H. Tod Taylor, Assistant Public Defender,
for the appellant, Darrin Keith Ward, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; C. Phillip Bivens, District Attorney General; and Lance E. Webb,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                         FACTS

       In December 2015, the Defendant pled guilty to possession of marijuana in the
amount greater than 0.5 ounces with the intent to sell or deliver, and separately pled
guilty to driving under the influence of marijuana, felony evading arrest, and simple
possession of cocaine. He was sentenced to a total effective term of four years as a
Range I, standard offender, with six months to be served in the Department of Correction
and three and a half years to be served on community corrections, with supervision by the
Westate Corrections Network. As part of his community corrections sentence, the
Defendant signed a Behavioral Contract Agreement, which included provisions requiring
the Defendant to obey the laws of Tennessee and allowing law enforcement officers to
conduct a search of both him and his residence to control contraband or locate stolen
property. On June 27, 2017, the trial court revoked the Defendant’s community
corrections sentence, finding that he had violated its terms by possessing marijuana,
cocaine, and a firearm. The court imposed a total effective term of four years of
confinement with 413 days of jail credit. On appeal, the Defendant argues that law
enforcement based their decision to search his residence on stale information, violating
his Fourth Amendment rights and equating harassment. He further argues that the trial
court based its revocation of his alternative sentence on such evidence, and therefore
abused its discretion in revoking his community corrections sentence.

        The essential facts leading up to the Defendant’s alternative sentencing being
revoked by the trial court are not in dispute. On December 5, 2015, the Defendant pled
guilty to possession of marijuana in an amount greater than 0.5 ounces with the intent to
sell or deliver, and separately pled guilty to driving under the influence or marijuana,
felony evading arrest, and simple possession of cocaine. While the Defendant was on
probation under the supervision of Westate Corrections Network, the Dyersburg Police
Department received information regarding the Defendant from two separate confidential
informants that they believed to be reliable.

       At the revocation hearing on June 6, 2017, Officer Mason McDowell of the
Dyersburg Police Department testified that one confidential informant advised Officer
McDowell that he had purchased cocaine from the Defendant within the previous six
months, and had seen the Defendant in possession of “felony amounts” of both marijuana
and cocaine within the previous sixty days. The other confidential informant gave
Officer McDowell a more general statement against the Defendant, and both informants
told Officer McDowell that the Defendant resided at 1547 Fair Street in Dyersburg.

       Upon receiving this information, Officer McDowell testified that he conducted an
investigation into the Defendant, in which he learned that the Defendant was then on
community corrections with supervision by the Westate Corrections Network. Officer
McDowell contacted Westate and requested a copy of the Behavioral Contract
Agreement, which included a provision allowing officers to search a defendant’s
residence for contraband. He also confirmed with Westate that the Defendant resided at
1547 Fair Street, the same address that the confidential informants had provided. Officer
McDowell testified that the Dyersburg Police Department then began surveillance of the
Defendant, and he personally observed several of the Defendant’s vehicles at the
residence and saw him going to and from the residence on “almost a daily basis.”
Although Sandra Foster was the listed tenant of 1547 Fair Street on the lease agreements,
                                          -2-
Officer McDowell testified on cross-examination that it was the officers’ understanding
that the Defendant had lived with Ms. Foster “as a family unit” at several different
residences.

        Officer McDowell further testified that, based on the statements from the
confidential informants and their own investigation, the Dyersburg Police Department
approached the Defendant outside of 1547 Fair Street on January 4, 2017. Officer
McDowell, along with Officers Sterling Wright and Chris Purcell of the Dyersburg
Police Department, apprehended the Defendant outside of the residence after he tripped
and fell while attempting to flee on foot. Officer McDowell testified that the Defendant
stated that he “could not go to jail” and had a lot of “fed time stuff” in his residence when
officers informed him of their intent to search his residence.

       During the search of 1547 Fair Street, the Defendant aided the three officers in
locating contraband, even “pointing out items” and “turning things over” that were
otherwise not in plain view to the officers. The officers discovered a Llama .45 caliber
handgun and $6,065 in cash, as well as 13.76 pounds of marijuana and 477.11 grams of
cocaine packaged in “one or two-ounce” bundles, as was later determined by the
Tennessee Bureau of Investigation. The Dyersburg Police Department arrested the
Defendant on February 16, 2017, and charged him with possession of a weapon during a
felony, possession of a schedule II controlled substance, and possession of a schedule VI
controlled substance.

       At the revocation hearing, Chuck Wade, the Defendant’s case officer, testified that
the Defendant signed the Behavioral Contract Agreement and retained a copy of it upon
beginning his community corrections sentence. Mr. Wade further stated that he filed a
report of the Defendant’s community corrections violation with the trial court on March
1, 2017, after learning of the three new charges filed against the Defendant by the
Dyersburg Police Department. Specifically, the three new charges violated rules one and
eight of the Defendant’s Behavioral Contract Agreement, which disallowed any
violations of Tennessee law and prohibited the possession of a firearm, respectively.

      Following the close of all proof, the trial court revoked the Defendant’s
community corrections sentence in full and reinstated his original four-year sentence with
413 days of credit, to be served in the Department of Correction.


                                       ANALYSIS




                                            -3-
       On appeal, the Defendant argues that the information the Dyersburg Police
Department relied on in deciding to search his residence was stale, and officers therefore
lacked reasonable suspicion to search and subsequently arrest him. Further, the
Defendant argues that the search was so unreasonable based on the totality of the
circumstances that it amounted to harassment, and as such should have been excluded
from the trial court’s consideration in deciding to revoke his community corrections
sentence. The State responds that probationers1 have limited Fourth Amendment rights,
and the police officers had a sufficient basis for searching the Defendant. Moreover,
even if the officers did not have a sufficient basis, the State argues that they had a good
faith basis to believe the Defendant was again engaging in criminal activity.

        A trial court is granted broad authority to revoke a suspended sentence and to
reinstate the original sentence if it finds by a preponderance of the evidence that the
defendant has violated the terms of his or her probation and suspension of sentence.
Tenn. Code Ann. §§ 40-35-310, -311. The revocation of probation lies within the sound
discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v.
Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997); State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in a
probation revocation case, “a defendant must demonstrate ‘that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
conditions of probation has occurred.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim.
App. 1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.1980)). The
proof of a probation violation need not be established beyond a reasonable doubt, but it is
sufficient if it allows the trial court to make a conscientious and intelligent judgment.
Harkins, 811 S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim.
App. 1984)). We review this issue, therefore, for an abuse of discretion.

       The Fourth Amendment to the United States Constitution provides
“[t]he right of the people to be secure in their persons . . . against unreasonable searches
and seizures, shall not be violated[.]” U.S. Const. amend. IV. The Tennessee
Constitution similarly states that “the people shall be secure in their persons . . . from
unreasonable searches and seizures[.]” Tenn. Const. art. I, § 7. The search and seizure
provisions of the United States Constitution and the Tennessee Constitution are
“‘identical in intent and purpose.’” State v. Christensen, 517 S.W.3d 60, 68 (Tenn. 2017)
(quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). In reviewing the permissibility of
such searches and seizures, courts should balance the individual’s privacy interest against

       1
         Although we are aware that probation is not wholly synonymous to community
corrections, we are employing the same terminology used by the trial court. Further, our
supreme court recently commented on the similarities among supervised release
sentences. See infra note 2.
                                         -4-
the governmental interest in conducting the searches. State v. Turner, 297 S.W.3d 155,
160 (Tenn. 2009).

       Despite the general protection from unreasonable searches and seizures, such
protection is lessened when the person being searched was previously convicted of a
crime and is on probation or parole. Id. A probationary status gives way to a lesser
expectation of privacy and therefore weakened protections, especially where the
defendant has consented to such searches as a condition of his probation. Id. at 161. The
United States Supreme Court has held that the combination of reasonable suspicion with
consenting to searches as a condition of probation is enough to make a search reasonable
under the Fourth Amendment. See United States v. Knights, 534 U.S. 112, 122 (2001).
This court has recognized such a standard applied specifically to searches pursuant to a
community corrections agreement.2 See State v. Gary Shane Howell, No. M2007-00987-
CCA-R3-CD, 2008 WL 732128, at *8 (Tenn. Crim. App. Mar. 18, 2008). However, our
supreme court has recognized that it is unclear whether the search of a probationer
requires reasonable suspicion or a lesser standard. Turner, 297 S.W.3d at 162 n.4.
“[T]he Court left open the question ‘whether. . . a search by a law enforcement officer
without any individualized suspicion would have satisfied the reasonableness
requirement of the Fourth Amendment.’” Id. at 162. The court further stated, “Our
resolution of the instant case also does not require us to resolve this issue as to
probationers.” Id. at 162 n.4.

        Reasonable suspicion is a lesser standard than probable cause, and only requires
specific, articulable facts, sufficient to support the finding that a criminal offense has
been, or is about to be, committed. See Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868,
1879-80 (1968). In establishing reasonable suspicion, courts should consider whether the
facts relied upon by the State are stale and thus unreliable. To determine staleness, courts
should consider “whether the criminal activity under investigation was an isolated event
or of a protracted and continuous nature[.]” State v. Meeks, 876 S.W.2d 121, 124 (Tenn.
1993). When the criminal activity is continuous, this court has held that information

       2
          Our supreme court recently declined to determine whether the conditions of
community corrections supported a suspicionless, warrantless search, though the court
found that conditions of parole supported such a search. See State v. Janet Michelle
Stanfield, Tony Alan Winsett, and Justin Bradley Stanfield, No. W2015-02503-SC-R11-
CD, 2018 WL 3762174, at *16-17 n.11 (Tenn. Aug. 7, 2018). It is thus unclear whether
reasonable suspicion is required in order to conduct the warrantless search of a defendant
on community corrections. The court did note, however, that although “community
corrections” and “probation” are not synonymous, where statuses involve “supervised
release into the community as opposed to incarceration,” references to cases involving
probation may be instructive with respect to other similar statuses. Id. at *16 n.9.
                                            -5-
regarding the activity “does not become stale with the passage of time.” State v. Thomas,
818 S.W.2d 350, 357 (Tenn. Crim. App. 1991). Further, even when law enforcement
does rely upon stale information, the evidence obtained from that information is not
suppressed by the exclusionary rule in a probation revocation hearing, unless such
evidence is obtained through police harassment or in a particularly offensive manner.
See State v. Hayes, 190 S.W.3d 665, 669-70 (Tenn. Crim. App. 2005).

       As we have set out, Chuck Wade, the Defendant’s case officer, testified at the
evidentiary hearing that the Defendant signed and retained a copy of the Behavioral
Contract Agreement on January 22, 2016, which included a provision allowing law
enforcement officers to conduct a search of his residence in order to control contraband
and provided that he would abide by all laws of the State of Tennessee. Following the
evidentiary hearing, the trial court found that the Defendant was a probationer at the time
of the search and he understood the provisions in the Behavioral Contract Agreement,
which provided for a search without a warrant. The court also found that officers were
aware of the Defendant’s prior criminal record and probationary status. Accordingly, the
court concluded that a search warrant was not needed to search the Defendant’s residence
after officers received reliable information that he was in possession of controlled
substances and conducted an investigation into that information.

       The Defendant argues that the Dyersburg Police Department relied on stale
information when deciding whether to search his residence, based on Officer McDowell’s
testimony that the confidential informant told him that the Defendant was in possession
of controlled substances within the last sixty days. Further, the Defendant argues that
based on the passage of time before the confidential informant relayed the information to
law enforcement, the Dyersburg Police Department lacked reasonable suspicion and
would have been unable to obtain a search warrant based on such information, amounting
to law enforcement harassing the Defendant and obtaining the evidence in a particularly
offensive way. However, the Defendant disregards Chuck Wade’s accredited testimony
that the Defendant signed and retained a copy of the Behavioral Contract Agreement
upon beginning his community corrections sentence. The agreement states in relevant
part:

       I, the undersigned, have read the following Behavioral Contract Agreement
       and agree to all the terms set out herein. I have signed of my own free will
       and have not been threatened or coerced, in any way, to sign this
       agreement.

       That I have been provided a copy of the attached rules and regulations of my
       community corrections program including the Behavioral Contract Agreement
       and that I agree to abide by said rules and regulations and terms of contract.
                                           -6-
      ...
      1. Offenders will obey the laws of the State of Tennessee, United States, or
      any other state in which he/she may be, as well as any municipal ordinances.
      Offenders will report all violations of the law to the Case Officer within 24
      hours. (This includes traffic violations). Failure to report will be a serious
      infraction of the rules.
      ...
      8. Offenders will not associate with known felons or any person who is
      known to be involved in criminal activities, nor will offenders be allowed to
      own or possess any type of firearm or deadly weapon for any reasons.
      ...
      11. Offenders will allow the Case Officer to visit his/her home, employment
      site, or elsewhere at any time during the day or night and shall carry out all
      instructions given by the case officer, whether oral or in writing. Offenders
      will allow law enforcement to conduct a search of offender and all areas of the
      house upon request to control contraband or locate missing or stolen
      property.

        Based on the Defendant’s agreeing to abide by the above rules, the Dyersburg
Police Department was not required to establish probable cause and obtain a search
warrant before searching the Defendant’s residence. See Knights, 534 U.S. at 121. As a
probationer, the Defendant was entitled only to limited Fourth Amendment protections.
The Dyersburg Police Department received information from two separate confidential
informants that they considered reliable. Officers then surveilled the Defendant and
verified the terms of his community corrections sentence with Westate before searching
the Defendant’s residence, knowing that he had previously been arrested for possessing
the same controlled substances. The Defendant even aided the officers in searching his
residence, moving evidence into plain view that the officers would have otherwise been
unable to see. Though the Defendant relies on State v. Janet Michelle Stanfield, Tony
Alan Winsett, and Justin Bradley Stanfield, No. W2015-02503-CCA-R3-CD, 2017 WL
1205952 (Tenn. Crim. App. Mar. 31, 2017), rev’d, 2018 WL 3762174, (Tenn. Aug. 7,
2018), for the assertion that law enforcement officers need reasonable suspicion to search
a parolee or probationer, our supreme court recently overturned Stanfield, holding instead
that a defendant’s status as a parolee, along with warrantless searches serving as part of
his conditions of parole, was sufficient to satisfy constitutional reasonableness under a
totality of the circumstances test where law enforcement was aware of such status.
Stanfield, 2018 WL 3762174, at *12. The court declined to comment specifically on
community corrections conditions, but did note a similarity among supervised release
statuses. It is therefore unclear whether reasonable suspicion, or a lesser standard, is
required for law enforcement officers to search a defendant on a community corrections
sentence.
                                          -7-
       Regardless of whether reasonable suspicion was required before conducting the
search, the Defendant fails to recognize that the Dyersburg Police Department had
reasonable suspicion that the Defendant was again in possession of controlled substances
at the time of the search. As we have set out, the officers received information from
confidential informants that they considered reliable. The officers were able to verify
parts of the information, including the Defendant’s address, and conducted surveillance
of the Defendant before beginning the search. Officers were aware of the Defendant’s
probationer status and his previous convictions involving possession of the same
controlled substances referenced by the confidential informants. Though the Defendant
argues that the information was over sixty days old and per se stale, our courts have
found that information is not stale where the criminal activity is ongoing. See Thomas,
818 S.W.2d at 357. The Dyersburg Police Department knew of the Defendant’s previous
convictions of possessing cocaine and driving under the influence of marijuana, and the
information from the confidential informants suggested that the Defendant was
continuing the same criminal activity. Reasonable suspicion only requires specific,
articulable facts, which Officer McDowell was able to provide in his testimony at the
evidentiary hearing. See Terry, 392 U.S at 20-21.

       Finally, the Defendant argues that the evidence obtained from the search should
have been excluded from the trial court’s consideration in deciding whether to revoke his
probation, based on the unreasonableness of the search and harassment of the Defendant.
However, there is no evidence in the record to support the assertion of harassment or
unreasonableness by the Dyersburg Police Department. This was the first search that the
Defendant was subjected to, even though he had been on community corrections for
approximately a year at the time of the search. Officers were acting on reliable
information from confidential informants, and conducted the search in the middle of the
day after verifying that the Defendant was home. The Defendant’s argument fails to
recognize that without harassment by the Dyersburg Police Department, the exclusionary
rule does not apply in revocation hearings. Hayes, 190 S.W.3d at 669-71. Therefore,
even if police officers had no sufficient basis to justify the search of the Defendant’s
residence, the evidence obtained from the search, namely the controlled substances and
firearm, would still have been appropriately considered by the trial court in deciding to
revoke the Defendant’s probation.

      In revoking the Defendant’s alternative sentencing, the trial court found as
follows:

      They have the right to search when you’re a probationer. With the
      information they had, they certainly could approach you about that.
      [H]aving the possession of cocaine, and especially that amount, and the
      marijuana, is certainly a violation of your probation. [I]t doesn’t matter
                                          -8-
       whether that’s your cocaine or your marijuana or the girl that you’re living
       with. You’re not supposed to be around anybody that is violating the law.
       Your probation is revoked in these two cases and you’ll be remanded to the
       custody of the TDOC to serve the remainder of your sentence.

       The Defendant was found in possession of marijuana, cocaine, and a firearm,
which was a violation of his probation. Regardless of whether the Dyersburg Police
Department relied on stale information in deciding to search his residence, the Defendant
knew that his Behavioral Contract Agreement required him to abide by the laws of
Tennessee and subjected him to searches by law enforcement in the course of controlling
contraband. The exclusionary rule does not apply in probation revocation hearings
without a finding of harassment, even if law enforcement has violated a defendant’s
Fourth Amendment rights in searching his residence. See Hayes, 190 S.W.3d at 670.
Therefore, the trial court clearly acted within its discretion in finding that the Defendant
had violated the terms of his probation, and revoking his community corrections
sentence.


                                     CONCLUSION


        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court revoking the Defendant’s community corrections sentence and reinstating his
original four-year sentence, to be served in the Department of Correction.



                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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