        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 16, 2010 Session

                STATE OF TENNESSEE v. EDWARD JOHNSON

           Interlocutory Appeal from the Circuit Court for Cannon County
                     No. F08-87    Robert E. Corlew, III, Judge


                  No. M2009-01372-CCA-R9-CD - Filed July 22, 2010


In this Rule 9 interlocutory appeal, the defendant, Edward Johnson, appeals the Cannon
County Circuit Court’s denial of his motion to suppress. Believing them to still be married,
officers approached the defendant’s ex-wife and sought consent to search the property during
a manhunt. During the subsequent search, officers located a marijuana laboratory in a garage
on the defendant’s property. The defendant was arrested and charged with manufacturing
marijuana over 100 plants, possession of a controlled substance with intent to sell, possession
of drug paraphernalia, and maintaining a building for the purpose of keeping or selling
controlled substances. The defendant filed a motion to suppress, challenging the search. The
trial court found that the search was valid because the defendant’s ex-wife had common
authority over the garage. On appeal, the defendant challenges the denial, specifically
questioning whether: (1) his ex-wife consented to a search and, if so, whether she had
common authority over the property sufficient to allow her to give valid consent; and (2)
officers violated his right to be free from unreasonable searches and seizures when they
entered his property and surrounded the buildings without a warrant in the absence of exigent
circumstances. After review, we disagree with the trial court and conclude that the
defendant’s ex-wife had no actual common authority over the garage. Nonetheless, because
the facts available to the officers would have warranted “a man of reasonable caution in the
belief that the consenting party had authority over the premises,” we affirm the denial of the
motion to suppress. Moreover, we conclude that the officers did not violate the defendant’s
rights by entering the property prior to consent. As such, the denial of the motion to suppress
is affirmed, and the case is remanded to the trial court for trial.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed
                                  and Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.
Luke A. Evans and Chris L. Richardson, Murfreesboro, Tennessee, for the appellant, Edward
Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                   Factual Background

       On June 20, 2008, various members of law enforcement were involved in a fugitive
hunt for Jim Flesher, a known associate of the defendant and the defendant’s ex-wife, Joanne
Johnson. In an attempt to locate Mr. Flesher, officers went to 4545 Big Hill Road and 4501
Big Hill Road, neighboring properties owned by the defendant and his ex-wife. Upon
arriving, officers fanned out and secured a tactical perimeter around the buildings on the
properties. Detective Wilder approached the residence located at 4545 Big Hill Road and
made contact with Ms. Johnson, asking her for permission to search the property. Ms.
Johnson told them that Mr. Flesher was not present but that they could search.

       There were some conflicts in the testimony regarding how the consent given by Ms.
Johnson was relayed to the officers outside the property. Detective Wilder testified that he
did not inform any of the officers personally that consent had been given. In direct
contravention, Officer Locklayer stated that he did not enter the shop until Detective Wilder
had personally informed him that consent had been given. However, Wilder testified that
other officers were present in the home when Ms. Johnson consented and that it was possible
that one of them had relayed the message to the officers outside.

       Based upon Ms. Johnson’s consent, officers proceeded to begin to conduct a
warrantless search of the properties at 4501 and 4545 Big Hill Road. While searching the
garage/shop building at 4501 Big Hill Road, officers observed marijuana leaves in plain view
on the floor. Wilder stated that he was also able to smell raw marijuana while standing
outside the building. At that point, officers obtained a search warrant for both 4501 and 4545
Big Hill Road. The search revealed a sophisticated marijuana grow laboratory beneath the
shop building. Officers recovered several growing plants, some processed marijuana, and
drug paraphernalia. Both the defendant and his ex-wife were arrested and charged.

       A discussion of the relationship between the defendant and Ms. Johnson, as well as
their ownership of the various properties, is helpful in determining whether Ms. Johnson had
authority to consent During their marriage, the defendant and Ms. Johnson, together, owned

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both 4501 and 4545 Big Hill Road. They were legally divorced in 2002 and, at that time,
divided ownership of the property, with Ms. Johnson retaining ownership of 4545 and the
defendant retaining 4501. Quit claim deeds were issued to this effect, and the county tax
records support this division.

        The two properties are located next door to each other, and they have separate
driveways and mailboxes. Ms. Johnson’s property at 4545 Big Hill Road consists of a ten-
acre tract of land and a two-story house. The defendant’s land consists of thirteen acres, a
large shop/garage, a small storage shed, and a house. The Johnsons’ daughter and son-in-law
live in the house at 4501 Big Hill Road. According to testimony, the defendant resides with
them, although he does occasionally spend nights with Ms. Johnson when he experiences
health problems.

        Detective Wilder testified that prior to going to the properties in question, he believed
them to be “the Johnson properties” and that both the defendant and Joanne Johnson lived
at 4545 Big Hill Road. He testified that he believed that they lived in a two-story home with
a big shop out on Big Hill Road. He stated that his belief was based upon “working in
Cannon County, from knowing folks, from hearing things. . . .” Though Detective Wilder
testified that he did not rely specifically upon them, current telephone books were introduced
into evidence which listed the defendant and Joanne Johnson as a couple residing at both
residences. In books published in May 2008 and September 2009, listings were contained
for “Edward and Joanne Johnson at 4545 Big Hill Road” and for “Joanne and Edward
Johnson at 4501 Big Hill Road.” Moreover, he testified that, after the initial discovery of the
marijuana leaf, Ms. Johnson walked to the shop and that Detective Wilder asked her if she
owned the shop as well. Ms. Johnson responded affirmatively. Finally, prior to obtaining
the search warrant, Detective Wilder testified that he checked the tax records on the property
and that he believed that the assessment records reflected that both the defendant and Ms.
Johnson owned both the house and the shop. However, on cross-examination, when asked
to review the documents, he acknowledged that the portion of the document listing Ms.
Johnson’s name was under “sale data.”

        Additionally, testimony established that Ms. Johnson and the defendant’s brother
operated Johnson Tree Service. It was further stated that, at times, the shop at 4501 was
occasionally used by an employee to repair vehicles belonging to the tree service. However,
it was specified that Ms. Johnson did not come into the shop during the work or to check on
the progress.

      The defendant has been indicted by a Cannon County grand jury for manufacturing
marijuana over 100 plants, felony possession of marijuana with intent to sell, possession of
drug paraphernalia, and maintaining a dwelling for the purposes of keeping or selling a

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controlled substance. The defendant filed a motion to suppress the seized evidence in the
trial court. After hearing the motion, the trial court denied the motion but granted the
defendant’s request for permission to file a Rule 9 interlocutory appeal in this court, which
is now before this court. The denial of the motion to suppress is the issue currently before
this court.

                                           Analysis

       On appeal, the defendant is arguing that the trial court erred in denying his motion to
suppress. An appellate court will uphold a trial court’s findings of fact in a suppression
hearing unless the evidence preponderates otherwise. State v. Hayes, 188 S.W.3d 505, 510
(Tenn. 2006) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he
prevailing party in the trial court is afforded the ‘strongest legitimate view of the evidence
and all reasonable and legitimate inferences that may be drawn from that evidence.’” State
v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). “Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact.” Odom, 928 S.W.2d at 23. On appeal, this court will review a trial
court’s application of law to the facts de novo with no presumption of correctness. State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

       Both the Fourth Amendment to the United States Constitution and Article I, Section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures by government agents. U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These
constitutional provisions are designed to safeguard the privacy and security of individuals
against arbitrary invasions of government officials.” Keith, 978 S.W.2d at 865. The
Tennessee Supreme Court has noted that “[a]rticle I, [section] 7 [of the Tennessee
Constitution] is identical in intent and purpose with the Fourth Amendment [of the United
States Constitution,] and that federal cases applying the Fourth Amendment should be
regarded as ‘particularly persuasive.’” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968).

       Under both constitutions, “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.” Yeargan, 958 S.W.2d at 629 (citing
Coolidge v. New Hampshire, 403 U.S. 454-55 (1971)); see also State v. Garcia, 123 S.W.3d
335, 343 (Tenn. 2003). The most common exceptions to the requirement for a search
warrant are: (1) consent to search; (2) a search incident to a lawful arrest; (3) probable cause
to search with exigent circumstances; (4) in hot pursuit; (5) a stop and frisk situation; and (6)
plain view. State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). “If the circumstances of

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a challenged search and seizure come within one of the recognized exceptions, the fruits of
that search and seizure are not subject to operation of the exclusionary rule and may be
properly admitted into evidence.” State v. Shaw, 603 S.W.2d 741, 743 (Tenn. Crim. App.
1980).

       One exception to the warrant requirement for a valid search is that an individual gives
consent to the warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).
The consent must, however, be “unequivocal, specific, intelligently given and
uncontaminated by duress or coercion.” State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992).
In determining the validity of a consent to search, courts must look at the totality of the
circumstances surrounding the obtaining of the consent. United States v. Drayton, 536 U.S.
194 (2002). In most circumstances, valid consent exists when given “either by the individual
whose property is searched or by a third party who possesses common authority over the
premises.” State v. Ellis, 89 S.W.3d 584, 592 (Tenn. Crim. App. 2000) (citations omitted).
The Supreme Court has defined common authority as the:

       mutual use of the property by persons generally having joint access or control
       for most purposes, so that it is reasonable to recognize that any of the co-
       inhabitants has the right to permit the inspection in his own right and that the
       others have assumed the risk that one of their number might permit the
       common area to be searched.

United States v. Matlock, 415 U.S. 164, 171 n.7 (1974); see also Bartram, 925 S.W.2d at
231. This court has previously concluded that valid consent exists if: (1) the third party in
fact had common authority; or (2) a reasonable person, given the facts and circumstances
available to the police, would have concluded “that the consenting party had authority over
the premises.” Ellis, 89 S.W.3d at 593 (citing Illinois v. Rodriguez, 497 U.S. 177, 188-89
(1990)).

        On appeal, the defendant has presented a multi-pronged argument with regard to why
the trial court erred in denying his motion to suppress. First, he contends that the consent
given by Joanne Johnson was not validly given with regard to 4501 Big Hill Road. Second,
he contends that, even if the consent was valid, she did not have common authority to give
consent to search property belonging solely to the defendant. Finally, he asserts that the
officers were not in a lawful position when they allegedly detected the odor of marijuana,
prior to receiving consent, because they should not have entered the curtilage of the
defendant’s property absent exigent circumstances.

I. Validity of Consent



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        In support of his argument that Ms. Johnson did not give consent to search the
property at 4501 Big Hill Road, the defendant relies upon the “inconsistencies and
contradiction regarding the officers’ testimony,” which he asserts seriously calls into question
the credibility of the officers. Specifically, he refers to the inconsistencies with regard to
how the consent given by Johnson to Wilder was relayed to the officers who were outside.
He asserts that it is unclear from the testimony given whether officers actually searched the
shop prior to consent being relayed. He further relies upon the fact that Detective Wilder
never specifically asked Ms. Johnson whether she owned the property at 4501 Big Hill Road
but, rather, only asked her if he could search “her property.”

       We find that the petitioner’s assertions are misplaced. His argument is essentially
asking this court to reweigh the credibility determination implicitly made by the trial court.
As we have repeatedly held, that is not the province of this court. The record indicates that
consent was given prior to the officer’s entering the shop building. Moreover, we cannot
give credence to the defendant’s contention regarding whether or not Detective Wilder
specifically asked to search the property at 4501 Big Hill Road. The record indicates that he
asked Ms. Johnson for consent to search her property, which she gave, and that Detective
Wilder was under the assumption that “her property” included the shop. An officer is not
required to specifically request permission to enter each building on a property prior to entry.
Consent given to search “her property” was sufficient in this case, based upon Detective’s
Wilder’s reasonable belief that Ms. Johnson was the owner of the property, see infra.

II. Common Authority

        Next, the defendant argues that the trial court erred in its determination that the Ms.
Johnson had common authority over the property at 4501 Big Hill Road, which would
thereby invalidate her consent. He contends that her connection to the shop building was
insufficient, as a matter of law, to provide her with any authority to consent to a search. He
relies upon the fact that Ms. Johnson had no ownership interest in the property and that she
and the defendant, the owner of the property, had been divorced for more than six years. He
also relies upon the fact that Ms. Johnson rarely went to the shop and did not access the
building without the defendant’s consent.

       The trial court denied the defendant’s motion based upon its finding that Ms. Johnson
had actual common authority because she “utilized the garage and/or shop for the repair of
vehicles under her control” and because one of her employees occasionally worked in the
shop on those vehicles. As noted, the Supreme Court has defined “common authority” as the
“mutual use of the property by persons generally having joint access or control for most
purposes.” Matlock, 415 U.S. at 171. Based upon this definition, we are unable to agree
with the trial court that actual common authority existed. The mere fact that an employee

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utilized the shop on rare occasions to repair vehicles is not the type of interest the Supreme
Court was referring to in its definition of “common authority.” In fact, the Court specifically
stated that common authority was “not to be implied from a mere property interest a third
party has in the property.” Id. at 171. The record is sufficiently clear that Ms. Johnson had
no actual ownership interest in the property nor was it established that she utilized the
property in any way sufficient to establish actual authority over said property.

        Nonetheless, as noted previously, it has been held that the State may also establish
common authority in a second way, that being by demonstrating that the facts available to
the searching police officers would have warranted “a man of reasonable caution in the belief
that the consenting party had authority over the premises.” Ellis, 89 S.W.3rd at 593 (2000)
(quoting Illinois v. Rodriguez, 497 U.S. at 188-89). Whether the facts presented at the time
of the search would “warrant a man of reasonable caution” to believe the third party has
common authority over the property depends upon all of the surrounding circumstances.
Rodriguez, 497 U.S. at 188. Moreover, the State may not establish common authority of a
third party “if agents, faced with an ambiguous situation, nevertheless proceed without
making further inquiry. If the agents do not learn enough, if the circumstances make it
unclear whether the property about to be searched is subject to ‘mutual use’ by the person
giving consent, ‘then warrantless entry is unlawful without further inquiry.’” United States
v. Waller, 426 F.3d 838, 846 (6th Cir. Tenn. 2005).

        The defendant argues that the officers were presented with an ambiguous situation in
that the properties in question had separate driveways, were approximately 100 yards apart,
were in no way connected, and had separate mailboxes. He also argues that the officers
should have taken further steps to determine if the defendant’s property was subject to
mutual use by Ms. Johnson. The defendant asserts that Detective Wilder assumed that the
consent given by Ms. Johnson to search the property included the shop building. We
disagree with the defendant’s contentions.

        Detective Wilder testified that “from working in Cannon County, from knowing folks,
from hearing things” that the properties in question were the Johnson property. That’s [the]
Johnsons’ house, that’s [the] Johnsons’ shop. That’s where [the defendant] and Joanne
Johnson live.” Thus, apparently, the Johnsons had a reputation in the community as a
married couple that lived together. This is supported in the record by the admission of the
current phone books which listed the defendant and Ms. Johnson together. Even though the
books were not relied upon by the officers, it is indicative of the fact that the general
knowledge in the community was that the defendant and Ms. Johnson remained together.
In fact, the next door neighbor testified at the hearing that she was not sure if the defendant
and Ms. Johnson were divorced, although she thought Ms. Johnson might have told her so.
Clearly, the issue of the couple’s divorce and separation of property was not common

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knowledge. Thus, we cannot fault the officer for failing to seek additional information in this
regard. If an officer reasonably believes that two people are co-owners of a property, then
he is not required to inquire further of the parties with regard to their actual ownership
interest. Detective Wilder asked Ms. Johnson if he could search the property, and she
responded in the affirmative. We conclude that it was more than reasonable to assume that
meant all the “Johnson properties.” Thus, the denial of the motion to suppress was proper.

III. Detection of the Odor of Marijuana Did Not Provide a Valid Basis for Search

        Finally, the defendant asserts that the “alleged detection of the odor of marijuana did
not provide a valid basis for searching the defendant’s property because: (1) Officer
Locklayer was not in a lawful position when he allegedly smelled the odor of marijuana; and
(2) while the alleged odor of marijuana might provide probable cause, it did not provide a
basis for the warrantless entry absent exigent circumstances. We must admit that we are
somewhat confused at the defendant’s argument. He noted that the trial court, in its ruling,
appeared to be treating the fact that the officers detected the odor of marijuana as a
justification to obtain a warrant. However, we are unclear as to the relevance of this
argument, as the search was based on the consent given by Ms. Johnson. The officer’s did
not search the buildings based upon their detection of the smell of the marijuana. Thus, the
trial court’s statements go to the validity of the search warrant, which is not the issue before
us on appeal.

        Regardless, we would disagree with the defendant’s first contention that his rights
were violated, prior to the giving of the consent, by the officers’ entry on the property and
their surrounding of the buildings in a tactical perimeter. We agree with the defendant that
the curtilage of the home “is entitled to the same Fourth Amendment protections as the home
itself.” See State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987). We would also agree that the
officers in this case did enter the curtilage of the property in question. However, we cannot
conclude that the officers conducted a search of the area once there. They were simply there
to keep the fugitive from escaping prior to the consent to search being given. It was
specifically testified to that no action was taken until Ms. Johnson gave her express consent
to search. Regardless, even if we consider that the officers entered the curtilage in order to
conduct a search, contrary to the defendant’s argument, we would conclude that exigent
circumstances did exist. “Exigent circumstances are those in which the urgent need for
immediate action becomes too compelling to impose upon governmental actors the attendant
delay that accompanies obtaining a warrant.” State v. Meeks, 262 S.W.3d 710, 723 (Tenn.
2008). The Tennessee Supreme Court has recognized certain situations that are sufficiently
exigent to justify a warrantless search, one of which is to thwart escape. Id. That is what the
officers in this case were doing. They fanned out over the property to prevent the fugitive
from a possible escape if he was, in fact, present on the property. Thus, the defendant’s

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argument is misplaced.

                                   CONCLUSION

      Based upon the foregoing, the decision of the Cannon County Circuit Court to deny
the motion to suppress is affirmed, and the case is remanded for trial.




                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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