         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 17, 2005

               STATE OF TENNESSEE v. DARRYL J. LEINART, II

                     Appeal from the Circuit Court for Anderson County
                         No. A3CR0294 James B. Scott, Jr., Judge



                     No. E2004-02070-CCA-R3-CD - Filed August 31, 2005


The defendant, Darryl J. Leinart, II, was indicted on one (1) count of possession of marijuana and
one (1) count of possession of drug paraphernalia. The defendant filed a motion to suppress the
evidence against him contending that the warrantless search of his residence was illegal. The trial
court granted the motion to suppress and the State filed this appeal. We find the State failed to carry
its burden in the trial court of proving that the warrantless search of the defendant’s residence was
valid. The judgment of the trial court is therefore affirmed.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General;
James N. Ramsey, District Attorney General; Jan Hicks, Assistant District Attorneys General, for
the appellant, State of Tennessee.

Roger A. Miller, Clinton, Tennessee, for the appellee, Darryl J. Leinart, II



                                             OPINION

                                        Factual Background

        On May 10, 2003, Wiley Maloney, a deputy with the Anderson County Sheriff’s Department,
and the only witness at the hearing on the motion to suppress, responded to a call regarding a
disturbance involving a weapon at the defendant’s residence. The deputy arrived around 8:00 a.m.
and saw Sergeant Womack of the Tennessee Highway Patrol talking to a man in the front yard of
the residence. Deputy Maloney asked for the defendant’s identification because he did not know the
defendant and wanted to ascertain if the defendant was the owner of the residence. Because a
weapon was involved in the disturbance, Deputy Maloney testified he wanted to check for possible
outstanding warrants against the defendant. The defendant told Deputy Maloney that his
identification was inside the residence.

        The defendant explained the reason for the call to Deputy Maloney. The defendant told
Deputy Maloney that Daniel Daugherty had spent the night at the defendant’s house and caused a
disturbance. The defendant said that Mr. Daugherty ran into a bedroom, locked the door and went
out the window. When Mr. Daugherty had run into the bedroom, the defendant had grabbed his rifle
for his own protection.

        After this description of the incident, the officers asked the defendant if they could
accompany him inside to get his identification, and he agreed. Once inside the living room, the
officers noticed a .22 caliber semi-automatic rifle leaning against a chair by the kitchen table. The
rifle was about ten (10) to fifteen (15) feet away from the defendant. Upon seeing the rifle, the
officers immediately placed the defendant in handcuffs and cleared the chambers of the rifle. The
officers then asked the defendant to show them the room into which Mr. Daugherty had run during
the disturbance. He took them to the second bedroom. The defendant remained in handcuffs during
this entire time.

        When they got to the bedroom, the officers saw a cookie tin sitting open on a dresser beside
the bed. The cookie tin contained rolling papers, the remains of a leafy substance and seeds which
the officers assumed to be marijuana. The officers took the property into custody and asked
permission to search the rest of the house. The defendant gave them permission to search. The
defendant was still handcuffed when the officers made this request.

        The officers conducted a search of the defendant’s house for about an hour. At some point
three (3) other officers arrived to help with the search. They found a few old cans containing a green
leafy substance and seeds, as well as a set of scales. They also found a baggie in a cupboard that
appeared to contain methamphetamine, but the lab results were negative for that substance. The
defendant never withdrew his consent for the search, or asked the officers to stop the search. The
officers never obtained a search warrant. Following the search of the residence, the officers then
asked for permission to search the defendant’s car. He gave them permission for the search, but
nothing was seized from the car. The defendant remained in handcuffs during the searches and until
he was transported to the police department.

       On November 4, 2003, the Anderson County Grand Jury indicted the defendant for one (1)
count of possession of marijuana and one (1) count of possession of drug paraphernalia. The
defendant filed a motion to suppress the evidence seized as a result of the search of the defendant’s
residence. The State responded to the motion, arguing that the search was conducted pursuant to the
defendant’s consent, and therefore legal. The trial court held a hearing on the motion to suppress
on April 5, 2004. On July 29, 2004, the trial court upon a finding that the defendant’s consent was



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not voluntary, entered an order granting the defendant’s motion to suppress. The State filed a timely
notice of appeal.

                                             ANALYSIS

       The State’s sole issue on appeal is whether the trial court erred in granting the defendant’s
motion to suppress. The State argues that the defendant voluntarily consented to the search. At the
conclusion of the hearing, the trial court requested the State to submit an argument as to why the
search was reasonable under the facts. No such written argument appears in the record on appeal.

        Our standard of review for a trial court’s findings of fact and conclusions of law on a motion
to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this
standard, “a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” Id. at 23. As is customary, “the 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)). Nevertheless, this Court reviews de novo the
trial court’s application of the law to the facts, without according any presumption of correctness to
those conclusions. See State v. Walton, 41 S.W.3d 775, 81 (Tenn. 2001); State v. Crutcher, 989
S.W.2d 295, 299 (Tenn. 1999).


       The Fourth Amendment to the United States Constitution and Article I, § 7 of the Tennessee
Constitution protect individuals from unreasonable search and seizures by law enforcement officers.
A search conducted without a warrant is presumptively unreasonable and at a suppression hearing
regarding such a search the State bears the burden of proving that the warrantless search was
reasonable. State v. Coulter, 67 S.W.3d 3, 41 (Tenn. Crim. App. 2001). This means that the State
must prove that the warrantless search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

                             Initial Observation of Apparent Contraband

        We begin our analysis by noting that the police officers in this case initially observed what
appeared to be a cookie tin with marijuana and paraphernalia upon their entry with the handcuffed
defendant into the second bedroom of the residence. This observation was made prior to obtaining
consent to search the entire residence. Therefore the question arises as to whether the officers’ initial
entry into the second bedroom where the contraband was observed in apparent plain sight was
lawful.

        In Maryland v. Buie, 494 U. S. 325, 334, 110 S. Ct. 1093, 1098, 108 L.Ed.2d 276 (1990), the
United States Supreme Court held that when a person is legally arrested in his own home officers
may conduct a protective sweep of the rooms and closets in the home if they have reasonable and
articulable facts which would warrant a prudent officer to believe that these areas harbor someone


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posing a danger to the officer. In the instant case however, Deputy Maloney never suggested that
officers feared for their safety from some other person in the home, prompting a protective sweep
of the residence.

       Therefore, the question becomes whether the initial entry into the second bedroom of the
residence was, as the search of the entire residence, based on the defendant’s valid consent.


                                    Validity of Consent to Search

         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). In
determining the validity of a consent to search, courts must look at the totality of the circumstances
surrounding the obtaining of consent. See United States v. Drayton, 536 U.S. 194 (2002). “[T]o
pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion.” State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). The
following factors are used to evaluate the voluntariness of the consent: (1) whether the defendant is
in custody; (2) the length of detention prior to the giving of consent; (3) the presence of coercive
police procedures; (4) the defendant’s awareness of the right to refuse to consent; (5) the defendant’s
age, education, and intelligence; (6) whether the defendant understands his constitutional rights; (7)
the extent of the defendant’s prior experience with law enforcement; and (8) whether the defendant
was injured, intoxicated, or in ill health. See, e.g., State v. Carter, 16 S.W.3d 762, 769 (Tenn. 2000);
see also United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998); State v. Terrell Deberry, No.
W2004-00018-CCA-R3-CD, 2004 WL 2808908, at *5 (Tenn. Crim. App., at Jackson, Dec. 7, 2004).
Although all eight (8) factors are relevant, no single factor is dispositive nor are they all-inclusive
factors for determining voluntariness. Id. Of critical importance is factor (1), the voluntariness of
the defendant’s custodial status, i.e., whether at the time the defendant granted permission to search
he was unlawfully detained. Even if consent is voluntarily given, it does not remove the taint of an
illegal detention if the consent is the product of that detention and not an independent act of free will.
State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996); United States v. Richardson, 949 F.2d 851,
858 (6th Cir. 1991). Moreover, the State must show “more than acquiescence to a claim of lawful
authority.” Bumper v. North Carolina, 391 U.S. 543, 549 (1968). As noted earlier, and it bears
repeating, the State bears the burden of showing that consent was freely and voluntarily given. State
v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983).

         In the case herein, the State argues that being placed in handcuffs does not automatically
translate into consent given under duress. The State cites United States v. Burns, 298 F.3d 523, 541
(6th Cir. 2002) (citing United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820 (1976)) (holding that
consent to search was not invalidated simply because the person giving consent was handcuffed at
the time), and United State v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (holding that where a
defendant was handcuffed for twenty minutes and had not been Mirandized, his consent to search
still was voluntary) to support their argument. However, these cases are significantly distinguishable



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from the case at bar. In the cases cited by the State, the police either had probable cause to effect an
arrest or the suspect was otherwise legally seized.

        Applying the above-listed factors to the case herein, we first note the apparent fact that the
defendant was in fact in custody at the time he consented to the search as he was handcuffed from
the time he and the officers entered the house until he was transported to the jail after the discovery
of the marijuana. Officer Maloney actually admitted that he had no probable cause to place the
defendant in custody merely because the defendant possessed a firearm in his own home. We
determine that the placement of the defendant in handcuffs in his own home prior to being asked for
consent to search his home was unreasonable under the circumstances. In the defendant’s case, he
first spoke with the officers outside of his home and explained the scenario. When they went into
the house the officers saw the weapon and immediately handcuffed the defendant for their own
protection. Officer Maloney’s own undisputed testimony establishes that, the rifle was ten (10) to
fifteen (15) feet away. While we understand the officers’ concern for their own safety we believe
that under the circumstances there were measures less drastic than handcuffing that could have been
taken to ensure the officers’ safety. Thus, we determine that at the time the defendant consented to
the search he was in custody and coercive police procedures had been utilized.

        However, it appears that the defendant was detained a relatively short time prior to the giving
of consent for the search. There is no proof in the record as to whether the defendant understood
his constitutional rights. Nothing in the record suggests that the defendant was told he had the right
to refuse to consent. The record does not reveal the extent of the defendant’s prior experience with
law enforcement officials, nor does it reflect the defendant’s education, intelligence, physical well-
being, or whether any form of intoxication played a role in the voluntariness of the consent.

        In summary, in a case involving a presumptively unreasonable search, the record reveals only
that the defendant after summoning assistance from law enforcement was handcuffed at his own
residence after officers observed a gun in the residence. There is no evidence that officers had
probable cause to believe the defendant had committed any crime or that, beyond the presence of the
gun in the residence, the defendant posed any threat to the officers. There is no proof in the record
that only the rather drastic measure of handcuffing the defendant would have ensured the safety of
the officers. There is no proof in the record concerning any of the other considerations courts should
use in evaluating the validity of consent to a warrantless and therefore presumptively unreasonable
search. Under these circumstances we find that the State has failed to carry its burden of proof that
this presumptively unreasonable search was valid.

                                             Conclusion

       In light of the foregoing the judgment of the trial court granting the defendant’s motion to
suppress is affirmed.




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      ___________________________________
      JERRY L. SMITH, JUDGE




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