         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                       Assigned on Briefs August 15, 2000 Session

              STATE OF TENNESSEE v. ANTHONY E. COLLIER

              Appeal as of Right from the Criminal Court for Davidson County
                            No. 99-B-813    Seth Norman, Judge



                    No. M1999-01408-CCA-R3-CD - Filed March 28, 2001


On March 31, 1998, Metropolitan Nashville Police Officers executed a search warrant on the
residence and person of Anthony E. Collier, the defendant and appellee. Police searched the
defendant, his vehicle and his residence and seized drugs, drug paraphernalia and weapons. The
defendant moved to suppress the evidence, and, following a suppression hearing, the trial court
granted the defendant’s motion. On appeal, the State claims that the trial court erred. We hold that
the search of the defendant was not supported by probable cause and any evidence seized from the
defendant’s person was thus properly suppressed. However, we also find that the failure of the trial
court to make findings of fact with respect to the question of whether the contraband was in plain
view and thus subject to seizure requires us to remand this case for entry of such findings pursuant
to Tenn. R. Crim. P. 12(e). Finally, the search of the defendant’s residence was supported by the
warrant; thus any evidence seized from the defendant’s vehicle or residence should not have been
suppressed. Accordingly, we reverse in part and affirm in part the judgment of the trial court, and
we remand the case to the trial court for further proceedings in accordance with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed in Part
                                  and Reversed in Part.

JERRY L. SMITH, J., delivered the opinion of the court, in which JOE G. RILEY, J., and L. T.
LAFFERTY, SR. J., joined.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;
Victor S. Johnson, District Attorney General and Pam Anderson, Assistant District Attorney,
Nashville, Tennessee, for the appellant, State of Tennessee.

Sam E. Wallace,Jr., Nashville, Tennessee, for the appellee, Anthony E. Collier.
                                             OPINION

                                       Factual Background

         On March 30, 1998, Sergeant Buddy Tidwell of the Metropolitan Nashville Police
Department obtained information from a confidential informant that the defendant was selling drugs
from his residence in Nashville. Based on that information, Sergeant Tidwell obtained a search
warrant for the defendant and his residence on March 31, 1998. Although the warrant specified that
the evidence sought might be found at the residence or on the person of the defendant, the affidavit
in support of the warrant only made reference to the residence, not the defendant.
         The informant told Sergeant Tidwell that the defendant was often armed; thus, Sergeant
Tidwell and several other officers decided to execute the warrant in an unusual manner. Instead of
knocking on the door and announcing their presence, the officers planned to wait until the defendant
left the residence so as to avoid any armed conflict. Therefore, Sergeant Tidwell and Officer Mike
Moss established surveillance of the residence in an unmarked vehicle while other officers waited
nearby in a marked vehicle in case the defendant drove away.
         Sergeant Tidwell saw the defendant leave his residence and get into a white sport-utility
vehicle. He then radioed the other officers and told them to stop the defendant’s vehicle. For some
reason not disclosed in the record, the other officers did not stop the defendant, and Sergeant Tidwell
followed him in the unmarked car until the defendant stopped at a nearby residence. The defendant
parked at the residence and got out of his vehicle, but left the vehicle running. At that point,
Sergeant Tidwell and Officer Moss approached the defendant and identified themselves as police
officers. They told the defendant to “get down,” and the defendant complied. Then, they handcuffed
the defendant and searched him. They found a bag of cocaine and a bag of marijuana, both in the
defendant’s sock.
         At some point, Sergeant Tidwell approached the defendant’s vehicle, which was still running,
in order to transport it back to the defendant’s residence to execute the search warrant. Through the
window of the defendant’s vehicle, Sergeant Tidwell saw two large bags of what appeared to be
cocaine sitting on the console. The bags were in plain view. A more thorough search of the vehicle
uncovered eight-hundred and ninety dollars in cash, another bag containing cocaine, ammunition for
various types of weapons and electronic scales. Officers then returned to the defendant’s residence
and searched it. There, they found a small amount of marijuana and some drug paraphernalia.
         The defendant was indicted for possession with intent to sell more than twenty-six grams of
cocaine, possession with intent to sell between one-half ounce and ten pounds of marijuana,
possession of drug paraphernalia, and four counts of possession of a weapon. The defendant moved
to suppress the evidence seized because it “was seized from a location other than the place described
in the search warrant.” At a suppression hearing, Sergeant Tidwell was the State’s only witness.
Although the defendant’s attorney indicated that the defendant intended testify, the court granted the
suppression motion immediately after Sergeant Tidwell testified. The State then appealed here.

                                         Standard of Review
       The State claims that the trial court erred when it granted the defendant’s motion to suppress,
because (1) the warrant authorized a search of the defendant’s person as well as his residence; and


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(2) the cocaine in the vehicle was in plain view. “[A] trial court's findings of fact in a suppression
hearing will be upheld unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). “The application of the law to the facts found by the trial court, however, is
a question of law which this Court reviews de novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.
1997)(citing Beare Co. v. Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn.1993)).
         Initially, we note that the trial court did not make any findings of fact on the record. Indeed,
it is impossible to determine on the record before this Court precisely what evidence was suppressed.
Following the state’s proof, the trial court merely stated, "Motion to Suppress sustained." This case
illustrates the importance of the trial court’s affirmative duty to state the essential findings of fact
on the record. See Tenn. R. Crim. P. 12(e). As this Court has recently noted, “a trial court that fails
to comply with this duty runs the risk of having the judgment vacated and the case remanded for
factual findings.” State v. Alton Darnell Young, No. M1999-01166-CAA-R3-CD, 2000 WL
380103, at *2 (Tenn. Crim. App. at Nashville, April 14, 2000)(citing State v. Alonzo Gentry, No.
02C01-9708-CC-00335, 1998 WL 351228, at *2 (Tenn. Crim. App. at Jackson, July 2, 1998)
(remanding the case to the trial court for factual findings on a motion to suppress)). For the reasons
stated infra, we are able in this case to render an opinion as to the validity of the search of the
defendant’s person and his residence. However, the record before us is insufficient for a
determination as to whether the contraband found in the defendant’s vehicle was in plain view and
thus subject to seizure. We must therefore remand this case to the trial court in order to give the state
and defendant an opportunity to put on proof as to the location of the cocaine found in the vehicle
and for the trial court to make findings of fact on this issue pursuant to Tenn. R. Crim. P. 12(e).

                                            Search and Seizure
                                       A. The Defendant’s Person
        First, the state claims that the trial court erred because the search warrant authorized a search
of the defendant’s person as well as his residence. We disagree, because the affidavit in support of
the warrant only established probable cause to search the residence. A search or seizure of a person
must be supported by probable cause particularized with respect to that person. Ybarra v. Illinois,
444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d 238 (1979). As a general rule, a search warrant
shall be issued only on the basis of an affidavit which establishes probable cause for its issuance.
See State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989); State v. Moon, 841 S.W.2d 336, 338
(Tenn. Crim. App. 1992).1 A showing of probable cause requires, generally, reasonable grounds for
suspicion, supported by circumstances indicative of an illegal act. State v. Johnson, 854 S.W.2d 897,
899 (Tenn. Crim. App. 1993). Thus, a decision regarding the existence of probable cause requires
that the affidavit contain more than mere conclusory allegations by the affiant. Moon, 841 S.W.2d
at 338; State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). The adequacy of the affidavit must be
viewed in light of the circumstances and in light of the entire substance of the affidavit. See State
v. Lowe, 949 S.W.2d 300, 304 (Tenn. Crim. App. 1996).


         1
          This requiremen t is also statutorily mandated. Tennessee Code Annotated section 40-6-103 provides that "[a]
search warrant can only be issued on a probable cause, supported
 by affidavit, naming or describing the person and particularly describing the property, and the p lace to be se arched."
 Tenn. C ode An n. § 40-6 -103.

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         In this case, the affidavit provided the following as a basis for the search warrant:
         On the date of March 30, 1998, your affiant received information from a confidential
         reliable informant whose name affiant has this date revealed to the judge before
         whom this application is made; said informant was at 1022 Preslor Drive and
         observed crack cocaine being offered for resale. Affiant was monitoring this event
         and was able to retrieve a portion of the substance being offered for sale. Affiant
         field-tested the substance with positive presumptive reaction for cocaine or cocaine
         base. Said informant was at this residence within the last 72 hours. Informant is
         reliable in that informant has provided information to law enforcement on numerous
         occasions that has led to arrest and conviction in drug-related cases. Affiant believes
         that probable cause to believe [sic] additional controlled substances and evidence of
         crime is located at this residence.

Although the warrant particularly described both the place to be searched and the defendant, the
affidavit only established probable cause to search the residence, not the defendant; indeed, there is
no reference to the defendant or any other person in the affidavit. Nevertheless, police seized the
defendant far from his house, searched him thoroughly, and subsequently returned him to the
residence to execute the warrant. While the police may have permissibly detained the defendant if
he was present at his residence during the execution of the warrant, see Michigan v. Summers, 452
U.S. 692, 704, 101 S. Ct. 2587, 2595, 69 L. Ed. 2d 340 (1981), or perhaps even seized the defendant
outside his residence in order to properly execute the warrant, see Illinois v. McArthur, — S.Ct. ----,
2001 WL 137449 (U.S. Feb 20, 2001); see also State v. Meadows, 745 S.W.2d 886, 891 (Tenn.
Crim. App. 1987), we are unaware of any authority that would permit a full search of a person who
was located away from his residence pursuant to a search warrant of that person’s residence.
Furthermore, nothing in the record suggests that the police acquired probable cause to search the
defendant in any other manner.2 Accordingly, any evidence obtained as a result of the search of the
defendant’s person was properly suppressed by the trial court.

                                     B. The Defendant’s Vehicle
          Without comment other than the motion to suppress is “sustained” the trial court also
apparently suppressed the cocaine found in the defendant’s vehicle. The State argues this was
erroneous because this cocaine was in plain view in the automobile and thus subject to seizure. The
plain view doctrine requires proof that: (1) the objects seized were in plain view; (2) the viewer had
a right to be in position for the view; (3) the seized object was discovered inadvertently; and (4) the
incriminating nature of the object was immediately apparent. Coolidge v. New Hampshire, 403 U.S.
443, 470, 91 S. Ct. 2022, 2040, 29 L. Ed. 2d 564 (1971); State v. Hawkins, 969 S.W.2d 936, 938
(Tenn. Crim. App. 1997); State v. Horner, 605 S.W.2d 835, 836 (Tenn. Crim. App. 1980). In this
case, although the police officer who seized the cocaine from the vehicle testified the cocaine was


         2
           Unfortunately, the record does not indicate exactly when the defendant w as searched. Sergeant Tidwell
testified that when he approached the defendant, he told him to get dow n. When asked whether he searched the
defendant b efore or after he place d the defenda nt in handcuffs, S ergeant Tidw ell replied “As I recall, I think we kind
of did both.”

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in plain view, the trial court’s ruling in his favor preempted the defendant from putting on proof,
which he contends on appeal would show that the cocaine was not in plain view. While in most
cases we would hold that the defendant’s failure to make a proffer of proof on this issue would
constitute a waiver of the issue, we decline to do so in this case. The defendant should not be
expected to make a proffer of proof when the trial court has sustained his position.
         Thus, this is precisely the sort of factual dispute that Tenn. R. Crim. P. 12(e) requires the trial
court to settle with findings that settle the issue of whether the cocaine was in a place in the vehicle
where it was readily observable by the police. We therefore hold that this case should be remanded
to the trial court for findings of fact pursuant to Tenn. R. Crim P. 12(e) as to whether the cocaine in
the defendant’s vehicle was in plain view.

                                 C. The Defendant’s Residence
       Finally, the record indicates that Sergeant Tidwell and other officers executed the search
warrant at the defendant’s residence at 1022 Preslor Drive and discovered a trace amount of
marijuana and some drug paraphernalia. The warrant specifically authorized a search of the
residence and was supported by the affidavit which stated sufficient probable cause. Furthermore,
nothing in the record suggests that the search of the residence was unlawful. Thus, any evidence
obtained from the residence should not have been suppressed.
       Accordingly, the judgment of the trial court is AFFIRMED in part and REVERSED in part,
and the case is remanded for proceedings consistent with this opinion.



                                                          ___________________________________
                                                          JERRY L. SMITH, JUDGE




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