        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 January 25, 2011 Session

            STATE OF TENNESSEE v. WILLIE CLARK BENNETT

                   Appeal from the Criminal Court for Knox County
                    No. 88740     Richard R. Baumgartner, Judge




                  No. E2010-00859-CCA-R3-CD Filed March 22, 2011


The defendant, Willie Clark Bennett, appeals the trial court’s revocation of his probation.
In this appeal, he contends that the trial court erred by failing to suppress evidence obtained
during a search of his person. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and N ORMA M CG EE O GLE, J., joined.

Mark Stephens, District Public Defender; and Robert C. Edwards, Assistant District Public
Defender, for the appellant, Willie Clark Bennett.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                On May 7, 2008, the defendant pleaded guilty to two counts of facilitation of
the sale of a controlled substance in exchange for a total effective sentence of four years. On
December 11, 2008, the trial court entered judgments of conviction imposing a probationary
sentence of three years and 148 days. The trial court further ordered the defendant to
undergo inpatient drug treatment and to reside in a halfway house upon release. On June 1,
2009, a probation violation warrant issued alleging that the defendant had violated the terms
of his probationary sentence by failing to pay court-ordered child support, by violating his
curfew, by submitting a diluted urine sample for a drug screen, and by failing to provide
verification of his payment of court costs. An amended probation violation warrant issued
on June 3, 2009, alleged that the defendant had also violated the terms of his release by
failing to attend alcohol and drug classes. By amended probation violation warrants issued
on July 9 and October 29, 2009, the State added claims that the defendant had violated his
probation by attempting to contact his estranged wife against a court order, by being
discharged from the halfway house, by violating his curfew on two occasions, and by
garnering a new arrest for violating the drug free school zone act.

               The defendant moved to suppress any evidence obtained from the search of his
person conducted on October 29, 2009, on grounds that the search was unreasonable. The
defendant noted in his motion that the suppression claim had no bearing on the “technical
violations” alleged by the State.

               At the March 5, 2010 hearing joining the defendant’s suppression claim and
the revocation warrants, Lisa Mooneyham, the defendant’s probation officer, testified that
the defendant was placed on enhanced probation on December 11, 2008, after her department
recommended that the defendant not be placed on regular probation. At that point in time,
the defendant was placed on the waiting list for a bed at an inpatient drug rehabilitation
facility. As part of his probation, the defendant signed a document detailing the terms of his
probationary sentence that included the following provision: “I agree to a search without a
warrant of my person, vehicle, property, and place of residence by a PO officer or other law
enforcement at any time.” The defendant performed fairly well on probation until May 30,
2009, when he was discovered at Phatz night club at 3:40 a.m., which was a violation of the
terms of his probation. In addition, an attachment against the defendant was issued based
upon his failure to pay child support. The defendant was arrested pursuant to the attachment,
and Ms. Mooneyham ordered the defendant to enter Steps House.

               As Ms. Mooneyham prepared a violation warrant based upon the defendant’s
arrest and other violations related to his being at Phatz, she also discovered that the defendant
had failed to attend required CAPP alcohol and drug classes. During that same time period,
one of the urine samples submitted by the defendant was returned from the laboratory with
a notation that the sample showed dilution.

               The defendant was later discharged from Steps House for failure to comply
with the rules regarding “honesty and responsibility” and for having contact with his wife.
Ms. Mooneyham explained that she had directed the defendant to have no contact with his
wife and that the court eventually ordered the two to have no contact. Apparently, the
defendant continued to try to contact his wife in violation of that court order.

            The defendant had two more curfew violations on October 23 and 29, 2009.
The defendant, despite having a job with a construction company, failed to pay either court

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costs or probation fees. He also failed to perform the required community service and failed
to report a change of address. The defendant was stopped by the Knoxville Police
Department on October 23, 2009, after his curfew, for a registration violation. Although the
officers noted that the defendant was driving on a suspended license, the defendant was not
given a citation. On October 29, 2009, the defendant was arrested for a violation of the drug
free school zone act. Ms. Mooneyham stated that she would not recommend that the
defendant be reinstated to probation given his pattern of violating the terms of his release into
the community. She explained, “[W]e went above and beyond the call of duty with [the
defendant]. The rules are very simple. . . . I think he’s in a certain pattern, it’s hard for him
to change.”

               During cross-examination, Ms. Mooneyham said that she had “reluctantly
agreed” that the defendant be released from custody after Steps House “kept giving him
different amounts he had to pay to get in which was ridiculous.” She said that the purpose
of the defendant’s release was that he earn money to return to Steps House. Ms. Mooneyham
stated that she had tried “very hard” to provide the defendant with some structure in his life
but that “he was very stubborn” and “just wants to do things his own way sometimes.”

               Knoxville Police Department (“KPD”) patrol officer John Holmes testified that
on October 28, 2009, he conducted a search of a residence located at 3329 Fontana Street.
He stated that the search, which was conducted pursuant to a warrant that named the
defendant, was the culmination of a two-month investigation into narcotics trafficking from
the Fontana Street residence. He said that the defendant, who was alone in the living room
of the residence, was detained and subjected to a brief pat down immediately upon the
officers’ entry into the residence. After a brief sweep of the house, Officer Holmes returned
to the living room and found the defendant “lying on the ground handcuffed” with the
“zipper to his pants unzipped.” The defendant was then brought to his feet, and officers
conducted a search of his clothing and the immediate area where the defendant was when
they entered the residence. The defendant was then placed in a chair to wait while the
residence was searched.

                During the search, officers received “some indication that there was maybe
more substance in the residence or on [the defendant].” They then conducted another search
of the living room and a more thorough search of the defendant, which involved having the
defendant pull down his pants and underwear to “around his knee” for a visual inspection of
his crotch area. Officer Holmes noted that the defendant “was keeping his legs real tight
together as if he was trying to conceal something,” but he nevertheless allowed the defendant
to pull his pants up and sit down. According to Officer Holmes, the entire process lasted less
than a minute.



                                               -3-
               As the defendant sat handcuffed in the chair, officers completed the search of
the residence but “found nothing in the residence of substance.” Based largely upon the
defendant’s earlier posturing, officers made the decision to conduct a “more intrusive search
of his person.” Officer Holmes did not conduct that search but stood just inside the kitchen
area. Before that search, officers found $530, $40 of which was marked buy money that had
been used by a confidential informant to purchase cocaine just before the search, and a
cellular telephone.

              During cross-examination, Officer Holmes testified that he was aware that the
defendant was on probation when he conducted the search of the residence and of the
defendant. He stated that the initial determination to have the defendant drop his pants was
made because “there was indication from a confidential source that there was more substance
in the possession of [the defendant].” During the first search conducted of the defendant
with his pants down, officers did not touch the defendant’s crotch area or ask the defendant
to manipulate his genitals or buttocks. The defendant was directed to bend over but did not
comply with the order. When officers found no more drugs in the house, Officer Holmes and
his supervisor, Sergeant Tony Willis, made the determination “to do a more intrusive search
of his person.” Officer Holmes testified that “the way he was standing, as if he had
something concealed on his person, the fact that his pants were unzipped, he was the only
person in the room when we encountered him, the previous history of dealing with [the
defendant] and being in possession of drugs” led him to conclude that a more thorough
search was warranted.

               KPD Officer Jeremy Maupin, who participated in the search of the Fontana
Street residence and of the defendant’s person, testified that he “went into the living room
and had [the defendant] stand up, had him actually to bend over, and . . . retrieved a clear
plastic baggie containing an off-white rock-like substance believed to be crack cocaine.”
Officer Maupin stated that the cocaine was located between the defendant’s “scrotum and
his left thigh.” He said that the amount of crack taken from the defendant’s person “was
approximately 4 to 5 grams of crack.” Officer Maupin said that the defendant helped pull
his pants down but “gave a little resistance” when ordered to bend over. Officer Maupin
explained that the defendant was “keeping his thighs together” and that “[h]e actually tried
to adjust something in between his legs.” At that point, Officer Maupin “told him to keep
his hands away from there, not knowing what was hidden, [be]cause he did definitely give
indicators something was hidden inside of his crotch area.”

               Officer Maupin denied placing his fingers or any other object into “any
orifices” of the defendant’s body and denied using force when looking for the contraband.
He said that the entire search took less than a minute. Officer Maupin clarified that he
“actually reached in” to retrieve the cocaine from “between his left side of his scrotum and

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his left thigh” after seeing the plastic bag and white substance.

               During cross-examination, Officer Maupin testified that the defendant’s pants
were pulled down to the “[m]iddle of his thigh” and that the defendant was allowed to keep
his shirt on. Officer Maupin said that when he ordered the defendant to spread his legs, the
defendant “reached in trying to adjust something.” Officer Maupin denied spreading the
defendant’s “butt cheeks” but acknowledged that he “had to move his thigh away and pull
the substance out.” When the defendant failed to move his thighs apart sufficiently, Officer
Maupin had the defendant “take one leg out of the pants” so that he could spread his legs
farther. Officer Maupin said that the defendant did not express any discomfort or
embarrassment during the search.

                The defendant testified that during the initial pat down, officers did not reach
into his crotch area and that they confined the very brief search to the exterior of his clothing
and his pockets. During the second search, they searched “the same places but more
thoroughly . . . like without going in [his] pants, just pat all around.” During the third search,
officers asked him to pull down his pants and bend over but did not touch either his buttocks
or his scrotum. Approximately half an hour later, officers approached him again and
conducted a fourth search. The defendant claimed that during the fourth search, officers
removed his handcuffs, pants, and underwear, ordered him to bend over, and directed him
to “hold [his] scrotum up, open [his] cheeks.” He said that officers looked at him for
approximately six minutes and asked him to spread his buttocks and lift his scrotum at least
four times. He claimed that officers did not find any contraband during the fourth search and
that he was ordered to put his clothes back on. According to the defendant, more officers
returned for a fifth search, during which they ordered him to remove all of his clothing. He
said that he was again ordered to lift his scrotum and spread his buttocks. The defendant
claimed that he finally spread his legs “as far as they would go” because he “heard someone
say in the background, ‘Get the Tasers.’”

            During cross-examination, the defendant admitted that officers discovered
more than $500 on his person but denied that any portion of the money was marked buy
money. The defendant admitted having crack cocaine hidden in his crotch area.

                 At the conclusion of the hearing, the trial court took the defendant’s motion to
suppress and the probation violation warrant under advisement. On March 25, 2010, the
court ruled from the bench that it was going to deny the defendant’s motion to suppress on
grounds that the search was reasonable under the totality of the circumstances. In addition,
the trial court revoked the defendant’s probation on the basis of his possession of cocaine.
In its later filed written order, the trial court ruled,



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                Based on the totality of the circumstances in the instant case
                (including the defendant’s status as a probationer, the statement
                by the confidential informant, and the fact that the defendant’s
                fly was down when the officers entered the home), this court
                finds that this search did not violate the defendant’s reasonable
                expectation of privacy.

In its order revoking the defendant’s probation, the trial court concluded that the defendant
“has been guilty of violating the laws of this State, and has otherwise violated the conditions
of probation.”

               Following the revocation of his probation, the defendant filed a timely notice
of appeal in this court. In this appeal, the defendant contends that the trial court erred by
denying his motion to suppress evidence obtained during the October 29, 2009 search
because the repeated search of his unclothed genital area was unreasonable. The State asserts
that the trial court properly denied the motion because the search was reasonable and
supported by probable cause. In addition, the State argues that “the record contains ample
evidence to support the trial court’s revocation” even in the absence of the evidence obtained
during the October 29, 2009 search.

               Initially, the trial court’s order revoking the defendant’s probation noted that
the defendant violated both the laws of the state and the conditions of his probationary
sentence. The violation warrants alleged myriad violations other than the defendant’s
possession of cocaine on October 29, 2009, and the defendant did not contest those violations
at the hearing on the violation warrants. In his brief, the defendant does not even address the
other alleged violations and does not address the propriety of the revocation itself, instead
addressing his argument to the suppression issue. The record amply demonstrates that the
defendant violated the terms of his probation by violating his curfew, by failing to pay his
court costs, by failing to attend required drug and alcohol classes, by failing to comply with
the conditions imposed by Steps House, and by contacting his wife in violation of a court
order.1 Had the trial court revoked the defendant’s probation on any or all of these grounds,
we would have no trouble affirming the trial court’s exercise of discretion. See State v.
Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v. Reams, 265 S.W.3d 423, 430


        1
          The defendant also admitted possessing crack cocaine on October 29, 2009, which is a violation of
probationary terms. The trial court, however, was careful to limit the defendant’s testimony to the issue
raised in the motion to suppress. “When a defendant testifies in support of a motion to suppress evidence
on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue
of guilt unless he makes no objection.” Simmons v. United States, 390 U.S. 377, 394 (1968). Accordingly,
we will not treat the defendant’s testimony as an admission that he violated the terms of his probation.

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(Tenn. Crim. App. 2007). The trial court, however, never made any specific findings with
regard to any of these alleged violations. Instead, the court stated at the March 25, 2010
proceeding that it was revoking the defendant’s probation on grounds that he possessed
cocaine on October 29, 2009. Consequently, our consideration of the revocation issue is
limited to this single alleged violation, which requires that we address the propriety of the
trial court’s denial of the defendant’s motion to suppress.

                A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge, and this court must uphold a trial court’s findings of
fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23;
see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is
reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review
the issue in the present appeal with these standards in mind.

                 To be sure, both the state and federal constitutions offer protection from
unreasonable searches and seizures with the general rule being that a warrantless search or
seizure is presumed unreasonable and any evidence obtained therefrom subject to
suppression.2 See U.S. Const. amend. IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .”); Tenn. Const. art. I, § 7 (“That the people shall be secure in their persons,
houses, papers and possessions, from unreasonable searches and seizures . . . .”). That being
said, probationers, by virtue of their release status, have a diminished expectation of privacy,
see United States v. Knights, 534 U.S. 112, 118-19 ( 2001), and a concomitant diminished
protection from warrantless search and seizure, see id. at 121. This is particularly true where,
as here, a probationer accepts as a condition of his probation that he may be subjected to a
warrantless search of his person, place of residence, and vehicle at any time. Id. at 118
(observing that “the probation search condition” was a “salient circumstance” in a review of
the totality of the circumstances surrounding the search of Knights’ apartment); see also State
v. Davis, 191 S.W.3d 118, 121 (Tenn. Crim. App. 2006) (examining a consent to search
provision essentially identical to that in this case and recognizing that “a warrantless search


        2
          Although the search of the Fontana Street residence was conducted via a warrant that named the
defendant as an individual who had exercised control over that property, the warrant did not specifically
command officers to search the defendant’s person. Instead the warrant commanded the officers to seize the
defendant in the event any of the items described in the search warrant were discovered inside the Fontana
Street residence. Accordingly, the search of the defendant will be examined as a warrantless search of the
defendant’s person.

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condition of probation significantly diminishes a probationer’s reasonable expectation of
privacy”). Thus, the Court said, when the terms of probation include a consent to warrantless
search, a warrantless search of a probationer need only be supported by reasonable suspicion.
Knights, 534 U.S. at 122 (“We therefore hold that the warrantless search of Knights,
supported by reasonable suspicion and authorized by a condition of probation, was
reasonable within the meaning of the Fourth Amendment.”).

              Although both parties cite State v. Turner, 297 S.W.3d 155 (Tenn. 2009), in
support of their respective positions, Turner is distinguishable from this case on three
important points. First, at issue in that case was Turner’s motion to suppress at trial evidence
obtained during a warrantless search. When evidence has been seized unconstitutionally, the
exclusionary rule bars introduction of that evidence at trial. See generally Weeks v. United
States, 232 U.S. 383, 393-98 (1914). As this court recognized in State v. Hayes, 190 S.W.3d
665 (Tenn. Crim. App. 2005), however, the exclusionary rule, in its traditional form, does
not apply during probation revocation proceedings “regardless of whether a probationer has
consented to searches as a condition of probation.” State v. Hayes, 190 S.W.3d 665, 670
(Tenn. Crim. App. 2005). Before unconstitutionally seized evidence will be excluded from
a probation revocation proceeding, the defendant must establish that the evidence was
“obtained as a result of police harassment or obtained in a particularly offensive manner.”
Id. at 671.

              Second, the search challenged in Turner was not supported by any form of
individualized suspicion. Instead, officers searched Turner’s person and residence solely
because she had consented to warrantless searches as a condition of her parole. Our supreme
court held that “parolees who are subject to a warrantless search condition may be searched
without reasonable or individualized suspicion.” Here, the defendant seeks to exclude from
his probation revocation hearing evidence obtained following a search that was, as we will
discuss more fully below, supported by individualized suspicion.

                Finally, Turner specifically limited its application to parolees and leaves open
the question whether a warrantless search of a probationer unsupported by any individualized
suspicion would pass constitutional muster. Although the defendant asserts that the question
whether the rule in Turner should be extended to probationers is “ripe for determination,”
the fact that individualized suspicion supports the challenged search in this case removes this
case from within the ambit of Turner and places it squarely within the ambit of Knights and
Davis.

              Turning now to the facts of this case, the accredited testimony of Officer
Holmes established that KPD officers executed a search warrant at the Fontana Street
residence as the culmination of more than two months’ investigation into illegal narcotics

                                              -8-
trafficking at the residence, investigation which included information that the defendant
himself had sold drugs from the residence. When officers entered the residence, the
defendant was alone in the living room, and the zipper of his pants was down. A search of
the exterior of the defendant’s clothing revealed a large amount of cash, $40 of which was
marked buy money. After that search, information from a confidential source established
that the defendant was likely concealing drugs on his person. At that point, Officer Holmes,
who was aware of the defendant’s status as a probationer, authorized a more thorough search
of the defendant that required the defendant to pull down his pants and submit to a visual
examination of his groin area. Although officers ended the search and permitted the
defendant to pull up his pants, Officer Holmes noted that the defendant made special effort
to keep his legs tightly together. Given the information from the confidential source, the
defendant’s posturing during the earlier searches, and the defendant’s release status, Officer
Holmes authorized a final, more thorough search of the defendant’s person. Officer
Maupin’s accredited testimony established that the defendant was directed to take down his
pants, remove one leg from his pants, and spread his legs as far as they would go. Officer
Maupin then asked the defendant to bend over, and at that point, he saw the plastic baggie
containing a white, rock-like substance wedged between the defendant’s scrotum and thigh.
Officer Maupin denied touching the defendant’s genitals or placing his hands into any orifice
of the defendant’s body.

               Because the defendant had signed an unconditional consent to warrantless
searches of his person, place, and vehicle, the State need only have established that
reasonable suspicion supported the searches in this case. See Knights, 534 U.S. at 122;
Davis, 191 S.W.3d at 121. That the defendant was alone in the living room with his pants
unzipped, that he had marked buy money in his possession, and that he attempted to keep his
legs together during the earlier searches provided the officers with at least reasonable
suspicion to believe that the defendant was concealing contraband inside his pants. We also
note that even had we concluded that the searches in this case were not supported by
reasonable suspicion, the record does not demonstrate that they were conducted “in a
particularly offensive manner” that would require the exclusion of evidence seized during
the search from the hearing to revoke the defendant’s probation.

                Finally, Officer Maupin’s testimony that the defendant possessed cocaine on
October 29, 2009, supports the revocation of the defendant’s probation in this case. The trial
court may revoke probation upon a finding by a preponderance of the evidence that the
defendant has violated the conditions of probation, see T.C.A. § 40-35-311(e) (2006), and
the trial court’s ruling in this regard will only be overturned upon a showing of an abuse of
the trial court’s discretion, see Shaffer, 45 S.W.3d at 554. The conditions of the defendant’s
probation required that he not violate the laws of this state, and the evidence adduced at the
revocation hearing established by a preponderance of the evidence that the defendant

                                             -9-
possessed cocaine on October 29, 2009, in violation of Tennessee Code Annotated section
39-17-417.

              Accordingly, the judgment of the trial court denying the defendant’s motion
to suppress and revoking his probation is affirmed.

                                                 _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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