              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT NASHVILLE
                                  Assigned on Briefs November 28, 2001

                         STATE OF TENNESSEE v. GREG STEWART

                       Appeal as of Right from the Circuit Court for Coffee County
                                  No. 29, 113   John W. Rollins, Judge



                         No. M2001-01056-CCA-R3-CD - Filed February 15, 2002


Pursuant to a bench trial, the appellant, Greg Stewart, was convicted of two counts of simple
possession of a controlled substance. The trial court sentenced the appellant to two concurrent terms
of eleven months and twenty-nine days incarceration in the Coffee County Jail. On appeal, the
appellant contests the trial court’s denial of his motion to suppress the drug evidence due to the lack
of proper consent to the search. Upon review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH, JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Greg Stewart.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
C. Michael Layne, District Attorney General; and Doug Aaron, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                       OPINION

                                      I. Factual Background
                On March 8, 1999, Officer Larry Miller with the Manchester City Police Department
received information from an anonymous female that the appellant was selling narcotics out of his
house on 707 Vincent Street.1 Officer Miller contacted Detective Mark Yother, and together the
officers went to the appellant’s address. Upon arriving, the officers knocked on the door and, when
the appellant answered the door, identified themselves. Officer Miller testified at trial that the



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              The appellant later claimed that the informant was his niece, Nellie Hondo, who was living with him at the
time.
officers requested permission to enter the residence, to which request the appellant replied, “Come
on in.”

                Once the officers were inside the residence, Detective Yother explained to the
appellant that they had obtained information that he possessed narcotics in the house. Detective
Yother then requested permission to search the appellant’s residence. The appellant replied, “You
can go ahead.” Detective Yother remained in the kitchen with the appellant while Officer Miller
conducted a search of the residence. Acting on information received from the informant, Officer
Miller specifically searched a chest of drawers in the appellant’s bedroom and discovered small
amounts of marijuana and methamphetamine. At trial, Officer Miller contended that the appellant
denied knowledge of the presence of the drugs; however, Detective Yother asserted that the appellant
admitted the drugs were his and initially offered to assist the police in apprehending his supplier.2
Both officers firmly maintained that no search was conducted prior to the appellant’s consent.

               The appellant requested that the trial court proceed with the motion to suppress
simultaneously with the bench trial. After hearing the evidence, the trial court overruled the
appellant’s motion to suppress and found the appellant guilty of one count of simple possession of
methamphetamine and one count of simple possession of marijuana, both class A misdemeanors.
See Tenn. Code Ann. § 39-17-418(a) (1997). The trial court sentenced the appellant to eleven
months and twenty-nine days incarceration for each conviction. The appellant now appeals the
denial of his motion to suppress.

                                            II. Analysis
                The appellant contends that the police illegally searched his residence because “entry
into the [appellant’s] residence was obtained without the [appellant] being aware of the purpose for
which the officers sought to enter the premises, and . . . the purported consent to search only
occurred after a conversation which took place inside the [appellant’s] residence.” The State
disagrees, arguing that the appellant’s “consent was given knowingly, freely and voluntarily.”

               "[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). Regardless,
we note that this court will review the trial court's application of law to the facts purely de novo.
State v. Walton, 41 S.W.3d 75, 81 (Tenn.), cert. denied, __ U.S. __, 1225 S. Ct. 341 (2001).
Moreover, “in evaluating the correctness of a trial court's ruling on a pretrial motion to suppress,
appellate courts may consider the proof adduced both at the suppression hearing and at trial.” State
v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). However, in the instant case, there was only one
proceeding, a joint hearing on a motion to suppress and the bench trial.

               Both the Fourth Amendment to the United States Constitution and Article I, Section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable searches and
seizures.” Generally, a warrantless search is considered presumptively unreasonable, thus violative


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           Detective Yother explained that the appellant later rescinded his offer to assist the police.

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of constitutional protections. State v. Walker, 12 S.W.3d 460, 467 (Tenn. 2000). In the instant case,
it is clear that the police did not have a warrant to search the appellant’s home; therefore, absent an
exception to the warrant requirement, the search was illegal.

                Our supreme court has noted that, “[i]t is, of course, well settled that one of the
exceptions to the warrant requirement is a search conducted pursuant to consent.” State v. Bartram,
925 S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.
2041, 2043-2044 (1973), and State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993)).
“The sufficiency of consent depends largely upon the facts and circumstances in a particular case.”
Jackson, 889 S.W.2d at 221. The prosecution bears the burden of proving that the appellant freely
and voluntarily gave consent. State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983).
We further observe that “‘[t]he existence of consent and whether it was voluntarily given are
questions of fact.’” State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999) (quoting
McMahan, 650 S.W.2d at 386).

                The appellant argues that the following language, contained in McMahan, 650
S.W.2d at 386, is determinative of his case:
                The grant of consent for police to enter one’s home for any purpose
                cannot be said to be freely and voluntarily given unless the person
                consenting is aware of the purpose for which the officers seek to
                enter. The notion of free and voluntary consent necessarily implies
                that the person knows what he is allowing the police to do.
The appellant contends that “the police officers gained entry into the house of the [appellant] without
informing the [appellant] of the purpose for which the officers sought entry,” i.e., the officers did
not initially explain that they wished to search the appellant’s house. Therefore, the appellant
claims, his later consent to search is vitiated. We disagree.

                In McMahan, the officers asked the defendant if they could enter the residence to
“talk with him.” Id. at 385. The defendant consented to the request. Id. Subsequent to the entry,
the officers proceeded to search the residence, without asking permission to search. Id. The State
argued that the police were implicitly given permission to search because the defendant did not
object to the search. Id. at 386. However, this court concluded that “[f]ailure to actively oppose a
search being undertaken by law enforcement officers does not constitute the giving of free and
voluntary consent.” Id. The facts in McMahan are distinguishable from the instant case.

                The police arrived at the appellant’s residence and requested permission to come
inside the house to talk with the appellant. The appellant granted that permission. See State v. Terry
Carpenter, No. 85-305-III, 1986 WL 12477, at ** 1-2 (Tenn. Crim. App. at Nashville, November
7, 1986); cf. State v. Steven Lloyd Givens, No. M2001-00021-CCA-R3-CD, 2001 WL 1517033, at
*3 (Tenn. Crim. App. at Nashville, November 29, 2001). Once they were inside, Detective Yother
explained that the police had received information that the appellant was selling narcotics out of his
home and asked the appellant if the police could search the residence. See State v. Mitchell D.
Ashley, No. 01C01-9706-CC-00219, 1998 WL 498739, at *9 (Tenn. Crim. App. at Nashville,
August 20, 1998). According to the testimony of both police officers, the appellant gave them verbal

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consent to search his house. See State v. James Russell Wicks, No. 01C01-9603-CC-00091, 1997
WL 83778, at *4 (Tenn. Crim. App. at Nashville, February 28, 1997). The appellant, unlike the
defendant in McMahan, was fully informed of the facts underlying the request to search prior to
giving his consent. The mere fact that the police waited until they were inside the home before
asking to search does not vitiate the appellant’s consent to the search because, according to both
officers, the search did not commence until the appellant gave his permission. The trial court
specifically found:
                I agree with the State’s position on this. I don’t think the consent was
                involuntary. I think they are entitled to knock on the door and say,
                “May we come in,” and once they come in, announce their business,
                and that leaves the owner having the right to say, “Yes,” “No,” “Go
                get a warrant,” or “Get out of my house” or anything else. I don’t
                think this consent was involuntary based on what I have heard.
We conclude that the evidence in the record does not preponderate against the trial court’s finding.
This issue is without merit.

                                         III. Conclusion
               Finding no reversible error, we affirm the judgment of the trial court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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