        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 30, 2010

                STATE OF TENNESSEE v. BILLY R. SUMMEY

                 Appeal from the Criminal Court for Monroe County
                         No. 08-318 Carroll L. Ross, Judge




                  No. E2009-00999-CCA-R3-CD - Filed July 21, 2010




The Monroe County grand jury indicted the Defendant, Billy R. Summey, for alternative
counts of sale or delivery of more than one-half ounce but less than ten pounds of marijuana,
a Class E felony. Following the denial of his motion to suppress, the Defendant pled guilty
to the indictment and received a sentence of two years as a Range I, standard offender to be
served on probation. Pursuant to the guilty plea, the Defendant also reserved a certified
question of law that is dispositive of his case challenging the legality of the tape-recorded
drug transaction that occurred in his home, without a warrant, between himself and an
informant. See Tenn. R. Crim. P. 37(b)(2)(i). In this appeal as of right, the Defendant argues
that the trial court erred in denying his motion to suppress. Following our review, we affirm
the judgment of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

William L. Gribble, II, Maryville, Tennessee, attorney for appellant, Billy R. Summey.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Paul Rush, Assistant District
Attorney General, attorneys for appellee, State of Tennessee.
                                           OPINION

       On April 13, 2009, the parties presented only argument regarding the motion to
suppress. Therefore, the facts underlying this offense seem undisputed. As stated by
defense counsel, “the evidence against [the Defendant] stems from a conversation recorded
by an informant that was sent into [the Defendant’s] home, wired with a recording device.”
The Defendant does not contend that the informant was inside his home without his
permission. The trial court’s order denying the motion to suppress does not contain any
findings of fact or conclusions of law but merely states that the motion to suppress is denied
and that the issue will be reserved as a certified question upon the Defendant’s plea of guilty.
The transcript of the motion hearing indicates that the parties agreed that there is a split of
authority regarding this issue among the state jurisdictions. The parties also asserted that the
issue was one of first impression in Tennessee. The trial court declined to rule the recording
procedure unconstitutional. Accordingly, the trial court accepted the Defendant’s guilty plea
with reservation of the certified question.

        On appeal, the State acknowledges that the Defendant properly reserved the following
certified question of law pursuant to his guilty plea:

       Is it a violation of [a]rticle I, [section] 7 [of the Tennessee Constitution] for the
       police to invade the privacy of a person’s home by employing an informant to
       use an electronic surveillance device to record matters occurring in that
       person’s home without first obtaining a duly authorized search warrant?

        The Defendant argues that article I, section 7 of the Tennessee Constitution may
provide additional protection beyond that of the Fourth Amendment of the United States
Constitution. He also argues that the Supreme Court’s decision in United States v. White,
401 U.S. 745 (1971), relied upon by the State, considered the Constitutionality under the
Fourth Amendment of warrantless monitoring – not recording – of conversations occurring
in a defendant’s home and is, therefore, distinguishable from the facts in this case. The State
contends that the warrantless recording of conversations between a defendant and an
informant occurring in a defendant’s home does not violate either the Fourth Amendment to
the United States Constitution or article I, section 7 of the Tennessee Constitution.
Following our review, we agree with the State.

       We note that, at trial and on appeal, the Defendant relied upon cases from other
jurisdictions to argue that article I, section 7 should provide greater protection than the
Fourth Amendment concerning recorded conversations between a Defendant and an
informant occurring in a Defendant’s home without a warrant. His argument fails to
acknowledge that this court has previously ruled that such practices are constitutional under

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article I, section 7 of our constitution. In State v. Vanderford, 980 S.W.2d 390, 401 (Tenn.
Crim. App. 1997), this court held that “[w]hen the suspect permits a confidential informant
into his residence, and he freely and voluntarily talks to the confidential informant, the
suspect has no expectation of privacy regarding the conversation.” This court specifically
held that such action “does not violate the Fourth Amendment to the United States
Constitution or [a]rticle I, § 7 of the Tennessee Constitution.” Id. Furthermore, contrary to
the Defendant’s argument on appeal, the Supreme Court has ruled constitutional the
recording of such conversations between a defendant and an informant. White, 401 U.S. at
749 (no search warrant needed when a “secret agent” uses “electronic equipment to record
the defendant’s words”). Accordingly, we conclude that the trial court properly denied the
Defendant’s motion to suppress.

                                      CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                           D. KELLY THOMAS, JR., JUDGE




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