                                                                                      09/21/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                                May 15, 2018 Session

        STATE OF TENNESSEE v. MARIO M. WASHINGTON, JR.

                Appeal from the Circuit Court for Dickson County
              No. 22CC-2015-CR-84     Suzanne Lockert-Mash, Judge


                           No. M2017-01601-CCA-R3-CD


The Defendant, Mario M. Washington, Jr., pleaded guilty in the Dickson County Circuit
Court to unlawful possession of a firearm, a Class D felony, possession of a Schedule II
drug, a Class A misdemeanor, and possession of a Schedule IV drug, a Class A
misdemeanor. See T.C.A. §§ 39-17-1307(b)(1)(B) (2014) (unlawful possession of a
firearm), 39-17-418 (possession of a controlled substance) (2014) (amended 2016).
Pursuant to the plea agreement, the Defendant received a five-year sentence and reserved
a certified question of law regarding the search of his residence, which he presents on
appeal. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Timothy V. Potter, Dickson, Tennessee, for the appellant, Mario M. Washington, Jr.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Ray Crouch, District Attorney General; and Sarah Wojnarowski,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

       On October 4, 2002, the Defendant was convicted of drug-related offenses and
received an effective fourteen-year sentence. The record reflects that the Defendant
signed a community corrections agreement on August 11, 2003, and that he was later
placed on probation. The record does not indicate when the Defendant was transferred
from community corrections to probation.
       This case arises from a May 22, 2014 warrantless search of the Defendant’s home.
The Defendant filed a motion to suppress the evidence, contending that police officers
did not have reasonable suspicion to conduct the search.

       At the motion to suppress hearing, Probation Officer Austin Frye testified that the
Defendant signed an April 3, 2014 probation agreement, which stated the Defendant
agreed to a warrantless search of his home at any time. Mr. Frye stated that he
accompanied Detective Ethridge, Officer Mann, and Officer Beasley to the Defendant’s
home on May 22, 2014, and that the Defendant had previously reported living at a
different address. Mr. Frye said that he and Officer Mann knocked on the front door of
the home and that the other two officers “watched around the perimeter of the house.”
Mr. Frye stated that the Defendant answered the door after about five to ten minutes and
that he could not recall whether he or Officer Mann initially spoke to the Defendant. Mr.
Frye said that he told the Defendant “it would be in his best interest to cooperate, to do
what was asked.” When asked whether the officers explained their “purpose for being
there,” Mr. Frye responded “correct.” Mr. Frye said that the Defendant allowed the
officers to enter his home to conduct the search. Mr. Frye stated that unspecified illegal
items were seized during the search, that a probation violation was filed, and that the
Defendant was charged with multiple offenses.

       On cross-examination, Mr. Frye testified that the Defendant did not sign a
probation agreement until April 2014 and that the Defendant was placed on probation
sometime before April 2014 and before Mr. Frye became employed as a probation
officer. Mr. Frye stated that he discovered that the Defendant’s file did not contain a
probation agreement in April 2014, which was when the Defendant signed the agreement.
Mr. Frye said that the Defendant was initially placed on community corrections and that
the Defendant had signed a community corrections agreement. Mr. Frye stated that the
Defendant could not refuse to sign the required probation agreement.

       Mr. Frye testified that he and the other officers arrived at the Defendant’s home at
about 7:00 a.m., that none of the officers had “weapons drawn,” and that the blue lights
were not activated on any of their police cars. Mr. Frye stated that the Defendant
verbally consented to the search and that the Defendant’s girlfriend was also at the home.
Mr. Frye said that he did not know whether the Defendant had an option to refuse the
search because the Defendant had signed a probation agreement and that the Defendant
would have violated probation if he had refused.

        Upon questioning by the trial court, Mr. Frye testified that he and Officer Mann
explained to the Defendant that they were at the home to conduct a probation-related
search, that the Defendant consented to the search, and that the Defendant allowed
officers in his home. Officer Mann stated that one of the officers brought a police dog to
the home and that Officer Mann stayed outside with the Defendant and the Defendant’s
girlfriend while the search was conducted. Mr. Frye said that before the search, he was

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informed by the drug task force that “there may be some other activity going on that may
be against the rules of probation and that they wanted to do a probationary search” of the
Defendant’s home.

        Dickson Police Detective Josh Ethridge testified that he was an officer on the drug
task force at the time of the search, that “it was pretty common knowledge” the
Defendant sold drugs, and that the drug task force had received anonymous telephone
calls “from time to time” stating that the Defendant sold drugs from his home and place
of employment. Detective Ethridge said that he knew the Defendant had previous drug-
related convictions and was on probation.

       Detective Ethridge testified that the drug task force investigated Murray Mitchell
Daniel in March 2014, that Detective Ethridge and other officers performed a probation-
related search of Mr. Daniel’s place of employment and home, and that the officers
seized four ounces of cocaine from the home. Detective Ethridge said that Mr. Daniel
came to his office a few days later and that Mr. Daniel reported purchasing the four
ounces of cocaine from the Defendant and purchasing cocaine at the Defendant’s home
“consistently.” Detective Ethridge stated that Mr. Daniel told him that the Defendant
stored cocaine in a container in the Defendant’s home, weighed it on scales, and
packaged it in “bags.” Detective Ethridge stated that Mr. Daniel informed him that on
other occasions, Mr. Daniel met the Defendant at a predetermined location to purchase
cocaine, which was already “bagged” and weighed. Detective Ethridge said that Mr.
Daniel agreed to work as a confidential informant but that Mr. Daniel never made any
controlled purchases from the Defendant.

       Detective Ethridge testified that the drug task force had received anonymous
telephone calls relative to the Defendant’s selling drugs and that the Defendant had
previously served as a confidential informant. Detective Ethridge stated that he had
“gotten wind” where the Defendant lived and recognized the Defendant’s cars in the
driveway on multiple occasions. Detective Ethridge said that a surveillance video camera
was placed on a “pole” outside of the Defendant’s home and that the surveillance footage
reflected very little activity.

       Detective Ethridge testified that he and other officers went to the Defendant’s
home, that he waited in the driveway while Mr. Frye and Officer Mann knocked on the
door, and that the Defendant consented to a search. Detective Ethridge stated that
officers seized a “marijuana grinder,” multiple sandwich bags, a stolen .38-caliber
handgun, multiple types of “narcotic medicine,” pill bottles, three “pipes,” scales, rolling
papers, and one plastic spoon that tested positive for cocaine. Detective Ethridge said
that officers found “residual powder” inside a metal canister in the master bedroom and
white powder on the floor of a spare bedroom and that a field test of the powder was
positive for cocaine. Detective Ethridge stated that officers searched a car in the


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driveway of the home, that officers found a cigar containing a “green plant material,” and
that officers discovered residual “green plant material” in the ashtray.

       Detective Ethridge testified that the items seized from the Defendant’s home, such
as the plastic spoon and metal canister, were consistent with the information Mr. Daniel
provided. Detective Ethridge stated that the Defendant never withdrew his consent for
the search.

       On cross-examination, Detective Ethridge testified that he did not have any
information corroborating the anonymous telephone calls he received relative to the
Defendant’s selling drugs and that the drug task force did not verify the veracity of the
telephone calls. Detective Ethridge stated that a GPS tracking device was placed on Mr.
Daniel’s vehicle before the search of Mr. Daniel’s home because of Mr. Daniel’s
suspected drug activity. Detective Ethridge said that the GPS information never showed
Mr. Daniel traveling to the Defendant’s home. Detective Ethridge stated that no video
recordings existed from the surveillance camera because the footage of the Defendant’s
home was “live stream.” Detective Ethridge acknowledged that images from the
surveillance camera did not corroborate Mr. Daniel’s claim that the Defendant sold
cocaine from his home.

       Detective Ethridge testified that Mr. Daniel was unsuccessful in purchasing
cocaine from the Defendant and that Mr. Daniel believed the Defendant knew Mr. Daniel
was a confidential informant. Detective Ethridge stated that he never recorded telephone
conversations between the Defendant and Mr. Daniel.

       Upon questioning by the trial court, Detective Ethridge testified that he did not
hear the conversation between the Defendant, Mr. Frye, and Officer Mann when the
Defendant answered the door. Detective Ethridge stated that he arrived at the
Defendant’s home at 7:05 a.m. and that the search concluded at about 10:45 a.m.
Detective Ethridge said that only one police car was parked in the Defendant’s driveway
and that the other police cars were “staged down the road.” Detective Ethridge stated that
he did not think the police dog was “even out of the vehicle” when Officer Mann and Mr.
Frye spoke with the Defendant at the door.

       The trial court denied the Defendant’s motion to suppress and found that the
Defendant signed a community corrections agreement which stated that a case officer
“could come to his home, visit his home, and he would have to comply with any
instructions given by the officer with regards to that visit.” The court stated that the
Defendant was later transferred to probation, that he signed a probation agreement in
April 2014, and that the agreement specified that the Defendant was subject to searches
of his home at any time. The court credited the testimony of Mr. Frye and Detective
Ethridge and found that the Defendant gave consent to search, based upon both signed
agreements and the testimony presented at the hearing. The court also determined that

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reasonable suspicion supported the search, based on Detective Ethridge’s testimony that
Mr. Daniel claimed he had purchased cocaine from the Defendant.

       Following the denial of the motion to suppress, the Defendant pleaded guilty to
one count of unlawful possession of a firearm, misdemeanor possession of a Schedule II
drug, and misdemeanor possession of a Schedule IV drug. The Defendant reserved the
following certified question:

       Whether the trial court correctly ruled following a suppression hearing
       held on February 8, 2016 (1) that the defendant did voluntarily consent to
       a search of his residence on the morning of May 22, 2014, and (2) that,
       even without proper consent, there existed “reasonable suspicion”
       justifying a probation search of the defendant’s residence?

        Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can be
taken from a plea of guilty if the Defendant enters into a plea agreement and explicitly
reserves, with the consent of the State and the trial court, a certified question of law that
is dispositive of the case. See Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv); State v. Armstrong,
126 S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either
affirm the judgment or reverse and dismiss. An issue is never dispositive when we might
reverse and remand[.]” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).
Furthermore, the fact that the defendant, the State, and the trial judge have agreed the
issue is dispositive does not bind this court. State v. Preston, 759 S.W.2d 647, 651
(Tenn. 1988). “[T]he appellate courts must . . . determine if the record on appeal
demonstrates how that question is dispositive of the case . . . . If the appellate court does
not agree that the certified question is dispositive, appellate review should be denied.”
Id. (citing State v. Jennette, 706 S.W.2d 614, 615 (Tenn. 1986)); see State v. Dailey, 235
S.W.3d 131, 134-35 (Tenn. 2007). The certified question must also clearly identify “the
scope and limits of the legal issue reserved.” See Tenn. R. Crim. P. 37(b)(2)(A)(ii).

       The Defendant argues that any consent to the search was coerced because three
officers, a probation officer, and a police dog came to his home to conduct the search at
7:05 a.m., that the Defendant was told that it would be in his best interest to cooperate,
and that the officers did not request his consent. The Defendant also argues that the
police officers did not possess reasonable suspicion to conduct the warrantless search.
The State responds that the court properly denied the Defendant’s motion because the
Defendant gave consent to search the home. In the alternative, the State argues that
reasonable suspicion supported the search.

       A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions
about the “credibility of the witnesses, the weight and value of the evidence, and

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resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” Odom, 928 S.W.2d at 23. The prevailing party is entitled to the “strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). A trial court’s application of the law to its
factual findings is a question of law and is reviewed de novo on appeal. State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997). In reviewing a trial court’s ruling on a motion to
suppress, this court may consider the trial evidence as well as the evidence presented at
the suppression hearing. See State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998);
see also State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012).

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect individuals from unreasonable searches and seizures.
See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Warrantless seizures are “presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the . . . seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v.
Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

        One such exception to the warrant requirement exists for a search conducted
pursuant to valid consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
“The consent, to be valid, must be ‘unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion.’” State v. Ingram, 331 S.W.3d 746, 760 (Tenn.
2011) (quoting State v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007). In determining
whether consent was the result of coercion, this court may consider factors such as: (1)
time and place of the encounter, (2) whether the encounter was in a public or secluded
place, (3) the number of officers present, (4) the degree of hostility, (5) whether weapons
were displayed, (6) whether consent was requested, and (7) whether the consenter
initiated the contact with the police. See State v. Cox, 171 S.W.3d 174, 185 (Tenn. 2005).
“‘The question [of] whether a consent to a search was in fact voluntary or was the
product of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances.’” Id. at 184 (quoting Schneckloth, 412 U.S. at
227).

        At the motion to suppress hearing, Mr. Frye testified that he and Officer Mann
spoke with the Defendant at his front door and informed the Defendant that the officers
were there to conduct a search of the home. Mr. Frye stated that the Defendant allowed
the officers in the home to conduct the search. Upon further questioning by the trial
court, Officer Frye said that the Defendant consented to the search. Mr. Frye said that he
stayed outside with the Defendant and the Defendant’s girlfriend while the search
occurred. Detective Ethridge testified that the search began at about 7:05 a.m. and
concluded at 10:45 a.m. and that the Defendant did not withdraw his consent.

                                             -6-
        Detective Ethridge testified that only one police car was parked in the Defendant’s
driveway and that the police dog was in the car while Officer Mann and Mr. Frye spoke
with the Defendant. Mr. Frye testified that when the officers approached the Defendant’s
home, none of the officers had “weapons drawn” and that the blue lights were not
activated on their police cars. The trial court credited the testimony of Mr. Frye and
Detective Ethridge. We conclude that the evidence does not preponderate against the
trial court’s determination that the Defendant consented to the search. The court did not
err by denying the Defendant’s motion to suppress, and the Defendant is not entitled to
relief on this basis.

        Our conclusion that the search was constitutional based on the Defendant’s
consent is dispositive of this appeal. Because of the possibility of further review as to
the consensual search, however, we will address the second part of the Defendant’s
certified question: whether the search was supported by reasonable suspicion. See, e.g.,
Jacobs v. State, 450 S.W.2d 581 (Tenn. 1970) (mem.) (stating that the intermediate court
erred by pretermitting its consideration of remaining issues after concluding that error
existed as to one issue); State v. Pendergrass, 13 S.W.3d 389, 395 (Tenn. Crim. App.
1999) (concluding that, despite insufficiency of the evidence to support the Defendant’s
convictions, an intermediate court must, nevertheless, address the merits of the remaining
issues).

       Despite the constitutional protection from unreasonable searches, “inherent in the
very nature of probation is that probationers do not enjoy the absolute liberty to which
every citizen is entitled.” State v. Knight, 534 U.S. 112, 119 (2001) (internal quotation
marks and citation omitted). A trial court, therefore, is permitted to “impose reasonable
conditions [of probation] that deprive the offender of some freedoms enjoyed by law-
abiding citizens.” Id. A defendant released on probation has a diminished protection
from warrantless searches. Id. at 121. A search of a probationer’s home “requires no
more than reasonable suspicion . . . [to] the degree . . . [that] there is a sufficiently high
probability that criminal conduct is occurring to make the intrusion on the individual’s
privacy interest reasonable.” Id.; see United States v. Cortez, 449 U.S. 411, 418 (1981).
Therefore, “[w]hen an officer has reasonable suspicion that a probationer subject to a
search condition is engaged in criminal activity, there is enough likelihood that criminal
conduct is occurring that an intrusion on the probationer’s significantly diminished
privacy interests is reasonable” within the meaning of the Fourth Amendment. Knight,
534 U.S. at 121; see State v. Willie Clark Bennett, No. E2010-00859-CCA-R3-CD, 2011
WL 1045646 (Tenn. Crim. App. Mar. 22, 2011); see State of Tennessee v. Angela Carrie
Payton Hamm and David Lee Hamm, W2016-01282-SC-R11-CD, 2017 WL 3447914
(Tenn. Crim. App. Jan. 4, 2017), perm. app. granted (Tenn. Aug. 13, 2018).

       The trial court determined that reasonable suspicion supported the warrantless
search based on Mr. Daniel’s claiming he purchased cocaine from the Defendant.
Detective Ethridge testified that Mr. Daniel claimed he purchased cocaine from the

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Defendant days after officers searched Mr. Daniel’s home and found four ounces of
cocaine. Detective Ethridge stated that Mr. Daniel agreed to serve as a confidential
informant, that Mr. Daniel did not make any controlled purchases from the Defendant,
and that the police did not attempt to record telephone conversations between Mr. Daniel
and the Defendant. Detective Ethridge said that a GPS tracking device was placed on
Mr. Daniel’s car before the search of Mr. Daniel’s home and that records from the GPS
tracking device did not reflect Mr. Daniel’s traveling to the Defendant’s home. Detective
Ethridge stated that a surveillance camera was placed outside the Defendant’s home and
that the surveillance did not corroborate Mr. Daniel’s claim that the Defendant sold
cocaine from his home. The evidence does not corroborate Mr. Daniel’s claim that the
Defendant sold cocaine from his home. We conclude that at the time of the search, the
officers did not have a reasonable suspicion to believe the Defendant was engaged in
criminal activity.

       The evidence preponderates against the trial court’s determination that reasonable
suspicion supported the search of the Defendant’s home. However, because we conclude
that the Defendant gave valid consent to the search, the court properly denied the
Defendant’s motion to suppress. In consideration of the foregoing and the record as a
whole, we affirm the judgment of the trial court.


                                         ____________________________________
                                         ROBERT H. MONTGOMERY, JR., JUDGE




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