         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 10, 2007

       STATE OF TENNESSEE v. CHARLES THOMAS LARD, II and
                  DOREEN REBECA GATES LARD

                        Appeal from the Circuit Court for Tipton County
                           No. 5224    Joseph H. Walker III, Judge



                   No. W2006-01941-CCA-R3-CD - Filed December 5, 2007


The Appellants, Charles Thomas Lard, II, and Doreen Rebeca Gates Lard, each pled guilty in the
Tipton County Circuit Court to possession of one-half ounce or more of marijuana with intent to
deliver and to the manufacture of one-half ounce or more of marijuana, both Class E felonies.
Pursuant to a plea agreement, the Lards reserved the following certified question for consideration
by this court on appeal: whether the trial court erred in denying their respective motions to suppress
evidence and statements obtained by the police after a search of their home, based upon its finding
that the Lards knowingly and voluntarily consented to the search. After thorough consideration of
the arguments of the parties and the record on appeal, we affirm.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and NORMA
MCGEE OGLE, JJ., joined.

J. Barney Witherington IV, Covington, Tennessee, for the Appellant, Charles Thomas Lard, II.
Frank Deslauriers, Covington, Tennessee, for the Appellant, Doreen Rebeca Gates Lard.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Mike Dunavant, District Attorney General; and Walt Freeland, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

        In September of 2005, the Tipton County Sheriff’s Department received a telephone call from
Department of Children’s Services (“DCS”) worker Edna Kalmon. Kalmon informed Deputy
Delashmit and Deputy Mike Rose, with the Narcotics Division, that she had received a referral as
to possible child abuse at the home of the Appellants. Specifically, the referral alleged that the child
of the Appellants’ daughter, Christine Gates,1 had suffered a broken leg. During the course of the
telephone conversation, the officers advised Kalmon that the Appellants’ home had been under
surveillance regarding possible drug use. Kalmon informed the officers of her intent to visit the
home and investigate, and she asked that an officer accompany her on the visit.

        At approximately 3:30 p.m. on September 20, 2005, Kalmon and Rose arrived at the
Appellants’ home and knocked on the door. Christine Gates opened the door, and Rose immediately
noticed the odor of burnt marijuana. Gates invited them into the house, and Kalmon informed her
of the purpose of the visit. Rose asked Gates, “Is there marijuana in this house? I can smell it.”
Gates said, “Yes, sir,” and, further, that she had “just smoked a joint about [thirty] minutes ago.”
Rose indicated that he needed to take a look around and asked Gates if she would sign a consent to
search form, to which Gates responded, “Yes, sir, but I can’t give you consent to my house. This
is my parents’ house. I can give you [consent] where I live. I live upstairs in my room.” At 3:40
p.m., Gates signed a consent form allowing the officers to search the “[l]iving [a]rea [u]pstairs . . .
to include all containers and [l]ocked [b]oxes.” During this interaction, another sheriff’s deputy,
Sergeant Dan Jones, arrived at the scene. The officers proceeded upstairs, and Gates directed them
to a closet area containing two or three jars of a green leafy substance that Gates identified to the
officers as marijuana. Gates informed the officers that her parents had given her the marijuana. At
some point shortly thereafter, Gates’s mother, the Appellant Doreen Lard, was contacted by
telephone. During this call, she told Rose to “[g]o ahead and search” the rest of the house, but Rose
informed her that he would wait until she arrived home from work in Memphis.

       Approximately an hour later, the Appellants arrived at the home together. Rose immediately
approached them and stated that drugs had been found upstairs. Rose informed them that the officers
required consent to search the rest of the house. The Appellants each signed a consent form
permitting the officers to search the house, purportedly “[t]o include all outbuildings, vehicles, and
locked containers.” At the suppression hearing, Rose testified as follows regarding the officers’
discoveries throughout the course of the search:

        Q.      What were [the Appellants] doing while you searched the house?
        A.      They were very cooperative. They went with me and showed me everything
                that they had in the house.
        Q.      Now, when you say “everything,” can you describe what you found in the
                house?
        A.      I think there was [sic] approximately fifteen fruit jars that were sealed that
                they said they had grown marijuana for their personal use. And as a matter
                of fact, they showed me all of the guns, the shotgun, everything.
        Q.      Where were these fruit jars?
        A.      In their bedroom, underneath the bed were some of them. There were some
                bags, loose bags with marijuana, scattered different places in the bedroom.


        1
        Gates is the daughter of Appellant Doreen Rebeca Gates Lard and the stepdaughter of Appellant Charles
Thomas Lard, II.

                                                    -2-
               The shotgun was in the closet. There was a pistol laying on the dresser, like.
               There was [sic] three or four guns in the house. Then they – after we got
               through there, they took me to another room where they had some lights and
               some lines hanging with plants drying. Then they took me outside where
               some plants were still standing.

The officers advised the Appellants of their rights against self-incrimination, which the Appellants
then each waived via written waiver. Both of the Appellants then provided a written statement to
the officers.

        On November 7, 2005, a Tipton County grand jury indicted the Appellants for possession
with intent to deliver one-half ounce or more of marijuana and for the manufacture of more than one-
half ounce of marijuana. The Appellants each filed a motion to suppress the evidence seized and
statements given to the police. After the trial court held a hearing on August 9, 2006, it denied the
motions. On August 10, 2006, the Appellants entered a conditional guilty plea to the indicted
offenses, reserving a certified question for appeal. The trial court entered judgments of conviction
on August 29, 2006, sentencing the Appellants, as multiple offenders, to three years of supervised
probation, with a $2000 fine and service of sixty days in jail. The Appellants timely filed a notice
of appeal.

                                              Analysis

         Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure allows an appeal from a guilty
plea in certain cases under very narrow circumstances. An appeal lies from a guilty plea, pursuant
to Rule 37(b)(2)(i), if the final order of judgment contains a statement of the dispositive certified
question of law reserved by an Appellant, wherein the question is so clearly stated as to identify the
scope and the limit of the legal issues reserved. State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988).
The order must also state that the certified question was expressly reserved as part of the plea
agreement, that the State and the trial judge consented to the reservation, and that the State and the
trial judge are of the opinion that the question is dispositive of the case. Id.

        The certified issue reserved for this court on appeal was articulated by the trial court in its
final order as follows:

       whether or not the trial court erred by finding that the evidence seized by law
       enforcement in this case and the statement given by defendant[s] were properly not
       suppressed and that said evidence and statement[s] were not obtained as a result of
       any coercion on the part of law enforcement and the consent to search and statements
       were voluntarily given by [the Appellants].

       On appeal, the Appellants contend that the record in this case indicates a “highly coercive
atmosphere at the time of the alleged consent to search” and that their consent was not given
voluntarily and intelligently. The Appellants cite Vaughn v. State, 477 S.W.2d 260 (Tenn. Crim.


                                                 -3-
App. 1971), for their argument that “[t]he fact that a defendant consents to a search knowing that
contraband lies in the area that will be searched ‘militates heavily against his validly consenting.’”2
The Appellants further assert that coercion is shown by the fact that Rose told them, prior to
obtaining consent, that he had already found marijuana in the home, thereby convincing them that
their consent was not of their own volition.

        “The Fourth Amendment to the Constitution protects ‘the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Wilson v.
Arkansas, 514 U.S. 927, 931, 115 S. Ct. 1914, 1916 (1995). “It is axiomatic that the ‘physical entry
of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ . . .
And a principal protection against unnecessary intrusions into private dwellings is the warrant
requirement imposed by the Fourth Amendment on agents of the government who seek to enter the
home for purposes of search or arrest.” Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S. Ct. 2091,
2097 (1984). Article I, section 7 of the Tennessee Constitution provides:

         [t]hat the people shall be secure in their persons, houses, papers and possessions,
         from unreasonable searches and seizures; and that general warrants, whereby an
         officer may be commanded to search suspected places, without evidence of the fact
         committed, or to seize any person or persons not named, whose offences are not
         particularly described and supported by evidence, are dangerous to liberty and ought
         not to be granted.

State v. Stephenson, 195 S.W.3d 574, 592 n.13 (Tenn. 2006). This constitutional provision is
identical in intent and purpose with the Fourth Amendment. Id. (citing State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997)).

       A search or seizure conducted without a warrant is presumed unreasonable, and any evidence
discovered as a result of such a search is subject to suppression. Coolidge v. New Hampshire, 403
U.S. 443, 454-55, 91 S. Ct. 2022, 2031 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).
However, the evidence will not be suppressed if the State proves that the warrantless search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (quoting Yeargan, 958 S.W.2d at
629). A consent to search is an exception to the normal requirement of a search warrant. State v.


         2
            W e acknowledge the language of Vaughn, which observed that “the fact that a defendant consents to a search
knowing that contraband lies in the area that will be searched ‘militates heavily against his validly consenting.’” 477
S.W .2d at 263 (citing Higgins v. United States, 209 F.2d 819, 820 (D.C. Cir. 1954)). W e would also note that the United
States Court of Appeals, Sixth Circuit, in United States v. Edward Kelly, 913 F.2d 261, 267 n.3 (6 th Cir. 1990), rejected
the holding of Higgins and observed that “this rule has been overwhelmingly rejected by other courts.” See, e.g., United
States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 1879 (1980); United States v. Williams, 754 F.2d 672, 675-76
(6 th Cir. 1985); United States v. Manchester, 711 F.2d 458, 462 (1 st Cir. 1983); United States v. Robinson, 625 F.2d
1211, 1218-19 n. 12 (5 th Cir. 1980); United States v. Ciovacco, 518 F.2d 29, 29-31 (1 st Cir. 1975); United States v. Piet,
498 F.2d 178, 182 (7 th Cir.), cert. denied, 419 U.S. 1069, 95 S. Ct. 655 (1974); Leavitt v. Howard, 462 F.2d 992, 997
(1 st Cir. 1972).

                                                            -4-
Watson, 227 S.W.3d 622, 644 (Tenn. Crim. App. 2006) (citing Schneckloth v. Bustamonte, 412 U.S.
218, 248, 93 S. Ct. 2041, 2059 (1973)). To pass constitutional muster, consent to search must be
unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Brown,
836 S.W.2d 530, 547 (Tenn. 1992).

        The sufficiency of consent depends largely upon the facts and circumstances in a particular
case. State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993). The determination of
whether consent to search was voluntary can only be made by examining the totality of the
circumstances surrounding the giving of consent. State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim.
App. 1999). The burden is on the prosecution to prove that consent was freely and voluntarily given.
 State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983). When a decision on a motion
to suppress is challenged, the trial court’s findings of fact are presumed correct unless the evidence
contained in the record preponderates against them. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.
2000). Without such a showing, we must affirm the trial court’s decision.

      The trial court announced its ruling at the conclusion of the hearing on the Appellants’
motions to suppress:

               The Court finds that with regard to the issues raised by [the Appellants] in
       their motion[s], that the officer was accompanying the children’s services about a
       complaint that they had received, that they were invited into the premises, could
       smell the odor of an illegal narcotic, which gave them reasonable basis. They were
       lawfully there, first of all. Secondly, gave them a reasonable basis to investigate
       further; that Ms. Gates gave a [c]onsent to [s]earch freely; and then [the Appellants]
       were notified, or a[n Appellant] was notified, and then later [the Appellants]
       appeared.

               The Court finds that there’s been no coercion or coercive behavior against
       [the Appellants] shown in the proof today to require suppression of the [c]onsent to
       [s]earch.

       ....

                In this particular case they certainly had probable cause to secure a warrant
       if they had wanted to go get a warrant in the meantime. The officers chose to wait
       to see if the [Appellants] would consent to search. All the proof I’ve heard was that
       [the Appellants] arrived, were cooperative, showed the officers, and maintained that
       the substances were for their personal use.

Finding no reason to suppress the evidence or statements resulting from the search, the trial court
denied the Appellants’ motions.




                                                 -5-
         In support of their argument that their consent to search the house was invalid, the Appellants
rely on Vaughn, a case which involved a warrantless police search of the trunk of the defendants’
vehicle during a traffic stop. 477 S.W.2d at 262. In that case, one of the defendants, who was
driving the car, was placed under arrest after the police officer discovered that he had no driver’s
license, and the other defendant was arrested after admitting ownership of a pistol found in the car.
Id. The police officer subsequently asked for consent to search the trunk of the vehicle, where he
discovered a quantity of narcotics. Id. On appeal, the defendants argued that the evidence from the
trunk should have been suppressed, because it was obtained as a result of an unconstitutional search.
Id. In reversing the convictions for possession of narcotics, this court discussed the controlling facts
and principles as follows:

                The pivotal question, as we view this record, is whether the search as
       conducted was legal. We are satisfied that the search of the trunk and the discovery
       of the fourteen cases of Robitussin was not connected in any manner with the offense
       which brought about the initial arrest. In fact, the only basis the officer had for
       making the search was his suspicion that was aroused by the mannerisms of
       [defendant] Vaughn. This is not sufficient. . . .

               The trooper had no prior knowledge of any other offense having been
       committed by the defendants, because, as he related, he was looking for anything he
       could find. In short, he was conducting a condemned exploratory search.

               The trial court found that the search was a consent search in permitting the
       evidence (Robitussin) to go to the jury and in overruling the motion to suppress. We
       are satisfied that a defendant may waive his rights relative to searches and seizures.
       . . . We disagree with the trial court’s findings from our review of the record. We
       note that the trooper took the keys from the ignition and unlocked the glove
       compartment. His suspicions being aroused, he then inquired about looking into the
       trunk. This permission was denied by Vaughn. The trooper then related that he had
       to look in the car, that he could get a warrant. The defendant Vaughn then related he
       would let him look but he did not have the key, that [defendant] Barnes had it. They
       then proceeded to Barnes when Vaughn then stated he would let him look and stated
       that he (the trooper) looked like a level-headed person he could do business with.

               Under the totality of the circumstances we do not believe the State has met
       its heavy burden and shown that the defendant Vaughn intelligently consented to this
       search. The fact that the contraband was known by Vaughn to be in the trunk
       militates heavily against his validly consenting. . . . The very fact that Vaughn
       refused the trooper’s request to search in the first instance is incongruous with validly
       consenting to the search. His hedging and delaying in producing the key conveys to
       us acquiescing to authority rather than clear positive words and actions denoting a
       valid consent. . . .



                                                  -6-
              Under these circumstances, we are satisfied that Vaughn’s act of consenting
       was of necessity and not of his volition.

Id. at 262-63 (citations omitted).

        The Appellant’s reliance on Vaughn is misplaced. The holding of that case turned on this
court’s analysis of the totality of circumstances, which indicated that the search of the defendant’s
vehicle was unrelated to the offense for which arrest was made and that the defendant had initially
refused to consent to a search of the vehicle before eventually conceding to the officer’s requests.
See id. The present case is distinguishable in numerous respects. Here, DCS worker Kalmon
requested that police officers accompany her to the Appellants’ residence after she received a referral
alleging child abuse at the address. Once they arrived at the home, Gates invited them inside, and
Officer Rose immediately noticed the smell of marijuana. After obtaining Gates’ consent to search
her room, the validity of which is not at issue, the law enforcement officers discovered contraband,
which Gates stated had been given to her by the Appellants. At the suppression hearing, the
Appellants failed to establish any basis for concluding that their consent to search the house was a
result of their “acquiescing to authority rather than clear positive words and actions denoting a valid
consent[,]” as was held to be the situation in Vaughn. The proof does not preponderate against the
trial court’s finding that Rose waited for the Appellants to return home and asked them for consent
to search the rest of the house, which we conclude that they provided, without reluctance, in written
form, voluntarily and without coercion. We hold that in this case the State carried its burden of
establishing that the Appellants’ consent to search their home was freely and voluntarily given.
Accordingly, the Appellants’ assignments of error to the trial court’s denial of the motions to
suppress are without merit, and the judgments are affirmed.

                                          CONCLUSION

       Based upon the foregoing, the judgments of the Tipton County Circuit Court are affirmed.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -7-
