              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            July 22, 2014 Session

                STATE OF TENNESSEE v. STEVEN GREGG BARKER

                  Appeal from the Criminal Court for Bradley County
                      No. 13-CR-258      Amy F. Reedy, Judge
                          _____________________________

              No. E2013-02721-CCA-R3-CD-FILED-SEPTEMBER 2, 2014
                         _____________________________

Appellant, Steven Gregg Barker, pleaded guilty to 23 counts of the initiation of the
process to manufacture methamphetamine and received an eight year sentence,
suspended to supervised probation. As a condition of the plea agreement, appellant
reserved the right to certify three questions of law challenging the trial court's denial of a
motion to suppress. Upon our review of the record and applicable law, we hold that the
Defendant is not entitled to relief. Accordingly, we affirm the judgment of the trial court.

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

TIMOTHY L. EASTER , SP.J., delivered the opinion of the Court, in which JAMES CURW OOD
W ITT , JR ., and ROBERT W. W EDEMEYER , J.J., joined.

Larry Wright, Assistant Public Defender, Cleveland, Tennessee, for the Appellant,
Steven Gregg Barker.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General Counsel; Stephen Crump, District Attorney General; and Monte Hatchett,
Assistant District Attorney General for the Appellee, State of Tennessee.



                                         OPINION

                                           Facts

       Appellant was indicted by a Bradley County grand jury on July 17, 2013, on 23
counts of the initiation of the process to manufacture methamphetamine, one count of
possession of less than .5 grams of methamphetamine with the intent to resell, and one
count of tampering with evidence. Prior to trial, Appellant filed a motion to suppress all
evidence discovered as a result of an illegal search and seizure of the Appellant’s
residence that the state sought to introduce at trial.
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         Subsequently, the trial court held a hearing on the motion to suppress, at which
the following evidence was presented:
        Detective Robby Hair of the Bradley County Sheriff’s Department testified that on
May 15, 2013, he went to the Appellant’s residence after being contacted by the
Department of Children Services (DCS) regarding a drug-exposed child complaint. His
presence was needed as a safety precaution for the DCS worker.
        Upon arrival, Detective Hair and the DCS worker were met by a child who was
“unclear” as to whether his parents were at home. Detective Hair testified that he felt
that someone was inside based upon “the way the child was acting.”
        During the suppression hearing, Detective Hair identified photographs of the
residence’s driveway and garage doors as well as other areas around the exterior of the
Appellant’s residence. The photographs depict that the Appellant’s garage is located
underneath the residence with its doors facing the driveway. The sidewalk to the front
door is parallel to the front side of the Appellant’s residence passing directly beside the
garage doors, which are located on the east side of the residence. Sitting directly
outside the garage door, Detective Hair observed clear tubing, a Mason jar and a white
paper bag.1 Detective Hair testified that in his training and experience such items are
indicative of the manufacturing of methamphetamine. He testified that Mason jars are
commonly used to mix Coleman fuel with ammonia nitrates and pseudoephedrine.
Additionally, clear tubing is used to “gas off” the product after certain stages.
        Just around the rear corner of the house by the driveway, Detective Hair
observed a few milk crates containing Coleman fuel and cold packs, among other
things. Detective Hair testified that these items are also used in the manufacture of
methamphetamine. All of these items to the rear of the house could be seen standing in
the Appellant’s driveway, according to Detective Hair.



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On cross-exam ination, the Detective testified that the bag was plastic, which is m ore consistent with the bag
depicted in the photograph exhibits. The search warrant, which was not m ade an exhibit at the hearing, but
was included in the technical record, states that the sm all bag next to the Mason jar and tubing contained the
insides of a lithium battery. There was no testim ony at the suppression hearing regarding the contents of the
bag.
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      After viewing these items outside of the Appellant’s residence, Detective Hair
“secured the house pending a search warrant and also for safety.” Upon entering the
house, Detective Hair found the Appellant and a female in a back bathroom after
knocking and announcing his presence.
      On cross-examination, Detective Hair testified that upon arriving at the
Appellant’s residence, he parked in the driveway beside the sidewalk that goes in front
of the house. He testified that the purpose for his being on the property was to make
sure the DCS worker was not harmed. After the child said that he did not think his
parents were at home, Detective Hair went to check if he could see a parked vehicle in
the garage.     It was at that time the detective saw what he believed to be
methamphetamine manufacturing components just outside the garage door.
      Detective Hair testified that he walked about seven more feet to where he could
observe the back of the house. He could not go further because of a dog that was
located in the Appellant’s backyard.
      Detective Hair testified that he secured the house because he felt that someone
was inside and he did not want evidence to be destroyed while he obtained a search
warrant.
      Based upon the items that Detective Hair observed outside the residence, he
obtained a search warrant.
      In its ruling denying the motion to suppress, the trial court stated that Detective
Hair was a credible witness who was able to see the tubing and jar from the position
where he was have parked. The trial court stated “these items were right outside where
someone would drive up and park a vehicle in order to access the front of the house.
And the other crate with all sorts of items in it, consistent with the manufacture of
methamphetamine, is not anywhere you would have to peer to see either.” In its written
order denying the Appellant’s motion to suppress, the trial court determined that the
photographs depicted the location of the various items giving rise to the issuance of the
search warrant as being in plain view.

      On November 23, 2013, the Appellant pleaded guilty to all 23 counts of initiating
the process to manufacture methamphetamine and was sentenced to eight years for

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each count, to run concurrently, suspended to supervised probation, and all remaining
counts were dismissed.

          The Appellant’s plea was conditioned upon the reservation of three certified
questions of law which were set out in a separate order and incorporated by reference
in the judgments. The Order for Tennessee Rules of Criminal Procedure 37 Appeal of
Certified Question reflects the following statements of the proposed certified questions
of law:


          1. Whether Detective Hair while conducting a “safety visit” with a Department of
             Children’s Services investigator left an area where the public is impliedly
             invited and illegally exceeded the scope of the implied consent by walking
             from the front door of the house to the garage doors on the side of the house
             and then walking to the back edge of house and looking around the edge of
             house into backyard and allegedly seeing evidence of methamphetamine
             manufacturing?

          2. Whether exigent circumstances of destruction of evidence justified law
             enforcement entering defendant’s home without a warrant?


          3. Whether the subsequent obtaining of a search warrant using the evidence
             observed by law enforcement during the search of the side of the home at the
             garage doors and looking behind the house resulted in a tainted and illegal
             search warrant rendering any evidence obtained pursuant to said search
             warrant inadmissible?

          Appellant now appeals his convictions based upon these certified questions.

                                          Analysis

          On appeal, the losing party bears the burden of demonstrating that a trial court's
decision concerning a motion to suppress was erroneous. State v. Harts, 7 S.W.3d 78,
84 (Tenn. Crim. App. 1999). We review a trial court's decision concerning a motion to
suppress under the standard established in State v. Odom, 928 S.W.2d 18 (Tenn.
1996); see R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008). As our Supreme Court
explained in Odom, with respect to a trial court's factual findings:



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      Questions of credibility of the witnesses, the weight and value of the evidence,
      and resolution of conflicts in the evidence are matters entrusted to the trial judge
      as the trier of fact. The party prevailing in the trial court is entitled to the strongest
      legitimate view of the evidence adduced at the suppression hearing as well as all
      reasonable and legitimate inferences that may be drawn from that evidence. So
      long as the greater weight of the evidence supports the trial court's findings,
      those findings shall be upheld. In other words, a trial court's findings of fact in a
      suppression hearing will be upheld unless the evidence preponderates otherwise.

Odom, 928 S.W.2d at 23.

      “[I]n 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). “[O]ur review of a trial court's application of law to the facts is conducted
      under a de novo standard of review.”

R.D.S., 245 S.W.3d at 362.

      Both the federal and state constitutions contain provisions protecting individuals
from unreasonable searches and seizures. 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. 1, Sec. 7 (“[T]he
people shall be secure in their persons, houses, papers and possessions, from
unreasonable searches and seizures.”). A warrantless search or seizure is presumed to
be unreasonable—and any resulting evidence may be subject to suppression under the
well-known exclusionary rule—unless the State demonstrates that the search or seizure
at issue 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). Even evidence
that has been discovered and seized by police pursuant to a lawfully-issued warrant
may be subject to exclusion if the defendant can establish that this evidence was “the
fruit of the poisonous tree”—meaning the direct result of a prior illegal act by police.
See, e.g., Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L.Ed.2d 441
(1963); State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992) (“The exclusionary rule may
operate to bar the admissibility of evidence directly or derivatively obtained from an
unconstitutional search or seizure.”); State v. Carrie Lynn Ronewicz, W2011-01332-
CCA-R3CD, 2012 WL 6719646 at 16 (Tenn. Crim. App. Dec. 26, 2012).

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                                    Certified Questions

       Rule 3(b)(2) of the Tennessee Rules of Appellate Procedure permits a defendant
to plead guilty while reserving the right to appeal a certified question of law that is
dispositive of the case. In doing so, a defendant must also comply with the requirements
of Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. Rule 37 outlines the
following requirements:
       (i) the judgment of conviction or order reserving the certified question that
       is filed before the notice of appeal is filed contains a statement of the
       certified question of law that the defendant reserved for appellate review;

       (ii) the question of law as stated in the judgment or order reserving the
       certified question identifies clearly the scope and limits of the legal issue
       reserved;

       (iii) the judgment or order reserving the certified question reflects that the
       certified question was expressly reserved with the consent of the state and
       the trial court; and

       (iv) the judgment or order reserving the certified question reflects that the
       defendant, the state, and the trial court are of the opinion that the certified
       question is dispositive of the case.

Tenn. R. Crim. App. 37(b)(2)(A)(i)-(iv).

       Our courts have explicitly defined the prerequisites to an appellate court's
consideration of the merits of a question of law certified pursuant to Rule 37(b)(2):

       Regardless of what has appeared in prior petitions, orders, colloquy in
       open court or otherwise, the final order or judgment from which the time
       begins to run to pursue a [Tennessee Rule of Appellate Procedure] 3
       appeal must contain a statement of the dispositive certified question of law
       reserved by defendant for appellate review and the question of law must
       be stated so as to clearly identify the scope and the limits of the legal
       issue reserved. For example, where questions of law involve the validity of
       searches and the admissibility of statements and confessions, etc., the
       reasons relied upon by defendant in the trial court at the suppression
       hearing must be identified in the statement of the certified question of law
       and review by the appellate courts will be limited to those passed upon by
       the trial judge and stated in the certified question, absent a constitutional
       requirement otherwise. Without an explicit statement of the certified
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       question, neither the defendant, the State nor the trial judge can make a
       meaningful determination of whether the issue sought to be reviewed is
       dispositive of the case. Most of the reported and unreported cases
       seeking the limited appellate review pursuant to [Tennessee Rule of
       Criminal Procedure] 37 have been dismissed because the certified
       question was not dispositive. Also, the order must state that the certified
       question was expressly reserved as part of a 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. Of course, the burden is on defendant to see that these
       prerequisites are in the final order and that the record brought to the
       appellate courts contains all of the proceedings below that bear upon
       whether the certified question of law is dispositive and the merits of the
       question certified. No issue beyond the scope of the certified question will
       be considered.

State v. Bowery, 189 S.W.3d 240, 245 (Tenn. Crim. App. 2004) (quoting State v.

Preston, 759 S.W.2d 647, 650 (Tenn.1988)). The Preston requirements are mandatory.

Bowery, 189 S.W.3d at 245–46 (citing State v. Pendergrass, 937 S.W.2d 834, 837

(Tenn.1996)). Failure to comply with the requirements results in dismissal of the appeal.

Id. (citing Pendergrass, 937 S.W.2d at 837). State v. Curtis W. Hammock, M2013-

01382-CCA-R3CD, 2014 WL 3510721 at *5-6 (Tenn. Crim. App. July 15, 2014).



                                 Questions One and Three

       Questions one and three meet the requirements of Preston, and thus require this
court’s consideration.
       Questions one and three raise issues that are similar and can be addressed
congruently. The answers to both questions are found by reviewing the photograph
exhibits of the residence’s exterior, the testimony of Detective Hair, and the findings of
the trial court.
       One important exception to the warrant requirement is the “plain view” doctrine.
As the Tennessee Supreme Court has explained, under the auspices of this doctrine,
“[i]t has long been settled that objects which fall in the ‘plain view’ of an officer, who has
the right to be in that position, are subject to seizure.” Armour v. Totty, 486 S.W.2d 537,
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538 (Tenn. 1972). Stated another way, it is “the many times recognized rule that
constitutional rights are not violated when a law officer, without any trespass against the
defendant, and while he is at a place he has a right to be, looks and sees evidence
against a defendant which is plainly visible.” Sneed v. State, 221 Tenn. 6, 423 S.W.2d
857, 860 (Tenn. 1968). “[T]he plain view doctrine applies when (1) the items seized
were in plain view; (2) the viewer had the right to be in the position to view the items; (3)
the items seized were inadvertently discovered; and (4) the incriminating nature of the
items was immediately apparent.” State v. Cothran, 115 S.W.3d 513, 524–525 (Tenn.
Crim. App. 2003); see also Totty, 486 S.W.2d at 537; State v. Carrie Lynn Ronewicz,
W2011-01332-CCA-R3CD, 2012 WL 6719646 (Tenn. Crim. App. Dec. 26, 2012)

       Detective Hair was on the Appellant’s property for the lawful purpose of assisting
a DCS worker. The pathway used by the Detective and the DCS worker to approach the
Appellant’s front door was a pathway from the driveway to the front door, offering an
implied invitation to the general public to use for the purpose of pursuing legitimate
social or business interest with those who reside within the residence. State v. Harris,
919 S.W.2d. 619 (1995).

       The photographs entered at the suppression hearing clearly show the layout of
the front side of the Appellant’s exterior residence. The sidewalk used by the detective
and the DSC worker passed directly by the driveway pad area outside the garage
doors. A mere inadvertent glance to one’s left would allow a person to see the items.
Once on the driveway pad outside the garage doors, the detective could also easily
view the items just around the corner to the rear of the Appellant’s residence. The
incriminating nature of all the items was immediately apparently to the detective.
       We agree with the findings of the trial court that the items observed by Detective
Hair were all in plain view and not subject to being suppressed. Additionally, the
reference to these viewed items was sufficient basis for probable cause to obtain the
search warrant. The resulting search warrant was not tainted or illegal.




                                       Question Two
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       Initially, the State argues that certified question two is not dispositive. We agree.
Detective Hair’s affidavit in support of the search warrant does not reference anything
the officers found in the house when they entered for “exigent circumstances” to secure
the house and prevent the destruction of evidence.
       The affidavit in support of the search warrant does not include any item found in
the Appellant’s residence. In fact, other than finding the appellant, a female and the
child inside the residence prior to seeking the search warrant, there was no testimony
about any items found inside the residence at the suppression hearing. No items found
in the home were a basis for the detective’s probable cause in seeking the search
warrant.
       Additionally, the question does not identify what specific evidence found inside
the residence the appellant seeks to have suppressed. The information provided in the
affidavit supported probable cause for the search warrant to issue regardless of the
detective’s reasoned basis to secure the residence while seeking the search warrant.
This Court is without jurisdiction to consider certified question two because the
Appellant has not property reserved a certified question of law that is dispositive under
Rule 37.




                                        Conclusion
       For the foregoing reasons, we have answered the Appellant's certified questions
in a manner which entitles him to no relief. Accordingly, we affirm the judgment of the
trial court and the Appellant's convictions.




                                                   ________________________________
                                                   TIMOTHY L. EASTER, Special Judge

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