        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 23, 2012 Session

            STATE OF TENNESSEE v. CHRISTOPHER BURRESS

                Appeal from the Criminal Court for Hamilton County
                         No. 278822 Don W. Poole, Judge




               No. E2012-00861-CCA-R3-CD-FILED-MARCH 18, 2013


The Defendant, Christopher Burress, appeals the Hamilton County Criminal Court’s order
revoking his probation for his two convictions for facilitation of aggravated robbery and
ordering him to serve his effective six-year sentence. On appeal, he contends that the trial
court erred in (1) denying his motion to suppress evidence obtained as a result of a search of
his person, (2) finding that he violated his probation by resisting arrest, (3) revoking his
probation, and (4) ordering him to serve the sentence. We affirm the judgment of the trial
court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and D. K ELLY T HOMAS, J R., JJ., joined.

Joseph Bartlett Underwood, Jr., Chattanooga, Tennessee, for the Defendant, Christopher
Burress.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Cameron Williams, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Defendant pleaded guilty on July 27, 2011, and pursuant to his plea agreement,
he was sentenced to six years’ intensive probation. In December 2011, a revocation warrant
was filed, which alleged that he violated the terms of his probation by failing to provide
proof of employment, failing to report as required, testing positive for marijuana, failing to
pay fines, court costs and fees, failing to provide a DNA sample, and being a member of a
criminal street gang. An addendum to the revocation warrant was filed in March 2012,
which alleged that the Defendant violated the law and failed to report his arrest.

       At the revocation hearing, Probation Officer Terry Steele testified that he was
assigned in October 2011 to supervise the Defendant’s intensive probation. He said that he
went to the Defendant’s home twice after he was assigned to the Defendant’s case but that
the Defendant was not home. He said that on the first visit, he gave his business card to one
of the Defendant’s friends and asked that the friend tell the Defendant to call him. He said
that on the second visit, he told the Defendant’s mother that he needed to make contact with
the Defendant. He said that the Defendant’s mother told him the Defendant would be in Mr.
Steele’s office the next day but that the Defendant did not appear.

        Mr. Steele testified that the Defendant’s previous probation officer gave the
Defendant a drug test that was positive for marijuana. The Defendant signed a form
admitting that he had smoked marijuana recently or that the test results were accurate. He
said the Defendant would have been advised at his intake interview of the requirement to
give a DNA specimen, that the Defendant initialed the rule requiring the DNA specimen, and
that the Defendant did not provide a specimen. He said the Chattanooga Police Department’s
security threat group list contained the Defendant’s name. He did not know how the police
department obtained its information. He said the Defendant pleaded guilty to criminal
trespass on October 4, 2011, and to failure to appear on December 19, 2011. He said the
Defendant had two pending charges for possession of a controlled substance and evading
arrest.

       On cross-examination, Mr. Steele testified that the Defendant reported to the previous
probation officer and that the Defendant did not have any positive drug tests until October
2011. He said that the Defendant’s intensive probation required that the Defendant remain
at home from 6:00 p.m. until 6:00 a.m. He said that on September 13, 2011, the Defendant
provided a list of potential employers he contacted regarding employment. He said that
although he went to the Defendant’s home, he never sent the Defendant any letters.

       Chattanooga Police Officer Andrew Peaker testified that on October 10, 2011, he
responded to a call regarding a possible shooting. He said that when he arrived at the scene,
there were many people in the front yard who began to scatter. He said he chased some of
them and yelled for them to stop. He said that five or six men ran into a house and slammed
and locked a door. He said the owner arrived about thirty minutes later and advised them that
the people should not be in her house. He said they went inside and secured the house at the
owner’s request. He said the Defendant was one of the people inside the house. He said he
charged the Defendant with evading arrest at 7:50 p.m.



                                             -2-
       On cross-examination, Officer Peaker testified that when he arrived at the scene, the
police did not know what was going on and had no information the Defendant was the
shooter. He said the Defendant was not under arrest when he arrived. He said the Defendant
was not the owner. He said the Defendant did not come out for about one-half an hour until
the owner arrived but was never arrested in connection with the shooting.

        Chattanooga Police Officer Earnest Fielden testified that he encountered the
Defendant when he was on duty between 3:00 p.m. and 6:00 p.m. on September 3, 2011. He
said the Defendant was standing on the corner of a sidewalk at an address where there had
been previous problems. He said that “[w]ithin this month we have seized narcotics, I seized
narcotics, and there was a firearm retrieved from [the address] where he stays.” He said that
Jumoke Johnson also lived at the house and that Mr. Johnson’s brother was with the
Defendant and two unidentified men on the sidewalk. He said that when he arrived, the
Defendant was “posted up.” When asked to describe what he meant, he said there were
numerous complaints about drug sales and gang activity on the street. He said that people
stood on the street corner in order to wave down motorists and sell them drugs. He said the
Defendant was on the corner. He said that the Defendant looked around as if he were going
to run and that the other people kept walking on the sidewalk. He said that he knew from
previous encounters that the Defendant was violent and might have weapons. He said he
previously detained the Defendant for aggravated robbery. He said that he ordered the
Defendant to go to the hood of his patrol car but that the Defendant ran to the back of the car.
He said he chased the Defendant and took out his Taser and that the Defendant said, “okay,
okay” and complied. He said that the Defendant put his hands on the car’s hood, that he
frisked the Defendant for weapons, that he felt what he recognized as two individually
wrapped bags of marijuana in the Defendant’s open cargo pants pocket. He said he could
see into the pocket and identified the marijuana by sight. He said he asked the Defendant if
the pocket’s contents were why the Defendant was about to run. He said the Defendant
responded, “Yes, I’ve got two baggies of just loud and voodoo, referring to the marijuana.
He charged the Defendant with possession of marijuana and thought the case was still
pending.

        On cross-examination, Officer Fielden testified that he knew the Defendant was on
probation for the previous robbery conviction. He said the Defendant was impeding the flow
of foot traffic on the sidewalk. He said there were two people walking at the time and that
in that part of town during daytime, “everybody walks.” He said there was a green Pontiac
at the sidewalk. He said he did a pat-down of the Defendant because of his recent
interactions with him and the Defendant’s gang ties and because he did not know if the
Defendant had a weapon. He said that nothing that day caused him to suspect the Defendant
had a weapon. He said that he knew who the Defendant was and that the Defendant had
weapons previously. He said that impeding the flow of traffic was a violation of a city

                                              -3-
ordinance. He agreed that he saw the marijuana in the Defendant’s pants pocket after he told
the Defendant to stop and seized the Defendant.

       On redirect examination, Officer Fielden testified that his prior encounters with the
Defendant included the aggravated robbery arrest and “multiple knock and talks” at a house
in which the Defendant was present. He said that over sixteen grams of crack cocaine were
seized from the house a short time before September 3, 2011. He said that when the cocaine
was seized, the Defendant, Juwana Cooper, and Jumoke Johnson were present. He said
another police officer and a probation officer accompanied him when the cocaine was seized.
On redirect examination, Officer Fielden stated that the Defendant was not charged with a
crime as a result of the knock-and-talk encounters.

       Deante Burris testified for the Defendant that she was the Defendant’s mother. She
said the Defendant had lived with her for the past three months. She said that if the
Defendant’s probation was not revoked, he would live with her father. On cross-
examination, Ms. Burris stated that Jumoke lived at the house about which the State’s
witnesses testified but that the Defendant did not.

       Charles Sprawling, Sr., the Defendant’s grandfather, testified that if the Defendant’s
probation was not revoked, the Defendant could live with him in Georgia. He said his son’s
employer was willing to give the Defendant a janitorial job.

        After receiving the proof, the trial court found “overwhelming proof” that the
Defendant violated the terms of his probation. The court found that the Defendant failed to
report after October 4, 2011, despite two home visits by the probation officer attempting to
make contact, that the Defendant tested positive for marijuana, that the Defendant failed to
give a DNA specimen, and that the Defendant violated the law as evidenced by his guilty
pleas to criminal trespass and failure to appear. The court also found that the Defendant
evaded arrest when Officer Peaker attempted to talk to and investigate people at the scene
of the shooting. The court noted that Officer Peaker told the Defendant to stop but that the
Defendant ran and locked himself into someone else’s house. The court found that the search
of the house resulting in the Defendant’s arrest for marijuana possession was valid. The
court rejected the defense argument pursuant to State v. Hayes, 190 S.W.3d 665 (Tenn. Crim.
App. 2005), that although the exclusionary rule did not apply generally to revocation
proceedings, it should apply in this case because the evidence was obtained through police
harassment or in a particularly offensive manner. The court found that Officer Fielden’s pat-
down of the Defendant was based upon reasonable, articulable suspicion. The court revoked
the Defendant’s probation and ordered him to serve his sentences. This appeal followed.




                                             -4-
                                               I

       The State contends that the appeal should be dismissed because the notice of appeal
was not timely filed. See T.R.A.P. 4(a) (providing that a notice of appeal shall be filed
within thirty days of the entry of judgment). The Defendant has not responded.

        The record reflects that the trial court filed its orders revoking the Defendant’s
probation on March 12, 2012. The Defendant’s pro se notice of appeal was filed on April
16, 2012, and listed his address at a state prison. The certificate of service was not completed
or dated. The State acknowledges the “prison mailbox rule” providing that papers filed
under the Rules of Criminal Procedure by incarcerated pro se litigants may be considered
filed within the prescribed time if delivered to the appropriate prison authority for mailing
within the time allowed for filing but argues that it should not apply given the blank
certificate of service. See Tenn. R. Crim. P. 49(d) (prison mailbox rule). The record reflects
that the Defendant was represented by the same appointed counsel at the hearing as
represents him in this appeal. There is no order relieving counsel after the hearing in the
record, nor does the record contain a notice of appeal filed by counsel.

        An attorney who fails to perfect a timely appeal from the entry of a judgment places
his client’s appeal in peril of dismissal. See T.R.A.P. 4(a). However, Rule 4(a) provides that
the notice of appeal “is not jurisdictional and the filing of such document may be waived in
the interest of justice.” Id. “In determining whether waiver is appropriate, this Court will
consider the nature of the issues presented for review, the reasons for and the length of the
delay in seeking relief, and any other relevant factors presented in the particular case.” State
v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, slip op. at 2 (Tenn. Crim. App. Dec.
27, 2005). Upon consideration, we conclude that despite counsel’s failure to perfect a timely
appeal or to file a reply brief addressing the State’s waiver argument, the filing of the notice
of appeal should be waived in the interest of justice.

                                               II

       The Defendant contends that the trial court should have suppressed Officer Fielden’s
testimony about the Defendant’s marijuana possession. He argues that despite the general
inapplicability of the exclusionary rule to probation revocation hearings, the rule should have
applied to his case because Officer Fielden’s pat-down of him was based upon the officer’s
knowledge that the Defendant was a probationer, not the Defendant’s activities. The State
counters that the trial court properly considered the evidence because Officer Fielden’s
testimony, which was credited by the trial court, provided a sufficient factual basis for the
pat-down that resulted in the discovery of marijuana. We agree with the State.



                                              -5-
        The Defendant relies on State v. Hayes, 190 S.W.3d 665, 670-71 (Tenn. Crim. App.
2005), which concludes that although the exclusionary rule does not apply generally to
revocation proceedings, it applies if the evidence is obtained through police harassment or
in a particularly offensive manner. Before any consideration of the Hayes exception, we will
determine whether the evidence was unlawfully discovered.

       A trial court’s factual findings 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 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 application of the law to the facts as determined by the trial court is a
question of law which we review de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997).

       The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “article 1, section 7 of the Tennessee Constitution
is identical in intent and purpose with the Fourth Amendment.” State v. Downey, 945
S.W.2d 102, 106 (Tenn. 1997) (citation omitted). In State v. Williams, 185 S.W.3d 311, 315
(Tenn. 2006), our supreme court outlined the three types of encounters between the
authorities and citizens and defined the applicable legal standard for each:

              Not all contact between police officers and citizens involves the
              seizure of a person under the Fourth Amendment of the United
              States Constitution or Article I, section 7 of the Tennessee
              Constitution. Courts have recognized three distinct types of
              police-citizen interactions: (1) a full scale arrest which must be
              supported by probable cause, see United States v. Watson, 423
              U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976); (2) a brief
              investigatory detention which must be supported by reasonable
              suspicion of criminal activity, see Terry v. Ohio, 392 U.S. 1, 27,
              88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); and (3) a brief
              “consensual” police-citizen encounter which requires no
              objective justification, see Florida v. Bostick, 501 U.S. 429, 434,
              111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). This last category
              includes community caretaking or public safety functions. See
              Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L.
              Ed. 2d 706 (1973); State v. Hawkins, 969 S.W.2d 936, 939
              (Tenn. Crim. App. 1997).



                                              -6-
       Reasonable suspicion, the standard applicable here, “is a particularized and objective
basis for suspecting the subject of a stop of criminal activity[.]” State v. Binette, 33 S.W.3d
215, 218 (Tenn. 2000) (citing Ornelas v. United States, 517 U.S. 690, 696 (1996)). It is
determined based upon the totality of the circumstances of the encounter. Id. (citing
Alabama v. White, 496 U.S. 325, 330 (1990)). Generally, an officer’s subjective intent for
conducting an arrest, search, or seizure is not determinative of its lawfulness. See, e.g., State
v. Johnson, 980 S.W.2d 414, 423 (Tenn. Crim. App. 1998) (citing Whren v. United States,
517 U.S. 806 (1996)); State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997).

        The record reflects that the Defendant was impeding the flow of traffic, in violation
of a city ordinance, for which Officer Fielden could lawfully stop him. The officer testified
that the Defendant was standing on the corner of the sidewalk, that others were walking on
the sidewalk, that daytime foot traffic was typical in the neighborhood, and that a car was
stopped beside the sidewalk.

        Once an officer stops a suspect, the officer is permitted to conduct a protective frisk
if the officer has “‘reasonable, particularized suspicion that the suspect is armed.’” State v.
Williamson, 368 S.W.3d 468, 474 (Tenn. 2012) (quoting State v. Bridges, 963 S.W.2d 487,
493 (Tenn. 1997)). This search is authorized to allow the officer to pursue his or her
investigation without fear of violence, rather than to uncover evidence of criminal activity.
Id. (citing Adams v. Williams, 407 U.S. 143, 146 (1972); Bridges, 963 S.W.2d at 493).

        Officer Fielden knew that the Defendant was on probation for a robbery offense, that
the Defendant associated with a criminal street gang, and that he had been involved in
multiple recent interactions with the Defendant. Officer Fielden’s recent interactions with
the Defendant included arresting him for the underlying offenses and seizing drugs and a
firearm from a house the Defendant frequented. The house was by the sidewalk where the
Defendant was standing on the day of the pat-down search. Officer Fielden had reasonable
suspicion to conduct a pat-down search of the Defendant for his own safety. While
conducting the pat-down for weapons, he felt two individually wrapped bags in the
Defendant’s pocket. Officer Fielden said he looked down and was able to see the marijuana
in the Defendant’s open cargo pants pocket. The pat-down was a permissible protective
frisk, during which Officer Fielden recognized the marijuana. There was no illegal search.

       Because the search did not violate the Defendant’s right to be free of unreasonable
searches and seizures, the Defendant cannot prevail on his claim that the exclusionary rule
should apply to his case. We also note the absence of any evidence that the police harassed
the Defendant or obtained the evidence in a particularly offensive manner. See Hayes, 190
S.W.3d at 670-71.



                                               -7-
                                              III

        The Defendant contends that the trial court erred in concluding that he violated his
probation by evading arrest and that had the court not relied on this erroneous finding, it
might have ordered a less drastic alternative than requiring the Defendant to serve his
sentence. The State concedes that the State did not establish a violation of the evading arrest
statute but argues that the trial court properly relied upon the Defendant’s multiple violations
of probation rules in ordering the Defendant to serve his sentence. We agree with the State.

        The trial court found that the Defendant committed the offense of evading arrest. As
the Defendant argues and the State aptly concedes, the record does not establish a violation
of the statute because Officer Peaker was not attempting to arrest the Defendant when the
Defendant fled from him, nor was the Defendant under arrest when he fled. See T.C.A. § 39-
16-603(a)(1) (2010).

        The question becomes whether the trial court erred in revoking the Defendant’s
probation. A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined
by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a
trial court revokes a defendant’s probation, its options include ordering confinement,
ordering the sentence into execution as originally entered, returning the defendant to
probation on modified conditions as appropriate, or extending the defendant’s period of
probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310 (2010); see State v. Hunter,
1 S.W.3d 643, 648 (Tenn. 1999). The judgment of the trial court in a revocation proceeding
will not be disturbed on appeal unless there has been an abuse of discretion. See State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). In order for this court to find
an abuse of discretion, “there must be no substantial evidence to support the conclusion of
the trial court that a violation of the conditions of probation has occurred.” State v. Shaffer,
45 S.W.3d 553, 554 (Tenn. 2001).

        In addition to its erroneous finding that the Defendant evaded arrest, the trial court
found that the Defendant (1) failed to report to his probation officer, despite two home visits
by the probation officer, (2) tested positive for marijuana, (3) failed to give a DNA specimen,
and (4) violated the law by committing the offenses of criminal trespass and failure to appear.
The record provides substantial evidence to support the trial court’s conclusion that the
Defendant violated the terms of his probation. These multiple violations establish the
Defendant’s flagrant disregard of the probation terms and his unsuitability for a further
reprieve. The trial court did not abuse its discretion in ordering him to serve his sentence.



                                              -8-
        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                           ___________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -9-
