         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                         JANUARY SESSION, 1998           March 5, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )   C.C.A. NO. 01C01-9703-CC-00108
                                  )
           Appellee,              )
                                  )   CHEATHAM COUNTY
V.                                )
                                  )
                                  )   HON. ROBERT E. BURCH, JUDGE
GARY RAINES, DEBRA RAINES,        )
and JERRY RAINES                  )
                                  )
           Appellants.            )   (CERTIFIED QUESTION OF LAW)



FOR THE APPELLANTS:                   FOR THE APPELLEE:

DALE M. QUILLEN                       JOHN KNOX WALKUP
Attorney for Gary Raines              Attorney General & Reporter
and Debra Raines
95 White Bridge Road, Suite 208       ELLEN H. POLLACK
Nashville, TN 37205                   Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
MICH AEL J. FLAN AGAN                 425 Fifth Avenue North
Attorney for Jerry Raines             Nashville, TN 37243
95 White Bridge Road, Suite 208
Nashville, TN 37205                   DAN M. ALSOBROOKS
                                      District Attorn ey Ge neral

                                      JAMES WALLACE KIRBY
                                      Assistant District Attorney General
                                      102 Cumberland Street
                                      Ashland City, TN 37015



OPINION FILED ________________________

AFFIR MED AS T O GA RY RA INES AND DEB RA R AINE S;
AFFIRMED AS MODIFIED AS TO JERRY RAINES

THOMAS T. WOODALL, JUDGE
                                  OPINION
      Following the den ial of their motion to suppress evidence, the Defendants,

Gary Raines and D ebra R aines ple d guilty in the Circuit Court of Chea tham C ounty

to possession of marijuana for resale and possession of drug paraphernalia, and

Defendant Jerry Raines pled guilty to simple possession of marijuana and

possession of drug p araphe rnalia. In their pleas , Defend ants reserved the right to

appeal the trial c ourt’s d enial o f their motion to suppress as a certified question of

law pursuant to Rule 3(b) of the T ennesse e Rules of A ppellate Proce dure and Rules

11(e) and 37(b)(2)(I) of the Tennes see Rules of Criminal Pro cedure. Spe cifically,

the certified question is: “Whether or not the initial entry upon the premises and the

subsequent consent search was legal.” We affirm the judgment of the trial court, as

modified to co rrect an appa rent clerical error.



      On Novem ber 17, 1996 , Deputy T ravis Wa lker of the C heatha m Co unty

Sher iff’s Depa rtment w ent to 452 5 Sear s Road in Pegra m, Te nness ee to serve an

arrest warrant on a woman charged with theft. The affidavit in support of the warrant

was not signe d by the a ffiant. The woman named in the warrant was the former

girlfriend of Defendant Jerry Raines. Defendants Jerry Raines and his parents, Gary

and Debra Raines , all lived at 452 5 Sear s Road . The arre st warrant listed the

wom an’s address as 4525 Sears Road. Deputy Walker indicated in his testimony

that he did not examine the affidavit of complaint prior to taking the arr est warrant

to the Defendants’ home.



      The drivew ay to the hom e is circular an d the ho me is ab out thirty to fifty yards

from the road. Deputy Walker parked the patrol car in the driveway, walked to the

front door, kn ocked , and Jer ry Raine s open ed the d oor.         The deputy sheriff



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explained why he was there and Jerry Raines told him that the person he was

looking for was his ex-girlfriend and that she no longer lived there. Walker testified

that he smelled “the strong odor of marijuana coming from the reside nce.” He then

asked Jerry Raines to step outside in order to speak to him privately since he had

noticed som eone else in the house with Jerry R aines. O nce ou tside, the d eputy

explained to Jerry Raines that he had “w orked drugs before . . . knew what

marijuana smelled like . . . [and that smell] was coming from his house . . . .” Walker

testified that while he was talking to Jerry Raines that Jerry pulled a small bag of

marijuana from his pocket and laid it on the car. He also testified that he informed

Jerry Raines that if he didn’t want him there then he “didn’t have to be the re.”

Walker testified that Jerry Raines became n ervous and then yelled for his father,

Gary Raines, to come to the patrol car. Deputy Walker explained to Gary Raines

that he ha d sm elled m arijuana coming from his home and that his son had just

produced a bag of marijuana. He then asked Gary Raines to sign the conse nt to

search form. A gain, W alker e xplained that he did not have to be on the premises

if they did no t want him to be. Both Ga ry and Jerry Ra ines signed the consent form

at which point Jerry was placed under arrest for possession of marijuana. A search

of the house revealed 608 grams (1 1/4 pounds) o f marijuana and various drug

paraphernalia.    Gary Raines and his wife Debra were then also arrested. The

residen ce was the hom e of all three Defen dants.



        On cross-examination, Deputy Walker admitted that at no time during his

conversation with Jerry Raines prior to his arrest did he read him his Miranda rights.

He also stated that Jerry Raines could have produced the bag of marijuana as a

direct result of possibly being asked if he had any marijuana in his possession at that

time.




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       W e initially note that we are limited in our review of this case to the precise

issue stated in the certified question of law. State v. Pendergrass, 937 S.W.2d 834,

836-37 (Tenn . 1996); State v. Preston, 759 S.W .2d 647 , 650 (T enn. 19 88).



       “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.” State v. Odom, 928

S.W .2d 18, 23 (Tenn. 1996).         The credibility of witnesses, the weight of the

evidence, and the resolution of con flicts in the eviden ce are all matters entruste d to

the trial judge as trier of fact. Id. Thus, the factual finding s of the trial cou rt in

suppression hearings are presumptively correct on appeal and will be upheld unless

the evide nce pre ponde rates ag ainst them . Id.



       This Court has observed that one does not have an expectation of privacy “in

the front of his residence which leads from the public way to the front door.” State

v. Baker, 625 S.W .2d 724, 727 (Tenn. Crim. App. 1981). Clearly, Deputy Walker

had a right to knock on the front door to inquire as to the whereabouts of the

defendant named in the arrest warrant. When Deputy Walker smelled the marijuana

emanating from the house, he simply observed what any person familiar with that

smell would have b een a ble to o bserv e from the sa me p osition . “Auth orities may

take note of anything evident to their senses so long as they have a right to be where

they are and do not resort to extraordinary m eans to m ake the obs ervation.” State

v. Hurley, 876 S.W.2 d 57, 67 (Tenn . 1993).           D eputy W alker did n ot resort to

extraordinary means by simply knocking on the door and speaking to Jerry Raines.

Defen dants argue that the arrest warrant was invalid because there is no indication

that the affidavit o f comp laint was s worn to p rior to issua nce of the arrest warran t.

See State v. Burtis , 664 S.W.2d 305, 307-08 (Tenn . Crim. A pp. 198 3). Defen dants

subm it that if the arrest warrant fo r the third pa rty is invalid, Deputy W alker therefore


                                             -4-
did not have the right to be at the door of Defendants’ residence. Defendants argue

that in effect, De puty W alker wa s trespas sing at the tim e he knocked on the

Defen dants’ do or with an invalid arres t warrant.



       W e respectfully disagree with the Defendants’ argument. There is no proof

in the record to indicate that any pe rson w ould b e put o n notic e that h e or sh e wou ld

be a trespasser upon merely approaching the Defendants’ residence and knocking

on the door for any reason. None of the Defendants were charged in the arrest

warrant possessed by Deputy Walker. There was no search or seizure which was

incident to any arrest under authority o f the purp ortedly inva lid arrest wa rrant.

Deputy Walker did not enter the residence under authority of or by virtue of the

arrest warrant. T here is no thing in the record to indicate th at Deputy Walker was

even aware that the arrest warrant might be invalid, or that use of it was a subterfuge

to gathe r inform ation a bout a ny illega l activity by the De fenda nts ins ide the ir

residence. It would be perfectly legitimate for any citizen to knock on the front door

of the Defendants’ residence and make inquiries about the particular woman named

as a defendant in the arrest warrant as it is uncontradicted that she w as an ex-

girlfriend of Defendant Jerry Raines. Furthermore, the deputy asked Jerry Raines

if the woman still resided at the home and Jerry Raines responded, “[N]o.” Under

the facts of this case , we hold that Deputy Walker had a right to be in the location

where h e was w hen he smelled the odo r of marijua na.



       Defendan ts argue that Jerry Raines’ right against self-incrimination was

violated since Deputy Walker failed to Mirandize him before Raines turned over

incriminating evidence to the deputy, thus making all evidence seized during the

subsequent search inadmissible as fruit of the poisono us tree. State v. Clark, 844

S.W.2d 597 (T enn. 19 92), citing Wong Sun v. United States, 371 U .S. 471, 8 3 S. Ct.

407, 9 L. Ed. 2 d 441 (1 963).    In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1062,


                                             -5-
16 L. Ed. 2 d 694 (1966 ), the U nited S tates S uprem e Cou rt held that any

incriminating statem ents m ade b y an ac cuse d can not be used unles s it is

demonstrated that the accused was warned any statement he might give co uld be

used against him. H owever, in the case sub judice, Jerry Raines did not give an

incriminating statemen t, rather he incriminated himself by the production of the

marijuana from his pocket. The Fifth Ame ndm ent ha s bee n con strued to proh ibit

statem ents of only a “testimonial or communicative nature,” and not “real” evidence.

See Schm erber v. Califor nia, 384 U.S . 757, 86 S . Ct. 1826, 1832, 16 L. Ed. 2d 908

(1966).   The Tennessee Supreme Court appears to have adopted the federal

distinction between testimonial and non-tes timonial e vidence . See State v. Frasier,

914 S.W.2d 467 (T enn. 19 96). Therefore, following the reasoning of our supreme

court, the production of the marijuana by Jerry Raines was non-testimonial, thus not

violating his right against self-incrimination. Furthermore, the Miranda requirement

only attaches if the potential defendant’s freedom has been restricted to the extent

that he is “in custody.” Stans bury v. C alifornia , 511 U.S. 318, 114 S. Ct. 1526, 128

L. Ed. 2d 293 (1994). The reasonable person’s perception of what constitutes

custody under the circumstances is to be used to determ ine whether the potential

defendant is in custody. Berken er v. McC arty, 468 U.S. 420, 104 S. Ct. 3138, 82 L.

Ed. 2d 317 (1984). One looks at the totality of the circumstances and determines

whether there was a formal arrest, or the indicia of an arrest. State v. S mith, 868

S.W .2d 561 , 570 (T enn. 19 93).



      In this cas e, the d eputy aske d Jerry Raine s if he co uld sp eak w ith him

privately. Deputy Walker explained to Jerry Raines that he would leave if Raines

wanted him to do so. He then told Jerry Raines that he had smelled marijuana

“coming from the house.” At some point during this discussion, Jerry Raines pulled

a bag of marijuana from his pocket and laid it on the patrol car. There is some

discrepancy as to whether he produced this bag in response to Deputy Walker


                                          -6-
askin g him if he had any marijuana on his person, or whether he produced the

marijuana as a result of the general conversation about Deputy Walker smelling

marijuana emanating from the house. Regardless of the exact words Deputy Walker

used, he did tell Jerry Raines that he would leave if he asked him to. Therefore, a

reaso nable person would not have believed himself to be “in custody” for purposes

of Fifth Amendment protection.           Since there was no Miranda violation, the

subsequent search will not be viewed, as Defendants urge, as flowing from any

violation of Jerry Raines’ Fifth Amendment rights.



       If a defen dant give s conse nt to searc h volun tarily and w ithout c oercio n, it “is

an exception to the constitutional requireme nt of a search w arrant.”              State v.

Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993).                    “In order to pass

constitutional muste r, consen t to search must be un equivo cal, sp ecific, int elligen tly

given, and uncontaminated by duress or co ercion.” State v. Brown, 836 S.W.2d 530,

547 (Tenn. 199 2). Thus, the question becomes whether or not the consent to the

search in this case was given voluntarily. One looks at the facts to determine

whether the co nsen t was o ffered fr eely and volu ntarily. Jackson, 889 S.W.2d at 221.

The trial court’s finding that a search is consensual will not be overturned on appeal

unless the evidence preponderates against the ruling. State v. Woods, 806 S.W.2d

205, 208 (Tenn . Crim. A pp. 199 0), perm. to appeal denied (Tenn . 1991), cert.

denied, 502 U.S . 1079, 11 2 S. Ct. 98 6, 117 L . Ed. 2d 1 48 (199 2); Brady v. S tate,

584 S.W .2d 245 , 251-52 (Tenn . Crim. A pp. 197 9).



       When asked to consent to a search of the house, Jerry Raines called for his

father, Gary, to come out and as sist. Depu ty Walker told Jerry and Gary Raines that

he could go get a search warrant. It was true that he could have obtained a search

warrant based on the marijuana smell and bag of marijuana that Jerry Raines had

produced. See Simm ons v. Sta te, 360 S.W.2d 10 (Tenn. 1962 ). Dep uty W alker to ld


                                             -7-
the men that if they did not want him there then he “did n’t have to b e there.”

Furthermore, the con sent form s which th ey read a nd signe d explicitly refer red to

their right to refuse to c onsen t to a searc h of their ho me ab sent a se arch wa rrant.

Gary and Jerry R aines both fre ely and voluntarily signed the form consenting to the

search . There fore, the se arch of D efenda nts’ hom e was va lid.



       Lastly, since Debra Raines’ husband, Gary, consented to the search of the

residence, that consent was valid as to her as well. One spo use can g ive effective

consent for the sear ch of a res idence where b oth spo uses re side. State v. Bartram,

925 S.W .2d 227, 230 -31 (Tenn . 1996).



      After a careful review of the record, we find no evidence that w ould

prepon derate against the findings of the trial court. However, even though not raised

by any of the parties, we note a clerical error in the judgment wherein Defendant

Jerry Raines was convicted of possession of marijuana. Under the negotiated plea

agreem ent, Defendant Jerry Raines received a sentence of eleven (11) months and

twenty-nine (29) days in the Cheatham County Jail, suspended with probation of

eleven (11) months and twenty-nine (29) days. The judgment reflects that he was

convicted of possession of marijuana, but erroneously notes that the conviction is

for a Class E felo ny. The judgm ent in Ca se No. 1 2428 is a mend ed to reflec t a

conviction of a Clas s A mis deme anor rath er than a Class E felony.



       The judgments of the court as to Gary Raines and Debra Raines are affirmed.

The judgments regarding Defendant Jerry Raines are affirmed as modified.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:

                                            -8-
___________________________________
JOHN H. PEAY, Judge


___________________________________
DAVID H. WELLES , Judge




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