        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  April 21, 2010 Session

              STATE OF TENNESSEE v. JEFFERY LEE ARNOLD

              Direct Appeal from the Circuit Court for Franklin County
                        No. 18202     J. Curtis Smith, Judge


                  No. M2009-01468-CCA-R3-CD - Filed July 26, 2010


The defendant, Jeffrey Lee Arnold, pled guilty to simple possession of marijuana, a Class A
misdemeanor, but reserved a certified question for appeal. The question presented is whether
law enforcement officers who entered the defendant’s house and discovered the marijuana
forming the basis for the charge in this cause, had the right to enter under the Fourth
Amendment to the United States Constitution and Article I, section 7 of the Tennessee
Constitution. After reviewing the record, we conclude that the marijuana was lawfully seized
from the defendant, and we affirm the judgment from the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which D AVID H. W ELLES
and T HOMAS T. W OODALL, JJ., joined.

Paul Cross, Monteagle, Tennessee, for the appellant, Jeffery Lee Arnold.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; J. Michael Taylor, District Attorney General, and William Copeland, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        The facts reveal that the defendant was arrested after two officers, who were
dispatched to his residence to investigate a domestic situation, saw marijuana and other drug
paraphernalia in plain view within the defendant’s residence. The defendant, who conceded
that the officers had the right to enter his residence initially, contends that the officers had
no right to re-enter after all reason to suspect exigent circumstances were gone. The State,
on the other hand, relies on the facts that the officers were lawfully on the premises when
they saw the marijuana and that the marijuana was lawfully seized because it was in plain
view. We agree with the State.

        During the hearing on the Motion to Suppress, both officers dispatched to the
defendant’s residence testified. Officer Tim Prater stated that, on April 12, 2008, he was
employed with the Decherd Police Department and was dispatched to the defendant’s
residence after 9-1-1 received a call that a female was being held hostage against her will.
Officer Prater said that both he and Officer Dempsey arrived at the defendant’s residence,
approached the door, and knocked. Officer Prater said that, through the window, he saw the
defendant walking to the bathroom, holding shotgun shells and a green, leafy material in his
hand. He saw the defendant flush most of the green, leafy material down the toilet. The
defendant then came to the door. As he began to interview the defendant, Officer Prater
heard a female inside the residence yell, “I’m in here, help.” While Officer Prater remained
at the door with the defendant, Officer Dempsey entered the residence and spoke to the
female. Upon his return, Officer Prater entered the residence to speak to the female. There
he saw a green, leafy material laying on the sink and a hemostat, rolling paper, and more of
the green, leafy material laying on the coffee table in the living room where he was
interviewing the female. He stated that everything was in plain view and that, based upon
his training and service, he felt that the green, leafy material was marijuana. The Tennessee
Bureau of Investigation later confirmed that it was marijuana.

       Officer Dempsey’s testimony mirrored that of Officer Prater. He said he was
dispatched by 9-1-1 to the defendant’s residence to investigate whether a woman was being
held against her will. He and Officer Prater arrived, went to the door, and knocked. The
bathroom window was beside the door, and they watched the defendant walk into the
bathroom with shotgun shells and marijuana in his hand. The defendant flushed most of the
marijuana before he opened the door. Officer Dempsey then heard a female voice say, “I’m
in here, help.” He entered and spoke to her before he returned to the porch and reported what
he saw to Officer Prater. He told Officer Prater that the female had been drinking and was
hysterical, crying, and disoriented.

       In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our supreme court made explicit
to the bench and bar exactly what the appellate courts require as prerequisites to the
consideration of the merits of a certified question of law. These requirements are as follows:

       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 T.R.A.P. 3 appeal must contain a statement of the dispositive
       certified question of law reserved by [the] 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

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       the validity of searches and the admissibility of statements and confessions,
       etc., the reasons relied upon by [the] 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 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. . . . 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. . . . No issue
       beyond the scope of the certified question will be considered.

Id. at 650 (emphasis added); see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn. Crim.
App. 1995). Failure to properly reserve a certified question of law pursuant to Preston will
result in the dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn.
1996). The defendant followed all procedural requirements, and this appeal is properly
before the court.

        In reviewing a trial court’s denial of a motion to suppress, this court looks to the
evidence and facts accredited by the trial court which are most favorable to the State as the
prevailing party. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The appealing party
bears the burden of demonstrating that the evidence preponderates against the trial court’s
findings. State v. Harts, 7 S.W.3d 78, 84 (Tenn. Crim. App. 1999). Findings of fact made
by the trial judge on a motion to suppress are conclusive and are afforded the weight of a jury
verdict, and this court may not set aside the trial court’s decision unless the evidence
contained within the record preponderates against the trial court’s findings. State v. Jackson,
889 S.W.2d 219, 222 (Tenn. Crim. App. 1993).

        The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, provides in part that “[t]he rights of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” Similarly, Article 1, section 7, of the Tennessee Constitution,
in part, provides “[t]hat the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures.” “[U]nder both the federal and state
constitutions, a warrantless search or seizure is presumed unreasonable, and evidence
discovered as a result thereof is subject to suppression unless the State demonstrates that the
search or 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) (citing Coolidge

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v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bartram, 925 S.W.2d 227, 229-30
(Tenn. 1996)).

        The burden is on the State to demonstrate that one of the exceptions to the warrant
requirement was applicable at the time of the search or seizure, one of which is exigent
circumstances. Id. The State bears the burden of demonstrating that exigent circumstances
exist to overcome the presumption of unreasonableness that attaches to all warrantless home
entries. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). An objective standard is used to
determine the reasonableness of the officer’s belief that an emergency situation existed at the
moment of entry. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The proper inquiry is whether
the facts available to the officer at the moment of entry would “warrant a man of reasonable
caution in the belief” that the action taken was appropriate. Carroll v. United States, 267
U.S. 132, 162 (1925). The reasonableness of that belief must be judged on the basis of the
officer’s knowledge at the time he or she entered a defendant’s residence. People v.
Thompson, 770 P.2d 1282, 1285 (Colo. 1989) (citing People v. Malczewski, 744 P.2d 62, 66
(Colo. 1987)). In determining whether the officer acted reasonably, this court must consider
the totality of the circumstances, including the personal observations of the trained police
officer and the rational inferences and deductions therefrom. State v. Watkins, 827 S.W.2d
293, 294 (Tenn. 1992).

        The plain view doctrine provides that, under certain circumstances, the police may
seize evidence in plain view without a warrant. The plain view doctrine requires proof that:
(1) the objects seized were in plain view; (2) the viewer had a right to be in position for the
view; (3) the seized object was discovered inadvertently; and (4) the incriminating nature of
the object was immediately apparent. State v. Hawkins, 969 S.W.2d 936 (Tenn. Crim. App.
1997). Further, under the federal constitution, prerequisites to the application of the plain
view doctrine include: (1) the officer did not violate constitutional mandates in arriving at
the location from which the evidence could plainly be seen; (2) the officer had a lawful right
of access to the evidence; and (3) the incriminating character of the evidence was
“immediately apparent,” i.e., the officer possessed probable cause to believe that the item in
plain view was evidence of a crime or contraband. Accordingly, when an officer enters
private premises pursuant to exigent or emergency circumstances, the officer may generally
seize any apparently incriminating items located on the premises in plain view. State v.
Coulter, 67 S.W.3d 3, 43 (Tenn. Crim. App. 2001).

       Here, the trial court found that exigent circumstances existed to support the officers’
entry into the defendant’s residence. After being summoned to the residence by a female
who expressed some alarm, the officers observed the defendant carrying shotgun shells and
marijuana. The officers saw the marijuana and drug paraphernalia in plain view through the
bathroom window and on a table while they were speaking to the female inside the residence.

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        Officer Prater remained outside with the defendant until after Officer Dempsey had
entered the residence, spoke to the female, and returned. In furtherance of the investigation,
Officer Prater decided to speak to the female to get her side of the story. Upon entering, he
observed and seized the marijuana and other items that were the basis of the charges. The
officers were still in the process of investigating the incident for which they were summoned
to the residence.

        Having concluded that the officers were lawfully present based on exigent
circumstances, the trial court found that the seized items were in plain view. The crux of the
defendant’s argument is that the entry into the home by Officer Prater was unlawful because
any reason to suspect exigent circumstances was gone. However, under the facts of this case,
the actions of both officers were reasonable and lawful. Here, both officers were legally on
the scene. The mere fact that Officer Dempsey located the female in the house and that she
did not appear to be injured, physically restrained, or in need of emergency medical attention,
did not negate the need for further investigation by Officer Prater. While conducting an
interview with the female, Officer Prater inadvertently discovered and then seized evidence
of a crime that was in his plain view and of which the incriminating nature was immediately
apparent.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgment from the
trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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