        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 11, 2011 Session

                 STATE OF TENNESSEE v. JOHN B. ALBERTS

                   Appeal from the Circuit Court for Williamson County
                           No. I-CR033269 Jeff Bivens, Judge



                    No. M2010-01208-CCA-R9-CD - filed June 21, 2011


The Williamson County Grand Jury indicted Appellant, John B. Alberts, for eight counts of
rape of a child, one count of solicitation of a minor to commit rape of a child, and one count
of solicitation of sexual exploitation of a minor. Appellant filed a motion to suppress
evidence recovered through the execution of a warrant to search Appellant’s car. At the
hearing on the motion to suppress, the trial court granted Appellant’s motion based upon the
conclusion that the search warrant was invalid. At the hearing, before the trial court
announced its decision, the State argued an alternative theory that the search was valid as a
warrantless search through an exception to the warrant requirement i.e., probable cause with
exigent circumstances. The trial court declined to rule on the validity of the search based
upon this alternative theory. The State asked for and was granted an interlocutory appeal
pursuant to Rule 9 of the Tennessee Rules of Appellant Procedure to determine if the trial
court can consider the alternative theory to uphold the search. We have concluded that the
trial court should consider an alternative theory to determine if the search was valid as a
warrantless search based on probable cause and exigent circumstances. We remand the case
back to the trial court for proceedings in accordance with this opinion.

Tenn. R. App. P. 9 Appeal as of Right; Judgment of the Circuit Court is Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Ron Davis, District Attorney General, and Mary K. White, Assistant
District Attorney General, for the appellant, State of Tennessee.

Vanessa P. Bryan, District Public Defender and James L. Elkins, III, Assistant Public
Defender, Franklin, Tennessee, for the appellee, John B. Alberts.
                                         OPINION

                                    Factual Background

       In January 2007, three parents reported to Detective Tameka Sanders of the
Williamson County Sheriff’s Department that Appellant had sexually abused their children.
The victims alleged that Appellant had licked their vaginas. Detective Sanders began her
investigation and discovered that Appellant had been convicted ten years before for
performing oral sex on a nine-year-old girl. Subsequently, Appellant was arrested on January
31, 2007 for violation of the sex offender registration law.

       Also in January 2007, the parents of one of the victims reported to Detective Sanders
that Appellant had used their computer in their home. Detective Sanders obtained consent
to search the computer and took possession of it. The detective did not testify as to any
images contained on the victim’s parents’ computer. The victim’s mother also told Detective
Sanders that Appellant had a laptop and a digital camera that he kept in the trunk of his car.

       On February 6, 2007, Detective Sanders, accompanied by Detective Grant Benedict
of the Williamson County Sheriff’s Department and Lieutenant Robert Denton of the
Lawrence County Sheriff’s Department, went to Appellant’s former place of employment to
check the computer. Mr. Jimmie Pennington, the proprietor, signed a consent to search form
for the search of the computer primarily used by Appellant during his employment. The
search revealed images numbering in the hundreds or thousands of sexually provocative
photographs of young girls. While the images were flashing on the screen, Detective Sanders
thought she recognized one of the victims in one of the images.

        Lieutenant Denton left the business to obtain a search warrant. While Lieutenant
Denton went to get a search warrant, Detectives Sanders and Benedict located Appellant’s
residence at 50 Sweet Gum Lane. They spotted Appellant’s car parked in the driveway.
Detectives Sanders and Benedict interviewed a neighbor who told them that Appellant liked
to take pictures of children, but he would only take pictures of girls. While they were waiting
for Lieutenant Denton to return with the search warrant, the detectives secured Appellant’s
car. When Lieutenant Denton returned with a search warrant, the officers had Appellant’s
neighbor unlock Appellant’s car. The officers searched the car and seized a laptop computer
and a digital camera. The computer contained photographs of Appellant kissing the victims,


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one victim performing fellatio on Appellant, and Appellant performing cunnilingus on one
of the victims.

        In March 2008, the Williamson County Grand Jury indicted Appellant for eight counts
of rape of a child, one count of solicitation of a minor to commit rape of a child, and one
count of solicitation of sexual exploitation of a minor. On November 12, 2009, Appellant
filed a motion to suppress the evidence, in particular the laptop computer, seized as a result
of the search warrant obtained by Lieutenant Denton. The trial court held a hearing on the
motion on January 6, 2010. On February 8, 2010, the trial court filed an order granting
Appellant’s motion to suppress based solely on the conclusion that the search warrant was
invalid. On March 8, 2010, the State petitioned the trial court for an interlocutory appeal
pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court granted
the State’s request on May 25, 2010. This Court granted the application for interlocutory
appeal on July 15, 2010.

                                         ANALYSIS

       On appeal, the State argues that the trial court erred in determining that after having
decided that the search warrant was invalid, it was restrained from considering any
exceptions to the warrant requirement to establish that the search was reasonable. Appellant
argues that the trial court did not err.

        This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise. State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)
(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party
in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16
S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).
“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.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts
is de novo, with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on
evidence that does not involve issues of witness credibility, however, appellate courts are as
capable as trial courts of reviewing the evidence and drawing conclusions and the trial
court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Further, we note that “in 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). The

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question presented by the State in this case is one of law. Therefore, there is no presumption
of correctness with regard to the trial court’s decision. Walton, 41 S.W.3d at 81.

         At the hearing on the motion to suppress, the trial court expressed the belief that it was
restrained from considering any alternate theories because it was restricted to a review of the
warrant in ruling on the motion to suppress. It is true that, “Tennessee law is clear that in
determining whether or not probable cause supported issuance of a search warrant only the
information contained within the four corners of the affidavit may be considered.” State v.
Keith, 978 S.W.2d 861, 870 (Tenn. 1998) (citing State v. Jacumin, 778 S.W.2d 430,
432(Tenn. 1989)). This language refers to a court’s determination whether or not the warrant
itself is valid. This language does not prevent a court from determining whether a search is
valid based on an exception to the warrant requirement. We have found no legal impediment
to prevent the trial court from addressing the State’s argument that the search was
permissible as a warrantless search based on the existence of probable cause to search and
exigent circumstances. We point out that in the case at hand, the State presented this
argument to the trial court prior to the trial court’s ruling on the validity of the warrant.

        The trial court allowed the State to present an offer of proof with regard to probable
cause and exigent circumstances. However, the trial court made no factual findings
regarding the validity of the search as a warrantless search. Because we can find no
precedent preventing the trial court from determining whether an exception to the warrant
requirement applies to the facts at hand when the search warrant has been determined to be
invalid, the trial court should make findings of fact regarding this issue and rule on the
validity or invalidity of the search of Appellant’s car as a warrantless search. Both the Fourth
Amendment to the United States Constitution and article I, section 7 of the Tennessee
Constitution protect individuals against unreasonable searches and seizures by government
agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. Under both 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.”
Yeargan, 958 S.W.2d at 629 (citing Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91
S. Ct. 2022, 29 L.Ed.2d 564 (1971)); see also State v. Garcia, 123 S.W.3d 335, 343 (Tenn.
2003). As stated above, in the hearing on remand, the State will have the burden of proof to
show the search of Appellant’s car is a valid warrantless search.




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                                     CONCLUSION

       For the foregoing reasons, we remand this case for the trial court to conduct further
proceedings to determine whether one of the exceptions to the warrant requirement exists in
the facts at hand.




                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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