         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 12, 2005

            STATE OF TENNESSEE v. SHIRLEY ANNETTE RUDD

                       Appeal from the Circuit Court for Obion County
                           No. 3-397     William B. Acree, Judge



                  No. W2004-02065-CCA-R3-CD - Filed September 12, 2005


An Obion County jury found the defendant, Shirley Annette Rudd, guilty of facilitating the
manufacture of methamphetamine, possession of methamphetamine with intent to sell or deliver,
and conspiracy to manufacture methamphetamine. See Tenn. Code Ann. §§ 39-11-403, -12-103, -
17-417 (2003). Pretrial, the defendant had moved to suppress methamphetamine seized from her
person. The trial court conducted an evidentiary hearing and concluded that the evidence had been
legally seized. The defendant challenges that ruling on appeal. After reviewing the record,
applicable authorities, and the briefs of the parties, we affirm the judgments of the trial court.

              Tenn. R. App. P. 3; Judgments of the Circuit Court are Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

Charles S. Kelly, Dyersburg, Tennessee (at trial); and Timothy Boxx, Dyersburg, Tennessee (on
appeal), for the Appellant, Shirley Annette Rudd.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James Cannon, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

               In this case, we are called upon to review the trial court’s findings of fact and law in
disposing of the defendant’s motion to suppress.

               On November 26, 2003, the trial court conducted a suppression motion hearing on
claims raised by the defendant and by her co-defendant, Lisa Terry. The claims were not identical.
The state presented testimony from three witness, and much of the testimony, which we shall not
recount in detail herein, addressed the co-defendant’s suppression issues.
                One of the state’s witnesses, Matt Woods, a deputy with the Obion County Sheriff’s
Department, acted as the affiant to obtain a search warrant for the residence belonging to co-
defendant Terry. The residence was located approximately three miles outside the city limits of
Hornbeak. As pertinent to the defendant in this case, Deputy Woods testified on cross-examination
by defense counsel1 that he first saw the defendant as he entered the co-defendant’s driveway,
intending to execute the search warrant. He related that the defendant “was standing at a side door
located on the east side of the residence, knocking on the door.” He assumed that the defendant had
driven to the residence because a truck that the deputy knew to belong to the defendant was parked
in the driveway.

               Deputy Woods testified that as he walked toward the side door, the defendant stepped
away from the door. He believed that the defendant asked, “What’s going on?”, and he responded
that he had a search warrant for the house. Deputy Woods proceeded to the door and entered the
residence. In the meantime, another officer at the scene, Officer John McMahan, detained the
defendant. Deputy Woods described the detention in the following fashion:

                 [The defendant] was detained due to – for officer safety purposes[.]
                 When I got out of the vehicle, I advised [the defendant] what our –
                 the reason for us being there was to serve a search warrant. Officer
                 McMahan then detained [the defendant] for security purposes.

Deputy Woods was unable to elaborate what prompted the concern for officer security. He admitted,
however, that the defendant posed no visible danger.

               Obion County Sheriff Jerry Vastbinder testified briefly and identified photographs
that he had taken of the co-defendant’s residence and the surrounding area. He was not present
during the execution of the search warrant, and his testimony did not address the defendant’s
suppression motion.

              Deputy John McMahan was the state’s last witness. He testified that as he
approached the residence, the defendant was between the side door and her pickup truck. Deputy
McMahan continued,

                 [The defendant] came back toward the side of the truck, and it
                 seemed to have flustered her that we were there. Anyway, she
                 became very defensive about us being there and immediately stuck
                 her hand – she stuck her hand in her pocket. And I’m not sure which
                 hand. . . . She stuck one of her hands in her pocket of her jeans that
                 she was wearing, and wouldn’t remove it. She would not comply
                 with any of our requests. We were trying to secure the scene. We



       1
           The state elicited no direct-examination testimony from D eputy W ood s relating to the defendant.

                                                         -2-
               either wanted her to leave and get out of the way or to comply with
               what we were asking her.

Deputy McMahan estimated that he told the defendant to remove her hand three times. He said he
used a “very commanding loud voice” and that he and the other officers “had our weapons drawn
as we were trying to secure the scene.”

               Deputy McMahan testified that he had two concerns related to the defendant. He
“figured” either the defendant was hiding something in her pocket or she had a weapon in her pocket,
and because the defendant would not remove her hand, Deputy McMahan “forcibly took [the
defendant] and leaned her against her truck and removed her hand from her pocket.” At that point
he saw a magnetic key holder, and he said that “it had several packets of a white powder substance
in it.” A subsequent search warrant for the defendant’s pickup truck uncovered a plastic bag
containing a white powder substance.

               On cross-examination, Deputy McMahan testified that his assigned role in connection
with the search warrant was “perimeter security.” He elaborated that his task was “either to run
anybody off that’s on the outside, until we get the scene secured, or to take them into custody if they
won’t leave.” He reiterated that he detained the defendant because she refused to remove her hand
from her pocket, and he explained that the illegal drugs “c[a]me out of her pocket with her hand” and
that there “was a little piece of aluminum foil that c[a]me out of there, too, that was burnt on it.”
According to the deputy, the burnt aluminum foil “was like what [they] find when they smoke meth.”

               From the testimony presented, the defendant argued that the officers lacked probable
cause to arrest the defendant. The state claimed that Deputy McMahan acted appropriately in
removing the defendant’s hand from her pocket and that when the defendant came “out with her
hand, the drugs f[e]ll out in plain view.”

               In denying the defendant’s motion to suppress, the trial court ruled in pertinent part
as follows:

               The Court finds that these facts existed at the time and, actually,
               they’re undisputed. [The defendant] had the misfortune of being at
               [the co-defendant’s] home during the time the search warrant was
               being executed. The evidence is that she was at the side door of [the]
               residence and was between the door and her vehicle, which was
               parked in the driveway. The officers came up, one officer told her to
               – Officer McMahan testified that she had two options, either to leave
               or be placed into custody – possibly be placed into custody. Officer
               McMahan testified that she put her hand in her pocket and was told
               about three times to remove her hand from her pocket, but she would
               not do so, at which point he forcibly took her hand from her pocket,



                                                 -3-
               and as he did that, drugs fell out of her hand, and she was arrested
               because of those drugs.

                       ....

                       One of the things that’s stated in [State v.] Cothran[, 115
               S.W.3d 513 (Tenn. Crim. App. 2003)] as an inexplicable failure to
               remove a hand from a pocket is a basis for a Terry search. That’s
               exactly the situation that was outlined by Officer McMahan. [The
               defendant] failed to remove her hand from her pocket after being told
               to do so on three occasions. The Court finds that the officer was
               justified in the Terry stop. The evidence that was discovered was
               discovered when the object fell out of her hand and was there for
               anyone to see. For those reasons, [the defendant’s] motion is also
               denied.

               Because testimony presented at trial may be considered by an appellate court in
deciding the propriety of the trial court’s ruling on a motion to suppress, see State v. Garcia, 123
S.W.3d 335, 343 (Tenn. 2003); State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998), we turn next
to the evidence presented at the defendant’s trial.

                As germane to the suppression issues raised by the defendant, Dana Rose, a forensic
scientist with the Tennessee Bureau of Investigation, testified that she analyzed evidence seized in
the case. A substance submitted in two separate bags tested positive for methamphetamine. Agent
Rose explained that the larger bag contained 7.2 grams of methamphetamine and that the smaller bag
contained 0.3 grams of the illegal substance.

               Deputy Woods testified about his execution of the search warrant for the co-
defendant’s residence. His testimony regarding his contact and interaction with the defendant was
consistent with his suppression hearing account of the events.

                Deputy McMahan identified evidence that was seized at or near the residence,
including the methamphetamine seized from the defendant, which was the 0.3 grams submitted to
the TBI for analysis. He testified that when he first saw the defendant she had stepped away from
the door of the house and “was closer to the truck.” He related, as he had at the suppression hearing,
how he commanded the defendant in a loud voice to remove her hand from her pocket, and he
explained that the main concern was officer safety because the defendant may have had a weapon
in her pocket. Regarding the discovery of the narcotics when he removed the defendant’s hand from
her pocket, Deputy McMahan told the jury that a magnetic key holder came out and that it contained
methamphetamine. He said that he recognized the items once he examined them and that he “picked
the items up and led [the defendant] back to [his] patrol vehicle and put her in there.”

               The defendant did not testify either at the suppression hearing or at trial.


                                                 -4-
                As part of the defendant’s motion for new trial, she claimed that the trial court erred
in failing to suppress the search of her person after she was illegally arrested and detained by law
enforcement while in the process of knocking on the door of the co-defendant’s residence. We do
not have before us a transcript of the hearing on the new trial motion, but an order appears in the
record reciting that the motion was heard and denied on July 30, 2004. The record further reflects
that the defendant filed her notice of appeal on August 27, 2004.

                We begin our review by observing that “under 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). That is, a trial court necessarily indulges the presumption that
a warrantless search or seizure is unreasonable and the burden is on the state to demonstrate that one
of the exceptions to the warrant requirement applied at the time of the search or seizure. Id.

                Once the trial court has ruled on a suppression motion, our standard of appellate
review requires acceptance of the trial court’s findings regarding “[q]uestions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence,” unless
the evidence preponderates against the findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Cothran, 115 S.W.3d 513, 519 (Tenn. Crim. App. 2003). The application of the law to the
facts found by the trial court is, however, a question of law that is reviewed de novo. Yeargan, 958
S.W.2d at 629; Odom, 928 S.W.2d at 23.

                 On appeal, the defendant in this case acknowledges that well-settled law permits
police officers to perform a protective frisk of a suspect when the officers have reasonable suspicion
that the suspect may be armed. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968); State
v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997). The defendant also acknowledges that reasonable
suspicion for a protective frisk may be based upon a suspect’s “‘otherwise inexplicable failure to
remove a hand from a pocket.’” Cothran, 115 S.W.3d at 523 (quoting State v. Winn, 974 S.W.2d
700, 704 (Tenn. Crim. App. 1998)). Working from these principles, the defendant articulates the
issue on appeal in the following fashion: “The [defendant] concedes Deputy McMahan had a valid
basis for a Terry search. At issue is whether the magnetic key hold[er] that fell from the
[defendant’s] hand had an incriminating nature that was immediately apparent to the officer.” The
issue, thus framed, implicates the “plain view” exception to the warrant requirement of the Fourth
Amendment and Article I, section 7 of the Tennessee Constitution.2


         2
            The F ourth Am endment provides that “[t]he right of the people to be secure in their pe rsons, houses, pa pers,
and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probab le cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons
or things to b e seized.” The Fourth Amendme nt is applicable to the states through the F ourteenth Amendme nt. Mapp
v. Oh io, 367 U.S. 643 , 655, 81 S. Ct. 1684, 16 91 (196 1).

         Article I, Section 7, of the Tennessee Constitution provides “[t]hat the p eop le shall be secure in their pe rsons,
                                                                                                              (continued...)

                                                            -5-
                In its most general terms, the plain view doctrine allows law enforcement officials
to seize items in “plain view” while executing a search warrant naming other objects. See Coolidge
v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971). In Tennessee, the plain view doctrine
applies when (1) the objects seized were in plain view; (2) the viewer had a right to be in position
for the view; (3) the discovery of the seized object was inadvertent, and (4) the incriminating nature
of the object was immediately apparent. State v. Hawkins, 969 S.W.2d 936, 938 (Tenn. Crim. App.
1997); State v. Horner, 605 S.W.2d 835, 836 (Tenn. Crim. App. 1980). The United States Supreme
Court dispensed with the inadvertent discovery requirement in Horton v. California, 496 U.S. 128,
110 S. Ct. 2301 (1990), and our courts have reached the same conclusion under the Tennessee
Constitution. See Cothran, 115 S.W.3d at 525. See generally State v. Coulter, 67 S.W.3d 3, 43
(Tenn. Crim. App. 2001) (not mentioning inadvertent discovery as a requirement but not discussing
the Tennessee Constitution).

                  The plain view requirement that the incriminating nature of the evidence be
“immediately apparent” has been equated with “probable cause.” As the Supreme Court wrote in
Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993), “If . . . the police lack probable cause
to believe that an object in plain view is contraband without conducting some further search of the
object–i.e., if ‘its incriminating character [is not] “immediately apparent,”’–the plain-view doctrine
cannot justify its seizure.” Id. at 375, 113 S. Ct. at 2137 (citations omitted). Stated another way, the
“‘distinction between “looking” at a suspicious object in plain view and “moving” it even a few
inches’ is much more than trivial for purposes of the Fourth Amendment.” Arizona v. Hicks, 480
U.S. 321, 325, 107 S. Ct. 1149, 1152 (1987).3

                Interpreting Deputy McMahan’s suppression hearing and trial testimony in this case,
the defendant argues that the illegal narcotics were inside the magnetic key holder that came out of
the defendant’s pocket and fell to the ground. The defendant insists that the deputy did not say that
the key holder was jarred open before or when it hit the ground, and she claims that there was
nothing of an incriminating nature “immediately apparent” about the key holder. The defendant thus
deduces that Deputy McMahan must have opened the key holder to identify the contraband, which
constituted an independent “search” unsupported by probable cause.




         2
            (...continued)
houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer
may be co mmanded to search suspected place s, without evidence of the fact committed, or to seize any person or persons
not name d, who se offences are not p articularly described and su ppo rted b y evidence, are dan gerous to liberty and ought
not to b e granted.”


         3
            W e note, as did the Supreme Court in Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535 (1983), that “plain
view” is perhaps b etter und erstoo d not as an ind ependent “exce ption” to the warrant requ irement, but rather an extension
of whatever the prior justification for an officer’s “access to an object” may be, which could be bottomed on an exception
to the warrant requirement. See 460 U.S. at 739, 103 S. Ct. at 1541.



                                                             -6-
                  The state argues, as an initial matter, that the defendant waived the issue by failing
to elicit any testimony during the suppression motion relating to “plain view.” The state charges that
the defendant is “attempting to take advantage of an alleged ambiguity [in Deputy McMahan’s
testimony] that exists because of her own failure to raise this issue under the plain view doctrine in
the trial court.” Likewise, the state asserts that the issue is waived because the defendant failed to
mention “plain view” in connection with the suppression issue raised in her new trial motion.

                We reject the state’s waiver argument predicated on the defendant’s failure to elicit
testimony related to the plain view issue. In terms of what the testimony does or does not show, the
burden of proof remained solidly on the state to demonstrate that one of the exceptions to the warrant
requirement applied at the time the illegal narcotics were seized from the defendant.4 That burden
never shifted to the defendant. For that reason, the state’s waiver argument is not well taken. The
defendant was not required to prove that the plain view exception did not apply. Instead, the state
was obliged to show that the warrantless seizure was not unreasonable because a recognized
exception to the warrant requirement applied.

               In addition, the trial court squarely relied upon the plain view exception in ruling that
the narcotics would not be suppressed. “The evidence that was discovered,” stated the trial court,
“ was discovered when the object fell out of her hand and was there for anyone to see.” (Emphasis
added). The defendant, in our opinion, is certainly entitled to raise the question of plain view
inasmuch as the adverse ruling below was predicated on that very exception to the warrant
requirement.

                Last, we believe that the state unfairly parses the defendant’s language in her new trial
motion. To be sure, the defendant could have been more articulate, but the essence of her new trial
claim was that the trial court erred in failing to suppress the narcotics seized from her person. See
State v. King, 622 S.W.2d 77, 79 (Tenn. Crim. App. 1981) (“grounds relied upon must be specified
with reasonable certainty in a motion for a new trial”) (emphasis added).

               In the alternative, the state emphasizes that because it prevailed on the suppression
motion before the trial court, all reasonable inferences must be resolved in its favor. According to
the state, the reasonable inferences derived from Deputy McMahan’s testimony are that he
discovered the key holder and the contraband simultaneously when they dropped to the ground from



         4
            Althou gh the officers were executing a search warrant for the premises of co-defendant, Lisa Terry, that
warrant did not authorize the detention or search of the defendant, who occu pied the po sition of a transient visitor. See
State v. Curtis, 964 S.W .2d 604, 612 (Tenn. Crim. App. 1997) (discussing a split of authority on whether an officer
executing a search warrant can detain and frisk a transient visitor to the prem ises being searched ; stating “it is clear that
an officer does not, as a general rule, have the right to search a transient visitor); State v. Thomas, 818 S.W.2d 350, 357-
58 (Tenn. Crim. App. 199 1) (discussing Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338 (1979), wherein Supreme Court
concluded that a “warrant to search a place cannot normally be construed to authorize a search of each individual in that
place”). Consequently, we apply and hold the state to the customary burden of demonstrating that the search or seizure
was co nduc ted pursuan t to one of the exceptions to the warrant req uirement.

                                                             -7-
the defendant’s hand and that he immediately recognized the contraband from a lawful vantage point.
We agree.

               It is obvious from the trial court’s ruling that it inferred from Deputy McMahan’s
testimony that the contraband, along with the key holder, fell from the defendant’s hand: “Officer
McMahan testified that she put her hand in her pocket and was told about three times to remove her
hand from her pocket, but she would not do so, at which point he forcibly took her hand from her
pocket, and as he did that, drugs fell out of her hand, and she was arrested because of those drugs.”
These findings are factual in nature, and we are obligated to accept them on appeal unless the
evidence preponderates against the findings. See Odom, 928 S.W.2d at 23. The evidence, in our
opinion, does not so preponderate. In particular, we note and find persuasive Deputy McMahan’s
suppression hearing explanation that the illegal drugs “c[a]me out of her pocket with her hand” and
that there “was a little piece of aluminum foil that c[a]me out of there, too, that was burnt on it.”
According to the deputy, the burnt aluminum foil “was like what [they] find when they smoke meth.”

             In summary, we affirm the trial court’s denial of the defendant’s suppression motion;
the methamphetamine was properly seized pursuant to the plain view exception to the warrant
requirement.


                                                      ____________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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