                                                                                        09/26/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 9, 2017 Session

          STATE OF TENNESSEE v. MICHAEL DONALD SPRAY

                   Appeal from the Circuit Court for Bedford County
                     No. 17746    Forest A. Durard, Jr., Judge


                            No. M2016-00879-CCA-R3-CD



Following a bench trial, the Defendant, Michael Donald Spray, a former dispatcher for
the Bedford County Sheriff’s Department, was convicted in the Bedford County Circuit
Court of eight counts of sexual exploitation of a minor involving over 100 images, a
Class B felony, and two counts of sexual exploitation of a minor involving over 50
images, a Class C felony, and was sentenced to an effective term of sixteen years in the
Department of Correction. The sole issue the Defendant raises on appeal is whether the
trial court erred in denying his motion to suppress the images on the basis they were
discovered as a result of an illegal, warrantless search by a fellow employee of the
sheriff’s department. Following our review, we affirm the judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT H. MONTGOMERY, JR., JJ., joined.

John H. Norton, III, Shelbyville, Tennessee, for the appellant, Michael Donald Spray.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       On March 28, 2013, the Defendant was working as a civilian employee dispatcher
for the Bedford County Sheriff’s Department when a fellow dispatcher, Jonathan Evans,
discovered pornographic images of children on the Defendant’s cell phone. Mr. Evans
reported what he had seen to a sergeant with the Bedford County Sheriff’s Department,
and a search warrant was subsequently obtained for the phone. After a detective had
performed a cursory examination of the cell phone, which confirmed what Mr. Evans had
reported, the Defendant was arrested and transported to the Shelbyville Police
Department. The Defendant, who signed a waiver of his Miranda rights, told
interviewing officers that he had downloaded similar images onto a laptop computer in
his home and signed a written consent for the officers to seize and search the computer.
The forensic examination of the cell phone and computer uncovered over 1000 images
that appeared to depict children engaged in sexual activity or simulated sexual activity
that was patently offensive. Consequently, on November 18, 2013, the Bedford County
Grand Jury returned an indictment charging the Defendant with ten separate counts of
sexual exploitation of a minor involving over 100 images.

                                 Suppression Hearing

        On February 28, 2014, the Defendant filed a motion to suppress the evidence and
to dismiss all the charges, arguing, among other things, that the initial photographs
discovered on his cell phone were obtained in violation of his Fourth Amendment right to
be free from unreasonable searches and seizures and that the subsequent photographs and
videos discovered on his cell phone and computer were tainted by the illegality of the
initial search. We will summarize only those portions of the evidentiary hearing that are
pertinent to the issue the Defendant raises on appeal.

        At the April 10, 2014 suppression hearing, Jonathan Evans testified that in March
2013, he was employed as a dispatcher for the Bedford County Sheriff’s Department,
where his duties involved answering the phone, looking up warrants, and “run[ning]
tags.” His work shift on March 27-28, 2013, lasted from 6:00 p.m. to 12:00 a.m., when
he was relieved by the Defendant. He went home, retrieved a movie he had borrowed
from a city police officer, and returned to the sheriff’s department, where he began
watching the movie in the lounge with the city police officer and several deputies of the
sheriff’s department. At some point, the Defendant joined them in the lounge and began
watching the movie with them.

       At approximately 2:30 a.m., the telephone rang and Mr. Evans offered to answer
it. Although he could have answered the call on the phone in the lounge, he instead went
to the dispatch area, where he handled the call away from the noise of the movie. After
hanging up, he noticed the Defendant’s cell phone, which was plugged into a charger,
and decided to “play around with [the Defendant]” by taking a picture of himself and
setting it as the phone’s wallpaper. He picked up the phone, which was not password
protected, touched the center button to display the phone’s wallpaper, found the camera
icon, and took a photograph of himself. However, when he began trying to set the
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photograph as the phone’s wallpaper he was unable to find it and therefore “went looking
for it.” During that search, he “found what [he] found,” “realized what it was,” quickly
found and deleted his own photograph, and then “got out of there” as he noticed on the
video monitor that the Defendant was walking from the lounge toward the dispatch area.

       Mr. Evans testified that he texted Sergeant Joshua Tolar to ask him to come
outside, where he informed him that he had seen child pornography on the Defendant’s
cell phone. Sergeant Tolar sent Mr. Evans home, and the next day Mr. Evans was called
back to the sheriff’s department to give a written statement to Detective Charles Kimbril
of the Bedford County Sheriff’s Department.

        On cross-examination, Mr. Evans testified that he was not a commissioned law
enforcement officer, was not POST-certified, and had no authority to arrest anyone or
serve a criminal warrant. He acknowledged he was an hourly employee and was “off the
clock” when he volunteered to answer the phone during the Defendant’s shift. He
testified that no one asked him to search the Defendant’s phone, that he never expected to
find child pornography on it, and that he had no involvement in the case after giving his
written statement. He said he looked at only three photographs before he realized what
he was seeing and decided to quickly find and delete his own photograph:

              I just seen [sic] three pictures. The first one, I was like, “No, that
       can’t be what it is.” And I went to the next one, I was like, “It looks like
       it.” And I went to the other one, and I was like, “Yeah, that is what it is.”
       And I started looking for my stuff.

       As for why he attempted to set his photograph as the Defendant’s wallpaper, Mr.
Evans explained that he and the Defendant were work acquaintances who “picked at each
other at times” in a playful manner. He further explained that his difficulty in finding his
photograph was because he did not own a smartphone and was “just kind of winging it”
with the Defendant’s phone.

       On redirect examination, Mr. Evans acknowledged that he enlarged each of the
three photographs he looked at on the Defendant’s phone.

       Sergeant Joshua Tolar of the Bedford County Sheriff’s Department testified that
Mr. Evans told him he had seen some disturbing pictures “of children in a sexual nature”
on the Defendant’s cell phone after he had tried to play a prank on the Defendant by
taking a picture of himself and setting it as the screen saver. Sergeant Tolar said that he
sent Mr. Evans home and discussed what he had learned with Deputy Cameron Farrell
before deciding to call Chief Deputy David Williams to inform him of the situation.

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Chief Williams told him he would handle it in the morning, and Sergeant Tolar then
returned to the lounge and “pretended [he] didn’t know anything.”

       Sergeant Tolar testified that he did not take any further action with respect to the
Defendant’s cell phone and did not instruct Deputy Farrell to take any action. Deputy
Farrell, however, informed him that same morning that he had looked at the Defendant’s
cell phone. On cross-examination, Sergeant Tolar testified that his conversation with
Chief Williams was substantially completed at the time that Deputy Farrell came outside
and reported that he had looked at the Defendant’s cell phone. He said he did not tell
Chief Williams that Deputy Farrell had looked at the phone.

        Deputy Cameron Farrell of the Bedford County Sheriff’s Department testified that
when he learned about the pictures on the Defendant’s cell phone, he walked to the
dispatch area where the Defendant’s cell phone was still plugged into its charger, turned
the phone around, hit the photo button, and briefly looked at the small “boxed up” display
of photographs that appeared, which he could immediately tell were “inappropriate.” He
then hit the phone’s center button to take the phone out of the photo gallery before
turning the phone back around and walking first to the lounge, where he saw the
Defendant, and then outside to where Sergeant Tolar was on the phone with Chief
Williams. He recalled that he looked at Sergeant Tolar and said, “Man, it’s pretty
terrible.” He never spoke with Detective Kimbril about what he had seen and was not
asked to give a written statement about it.

       On cross-examination, Deputy Farrell explained that he looked at the Defendant’s
cell phone because Mr. Evans and the Defendant had a history of “mess[ing] with” each
other and he thought that Mr. Evans’ report of having seen child pornography on the
Defendant’s phone had to be a practical joke. He said his involvement in the case ended
after he made the comment to Sergeant Tolar about how bad the photos were.

       Sergeant Charles Kimbril of the Bedford County Sheriff’s Department, a
“detective sergeant investigator,” identified the affidavit in support of the March 28, 2013
search warrant he obtained for the Defendant’s cell phone, which was based on
information Mr. Evans provided him in an interview and written statement on the
morning of March 28. He said when he and Detective Carol Jean of the Shelbyville
Police Department went to the Defendant’s home that day to serve the warrant, the
Defendant met them in the driveway and took them into the house to retrieve the cell
phone from his bedroom. Sergeant Kimbril stated that he opened the photo gallery on the
phone and viewed a few of the photographs before telling the Defendant that he was
under arrest for sexual exploitation of a minor. He read the Defendant his rights, and the
Defendant agreed to talk to him. He and Detective Jean then transported the Defendant,

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who was in custody but was not handcuffed, to the Shelbyville Police Department for an
interview.

       Sergeant Kimbril testified that the Defendant told them that he had similar pictures
on his laptop located at his home. He asked if they could search the laptop, and the
Defendant replied that it did not matter because they were going to search it anyway.
Sergeant Kimbril said that it did matter and that they could not search the computer
without the Defendant’s written or verbal consent. The Defendant signed a written
consent that Sergeant Kimbril prepared from a preprinted form supplied by Detective
Jean. The Defendant then accompanied them back to his home, where he handed over
his laptop computer. Sergeant Kimbril identified the Defendant’s signed waiver of rights
and signed consent to search, on which he had handwritten that the Defendant understood
“that a forensic search of [his] cell phone [and] computer w[ould] be conducted by the
TBI.”

       On cross-examination, Sergeant Kimbril testified that when the Defendant made
the comment about how they would search his computer even if he did not give his
consent, he replied that the Defendant did not have to consent and if he did not, the
officers were not going to get the computer without a search warrant.

        Chief Deputy David Williams, Jr. of the Bedford County Sheriff’s Department
testified that Sergeant Tolar informed him that another dispatcher had picked up the
Defendant’s cell phone and discovered inappropriate pictures on it. Sergeant Tolar said
nothing about a deputy having also examined the Defendant’s phone, and Chief Williams
did not learn of that fact until “[t]he other day at the meeting with the [district attorney].”

        On September 18, 2014, the trial court entered an order overruling the Defendant’s
motion to suppress the evidence and dismiss the indictment. The court found that the
“catalyst of the entire intrusion” into the Defendant’s cell phone was Mr. Evans’ intent to
play a practical joke on the Defendant, which was clearly not part of the performance of
Mr. Evans’ official duties for the sheriff’s department. The court, therefore, concluded
that the exclusionary rule was not applicable to Mr. Evans’ actions, regardless of whether
or not his position as a civilian employee of the sheriff’s department qualified him as an
“adjunct” to law enforcement, subject to the Fourth Amendment’s prohibitions against
unreasonable searches and seizures. The court also found that Deputy Farrell looked at
the phone because he thought the situation was a joke, that he did not find anything
beyond that which Mr. Evans had already reported, and that Sergeant Kimbril obtained
his search warrant based on the information provided by Mr. Evans, and without talking
to Deputy Farrell. The court further concluded that the Defendant’s signed consent for
the laptop computer was not tainted by the alleged illegality of the initial search/search
warrant because there was sufficient attenuation between the two.
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       At the conclusion of the Defendant’s July 27-28, 2015 bench trial, the trial court
took the matter under advisement to review in depth the images on which the ten counts
of the indictment were based. On February 12, 2016, the court entered a written
“Judgment from Bench Trial” in which it found the Defendant guilty of eight counts of
sexual exploitation of a minor involving over 100 images, a Class B felony, and two
lesser counts of sexual exploitation of a minor involving over 50 images, a Class C
felony. The trial court subsequently sentenced the Defendant to an effective term of
sixteen years in the Department of Correction. This appeal followed.

                                        ANALYSIS

        The sole issue the Defendant raises on appeal is whether the trial court erred by
denying his motion to suppress the images discovered on his cell phone and laptop
computer. The Defendant argues that Mr. Evans’ employment as a dispatcher for the
sheriff’s department made him a functionary of law enforcement and therefore subject to
the prohibition against illegal searches and seizures. The Defendant further argues that
Mr. Evans’ actions in looking at the photographs on the Defendant’s phone constituted an
illegal search and that the subsequent search of his laptop computer was the “fruit of the
poisonous tree” of the initial illegal search. The State responds that the trial court
correctly found that there was no Fourth Amendment violation because Mr. Evans was
not acting as an agent of the government when he discovered the photographs on the
Defendant’s cell phone. We agree with the State.

       When this court reviews a trial court’s ruling on a motion to suppress, “[q]uestions
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.” State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the suppression
hearing is afforded the “strongest legitimate view of the evidence and all reasonable and
legitimate inferences that may be drawn from that evidence.” State v. Keith , 978 S.W.2d
861, 864 (Tenn. 1998). The findings of a trial court in a suppression hearing are upheld
unless the evidence preponderates against those findings. See id. However, the
application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,
989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       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. See U.S. Const. Amend. IV; Tenn. Const. art. I, § 7. “These constitutional
provisions are designed to ‘safeguard the privacy and security of individuals against
arbitrary invasions of government officials.’” State v. Keith, 978 S.W.2d at 865 (quoting
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Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). “[T]he general rule is that a
warrantless search or seizure is presumed unreasonable and any evidence discovered is
subject to suppression.” State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Under the
“fruit of the poisonous tree” doctrine, evidence obtained by exploitation of an
unconstitutional search and seizure may also be suppressed. See State v. Ingram, 331
S.W.3d 746,760 (Tenn. 2011) (citing Wong Sun v. United States, 372 U.S. 471, 488
(1963)).

       An individual does not, however, have a constitutional right to be free from
unreasonable searches and seizures conducted by a private individual, unless that
individual is acting as an agent of the government. State v. Burroughs, 926 S.W.2d 243,
245 (Tenn. 1996). In Burroughs, our supreme court adopted the “legitimate independent
motivation test” to determine the point at which a private individual becomes an
instrument of the state, “imputing, thereby, violations of the Fourth Amendment to the
state.” Id. at 245-46 (citations omitted). Under this test, the two relevant factors to be
considered are (1) the government’s knowledge of and acquiescence in the search; and
(2) the intent of the party performing the search. Id. (citing United States v. Walther, 652
F.2d 788, 792 (9th Cir. 1981).

       The Defendant spends a large portion of his brief on his argument that Mr. Evans,
as a civilian dispatcher for the sheriff’s department, was a “functionary” of law
enforcement, whose conduct was “subject to the proscriptions of the Fourth
Amendment.” The Defendant points out that Mr. Evans, even though technically off-
duty at the time, was performing a function of his law-enforcement-related job when he
saw the Defendant’s cell phone and decided to play a trick on him. The Defendant
contends that applying the exclusionary rule to suppress the evidence under these
circumstances, in which Mr. Evans engaged in the “deliberate and flagrant conduct” of
violating the Defendant’s privacy rights by examining the contents of his unattended cell
phone, will serve to deter other law enforcement officers and functionaries from engaging
in similar deliberate misconduct.

       The Defendant, citing United States v. Ginglen, 467 F.3d 1071 (7th Cir. 2006),
People v. Wachter, 130 Cal. Rptr. 279 (Cal. Ct. App. 1976), and State v. Andrews, 637
A.2d 787 (Conn. App. Ct. 1994), acknowledges that some courts have found that even a
law enforcement officer is not subject to the exclusionary rule when he or she is acting
off-duty for a private purpose. The State, in its brief, also points out that this court has
held that an off-duty highway patrolman was acting as a private individual, and thus not
subject to the exclusionary rule, when he called to check on the registration of a vehicle
he was considering for purchase. See Shelton v. State, 479 S.W.2d 817, 819-20 (Tenn.
Crim. App. 1972). The Defendant attempts to distinguish the case at bar by the fact that,

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unlike in the above cases, Mr. Evans was at his workplace and performing a function of
his job at the time he spotted and examined the Defendant’s cell phone.

       We agree with the State and the trial court that, regardless of whether a civilian
dispatcher is considered a “functionary” of law enforcement or a private person, the
“search” Mr. Evans conducted of the Defendant’s cell phone did not amount to a
violation of the Defendant’s constitutional right to be free from illegal searches and
seizures. Mr. Evans testified that his intent was to play a practical joke on the Defendant,
that no one instructed him to search the Defendant’s phone, and that he never expected to
find child pornography on the phone. His testimony, in fact, indicates that he was
shocked at his discovery. There was no evidence to the contrary. Thus, according to the
proof, Mr. Evans was not acting with the government’s knowledge or acquiescence and
was motivated solely by his own private intent to play a joke on the Defendant when he
discovered the images in question. Since there was no Fourth Amendment violation in
Mr. Evans’ discovery of the images on the Defendant’s cell phone, the subsequent
searches and seizures of the phone and computer were not tainted by any illegality.
Accordingly, we affirm the trial court’s denial of the Defendant’s motion to suppress the
evidence and dismiss the indictment.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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