        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2016

            STATE OF TENNESSEE v. ROBERT G. THORNTON

                 Appeal from the Circuit Court for Hickman County
                  No. 14-5023CR       James G. Martin, III, Judge



               No. M2015-01555-CCA-R3-CD – Filed January 10, 2017



NORMA MCGEE OGLE, J., dissenting.

       I respectfully dissent from the majority’s conclusion that the police had probable
cause to search the Defendant’s vehicle.

        As stated by the majority, “Probable cause has been defined as a reasonable
ground for suspicion, supported by circumstances indicative of an illegal act.” Henning,
975 S.W.2d at 294; see State v. Ronald Edward Parrish, No. 01C01-9309-CC-00292,
1995 WL 678810, at *3 (Tenn. Crim. App. at Nashville, Nov. 16, 1995) (stating that
“[p]robable cause means reasonable grounds for suspicion for cautious men to believe
that the accused person is guilty of the offense upon which the search is founded”). In
determining whether the evidence established a nexus between the crime of solicitation of
a minor and the vehicle, the majority finds that the following facts warranted belief that
evidence of the criminal activity would be found in the vehicle: the Defendant referenced
a condom and “sexual items” in his text message to the minor; he insisted on confirming
that the person he was communicating with was a child; he brought a single condom to
the late-night, outdoor meeting with the minor; he attempted to conceal his car by parking
at a distance at his sister’s home; and he was evasive in revealing the vehicle’s location.

      Relevant to this case, the statute for solicitation of a minor provides as follows:

             It is an offense for a person eighteen (18) years of age or
             older, by means of oral, written or electronic communication,
             electronic mail or Internet services, directly or through
             another, to intentionally command, request, hire, persuade,
             invite or attempt to induce a person whom the person making
             the solicitation knows, or should know, is less than eighteen
             (18) years of age, or solicits a law enforcement officer posing
             as a minor, and whom the person making the solicitation
             reasonably believes to be less than eighteen (18) years of age,
             to engage in conduct that, if completed, would constitute
             [rape of a child.]

Tenn. Code Ann. § 39-13-528(a)(1). First and foremost, I point out that the Defendant
never communicated a statement to the minor regarding the two of them engaging in any
sex act. The Defendant stated in a text to the minor, “Ok I don’t mind givin you a
condom but I just don’t trust a lot of people when it comes to condoms and sexual items.”
Therefore, I question whether the crime of solicitation of minor was even committed in
this case.

        Regarding the issue of probable cause to search the vehicle, the Defendant referred
to only one condom in his text, and the police found that one condom on his person. The
Defendant stated in the text that he did not “trust a lot of people when it comes to . . .
sexual items” but did not state that he would bring sexual items to the meeting or use
them with the minor. Therefore, neither the condom nor the “sexual items” mentioned in
the text established a nexus between the alleged crime and the vehicle. The Defendant’s
determination to make sure the minor was, in fact, a minor, his arranging to meet the
minor in the middle of the night, and his evasiveness about the location of his vehicle
were certainly concerning. However, in my view, those actions did not create probable
cause to search his vehicle. I note that the Defendant parked his vehicle near the meeting
site; in the front yard of his sister’s home, where it would be recognized; and near the
highway. Moreover, despite the Defendant’s refusal to tell the police where he had
parked the vehicle, they found it soon after his arrest.

       In sum, I do not believe the circumstances, even considered in their totality,
established a nexus between the alleged crime and the vehicle. Therefore, I would hold
that the police did not have probable cause for the search and reverse the Defendant’s
convictions for sexual exploitation of a minor.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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