         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    January 8, 2008 Session

        STATE OF TENNESSEE v. CHARLOTTE YVONNE TURNER

                       Appeal from the Circuit Court for Obion County
                        No. C07-192     William B. Acree, Jr., Judge


                     No. W2007-01590-CCA-R3-CD - Filed April 29, 2008


The State of Tennessee appeals the decision of the Obion County Circuit Court suppressing evidence
obtained as a result of a police search of the residence of the Appellee, Charlotte Yvonne Turner.
Turner, a parolee, was convicted of drug related offenses in Kentucky, with her parole being
subsequently transferred to Tennessee. Turner’s vehicle was stopped by Union City police officers,
who were familiar with her status as a parolee. After the stop, Turner and the vehicle were searched
for drugs based upon one officer’s suspicion that she was involved in drug activity. After a fruitless
search for contraband of both her person and vehicle, the officer demanded that Turner allow a
search of her home, pursuant to a condition of her parole. No drugs were found during the search
of her residence; however, Turner directed officers to a handgun, which was located in a bedroom.
The weapon was seized, and Turner was subsequently indicted for unlawful possession of a weapon
by a convicted felon. Turner filed a motion to suppress the evidence, which the trial court granted.
On appeal, the State argues that the search of the residence was lawful under the recent holding of
the United States Supreme Court decision of Samson v. California, 547 U.S. 843, 126 S. Ct. 2193
(2006). After review, we conclude that the police search of Turner’s residence was unreasonable
and affirm the ruling of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C. MCLIN ,
JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney
General, for the Appellant, State of Tennessee.

James T. Powell, Union City, Tennessee, for the Appellee, Charlotte Yvonne Turner.


                                             OPINION

                           Factual Background & Procedural History
       On June 4, 2007, an Obion County grand jury returned an indictment charging the Appellee
with unlawful possession of a weapon by a person who has been convicted of a felony drug offense,
pursuant to Tennessee Code Annotated section 39-17-1307(b)(1) (2006). The Appellee filed a
motion to suppress the evidence, and a hearing was held on the motion on June 22, 2007.

        The following sequence of events was established at the suppression hearing. Officer Shawn
Palmer, a Union City police officer assigned to the 27th Judicial Drug Task Force, testified that,
based upon his position in law enforcement, he was familiar with the Appellee’s criminal history in
Obion County. He was further aware that the Appellee was on parole in Kentucky for a drug offense
and that her parole had been transferred to a parole officer in Tennessee.1 Officer Palmer testified
that, sometime prior to April 3rd, he had received information from an unidentified informant that
the Appellee was selling crack cocaine. He recalled that he briefly discussed the Appellee’s status
with her parole officer while investigating this information. A copy of the Appellee’s parole
certificate from Kentucky was admitted as an exhibit at the hearing. Also admitted was a document
containing the rules and conditions of her parole in Tennessee, which was signed by the Appellee.
Rule 8 of the parole document states that the Appellee “agree[s] to a search, without a warrant, of
my person, vehicle, property, or place of residence by any Probation/Parole Officer or law
enforcement, at any time.”

         On April 3, 2007, Officer Palmer saw the Appellee driving her vehicle in Union City. He
testified that he stopped the Appellee’s vehicle for a seatbelt violation; however, he admitted that
the seatbelt violation was, “without a doubt,” a pretext and that he actually intended to investigate
the alleged tip regarding possible drug possession and activity. At the scene of the vehicle stop,
Officer Palmer contacted the Appellee’s parole officer again to verify her rules of parole. He
testified that he conducted a search of the Appellee, and he found $975 in her pocket, which he
seized. However, Officer Palmer did not find any controlled substances in the Appellee’s car or on
her person.

        Officer Palmer testified that he informed the Appellee that the officers wanted to search her
house, but she initially refused consent. He responded to her refusal, “[f]ine, we’ll just call your
parole officer [and] tell her that you’re not cooperating.” After the Appellee called her parole officer,
she agreed to meet the officers at her house. Approximately twenty minutes later, the Appellee met
the officers at her residence and admitted that there was a gun inside the house. After the Appellee
unlocked her door, the police officers searched the house and recovered a loaded .38 caliber revolver
on a bed and a round of ammunition in a dresser drawer. No drugs or drug paraphernalia were found
inside the residence. The Appellee was subsequently arrested for unlawful possession of a handgun
by a convicted felon. Officer Palmer testified that, from the initial traffic stop to the conclusion of
the home search, the time elapsed was approximately one hour.




         1
           Such parole transfers are governed by the Interstate Compact for Supervision of Adult Offenders, which is set
forth at Tennessee Code Annotated sections 40-28-401 and -402.

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         The Appellee testified that when Officer Palmer stopped her vehicle, he instructed her to get
out of the car, and he began searching her. She stated that Officer Palmer did not ask for her driver’s
license or vehicle registration, and he said nothing regarding a seatbelt violation. After Officer
Palmer searched her vehicle, the Appellee recalled that he instructed her to drive to her house and
apprised her that he intended to search the house. She testified that Officer Palmer told her “if I
didn’t go to my house he was gonna [sic] call my [parole officer] or he was gonna [sic] take me to
jail anyway.” The Appellee called her parole officer, who read her Rule 8, regarding warrantless
searches by law enforcement, and she met the officers at her house, which they searched. The
Appellee testified that the time elapsed between the initial traffic stop and her arrest was
approximately two hours.

        At the conclusion of the hearing, the trial court granted the Appellee’s motion to suppress.
Although the court found that the initial stop and search of the Appellee was reasonable, it found that
the officers’ requirement of the Appellee “to go to another location with no basis whatsoever and
detain her for one to two hours . . . constitute[d] an harassing, capricious and arbitrary search[,]” that
the search of the Appellee’s home was not supported by reasonable suspicion, and that it was in
violation of the Fourth Amendment. The State appeals this ruling of the trial court.

                                                      Analysis

         The State argues on appeal that the trial court erred in granting the Appellee’s motion to
suppress, relying on the decision of the United States Supreme Court in Samson, 547 U.S. 843, 126
S. Ct. 2193. The State contends that in Samson, the United States Supreme Court was “crystal clear
in its ruling that a police officer is not prohibited from conducting a suspicionless search of a parolee
who is subject to conditions of parole permitting such searches.”2

       Our standard of review for a trial court’s findings of fact and conclusions of law on a motion
to suppress evidence was set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

         Under this standard, “a trial court’s findings of fact in a suppression hearing will be
         upheld unless the evidence preponderates otherwise.” [Odom, 928 S.W.2d] at 23. As
         is customary, “the 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)).



         2
           In State v. Davis, this court reviewed a condition of probation identical to the parole condition presently at
issue in this case. W e concluded in Davis that it was “unnecessary to address the broader issue of the constitutionality
of the warrantless search condition of probation” because the search was permitted based on the facts that: “(1) the
warrantless search provision was reasonably related as a condition of the [a]ppellant’s probation; and (2) the attempted
warrantless search of the [a]ppellant’s residence was supported by reasonable suspicion.” 191 S.W .3d 118, 121-22
(Tenn. Crim. App. 2006).



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State v. Cox, 171 S.W.3d 174, 178-79 (Tenn. 2005). Nevertheless, we review de novo the trial
court’s application of the law to the facts, without according any presumption of correctness to those
conclusions. Id. at 179 (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,
989 S.W.2d 295, 299 (Tenn. 1999)).

       The Fourth Amendment to the United States Constitution guarantees that “the right of the
people to be secure . . . against unreasonable searches and seizures, shall not be violated and no
warrants shall issue, but upon probable cause . . . .” Article I, section 7 of the Tennessee
Constitution provides:

        [t]hat the people shall be secure in their persons, houses, papers and possessions,
        from unreasonable searches and seizures; and that general warrants, whereby an
        officer may be commanded to search suspected places, without evidence of the fact
        committed, or to seize any person or persons not named, whose offences are not
        particularly described and supported by evidence, are dangerous to liberty and ought
        not to be granted.

State v. Stephenson, 195 S.W.3d 574, 592 n.13 (Tenn. 2006). This constitutional provision is
identical in intent and purpose with the Fourth Amendment. Id. (citing State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997)); see also Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968). “The
touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is
determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.” United States v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587, 591 (2001)
(quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300 (1999)). Under both the
federal and state constitutions, warrantless seizures are presumed unreasonable and evidence
obtained from such seizures should be suppressed unless the State demonstrates by a preponderance
of the evidence that the search or seizure was conducted pursuant to an exception to the warrant
requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971); State
v. Watkins, 827 S.W.2d 293, 295 (Tenn. 1992).

        In Samson v. California, the United States Supreme Court addressed the constitutionality of
a California statute which provided that every prisoner eligible for release on state parole “shall agree
in writing to be subject to search or seizure by a parole officer or other peace officer at any time of
the day or night, with or without a search warrant and with or without cause.” Samson, 547 U.S. at
846, 126 S. Ct. at 2196. The petitioner, a parolee, was observed by police walking down the street
with a woman and a child, and one police officer, who knew that the petitioner was on parole and
believed that he faced an outstanding warrant, stopped the petitioner and searched him based on his
parole status. Id. In the pocket of the petitioner, the officer found a cigarette box containing
methamphetamine. Id. at 847, 126 S. Ct. at 2196. The Samson Court discussed the State of
California’s interests in reducing recidivism, thereby promoting reintegration and positive citizenship
among probationers and parolees, and noted that these interests warrant privacy intrusions that would
not otherwise be tolerated under the Fourth Amendment. Id. at 853, 126 S. Ct. at 2200. The Court


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further noted that “the Fourth Amendment does not render the States powerless to address these
concerns effectively.” Id. (citing Knights, 534 U.S. at 121, 122 S. Ct. at 587). In balancing the
interests presented, the Supreme Court held that the suspicionless search of a California parolee,
conducted pursuant to the California law requiring all parolees to agree to be subjected to search or
seizure at any time, did not violate the Fourth Amendment. Id. at 857, 126 S. Ct. at 2202.

        The State relies extensively upon the holding of the United States Supreme Court in Samson
to advance its current position that the search of the Appellee’s home in this case was valid.
However, the State’s argument ignores an important aspect of the Samson holding. The Samson
majority specifically addressed a primary concern of the dissent, that California’s parole search law
permitted “a blanket grant of discretion untethered by any procedural safeguards.” In response to
this concern, the majority reasoned that, although California law authorizes a suspicionless search
of a parolee, prevailing California law also requires that a suspicionless search of a parolee be
conducted within reasonable constraints:

       The concern that California’s suspicionless search system gives officers unbridled
       discretion to conduct searches, thereby inflicting dignitary harms that arouse strong
       resentment in parolees and undermine their ability to reintegrate into productive
       society, is belied by California’s prohibition on “arbitrary, capricious or harassing”
       searches. . . . The dissent’s claim that parolees under California law are subject to
       capricious searches conducted at the unchecked “whim” of law enforcement officers
       . . . ignores this concern.

Id. at 856, 126 S. Ct. at 2202 (citations omitted); see also People v. Reyes, 968 P.2d 445, 451 (Cal.
1998). Likewise, it is established precedent in Tennessee that “[t]he essence of the prohibition
against unreasonable searches and seizures under the Fourth Amendment is to ‘safeguard the privacy
and security of individuals against arbitrary invasions of government officials.’” State v. Randolph,
74 S.W.3d 330, 334 (Tenn. 2002) (quoting Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 528,
87 S. Ct. 1727, 1730 (1967)).

        It is settled law that a “seizure that is lawful at its inception can violate the Fourth
Amendment if its manner of execution unreasonably infringes interests protected by the
Constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005) (citing United
States v. Jacobsen, 46 U.S. 109, 124, 104 S. Ct. 1652, 1663 (1984)). In determining whether a
person has been seized, our supreme court has adhered to a totality of the circumstances approach.
Randolph, 74 S.W.3d at 336. Furthermore, our supreme court has consistently applied the standard
set forth by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S.
Ct. 1870 (1980), i.e., whether “in view of all the circumstances surrounding the incident, a
reasonable person would have believed he or she was not free to leave.” Id. (citing State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000); State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993)).

       A line between reasonable detention for routine investigation and detention which
       could be characterized as capricious and arbitrary cannot neatly be drawn. But due


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       regard for the practical necessities of effective law enforcement requires that the
       validity of brief, informal detention be recognized whenever it appears from the
       totality of the circumstances that the detaining officers could have had reasonable
       grounds for their actions. A founded suspicion is all that is necessary, some basis
       from which the court can determine that the [seizure] was not arbitrary or harassing.

State v. Goad, 549 S.W.2d 377, 379 (Tenn. 1977) (quoting Wilson v. Porter, 361 F.2d 412, 415 (9th
Cir. 1966)); see also State v. McLennan, 503 S.W.2d 909, 911 (Tenn. 1973), cert. denied, 414 U.S.
1112, 94 S. Ct. 843 (1973).

        The Appellee in this case was initially subjected to a police search of her person and her
vehicle after a traffic stop for a seatbelt violation, which Officer Palmer admitted was a pretense for
investigating an alleged tip from an informant that the Appellee was selling crack cocaine. Despite
an absence of contraband on the person of the Appellee or in her vehicle, Officer Palmer then
demanded that the Appellee meet the police officers at her home so that they could effectuate a
search of her residence. The proof established that the Appellee complied with Officer Palmer’s
request and met the police at her home approximately twenty minutes later. The total time elapsed
from the initial traffic stop to the time of the arrest at the Appellee’s home was between one and two
hours. The application of the reasonable parole condition by the police officers, in this case, became
unreasonable as a result of this lengthy seizure of the Appellee. We conclude that the resulting
search and seizure occurring at the home of the Appellee was, accordingly, unreasonable under the
state and federal constitutions and that the trial court correctly suppressed the evidence seized as a
result of this search.

                                          CONCLUSION

       Based upon the foregoing, the judgment of the Obion County Circuit Court is affirmed.


                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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