            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                Assigned on Briefs January 7, 2003

                  STATE OF TENNESSEE v. MICHAEL KENNEDY

            Direct Appeal from the Circuit Courts for Chester and Henderson Counties
               Chester County No. 00-076; Henderson County Nos. 01093-3, 01094-3
                                   Roy B. Morgan, Jr., Judge



                    No. W2001-03107-CCA-R3-CD - Filed February 21, 2003


The defendant, Michael Kennedy, pled nolo contendere to numerous burglary, theft and vandalism
charges in Chester and Henderson Counties. He received an effective sentence of fifteen years. The
cases were consolidated at the trial level and on appeal. Pursuant to the plea agreement reserving
a certified question of law, the defendant contends the trial court erred in denying his motion to
suppress items found during an illegal search. We conclude that we do not have jurisdiction as to
three of the cases in Henderson County because the certified question of law is not dispositive of
these cases. We affirm the remaining judgments of the trial court.

            Tenn. R. App. P. 3 Appeal as of Right; Appeal of Three Counts Dismissed;
                      Judgments of the Circuit Courts Otherwise Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN
E. GLENN, JJ., joined.

George Morton Googe, District Public Defender; and Nina Wong Seiler, Assistant District Public
Defender, for the appellant, Michael Kennedy.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                                 OPINION

       The defendant, Michael Kennedy, 1 entered a plea of nolo contendere to numerous counts of
burglary, theft, and vandalism arising out of events that occurred in Chester and Henderson
Counties. He received an effective sentence of fifteen years for the Chester County convictions and


        1
           In various pleadings, the defendant’s name appears as “Michael Keith Kennedy.” However, in accordance
with this court’s practice, we list the name as it appears on the indictme nts.
an effective sentence of twelve years for the Henderson County convictions, all sentences to be
served concurrently. Pursuant to the plea agreement, the defendant reserved the following certified
question of law: “Did the Defendant give an unequivocal, specific, intelligent, and voluntary consent
to the warrantless search of his premises and vehicles, uncontaminated by duress or coercion?”


                                  I. SUPPRESSION HEARING

       At the suppression hearing, Investigator O’Neal Ellis of the Henderson County Sheriff’s
Department testified that on August 28, 2000, he received a complaint from Mark Marr, a victim
of a vehicle burglary, stating that he saw his stolen property in a yard on Piney Creek Road in
Henderson County. The items Marr observed included fishing rods, reels, and a weedeater, which
were leaning against the residence. Investigator Ellis discovered the defendant was the lessee of the
residence.

       Investigator Ellis testified that upon receiving the information, Chief Deputy Jerry Bingham
went to the residence, and he followed a short time later. When they arrived, they approached the
door of the residence and knocked, but no one answered. The officers then returned to their
vehicles, parked them down the road from the premises, and waited for someone to return to the
residence. Investigator Ellis testified they waited in their vehicles for approximately four hours.

       Investigator Ellis stated the defendant arrived at the residence in a truck, and he followed the
defendant into the driveway. The defendant retrieved an unidentified item out of his vehicle and
entered the residence. While on the premises, the officers identified items in the yard as stolen
property. Investigator Ellis stated that when the defendant exited the residence, he was taken into
custody. The sheriff was then called to the scene and later transported the defendant to the county
jail.

       Investigator Ellis testified he advised the defendant of his Miranda rights and explained to
him that they were looking for items which had been reported stolen. He stated he also informed
the defendant of his right to refuse consent. Investigator Ellis testified that in the presence of
Deputy Bingham, the sheriff, and himself, the defendant verbally consented to a search of the
premises. The officer stated that although he could not recall the defendant’s exact words, he said
something to the effect of “Sure, you can look. It doesn’t matter to me.” During the search of the
premises, the officers found items that had been reported stolen by various individuals.

         Susan Kreitzer, who was living with the defendant at the residence, testified that she entered
the driveway and saw Deputy Bingham parked in the driveway, and Investigator Ellis entered the
driveway behind her. The defendant was not present. Kreitzer testified the officers questioned her
about the fishing poles and a boat in the yard, and she told them the fishing poles belonged to the
defendant. She stated the officers requested consent to search the premises. Kreitzer told the
officers she did not have the authority to consent because her name was not listed on the lease. She
stated the officers then told her to gather her things and leave, and that they would contact her if she
were needed. Kreitzer stated she left the residence, but when she drove by the residence one hour
later, she saw the officers’ vehicles parked in the driveway but did not see the defendant’s vehicle.

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       The defendant testified that as he entered the driveway, he noticed several things were
missing from his yard, and the front door of the residence was open. He then entered the residence
and noticed several items were missing. The defendant stated two officers followed him into the
driveway, and Investigator Ellis walked onto the porch and requested he step outside. The officer
had three to four fishing rods and reels with him, and he questioned the defendant regarding the
items.

       The defendant testified Investigator Ellis called Mark Marr and requested his presence at the
residence. When Marr arrived, he identified the defendant as a man he saw near his vehicle on the
day it was burglarized. The defendant stated the officers then placed him under arrest. The
defendant testified Investigator Ellis never requested his consent to search the premises, and that he
never consented to a search.


                                II. TRIAL COURT’S FINDINGS

        The trial court expressly recognized that the validity of the consent involved an issue of
credibility. It specifically accredited the testimony of Investigator Ellis and found that when the
officer requested consent to search the premises, the defendant gave an affirmative response to the
request and allowed the officers to conduct a search of the premises. Finally, the trial court noted
that even though the officers likely had probable cause to obtain a search warrant, their failure to
do so did not render the consent invalid.


                                  III. STANDARD OF REVIEW

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from
that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this court is not bound
by the trial court’s conclusions of law. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).


                             IV. CERTIFIED QUESTION OF LAW

       We first address whether the certified question of law was dispositive of the cases, thus
giving us jurisdiction on appeal. In State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988), our state
supreme court made explicit to the bench and bar exactly what the appellate courts require as
prerequisites to the consideration of the merits of a certified question of law. Failure to properly
reserve a certified question of law pursuant to Preston will result in the dismissal of the appeal.

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State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). Among the requirements of a proper
certified question of law is that it must be “dispositive of the case.” Tenn. R. Crim. P. 37(b)(2)(i),
(iv).

        An issue is dispositive when the appellate court “‘must either affirm the judgment or reverse
and dismiss.’” State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001) (quoting State v. Wilkes, 684 S.W.2d
663, 667 (Tenn. Crim. App. 1984)). An issue is never deemed to be dispositive when the appellate
court might reverse and remand. Wilkes, 684 S.W.2d at 667. Here, all parties and the trial court
certified the issue was dispositive of all cases; however, an appellate court is not bound by the trial
court’s determination that an issue is dispositive. Preston, 759 S.W.2d at 651. Rather, the court
must make an independent determination of the dispositive nature of the issue and must deny
appellate review if the court determines the issue is not dispositive. Id.

        In the case at bar, Investigator Ellis testified he received a complaint from Mark Marr stating
that he saw his stolen property in the defendant’s yard. Regarding this victim, the defendant was
charged and entered a nolo contendere plea in Henderson County to one count each of theft,
burglary of an automobile, and vandalism.

        Although the incriminating evidence found during the search of the defendant’s premises
may provide material proof of his guilt of the offenses committed against Marr, Marr’s testimony
alone could also establish the defendant’s guilt. He apparently observed some of his stolen property
in the defendant’s yard prior to the officers’ involvement. A jury could have convicted the defendant
of these three offenses without relying upon the evidence seized from the search of the defendant’s
premises.

         Furthermore, it is questionable whether all of Marr’s stolen items would be suppressed even
if the defendant’s consent to search was invalid. Investigator Ellis testified he also observed certain
items in the yard that were stolen property. See State v. Baker, 625 S.W.2d 724, 727 (Tenn. Crim.
App. 1981), overruled on other grounds, State v. Holt, 691 S.W.2d 520, 522 (Tenn. 1984) (holding
a person has no expectation of privacy in the area in front of his residence leading to the front door);
see also State v. Harris, 919 S.W.2d 619, 623 (Tenn. Crim. App. 1995). Accordingly, the plain view
doctrine would justify the seizure of these items. See State v. Coulter, 67 S.W.3d 3, 43 (Tenn.
2001). The theft count of the Marr indictment alleges the theft of “cash, a phone and other
miscellaneous items.” (Emphasis added). Thus, although the cash and phone were apparently
discovered as a result of the consent search, the items observed outside the residence were not.

        Therefore, we conclude the certified question of law is not dispositive of the three convictions
involving Marr, and, for lack of jurisdiction, we must deny appellate review of the issue as it applies
to these offenses. See Preston, 759 S.W.2d at 651. However, we conclude the defendant otherwise
properly reserved the certified question of law regarding the remaining convictions.




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                                             V. CONSENT SEARCH

       The sole question certified in this appeal is whether the defendant gave proper consent to the
search without duress or coercion. Thus, our inquiry is limited.2

A. The Stake-Out

        The defendant argues that the officers unlawfully conducted a stake-out. A constitutionally
protected search occurs when the government violates a subjective expectation of privacy, which
society recognizes as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed.
2d 576 (1967); Ross, 49 S.W.3d at 839. Visual surveillance of a home is not a “search” requiring
a warrant. Kyollo v. United States, 533 U.S. 27, 32, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).
Furthermore, a defendant does not have a reasonable expectation of privacy when driving a vehicle
onto his or her premises after leaving a public highway. United States v. Knotts, 460 U.S. 276, 282,
103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). Thus, the “stake-out” was not a search; the officers were
not required to obtain a warrant in order to visually observe the defendant or the premises from the
road. Regardless, we fail to see how this argument relates to the validity of the defendant’s consent
to search.

B. The Entry

      The defendant contends he did not give the officers valid consent to search the premises.
We disagree.

        A warrantless search or seizure is presumed to be unreasonable, and the resulting evidence
is subject to suppression unless the state demonstrates the search or seizure was conducted pursuant
to one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d
215, 218 (Tenn. 2000). One exception is a search conducted pursuant to a person’s consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The
consent must be “unequivocal, specific, intelligently given, and uncontaminated by duress or
coercion.” State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998) (quoting State v. Brown, 836
S.W.2d 530, 547 (Tenn. 1992)). It is not necessary for the officer to inform the person of the
person’s right to refuse consent. United States v. Drayton, 536 U.S. 194, ___, 122 S. Ct. 2105,
2113-14, 153 L. Ed. 2d. 242 (2002).

         In his brief, the defendant identifies inconsistencies between Investigator Ellis’ testimony
at the suppression hearing and his testimony at the preliminary hearing. He contends the investigator’s
testimony is not credible. The defendant further contends that the officer’s testimony was
inconsistent with the testimony of the defendant and Sandra Kreitzer. However, these alleged

         2
          Although the defendant does not contest the validity of the arrest pertaining to the certified question of law,
we note that upon lega lly observing stolen pro perty in a yard under the plain view do ctrine, an officer has prob able cause
to make a warrantless arrest of a defendant outside his residence. See Tenn. Co de A nn. § 39-1 4-10 3 (theft of property);
but see Payton v. New Yo rk, 445 U.S. 573, 576, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (holding an arrest warrant is
required to enter a suspect’s residence to make a routine felony arrest).

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inconsistencies involve credibility issues, which the trial court, as trier of fact, resolved in favor of
the state. It expressly found the investigator’s testimony credible. The findings of fact made by the
trial court are binding unless the evidence preponderates against them. Ross, 49 S.W.3d at 839.

        Investigator Ellis testified he requested consent to search the premises and explained to the
defendant that he could refuse to consent. The officer stated the defendant verbally consented to a
search of the premises. Although Investigator Ellis could not recall the defendant’s exact words, he
stated the defendant said something to the effect of “Sure, you can look. It doesn’t matter to me.”
We conclude the evidence does not preponderate against the findings of the trial court that the
defendant knowingly and voluntarily consented to the search of the premises.


                                        VI. CONCLUSION

        In summary, we conclude the certified question of law is not dispositive regarding the
convictions for burglary of an automobile, theft of property, and vandalism involving victim Mark
Marr. As a result, we dismiss the defendant’s appeal of these convictions. The defendant otherwise
properly reserved the certified question of law as to the remaining convictions. We further conclude
the officers were not required to procure a warrant in order to conduct a visual surveillance of the
residence nor to go to the door to speak to the defendant. The defendant knowingly and voluntarily
consented to a search of the premises. Therefore, we affirm the remaining judgments of the trial
court.




                                                        JOE G. RILEY, JUDGE




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