        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               November 13, 2013 Session

                   STATE OF TENNESSEE v. RICKY J. JONES
                     and SHANE EUGENE McCLANAHAN

                  Appeal from the Criminal Court for Smith County
              Nos. 2012-CR-150, 2012-CR-193, David E. Durham, Judge
                   2012-CR-147, 2012-CR-268




                 No. M2013-01174-CCA-R3-CD - Filed March 11, 2014


T HOMAS T. W OODALL, J., dissenting opinion.

       I respectfully dissent. I would reverse the trial court’s orders granting the suppression
motions filed by Defendant Jones and Defendant McClanahan, reverse the orders of
dismissal of the cases, and reinstate the charges for further proceedings. Since the search of
Defendant McClanahan was a different search than the one challenged by Defendant Jones,
I will discuss each Defendant separately. Initially though it is necessary for me to
specifically address a portion of Judge McMullen’s lead opinion. The State filed separate
Notices of Appeal for Defendant Jones and Defendant McClanahan, so the issue of the trial
court’s order suppressing all evidence seized pursuant to execution of the search warrant at
Defendant Jones’ home was preserved for appeal. I acknowledge that the State, for reasons
I do not know, in its brief declined to specifically address the issue of the suppression of
evidence in Defendant Jones’ case. The trial court’s decision in Defendant Jones’ case rested
solely upon the conclusion that the evidence seized as a result of the stop of Defendant
McClanahan was illegally seized and therefore could not be used to support probable cause
to search Defendant Jones’ home. Perhaps the State assumed that arguing only the facts of
Defendant McClanahan’s stop would suffice to address Defendant Jones’ case. Both
defendants were represented by the same counsel and both defendants’ cases were included
in one brief in this appeal. Despite the fact the State omitted any specific argument about
suppression of evidence in Defendant Jones’ case, counsel for Defendants made the
following argument in their brief: “All fruits of the stop as initiated by Officer Agee were of
the poisonous tree as it pertains to the search of the residence of Ricky Jones. [citations
omitted].” Under the circumstances I have no problem procedurally addressing the issue
concerning the search warrant for Defendant Jones’ home.
Defendant McClanahan

        In its ruling on Defendant McClanahan’s motion to suppress all evidence seized
during a warrantless search and seizure of Defendant McClanahan, one of the pertinent
findings of fact and conclusions of law made by the trial court was that once Deputy Agee
smelled the odor of marijuana on Defendant McClanahan inside the store, Deputy Agee “had
reasonable suspicion . . . to stop [Defendant] McClanahan.” This finding of fact by the trial
court is critical to my analysis because it shows that the trial court found Deputy Agee to be
credible when he testified that the smell of marijuana was on Defendant McClanahan. The
trial court seriously questioned Deputy Agee’s credibility as to the testimony of why Deputy
Agee could not detain Defendant McClanahan before Defendant McClanahan had driven
away from the store. However, this does not affect the trial court’s finding of fact that
Deputy Agee smelled marijuana on the person of Defendant McClanahan. Without
mentioning any specific case law in support of its conclusion of law, the trial court granted
the motion to suppress because “[Deputy Agee’s] time for reasonable suspicion ceased once
[Defendant McClanahan] got into that vehicle and got down the road.”

       Findings of fact by the trial court in a suppression hearing are binding on the appellate
court unless the evidence in the record preponderates otherwise. State v. Meeks, 262 S.W.3d
710, 722 (Tenn. 2008). However, the trial court’s conclusions of law and its application of
the law to the facts are reviewed de novo without any presumption of correctness. Id.

        As has the majority in this case, I have been unable to find a case that addresses the
specific issue of the duration of “reasonable suspicion” to justify an investigative stop.
Specifically, does it include the entire time period from when the object supplying the
reasonable suspicion (in this case the person of Defendant McClanahan) is moved from the
inside of the store, to the inside of Defendant McClanahan’s vehicle, and then transported
on a public highway for a relatively short distance and during what the record implies was
a relatively short period of time? Terry v. Ohio, 392 U.S. 1 (1968) provides guidance to
resolve this issue. In Terry, the Supreme Court stated that it had to decide whether the
officer’s interference with the defendant’s “personal security” was reasonable under the
Fourth Amendment of the United States Constitution. The Court stated,

        And in determining whether the seizure and search were “unreasonable” our
        inquiry is a dual one - whether the officer’s action was justified at its
        inception, and whether it was reasonably related in scope to the
        circumstances which justified the interference in the first place.

Terry, 392 U.S. at 19-20.

      In the case sub judice, the circumstances which justified the interference with
Defendant McClanahan’s liberty was the odor of marijuana on his person detected by Deputy

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Agee. The trial court correctly concluded that at the time Deputy Agee detected that odor
he had reasonable suspicion to make an investigatory stop and detention of Defendant
McClanahan. No matter the circumstances which led to Defendant McClanahan moving
from inside the store to inside a vehicle and then to traveling a short distance, in my opinion
the quick response of Deputy Agee to initiate the stop of Defendant McClanahan’s vehicle
“was reasonably related in scope to the circumstances” which justified the investigatory
detention. Id.

       Thus, on the specific facts of this case, I would reverse the trial court’s judgment as
to Defendant McClanahan.

Defendant Jones

       Defendant Jones moved to suppress all evidence seized pursuant to a search warrant
authorizing the search of real property owned by Defendant Jones at 63 Toney Hollow Road
in Smith County. A portion of the facts stated in the affidavit submitted in support of
issuance of the search warrant pertained to the stop of Defendant McClanahan’s vehicle by
Deputy Agee. Specifically the affidavit stated the vehicle was seen leaving Defendant Jones’
home and was stopped and searched and one quarter pound of marijuana was found in
Defendant McClanahan’s vehicle. Furthermore the affidavit stated that Defendant
McClanahan indicated that he purchased the marijuana at Defendant Jones’ home.

        Defendant Jones’ motion to suppress is an inartfully drawn pleading which for the
most part states “boiler-plate” conclusions which the record shows are not applicable at all
to the case sub judice. For example, the very first ground for relief in the pleading captioned
by Defendant Jones as a “Motion to Suppress Search Warrant” (emphasis added) is this
puzzling allegation: “1. The search was without a search warrant and in the absence of
exigent circumstances.” Other puzzling allegations in the motion, which have nothing to do
with the facts of this case, are that the search was a result of an unlawful inventory of
Defendant Jones’ car, the original search warrant could not be produced by the State, the
issuing Judge did not retain a copy of the search warrant, and Defendant Jones was not
provided a copy of the search warrant at the time of the search.

       However, buried in the allegations contained in the motion are the assertions that the
search was conducted with an illegal search warrant, though no facts are alleged in support
of this conclusion. See Tenn. R. Crim. P. 47(c)(1) (“A motion shall state: (1) with
particularity the grounds on which it is made;”).

       In any event, the trial court granted Defendant Jones’ motion to suppress based upon
its conclusion that the stop of Defendant McClanahan was constitutionally illegal, and
therefore use of information obtained as a result of violation of Defendant McClanahan’s


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Fourth Amendment rights could not be used to authorize a search of Defendant Jones’ home
pursuant to a search warrant.

         Since I conclude that the stop of Defendant McClanahan was not constitutionally
illegal, then I conclude the search warrant regarding Defendant Jones’ home was not
constitutionally infirm under Defendant Jones’ theory. However, even if the stop of
Defendant McClanahan’s vehicle had violated Defendant McClanahan’s Fourth Amendment
rights, I fail to see how Defendant Jones has standing to object to the seizure and search of
Defendant McClanahan’s vehicle in order to assert that certain facts thereby obtained could
not be used to support issuance of a search warrant for Defendant Jones’ home. See Griffin
v. State, 604 S.W.2d 40, 43 (Tenn. 1980)(Defendant, passenger in a vehicle stopped and
searched, was “without standing to contest the limited search under the seat of the automobile
. . . because he claimed no ownership of the automobile or of the money discovered by the
search.”); State v. Barger, 612 S.W.2d 485, 491 (Tenn. Crim. App. 1980) (Where neither the
area searched nor the property found belong to a defendant and/or are not in his possession,
the defendant lacks standing to challenge the validity of the search.).

      In Bentley v. State, 552 S.W.2d 778, 780 (Tenn. Crim. App. 1977) evidence found
pursuant to a constitutionally void search warrant authorizing a search of co-defendant
Kephart’s motel room could still be used as evidence against co-defendants Bentley and
Lane. This Court stated,

               We think Bentley and Lane cannot claim the constitutional right of
        Kephart to exclude evidence gathered from the unreasonable search of his
        room due to lack of standing. Brown v. United States, 411 U.S. 223, 93
        S.Ct. 1565, 36 L.Ed.2d 208 (1973). The use of the incriminating
        photographs depicting prohibited sexual acts involving Lane and Bentley
        seized from Kephart’s room, therefore, were competent against them and
        proper for the jury to consider.

Bentley, 552 S.W.2d at 780.

       Respectfully, I dissent from the majority’s opinion.

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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