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United States v. Tessier

United States District Court, M.D. Tennessee, Nashville Division

September 29, 2014



KEVIN H. SHARP, District Judge.

Pending before the Court is Defendant Brandon T. Tessier's Motion to Suppress. (Docket No. 20). After the Court conducted an evidentiary hearing on the Motion, the parties were provided the opportunity to file supplemental briefing, and the issue presented has now been fully and extensively briefed. (Docket Nos. 20, 25, 32, 39, 56 & 60). For the reasons that follow, Defendant's Motion will be denied.


In conjunction with their post-hearing submissions, the parties filed Proposed Findings of Fact. Those proposed findings (Docket No. 54-1) are supported by the evidence received at the evidentiary hearing and are as follows:

In a one-count Indictment, Defendant was charged with knowingly possessing a computer and computer media that contained images and videos of child pornography, in violation of 18 U.S.C. ยง 2252A(a)(5)(B) and 2252A(b). Those charges arose after a search of Defendant's residence on June 21, 2012.

The search was a part of "Operation Sonic Boom, " a joint operation between the United States Marshal's Service, the Metro Nashville Police Department, and the Davidson County Probation Office. During the three day operation, officers searched all residences of known sex offenders in Davidson County.

At the time of the search, Defendant was on probation for a September 2011 state conviction for possession of child pornography. Defendant was represented on those charges by Kevin James Griffith, an assistant in Nashville's Metro Public Defender's Office.

Mr. Griffith first met Defendant on September 7, 2011, at the "jail docket" in General Sessions Court. The prosecutor and Mr. Griffith were able to reach a plea agreement, whereby Defendant would receive a suspended six-year sentence and be placed on supervised probation for six years. It was also agreed that Defendant would serve a 90-day sentence on unrelated charges, after which point his probation period would begin.

Mr. Griffith testified that he likely reached the plea deal with the prosecutor in less than five minutes. There was no negotiation or discussion as to the terms or conditions of probation.

While many cases are resolved in the General Session Court during the "jail docket" proceedings, Defendant's case was a felony. Accordingly, the parties entered into a plea agreement for the Criminal Court's consideration, waived Defendant's right to a preliminary hearing and a grand jury indictment, and agreed to proceed in the Criminal Court on an information.

On September 30, 2011, Defendant appeared in the Criminal Court to enter his guilty plea. At that point, he received his conditions of probation. Those conditions were not bargained for and, according to Mr. Griffith, it is not a common practice in state criminal court for attorneys or the judge to discuss the conditions of probation with the defendant. Instead, the judge asks the probation department to speak with the defendant and review the probation materials.

Monica Corlew, an intake officer with the Tennessee Department of Corrections, was on duty at the time of Defendant's guilty plea and likely prepared Defendant's probation order, but has no specific recollection of having done so. Ms. Corlew testified that, when an individual was sentenced to probation, her general practice was to interview the defendant, review the rules of probation with the defendant, and have him or her sign the probation order.

Ms. Corlew also testified that, on occasion, she would read the probation order to a defendant individually, while, on other occasions, she would read the probation order to a group of defendants. She also stated that sometimes she would read the probation order "word for word, " and other times she would at least summarize the order and ask the defendant if he or she understood the terms. Ms. Corlew has no specific recollection of how she conveyed the terms of the probation order to Defendant.

Defendant, along with the sentencing judge, executed a "Probation Order, " as well as "Special Probation Conditions for Sex Offenders, " on September 30, 2011, that set forth the terms and conditions of Defendant's probation. So far as germane to the pending Motion to Suppress, the Probation Order provided:

6. I will allow my Probation Officer to visit my home, employment site, or elsewhere, will carry out all lawful instructions he or she gives, [and] will report to my Probation Officer as instructed....
7. I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time.
12. If convicted of a sex offense, I will abide by the Specialized Probation Conditions for Sex Offenders as adopted by the Board of Probation and Parole.

(Docket No. 25-1 at 1). Defendant signed the Probation Order, immediately below bolded language that read: "I have read or have had read to me the conditions of my Probation. I fully understand them and agree to comply with them." (Id., emphasis in original).

The Specialized Probation Conditions contained several additional conditions, including the following:

1. I will not purchase or possess any pornographic or sexually explicit written, printed, photographed or recorded materials[ or] software....
2. I will not obtain Internet access on any computer unless my Officer has given me written permission for Internet access. I will not utilize an electronic device for any sexually oriented purpose. I further consent to the search of any electronic device, software, or electronic data storage device at any time by my Officer.

(Docket no. 25-1 at 2). Defendant signed the Specialize Probation Conditions form immediately below the ...

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