Court of Criminal Appeals of Tennessee, Nashville
Session Date: September 9, 2014
Appeal from the Circuit Court for Coffee County No. 39, 141F Vanessa A. Jackson, Judge
Thompson J. Kirkpatrick, Manchester, Tennessee (on appeal); and Bethel Campbell Smoot, Jr., District Public Defender, and Laura D. Pickering, Assistant Public Defender (at guilty plea and motion to suppress), Tullahoma, Tennessee, for the appellant, Jonathan Womack.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Charles Michael Layne, District Attorney General; and Jason M. Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
On March 26, 2011, at 2:36 a.m., Officers James Sherrill and Dale Robertson with the Coffee County Sheriff's Department followed a tip about an active methamphetamine laboratory and went to the Defendant's residence located at 3084 K Parker Road to engage in a "knock and talk" encounter. As a result of this encounter, an indictment was issued by the Coffee County grand jury against the Defendant and his co-defendant, Joey Lynn Mooneyham, on November 28, 2011. Thereafter, a superseding indictment was issued, charging the Defendant with simple possession of marijuana, a Class A misdemeanor; possession of drug paraphernalia, a Class A misdemeanor; and possession of .5 grams or more of methamphetamine with intent to sell or deliver, a Class B felony. See Tenn. Code Ann. §§ 39-17-417, -418, -425. The Defendant filed a motion to suppress all evidence obtained as a result of the search of his home, arguing that "the deputies['] unlawful entry into the curtilage including the backyard, onto the [D]efendant's back porch and into the manufactured home and the subsequent detention of the occupants, taints the evidence found both prior to the search warrant and pursuant to the search warrant."
During a hearing on the motion, Officer Sherrill first testified regarding his credentials with methamphetamine manufacture, working over 300 cases. He then stated that he first encountered the Defendant in April 2010 when officers executed a search warrant, involving the same two defendants, at the Defendant's residence looking for a methamphetamine laboratory. Officer Sherrill could not remember if someone was outside the manufactured home when they arrived or if they knocked on the door first. However, he was clear that they entered through the "laundry-room door" on the back side of the residence. The officers did not find "enough to charge" the defendants on that occasion. Officer Sherrill recalled "one other time" that they were at the residence, but he could not remember the reason for the visit.
On March 26, 2011, Officer Sherrill received a call form Manchester Police Department Officer Devon DeFord. Officer DeFord informed Officer Sherrill that he had just made a traffic stop of a female individual who had information about methamphetamine in her possession and said that he wanted Officer Sherrill to assist him with interviewing her at the police department. When Officer Sherrill spoke with this female, "she advised that she had been to the address there on K Parker Road and specifically named [both defendants] as being there in the residence and said that [the Defendant] had been up for about three days cooking meth and that he was bragging about it." This female further advised that she had just left the residence and opined, "If you go out there right now, I guarantee you you will find something." So Officers Sherrill and Robertson, accompanied by another officer, proceeded to the Defendant's residence.
When Officer Sherrill arrived at 2:36 a.m., "all the cars were parked either to the side or to the very back of the residence." He opined, "You can tell that's the way they go in when they go." Furthermore, Officer Sherrill stated that there were no front steps to the residence on this occasion, and according to Officer Sherrill, he had never observed front steps to the residence at any time. Officer Sherrill went to the back door, and Officer Robertson "stayed to the front." As Officer Sherrill "was at the back walking around to go up the steps to go to the porch, " he pointed his flashlight and saw "in plain view a Coleman fuel can and a Claritin-D box sitting on top of a burn pile . . . ." Officer Sherrill knew, given his experience and training, that Claritin-D contains pseudoephedrine, a precursor to methamphetamine manufacture. He walked over to the burn pile to verify that it was in fact a Claritin-D box, but he did not "dig through the burn pile."
Officer Sherrill stated that he then proceeded to the back door, which was "wide open, " and knocked; however, no one came to the door. He could smell the odor of methamphetamine "coming from out of the house from that open door." He noticed the smell as soon as he "walked up to the porch . . . ." According to Officer Sherrill, a light was on in the kitchen, which was just to the left of the door, so he looked through the kitchen window and saw three individuals sitting at a table. Officer Sherrill then "beamed" his flashlight at the individuals, who "jumped up and just took off running." Given his experience and training, Officer Sherrill believed the individuals intended to dispose of the drugs by flushing them down the toilet. Officer Sherrill, joined by Officer Robertson who had since come to the back of the residence to assist, then went inside to secure the residence's occupants. According to Officer Sherrill, the defendants and two other individuals were present. The officers, following their entry, observed some methamphetamine on a plate in the living room "right beside them." The officers secured the individuals and seated them at the kitchen table.
The Defendant would not consent to a search, despite the fact that his co-defendant did, so Officer Sherrill went to secure a search warrant. While Officer Sherrill was en route to the jail, "officers there" determined that the Defendant had "worthless-check warrants" for his arrest. The Defendant was then placed under arrest, and upon a pat-down search, methamphetamine was found on his person. Additionally, after procurement of a search warrant, the defendants were charged with the items found during the search of the residence.
On cross-examination, Officer Sherrill confirmed that he never went to the front of the residence but instead proceeded directly to the back of the home. Despite being shown a picture of cinder-block steps at the front door, Officer Sherrill was positive that there were not any concrete cinder blocks used as steps for the front door, although he never visually checked that evening. Officer Sherrill further described the front of the residence, stating that there was "not a path going to the door." Officer Sherrill agreed that a "knock and talk" procedure usually occurred at the front door to a residence, if it was "[t]he most traveled way into the house . . . ."
Officer Sherrill further described the back of the residence, noting that there were two doors on the porch, "[a] sliding-glass door and a utility-room door[, ]" and a set of steps to each door. According to Officer Sherrill, they were working on the flooring in the room behind the sliding glass door, and he entered the house through the other door, which was furthest from the driveway. Behind the sliding glass door was a dining room, then the kitchen separated from the dining room by a wall, and then the laundry or utility room. He further explained his decision about which door to use:
Now, there was some stuff on the porch, and I can't remember if that's why I went to that door or if it was because of the light from the kitchen. There was only one light that I can remember being on in the house. When I went to that light where the kitchen was at, you could plainly see that the door was open . . . .
Officer Sherrill acknowledged that someone shining a flashlight into a home at that hour may startle its occupants. He went into the home yelling "sheriff's department."
He admitted that one could not see the burn pile or the back doors from the main road; however, he stated that the backyard was visible with binoculars from another nearby road. He further agreed that he had no knowledge of any arrest warrant for the Defendant at the time he entered the home.
When asked about the female individual who provided the information about the methamphetamine laboratory at the Defendant's home, Officer Sherrill stated, "She wasn't a creditable informant. She just gave us the information that stuff was there." Officer Sherrill agreed that he did not have enough information based upon her statements alone to secure a search warrant.
Officer Robertson also testified. He stated that he went to the front of the residence, which was dark, but there was a street light nearby, that "[t]he yard was probably a foot and a half tall[, ]" and that there were "no tracks or anything going to the front door." Officer Robertson stated that the front door was about to the middle of his "waist to chest height off the ground, " that there were no concrete blocks that evening stacked up in front of the door, and that "[i]t would have been very difficult for [him] to get in the front door [him]self." When asked why he was in the front yard, Officer Robertson said, "To make sure no one run [sic] out the windows and watching all the exits on that side of the house." He acknowledged that he did not knock on the front door nor did he smell any odor from the front of the residence.
The Defendant's mother, Kimberly Womack, testified that she and her mother own the manufactured home at 3084 K Parker Road and that her son resided at the home most of the time in March 2011. She described that the there was a long gravel driveway, approximately 200 feet in length, leading from the road to the residence. She further stated that there were cinder-block steps on March 26, 2011, and that "there [had] always been cinder blocks there." According to Ms. Womack, she used the cinder blocks numerous times "to go in and out [her]self[, ]" and others also used those steps. She stated that "company" always came to the front door, including the occasional "Jehovah Witnesses . . . giving out bibles." She also stated that she knew several officers from the Cannon County Sheriff's Department, who had ...