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State v. Diebold

Court of Criminal Appeals of Tennessee, Jackson

December 30, 2014

STATE OF TENNESSEE
v.
ANDREW BARRY DIEBOLD

November 4, 2014 Session

Appeal from the Circuit Court for Haywood County No. 6962 Clayburn Peeples, Judge

David Camp, Jackson, Tennessee, for the appellant, Andrew Barry Diebold.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney General; and James G. (Jerry) Woodall, District Attorney General, for the appellee, State of Tennessee.

Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

OPINION

ALAN E. GLENN, JUDGE

FACTS

To place the legal issues in this matter in perspective, we first will set out the testimony at an evidentiary hearing on a motion to suppress which earlier had been filed.

The only witness at the hearing was Lieutenant Barry Diebold, employed by the Brownsville Police Department and the father of the defendant. He stated that, at the time of the incident, the defendant was living with him, his wife, and their youngest son and was "there every night." Lieutenant Diebold loaned a truck he was not using to the defendant, whose own vehicle had been involved in an accident. He said that both he and the defendant had keys for the truck. On the day in question, Lieutenant Diebold had been on duty and returned to his residence around lunchtime, finding that his truck, being operated by the defendant, was parked in front of the mailbox on the street. Lieutenant Diebold "moved the truck because [he] knew [they would] have a mail delivery. That's the only reason [he] moved the truck." He said that the truck had only a single seat, and his son's backpack, which he recognized, was on the passenger side, either on the floor or the seat. Inside the truck there was a "different odor, " not "something that [he] had smelled before." He was familiar with the odor of marijuana, but this was not "the standard marijuana smell." Asked if, at the time, he was acting as a law enforcement officer or as a father, he responded, "I'm both."

While in the truck, Lieutenant Diebold found inside the defendant's backpack two containers which later were determined to contain 88 grams of marijuana. After he moved the truck, Lieutenant Diebold took the backpack and its contents to the Brownsville Police Department where either he or Corporal Black discovered that it also contained a set of scales. Lieutenant Diebold then returned to his home and, as both a father and a police officer, talked with the defendant, who was not in custody, about the matter. The defendant said that he did not sell marijuana and that "[i]t was for some friends or something."

During cross-examination, Lieutenant Diebold testified that his son had been operating the truck for about two months and was responsible for putting gasoline into it. He said that when he arrived at his home at lunchtime he still was on duty and the defendant was still asleep. He did not advise the defendant of his Miranda rights before speaking with him about the contents of the backpack.

Earlier, the defendant had filed a motion to suppress evidence from the "warrantless search" of the defendant's property on June 29, 2012, violating his rights because there was no probable cause for the search. As relief, he "request[ed] that all evidence seized or statements made as a result of the illegal search and arrest of the defendant be suppressed, and the case against the defendant be dismissed." Neither the motion to suppress nor supporting memorandum makes specific mention of the second search at the Brownsville Police Department when the scales were found, resulting in a separate charge, nor of the statement by the defendant to his father at their residence, in which the defendant acknowledged knowing of the marijuana, but claimed it belonged to a friend.[1] Apparently, the State filed a response to the motion, but that response is not in the record on appeal. However, its rationale was described as being that Lieutenant Diebold, as owner of the vehicle, had a right to search his own property.

A two-count indictment was returned against the defendant, the first alleging possession of marijuana with intent to manufacture, deliver, or sell and the ...


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