Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 14, 2015
Appeal from the Criminal Court for Smith County No. 07-CR-72 David Earl Durham, Judge
Comer L. Donnell, District Public Defender; Michael W. Taylor and William Cather, Assistant Public Defenders, Lebanon, Tennessee, for the appellant, Maurice Edward Carter.
Herbert H. Slatery, III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Tom P. Thompson, District Attorney General; and Howard Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Facts and Procedural Background
In August 2007, the Smith County Grand Jury indicted the Petitioner on four counts of rape of a child, 14 counts of rape, one count of contributing to the delinquency of a minor, 20 counts of criminal exposure to HIV, one count of statutory rape, and three counts of sexual exploitation of a minor. That same month, the Petitioner was indicted by the Rutherford County Grand Jury on three counts of statutory rape, three counts of criminal exposure to HIV, two counts of solicitation of a minor, and 10 counts of especially aggravated sexual exploitation of a minor. All of the Petitioner's offenses involved the same victim, C.C.
The Petitioner filed a motion to suppress evidence and motion to suppress his statement in both Smith and Rutherford Counties. Thereafter, the trial courts from both counties conducted a joint hearing on the motions. On direct appeal, this Court summarized the evidence from the hearing, as well as the trial courts' reasons for denying the motions to suppress:
Deputy Steve Babcock with the Smith County Sheriff's Department testified that on June 2, 2007, he was dispatched to the end of Rome Road in the Riddleton community of Smith County because of a complaint of loud music. Deputy Babcock described that Rome Road ends at the edge of a river where a ferry used to transport vehicles across the river. However, once the ferry ceased operations, the county put up a berm at the end of the road to keep vehicles from going into the river. Deputy Babcock said that he frequently patrolled that location, generally going there at least once a night.
Deputy Babcock testified that he arrived at the location shortly after midnight on June 3, and the sheriff and chief deputy also arrived at the same time. He said that he did not have his onboard video camera on, nor did he or the other officers have their blue patrol lights activated. Deputy Babcock noted that their patrol cars were parked in the road blocking the "[o]ne way in [and] one way out," but "if somebody wanted to leave they could have gone through the field where the Chief parked and got out."
At the scene, Deputy Babcock saw four vehicles "spread out in a pattern in an open area" approximately 100 feet from the berm. Three of the vehicles had two occupants each, while the fourth vehicle had only one occupant. He approached a Nissan automobile and saw the [Petitioner] and C.C. inside the vehicle. He noted that C.C. was sitting in the driver's seat and that the [Petitioner] was in the front passenger's seat. Deputy Babcock shined his flashlight into the car and observed a bag containing a green leafy substance, which he believed to be marijuana, along with rolling papers, next to the [Petitioner's] leg. Deputy Babcock requested that the [Petitioner] and C.C. step out of the car and asked C.C. who owned the marijuana. C.C. replied that the marijuana was his.
Deputy Babcock testified that he asked the [Petitioner] if he was the owner of the vehicle, and the [Petitioner] replied that he was. Deputy Babcock asked the [Petitioner] for consent to search his vehicle, and "[c]onsent was given. He said it was okay." Deputy Babcock then searched the car and found another bag of marijuana in the driver's side door. The deputy asked the [Petitioner] if the marijuana was his, and the [Petitioner] "started getting kind of heavy breathing, started sweating, saying he was having chest pains, started getting upset." Deputy Babcock asked the [Petitioner] if he needed an ambulance, and the [Petitioner] replied that he did, so Deputy Babcock called for an ambulance. Deputy Babcock stopped searching the vehicle and attended to the [Petitioner]. While they waited for the ambulance, the [Petitioner] was "[b]reathing heavy, sweating, . . ., kept bending over, standing up, bending over, standing up, like he was real nervous and upset."
After it became apparent that the [Petitioner] would be leaving in an ambulance, Deputy Babcock asked the [Petitioner] whom he wanted to have tow his car, and Deputy Babcock contacted that company. Before the [Petitioner] left in the ambulance, Deputy Babcock asked the [Petitioner] again for consent to search his vehicle and informed him that he had the opportunity to withdraw his earlier consent because he would not be at the scene for the search. The [Petitioner] again stated that "it was okay" to search his vehicle.
The [Petitioner] left the scene in an ambulance, and Deputies Maynard and Hale assisted Deputy Babcock in the continued search of the [Petitioner's] vehicle. In the backseat, a "new English dictionary" was found that contained nude photographs of C.C.
Deputy Ronnie Maynard with the Smith County Sheriff's Department testified that he responded to the scene at the end of Rome Road that night and assisted in searching the [Petitioner's] vehicle. Deputy Maynard found a locked box in the backseat and, when he shook it, he could tell that there was something inside. He "took [his] knife and it just opened right up." The box contained several photographs and DVDs. He showed the photographs to Deputy Babcock who identified C.C. as the individual in the photographs.
Deputy Scott Hale with the Smith County Sheriff's Department testified that he also responded to the scene at the end of Rome Road and assisted in searching the [Petitioner's] vehicle. Deputy Hale discovered two BB air pistols that were modified to look like real guns, but the items did not result in any charges being brought. Deputy Hale said that he did not have his blue patrol lights on when he arrived at the scene, nor did he have his onboard video camera activated. Deputy Hale did not see the blue patrol lights activated on any of the other patrol cars either.
In ruling on the [Petitioner's] motion to suppress the search of his vehicle, the Smith County trial court ruled that the marijuana was in plain sight in the [Petitioner's] vehicle and that the defendant gave consent to search his vehicle. The Rutherford County trial court likewise concluded that the marijuana was in plain sight and that the [Petitioner] consented to a search of his vehicle. That court also noted that because the [Petitioner's] vehicle was being towed, "an inventory search . . . likewise would further justify a search that was conducted in which the box or the dictionary book was found." The court summarized that the search, with regard to the book, was justified "incident to the finding of the substance which the officer believed to be a Class VI scheduled narcotic. Authorized also based upon the consent of the [Petitioner] to the search and then based upon the inventory of the vehicle upon the vehicle being towed."
After the judges' rulings on the [Petitioner's] motions to suppress the searches, the hearing continued and the [Petitioner] called several witnesses on a "Motion to Suppress the Stop."
Sheriff Ronnie Lankford testified that he received a call that several cars were at the end of Rome Road. He and his brother, Chief Deputy Lankford, and Deputy Babcock responded at the same time, each in his own patrol car. Two other officers arrived later, each in his own patrol car. Upon their arrival, they noticed several cars there and that someone had started a fire. Deputy Babcock and Chief Lankford "went on in between the vehicles," while Sheriff Lankford served as backup. Sheriff Lankford did not know who ordered everyone out of the vehicles and said it was Deputy Babcock's decision as to whether anyone was free to leave.
Chief Deputy William Lankford testified that he, Sheriff Lankford, and Deputy Babcock responded to the scene because "citizens in the community . . . had called the Sheriff's Office, disturbed about the vehicles being down in the bend [and] music playing[.]" When he arrived, Chief Deputy Lankford saw four vehicles, containing a total of six individuals, gathered at the ferry landing. He explained that he and the other officers went there to disperse the crowd. He believed that the people gathered at the end of the road were violating the law because "[g]athering on a public ramp like that after midnight, . . . causing concern for the safety of the community and putting other people in distress" was the violation. Chief Deputy Lankford approached the vehicle in which the [Petitioner] and C.C. were sitting and asked C.C. for a driver's license. Meanwhile, Deputy Babcock approached from the rear of the vehicle, "gazing in the vehicles as he came along with his flashlight, checking the crowd out with his flashlight," and asked C.C. if the marijuana on the console belonged to him. Chief Lankford said that he, however, had not seen anything on the console.
Chief Deputy Lankford stated that they never told anyone that they were not free to leave. He recalled that Deputy Babcock asked the [Petitioner] and C.C. to exit their vehicle, ...