Session February 3, 2015 Heard at University of Memphis Cecil C. Humphreys School of Law
Appeal from the Circuit Court for Tipton County No. 7799 Joseph H. Walker III, Judge.
Charles A. Brasfield (at trial and on appeal) and Amber Griffin Shaw (at trial), Covington, Tennessee, for the appellant, James Robert Christensen, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court. John Everett Williams, J., filed a concurring and dissenting opinion. Camille R. McMullen, J., concurred in results only.
ROGER A. PAGE, JUDGE.
On August 3, 2013, investigators with the Tipton County Sheriff's Office discovered an active methamphetamine lab, multiple firearms, materials used in the manufacture of methamphetamine, and several inactive methamphetamine labs in appellant's residence. As a result of these findings and appellant's conduct when officers attempted to detain him, appellant was indicted for resisting arrest, promotion of methamphetamine manufacture, initiation of methamphetamine manufacture, and two counts of possession of a firearm during the commission of a dangerous felony.
A. Motion to Suppress
Prior to trial, appellant moved to suppress the evidence against him, arguing that because appellant had posted "no trespassing" signs on his property, the officers' actions in entering his property were subject to the warrant requirement.
At the suppression hearing, Investigator Michael Green testified that the sheriff's office had received information that Mariah Davis had purchased pseudoephedrine. Investigators were aware that she was associated with Cody Gatlin, whom Investigator Green knew through his law enforcement experience. Investigator Green and Investigator Brent Chunn went to Mr. Gatlin's home, which was next door to appellant's residence. They spoke first to Ms. Davis, who called Mr. Gatlin to come home. Mr. Gatlin reported to the investigators that he had taken the pseudoephedrine to appellant and that appellant was in the process of making methamphetamine. The investigators then went to appellant's residence. Investigator Green recalled that the grass around appellant's driveway was very tall, that a "no spraying" sign was posted near the road, and that the driveway was sixty to seventy yards long. There were two trailers at the end of the driveway. The investigators parked in the driveway and proceeded directly to the front door of appellant's trailer. Investigator Green testified that he smelled the odor commonly associated with the active manufacturing of methamphetamine as he approached the residence. Appellant exited the front door and closed it behind him. The investigators asked for appellant's consent to search his residence, but appellant refused. Investigator Green testified that methamphetamine labs were "very volatile" and could "catch fire real quick, " so he and Investigator Chunn decided that they needed to locate the active lab for safety reasons. Investigator Chunn entered appellant's residence while Investigator Green attempted to detain appellant. He placed a handcuff on appellant's right wrist, but thereafter appellant began to fight him. Appellant yelled for "Bear, " later determined to be a dog, to come and for his mother, who lived in an adjacent trailer, to call 1-800-THE-FIRM. When Investigator Chunn returned, the investigators were able to handcuff appellant. Investigator Green testified that he then entered the residence and saw a "bolt action 410 pistol right at the door, [and] a 410 shotgun and a rifle on the couch." Investigator Chunn located the active lab, and they found "remnants of . . . older cooks, several cans of empty Coleman fuel, and then [they] located the ten separate one-pot labs in the freezer." The investigators took turns letting pressure off the active lab to make it safe. Investigator Green testified that the fire department decontaminated appellant and transported him to the hospital because "his heart rate or blood pressure was really, really elevated."
On cross-examination, Investigator Green testified that Ms. Davis told them that she had purchased the pseudoephedrine for appellant. Investigator Green said that after speaking with Ms. Davis and Mr. Gatlin, he did not believe that he had probable cause to obtain a search warrant nor exigent circumstances to search appellant's residence without a search warrant. He felt that he had exigent circumstances to enter appellant's residence after appellant exited his residence. Investigator Green testified that he did not see the "no trespassing" sign posted by appellant's driveway, but he recalled seeing a handwritten sign stating, "organic farm, do not spray, " or words to that effect. He stated that he did not see any "private property" signs or other similar signage. He said that he asked for consent to search appellant's residence despite believing that he had exigent circumstances because he wanted to develop a rapport with appellant. He recalled appellant's telling the investigators to leave his property but stated that he had already smelled the methamphetamine at that point. Investigator Green further recalled appellant's saying that he had an injury that would prevent his being handcuffed but because "[h]e showed [Investigator Green] shortly thereafter that those injuries didn't apply to fighting, " Investigator Green believed that "handcuffs would have been okay." Investigator Green testified that appellant told the investigators where to find the active lab after he had been handcuffed.
On re-direct examination, Investigator Green testified that when a methamphetamine lab catches fire, it is "just like a flame thrower." He further testified, "I've seen one that actually was in a trailer like this, that it actually blew the walls away from the flooring, and the guy that was in there had a tattoo up here [by his shoulder], and it was down here [by his wrist]. It just melted, just ran down his skin."
Investigator Brent Chunn testified that he did not believe that Cody Gatlin's information (that he had taken the pseudoephedrine to appellant and that appellant was in the process of making methamphetamine) was enough for probable cause to search appellant's residence or to obtain a search warrant. He characterized their approach of appellant as a "follow up investigation" rather than a "knock and talk" because they would have been more cautious if they had been conducting a "knock and talk." Investigator Chunn did not recall seeing any "no trespassing" signs on appellant's property or any other signs. Investigator Chunn testified that he first smelled methamphetamine when he was approximately fifteen feet away from appellant. He recalled that appellant first asked them whether he could help them. After appellant would not consent to a search of his residence, Investigator Chunn "[f]orced the door open." He went through the residence to make sure no one else was inside. He testified that he saw a pistol "right inside the door." When he exited, he saw Investigator Green and appellant "wrestling on the ground." Investigator Chunn testified that he later found the active methamphetamine lab in the freezer of appellant's refrigerator. Investigator Green found the inactive labs in a separate deep freezer. Investigator Chunn commented that placing labs in freezers was not a common practice.
Tammy Atkins testified that she knew appellant through her church. She said that on July 13, 2013, she was visiting people on appellant's road for her church and noticed "no trespassing" signs on his property. She testified that there were several "no trespassing" or "private property" signs and identified three such signs in a photograph of appellant's property. Ms. Atkins said, "[W]e're not supposed to go to houses that have
'no trespassing' signs." She testified that she had been on appellant's road several times since July 13 and always saw the "no trespassing" signs.
The trial court took the matter under advisement and later issued an order denying appellant's motion to suppress. In its order, the trial court stated that the investigators "had reasonable suspicion of illegal activity based on substantiated facts" and that the "no trespassing" sign "was not a bar from the officers['] investigating an ongoing dangerous highly combustible activity." The trial court further stated that the investigators had "reasonable grounds" to search appellant's residence after smelling methamphetamine because "[t]hey knew that the lab must be bled or it might burst into flames or explode."
At trial, Investigator Green testified consistently with his testimony at the suppression hearing. In addition, he testified that appellant's trailer was forty to fifty feet from Cody Gatlin's residence, "as the crow flies." Investigator Green also listed all of the items seized from appellant's residence: one pound of non-liquid drain opener; thirty-two ounces of liquid drain opener; four empty Coleman fuel cans; two jars of Coleman fuel; nine inactive labs; eight empty HCL generators; a bag of Epsom salts; an empty box of Sudafed; and "miscellaneous lab trash." All of these items were destroyed because they were contaminated with methamphetamine. Investigator Green said that he collected from just inside the front door a loaded, sawed-off 410 shotgun with a homemade magazine made from duct tape. He also collected a loaded 410 shotgun with a laser sight and an unloaded .22 rifle from the residence's couch.
On cross-examination, Investigator Green testified that he first learned about methamphetamine possibly being manufactured on August 3 from his lieutenant, whose source was Kyle Wolfe. The specific information was that Mariah Davis would be purchasing pseudoephedrine for the purpose of manufacturing methamphetamine. Investigator Green said that when he talked to Cody Gatlin, Mr. Gatlin had just come from appellant's house. He stated that he saw Mr. Gatlin in appellant's yard and assumed that he had come from inside the house. Mr. Gatlin told the investigators that there "was an active cook going on." He agreed that it would have been possible for Mr. Gatlin to have been the person actually manufacturing.
Investigator Chunn testified next. He narrated the video from a patrol car driven by Corporal Jeff Thompson that was recorded when Corporal Thompson responded to appellant's address on August 3. Investigator Chunn said that he did not see a "standard
'no trespassing' sign" in the video. The remainder of Investigator Chunn's testimony was consistent with his suppression hearing testimony and Investigator Green's testimony. Notably for purposes of this case, he ...