Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 28, 2015, at Knoxville
Appeal from the Circuit Court for Humphreys County No. 12235 George C. Sexton, Judge
William B. Lockert, III, Public Defender; and Dawn Kavanaugh, Assistant Public Defender, Ashland City, Tennessee, for the appellant, Michael G. Kohlmeyer.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Wendall Ray Crouch, Jr., District Attorney General; and Craig S. Monsue, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which D. Kelly Thomas Jr., and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from sexually explicit photographs and videos found on the Defendant's cellular telephone. In April 2011, the Humphreys County grand jury indicted the Defendant for two counts of sexual exploitation of a minor based upon two separate videos found on his cellular telephone in January 2011. On August 25, 2011, the Defendant pleaded guilty to two counts of attempted sexual exploitation of a minor. On September 8, 2011, the trial court entered an agreed order allowing the Defendant to withdraw his guilty plea and ordering that the case be set for trial.
A. Motion to Suppress
On September 20, 2011, the Defendant filed a motion to suppress the videos that law enforcement officers found on his cellular telephone. He contended in the motion that his phone was seized without a search warrant and without his consent. He argued that the officers' search of his phone exceeded his consent and that the images they found were fruit of the poisonous tree. The trial court held a hearing on the motion to suppress, wherein the following evidence was presented: Deputy Scott Daniel, a deputy with the Humphreys County Sheriff's Department, testified that he spoke with the Defendant on January 5, 2011. He testified that his department had received a call during which the caller stated that the Defendant intended to kill himself. Deputy Daniel and another officer were dispatched to the Defendant's residence to check on the Defendant's welfare. When the officers arrived, they asked the Defendant about the message he had made via the social media website "Facebook" about attempting suicide, and the Defendant said that he was "messing around" and had "no intention of actually doing it." The Defendant told the officers that he had sent the message about suicide over the internet using his phone. Deputy Daniel testified that another deputy, Detective Brian Baker, asked the Defendant if he could "look through [the Defendant's] phone, and [the Defendant] advised h[im that] he could and handed him the phone." Deputy Daniel testified that he was standing next to Detective Baker, who checked the Defendant's text messages, but found that all messages had been erased.
Deputy Daniel said that, at this point, Detective Baker asked Deputy Daniel to look though the Defendant's phone in an attempt to find the "internet part of it." Deputy Daniel did not ask the Defendant if he could look through his phone, but the Defendant was standing there when Detective Baker asked Deputy Daniel to examine the phone. The Defendant said nothing at the time of Detective Baker's request. Deputy Daniel said that, while he was reviewing the "internet part" of the phone, he saw pictures of possibly underage girls that appeared to have been sent from the Defendant's phone. Deputy Daniel said that he told Detective Baker about the pictures, and then he returned the phone to Detective Baker.
Deputy Daniel testified that the Defendant never asked that his phone be returned or expressed any desire for the search to be discontinued. After the pictures were found, Detective Baker drafted a property receipt so that officers could keep the phone, and the Defendant signed the receipt. The deputy said that, before their arrival at the Defendant's house, the officers had no suspicion that the Defendant may have committed a crime. Deputy Daniel testified that he never advised the Defendant of his rights.
During cross-examination, Deputy Daniel testified that the officers decided that the Defendant did not need any medical intervention after the Defendant stated that he had no intention of hurting himself and they could not find evidence of a statement on the Defendant's phone that he intended to hurt himself. Deputy Daniel said he checked the "media file" on the Defendant's phone, which contained videos, pictures, and other items sent over the internet. He was looking for anything regarding the internet, such as "Facebook." It was in this file that the deputy found the pictures that roused his suspicion.
Detective Dewayne Jackson, a detective with the Humphreys County Sheriff's Department, testified that he interviewed the Defendant at the Defendant's house on January 7, 2011. He stated that he questioned the Defendant, who was not under arrest at the time, about the potential for suicide and also about the questionable material found on the Defendant's cell phone. Detective Jackson said that only he and the Defendant were present during the interview and that the Defendant never asked him to leave. The detective described the Defendant as "very cooperative."
Detective Jackson identified a "permission to search" form that the Defendant signed during a second visit to the Defendant's house on January 14, 2011. The form authorized police to search the Defendant's cell phone for any images, pictures, or memory contained in the cell phone. The detective said that he went over the form with the Defendant, who seemed to understand its contents, before the Defendant signed the form. The Defendant was, again, "very cooperative."
During cross-examination, the detective said that at the time of the January 7 interview he was in possession of the Defendant's cell phone. He said that he did not offer to give the phone back to the Defendant but that the Defendant never asked for the phone to be returned. Detective Jackson said that his return visit to the Defendant's house on January 14 was to have the Defendant sign the waiver so that the phone could properly be sent to the cyber crime unit. The detective told the Defendant that he was going to have the phone forensically analyzed and that there were two ways in which that could be done: he could obtain a ...