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State v. Thornton

Court of Criminal Appeals of Tennessee, Nashville

January 10, 2017

STATE OF TENNESSEE
v.
ROBERT G. THORNTON, JR.

         Assigned on Briefs June 21, 2016

         Appeal from the Circuit Court for Hickman County No. 145023CR James G. Martin, III, Judge

         The Defendant entered a plea of nolo contendere to eleven counts of sexual exploitation of a minor, a Class D felony, with an agreed-upon sentence of two years for each count, all to be served concurrently. The Defendant reserved a certified question of law challenging the search of his vehicle and its contents, including a laptop computer which was the source of the images which serve as the basis of the convictions. After a thorough review of the record, we conclude that there was probable cause to search the Defendant's vehicle, and we accordingly affirm the convictions.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Richard Boehms, Hohenwald, Tennessee, for the appellant, Robert G. Thornton, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Kim R. Helper, District Attorney General; and Kate Yeager Delk, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Timothy L. Easter, J., joined. Norma McGee Ogle, J., filed a separate dissenting opinion.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant came to the attention of the authorities when he began sending text messages to an eleven-year-old boy, [1] attempting to arrange a meeting at night. The Defendant was apprehended near the prearranged meeting spot, and his telephone was seized as a search incident to his arrest. Law enforcement then discovered his vehicle parked nearby at his sister's home, and they took it into custody, securing a laptop computer in the process. The computer was searched subject to a warrant obtained eleven days after the arrest, and the images which form the basis for the convictions on appeal in this case were found as part of the search of the computer. The Defendant was also charged with offenses based on images recovered from his cellular telephone, with a solicitation offense involving the minor to whom he sent text messages, and with offenses charging that he engaged in sexual contact with two other minor victims.

         The Defendant moved to suppress "any evidence obtained from the seizure of the Defendant's vehicle and cellular phone following his arrest." At the suppression hearing, [2] Detective Brad Garland testified that he was a patrol supervisor on April 17, 2013, and that he was approached by the father of the minor solicitation victim. The minor's father stated that his son had been receiving text messages from an adult who identified himself as "Bobby, " and the minor's father felt the messages were inappropriate. "Bobby" was later determined to be the Defendant. Detective Garland received information that the minor had first had contact with the Defendant at a skating rink, and the minor's father told Detective Garland where the Defendant lived and described the Defendant's car. The minor's father gave police consent to search the telephone on which his son received the messages, and Detective Garland took the telephone into evidence pending an investigation. Detective Garland acknowledged that his first report stated that, based on his review of the telephone, there were no messages requesting any sexual acts. However, the report also indicated that the minor received a message that stated, "Ok I dont mind givin you a condom but I just dont trust alot of people when it comes to condoms and sexual items." Other messages were repeated queries apparently regarding the victim's ability to meet the sender. Detective Garland explained that his report referred to "Brian" and not "Bobby" because they were calling the sender of the messages "Brian" at the time. He could not recall if the source of the moniker "Brian" was the victim's father or the telephone.

         Detective Garland was absent from the station, pursuing unrelated matters, for a period of time after the minor's father had given him the telephone, and when he returned, he saw that the minor's telephone, which he had taken into evidence, had received several new messages asking the minor to meet the sender near the minor's home.

         Detective Garland consulted with other officers, including Detective Levy Mobley, and they began to send messages to "Bobby" from the minor victim's telephone. Detective Mobley went to the minor's house for protection around 11:00 p.m. The Defendant initially arranged to meet the minor near a church, but the locale was changed after the Defendant saw two police vehicles. Law enforcement had set up surveillance near the site of the meeting, and Officer Cody Woods, "a smaller guy, " was waiting on the railroad tracks where the meeting was to occur. Detective Garland testified that at one point, the Defendant seemed unsure about meeting, and he asked to speak to the minor. Law enforcement arranged with the minor's parents for the minor to have telephone contact with "Bobby" so that "Bobby" would believe he was meeting a young boy.

         At the time of the meeting, law enforcement observed some late-night traffic consisting of cars driving by, but no other foot traffic in the area. Detective Mobley, who was at the minor's house, observed the Defendant walking down the railroad tracks, which were about one hundred yards from the minor's house, and Detective Mobley alerted the other officers. Detective Garland ordered the Defendant to stop, and the Defendant fled. The Defendant was tackled on the railroad tracks and, after a struggle, handcuffed by Detective Garland and Officer Danny Roberts. The Defendant was in possession of a telephone and a condom. The telephone was the same one that had been in communication with the minor's telephone. The arrest occurred either in the late hours of April 17, 2013, or the early hours of April 18, 2013.

         After he was taken into custody, the Defendant revealed to law enforcement that he had driven to the location of the prearranged meeting, but he would not tell where he had parked his vehicle. Deputy David Epley and Officer Cody Woods found a vehicle matching the description of the Defendant's vehicle in the front yard of a private residence. Deputy Epley testified that the car had a Tennessee license plate affixed over an Alabama license plate. A bag for a laptop computer was in the backseat. Deputy Epley testified that there was a small ditch by the road, and that it appeared that the vehicle had turned onto the driveway, passed the ditch, and then turned directly into the yard. Officer Woods requested a tow truck for the vehicle and conducted an inventory of its contents, including the laptop computer. According to Officer Woods, the vehicle was seized because it was used in a crime.

         Officer Roberts testified that the vehicle was approximately one-quarter mile from the arrest site and that it was in the yard, beside the driveway, and next to the road. The car was located "at [the Defendant's] sister's house at the end of the driveway next to Highway 48." Officer Roberts elaborated that the car was approximately fifty feet from the road and that it was not obstructing traffic. The laptop was lying in the backseat, and Officer Roberts could not recall if the laptop itself was visible from the road.

         Detective Mobley joined the officers who were conducting an inventory of the vehicle's contents. He testified that he could see the laptop in the backseat of the car. The car was two to three hundred yards from the victim's house and approximately two hundred yards from the arrest site. Detective Mobley testified that the car was in the driveway or the yard of the Defendant's sister's home.

         Dana Lewis, the Defendant's sister, testified that the Defendant arrived at her house that night and told her he would sit in his car because "it was nice and cool and he likes to listen to the crickets and stuff." Ms. Lewis fell asleep around 12:00 or 12:30 a.m. At approximately 1:13 a.m., she went to investigate why her dogs were barking. Eight police officers approached her, asking "Is he in there, is he in there?" Approximately ten minutes later, the sheriff told her, "I don't know why they told you that because we already have him in custody." Ms. Lewis testified that the Defendant's vehicle was parked half an acre away from the road, in the grass. The police then looked through the contents of the car, and she believed that one of them got into the vehicle to drive it to the road because the tow truck driver did not want to come onto the property.

         Detective Mobley obtained a search warrant for the computer and telephone on April 29, 2013, after he had conducted numerous interviews while investigating the Defendant. The warrant was introduced into evidence. However, the affidavit accompanying the warrant is not a part of the appellate record.

         The trial court denied the motion to suppress. The trial court found that police had probable cause to arrest the Defendant based on the messages he had exchanged with an eleven-year-old boy and based on his presence at the rendezvous point. The trial court then found that the seizure and administrative inventory of the vehicle were proper for two independent reasons. First, the trial court found that

the same facts establishing the probable cause that existed to justify the [D]efendant's arrest are also sufficient to establish probable cause to believe that the vehicle contained evidence which was subject to seizure.
The car was in operable condition and was located on property belonging to the [Defendant's sister. Because the car contained evidence, was readily mobile and located on property belonging to [the Defendant's sister, impounding the car for safekeeping was reasonable. Moreover, the [D]efendant, during a voluntary custodial interrogation[, ] was evasive about the car and did not provide law enforcement with any reasonable alternative to impounding the vehicle.

         The trial court concluded that an independent justification of the seizure of the vehicle was that "the vehicle was an instrumentality of the offense and was subject to being seized for this reason as well." The trial court noted that the vehicle was used to commit the offense and that leaving it on the property of ...


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