2, 2016 Session Heard at Nashville
by Permission from the Court of Criminal Appeals Circuit
Court for Tipton County No. 7799 Joseph H. Walker III, Judge
Robert Christensen, Jr., ("the Defendant") was
convicted by a jury of resisting arrest, promoting the
manufacture of methamphetamine, initiating the manufacture of
methamphetamine, and two counts of possession of a firearm
during the commission of a dangerous felony. Prior to trial,
the Defendant moved to suppress evidence obtained through
what he claimed was an illegal search. The trial court denied
the Defendant's motion and also denied the
Defendant's motion seeking an interlocutory appeal. On
direct appeal following trial, the Court of Criminal Appeals
affirmed the trial court's judgments, including the trial
court's ruling on the suppression issue. We granted the
Defendant's application for permission to appeal in order
to address the legality of the police officers'
warrantless entry onto the curtilage of the Defendant's
residence. We hold that the officers' entry onto the
Defendant's property was constitutionally permissible in
spite of the posted "No Trespassing" signs near the
Defendant's unobstructed driveway. Accordingly, we affirm
the judgment of the Court of Criminal Appeals.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Affirmed
Charles A. Brasfield (at trial and on appeal) and Amber G.
Shaw (at trial), Covington, Tennessee, for the appellant,
James Robert Christensen, Jr.
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; Rachel E.
Willis, Senior Counsel; Caitlin Smith, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and
James Walter Freeland, Jr., Assistant District Attorney
General, for the appellee, the State of Tennessee.
Jeffrey S. Bivins, C.J., delivered the opinion of the Court,
in which Cornelia A. Clark and Holly Kirby, JJ., joined.
Sharon G. Lee, J., filed a dissenting opinion. Roger A. Page,
J., not participating.
JEFFREY S. BIVINS, CHIEF JUSTICE.
and Procedural Background
August 2013, two law enforcement officers drove down the
Defendant's unobstructed driveway, parked near his
residence, and walked up to the Defendant's front porch.
The Defendant opened his front door, stepped onto his porch,
and closed and locked the front door behind him. After the
Defendant opened his door, the officers smelled the odor of
methamphetamine being manufactured. They asked the Defendant
for consent to enter his residence, but the Defendant refused
to give consent. One of the officers then forced open the
front door, while the other officer detained the Defendant.
Inside the residence, the entering officer discovered an
active methamphetamine lab, along with several inactive labs,
various items commonly associated with the manufacture of
methamphetamine, and several guns. The Defendant subsequently
was indicted on one count each of resisting arrest, promoting
the manufacture of methamphetamine, and initiating the
manufacture of methamphetamine, and two counts of possession
of a firearm during the commission of a dangerous felony.
to trial, the Defendant filed a motion to suppress evidence,
claiming that the evidence had been seized as the result of
an unlawful search because he had posted "No
Trespassing" signs near his driveway. The Defendant
asserted that the officers' entry onto his property
without a warrant violated both the United States and
Tennessee Constitutions. After a hearing, the trial court
denied the motion. The Defendant then filed a motion for
interlocutory appeal, which the trial court also denied.
Accordingly, the Defendant proceeded to a jury trial, and he
was convicted as charged. The Court of Criminal Appeals
affirmed the Defendant's convictions and sentences.
State v. Christensen, No. W2014-00931-CCA-R3-CD,
2015 WL 2330185, at *11 (Tenn. Crim. App. May 14,
this Court, the Defendant challenges only the denial of his
motion to suppress. We summarize below the relevant proof
adduced at the suppression hearing and the
August 3, 2013, Investigators Michael Green and Brent Chunn,
narcotics investigators for the Tipton County Sheriff's
Office, went to a residence on Beaver Creek Lane in Tipton
County after receiving information regarding a
pseudoephedrine purchase at a Kroger by Mariah Davis. They
also received information from an informant named Kyle Wolfe
regarding an individual named Cody Gatlin, who was in a
relationship with Ms. Davis. Investigator Green was familiar
with Mr. Gatlin "through [his] law enforcement
residence, the investigators spoke with Ms. Davis, Mr.
Gatlin, and John Harkness. The investigators first spoke with Ms.
Davis and questioned her about her pseudoephedrine purchase.
Initially, she told the investigators that she had taken the
medicine to her grandmother's house in Mason. The
investigators then asked if Mr. Gatlin was home. While Mr.
Gatlin was not initially present, he eventually walked over
from the Defendant's residence next door, about forty to
fifty feet away. During this time, Investigator Green
observed the Defendant, over at his residence, looking
"out [his] screen door over to where [they] were."
the investigators asked Mr. Gatlin about the pseudoephedrine
purchase, he replied that he had taken the pills next door to
the Defendant, who was in the process of using them to make
methamphetamine. At that point, the investigators backed down
Mr. Harkness' driveway and drove thirty to forty feet to
the Defendant's driveway next door. The investigators
then drove down the Defendant's driveway and parked near
the Defendant's trailer home.
Green described the Defendant's driveway as being gravel
and approximately sixty to seventy yards long, with a sign
near the roadway that said "no spraying." He did
not recall, however, seeing a "No Trespassing"
sign. Investigator Chunn did not recall seeing any posted
signs when they entered the Defendant's property. Because
it was summertime, the grass was very tall. Investigator
Green estimated that the grass "would come up probably
to my chin, and I'm six three."
officers walked up to the Defendant's front porch, the
Defendant, holding a cane, opened the door and walked out to
meet them. As soon as the Defendant opened the door, both
investigators smelled an overwhelming odor associated with
the manufacture of methamphetamine, even though the Defendant
was several feet from the investigators at the time.
Investigator Green explained that the smell differed from
methamphetamine in its finished product state, in that
[w]hen the chemical reaction is actually taking place, your
smells are louder, you know. And at the finished product
you've basically just got a powder there that maybe if
you open a bag you'll get a hit [sic] of starter fluid or
something, but nothing like it is when it's being
his training with methamphetamine, Investigator Green knew
that methamphetamine labs were "very volatile, " in
that they could catch on fire quickly.
investigators explained to the Defendant why they were there,
the Defendant denied any illegal activity. The investigators
asked for consent to enter the residence because the
Defendant initially seemed cooperative, and, according to
Investigator Green, he "would much rather have consent
than . . . just have to kick a door in." When the
Defendant denied consent, however, the investigators decided
to enter the trailer "[d]ue to . . . exigent
circumstances." According to Investigator Green, there
was no time to obtain a search warrant because
Methamphetamine is basically, it's starter fluid,
ammonium nitrate. It's a bomb in a bottle. It builds up
pressure in a bottle. If you're not there to release that
pressure, it's going to blow out, blow up, whatever you
want to call it. So exigent circumstances, it's I
don't have time to go get a search warrant. I've got
to get in that house and make it safe right now. If I wait,
it's going to blow up on us.
Chunn forced open the locked front door to the residence and
entered to "make sure no one else was inside, "
while Investigator Green attempted to detain the Defendant.
Investigator Green and the Defendant engaged in a struggle,
and Investigator Chunn, after "clear[ing] the residence,
" stepped back outside to assist in apprehending the
Defendant. While Investigator Green struggled to handcuff the
Defendant, the Defendant called for "Bear, " which
Investigator Green later learned was a dog. The Defendant
also screamed for his mother, who was in the other trailer on
the property, to call 1-800-THE-FIRM.
Green confirmed that the Defendant probably told him at some
point to get off his property but stated that it was after
Investigator Green attempted to detain him. Investigator
Chunn recalled that, when they arrived on the Defendant's
property, the Defendant asked the officers some type of
question as to why they were there, but he did not recall the
Defendant telling them to get off his property at that point.
approximately the same time they had detained the Defendant,
the patrol deputies arrived, and Investigator Green had the
Defendant sit down and provided him some water. At that time,
the Defendant said, "It's in the freezer. It's
in the freezer." Investigator Green then yelled to
Investigator Chunn, who was inside the residence with the
other officers, that the lab was located in the freezer.
Investigator Chunn brought the active lab outside, and at
some point, the officers had to relieve pressure in the
entering the Defendant's residence, Investigator Green
found the house to be "very unkept." Additionally,
he observed the following:
When I entered I noticed there was a bolt action 410 pistol
right at the door, a 410 shotgun and a rifle on the couch. .
. . And there was - Investigator Chunn had located the active
meth lab and took it out, and then we saw remnants of, you
know, older cooks, several cans of empty Coleman fuel, and
then we located the ten separate one-pot labs in the freezer.
Green clarified at trial that the pistol at the door actually
was a 410 shotgun that had been sawed off. The sawed-off
shotgun was loaded with two or three rounds. The other 410
shotgun had a laser on the barrel. Investigator Green
believed the Defendant "intended to go armed" even
though the guns were inside the locked residence.
Chunn confirmed that the active methamphetamine lab was found
in the refrigerator freezer. He noted that it was uncommon to
find an active lab in the freezer but that the Defendant told
them later in a statement that he placed the lab in the
freezer "to stop the reaction process so he would be
able to restart the lab at a later date or sometime
later." Investigator Chunn estimated that it takes
approximately one to four hours to manufacture
methamphetamine using the "shake and bake" method.
He could not say, however, how close the active lab was to
completing the manufacturing process when they found it at
the Defendant's residence.
officers found ten "already cooked off" labs
located in a deep freezer inside the residence. The officers
one pound of drain opener or lye; a 32-ounce bottle of drain
opener liquid; four empty Coleman cans; one-half gallon of
Coleman; two jars with Coleman fuel; . . . eight
[hydrochloric acid] generators; a bag of live trash; a bag of
Epsom salt; and the empty box of pseudoephedrine, the box
itself that had just been purchased.
Chunn identified a picture of the bathtub in the master
bathroom, which contained "a bag of dog food with empty,
numerous empty bottles that were previous methamphetamine
officers wanted to leave the Defendant's residence as
quickly as possible because of its condition. They requested
a methamphetamine task force clean-up truck, which arrived at
the scene and "dismantled [the active lab] and took away
all the hazardous materials." Investigator Chunn
confirmed that the Defendant's residence was quarantined,
meaning that it was considered unsuitable for habitation
given that it had been contaminated with methamphetamine.
Atkins testified that she knew the Defendant through her
church. She regularly traveled through the local
neighborhoods "witnessing" and kept a journal of
her experiences. On July 13, 2013, Ms. Atkins was on Beaver
Creek Road but was not supposed to go on properties with
"No Trespassing" signs. She observed that the
Defendant's property had several "No
Trespassing" signs posted, despite the high grass. Ms.
Atkins identified several of the Defendant's "No
Trespassing" and "Private Property" signs in
photographs that were admitted into evidence.
Defendant testified that he now lived in his mother's
residence, which is on the same property and next door to the
residence where he was living on August 3, 2013. The
Defendant identified a photograph of a "No
Trespassing" sign which he stated was at the beginning
of the driveway onto the property, and this photograph was
admitted into evidence. The Defendant stated that the
property was posted with four or five such signs.
Defendant testified that, when he looked outside and saw the
officers at Mr. Gatlin's father's residence, he shut
and locked his front door and "exited out the back door,
walked around and stood on the front porch." He
explained that he locked his front door from the inside, so
when he was standing on the front porch, he had no immediate
access to get inside the front door.
Defendant testified that the following occurred when the
officers arrived on his property:
Well, I saw them get out of the vehicle and come walking up
to me. And I asked them, Could I help you? I don't know
if you've noticed this or not, but you passed "no
trespassing" signs to get here. If you don't have a
search warrant, you need to leave my property. What
you're doing is unconstitutional.
officers asked for permission to enter his residence, which
he denied and told them to leave the property. At that time,
Investigator Green told the Defendant that he was going to
detain the Defendant. The Defendant placed his arms out but
asked that he not be handcuffed behind his back because of
his left arm being dislocated and broken so many times.
According to the Defendant, Investigator Chunn said, "oh
we're breaking your arm. We're handcuffing you behind
your back." When the Defendant resisted, "[t]hey
started punching [him] and kicking [him] and choking
[him]." He denied that he "freaked out" during
the struggle due to being under the influence of
methamphetamine. Rather, he asserted that he was scared of
the pain the officers were going to inflict by breaking his
recording made by the "dash cam" of one of the
reporting patrol cars was admitted into evidence and
established that the Defendant's driveway was not blocked
by any gates or other physical obstructions.
conclusion of the proof at trial, the jury deliberated and
convicted the Defendant of all charged offenses. The trial
court subsequently sentenced the Defendant to an effective
sentence of three years' incarceration, followed by eight
years suspended to supervised probation. On direct appeal,
the Defendant argued that the trial court erred in denying
his motion to suppress and that there was insufficient
evidence to support his firearms convictions. The Court of
Criminal Appeals affirmed the Defendant's convictions and
sentences. Christensen, 2015 WL 2330185, at *11.
Judge John Everett Williams filed a separate opinion,
concluding that, by posting "No Trespassing" signs,
the Defendant had revoked any implied consent for the
officers to enter his property without a warrant.
Id. at *11 (Williams, J., concurring in part and
dissenting in part). We subsequently granted the
Defendant's application for permission to appeal on the
suppression issue. In our Order granting the application, we
noted our particular interest in "(1) the effect, if
any, of the 'unlicensed physical intrusion'
definition of a search as articulated in Florida v.
Jardines, 133 S.Ct. 1409 (2013); and (2) if the
officers' entry into the curtilage of [the
Defendant's] home constituted a search, whether it was
supported by probable cause and the existence of exigent