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State v. Summers

Court of Criminal Appeals of Tennessee, Nashville

August 8, 2017

STATE OF TENNESSEE
v.
KENDALL J. SUMMERS

          Session May 9, 2017

         Appeal from the Circuit Court for Giles County No. 12770 Stella L. Hargove, Judge

         The Defendant, Kendall J. Summers, appeals from the Giles County Circuit Court's revocation of his probation for his convictions for possession with the intent to sell 0.5 gram or more of methamphetamine, initiation of the process to manufacture methamphetamine, and felony possession of drug paraphernalia and its order that he serve the remainder of his effective eight-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

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

          Claudia S. Jack, District Public Defender; Hershell Koger (on appeal and at revocation hearing), Assistant Public Defender; and Brandon E. White (on appeal), Columbia, Tennessee, for the appellant, Kendall J. Summers.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Brent A. Cooper, District Attorney General; and Jonathan Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         On June 10, 2015, the Defendant was indicted for possession with the intent to sell 0.5 gram or more of methamphetamine, initiation of the process to manufacture methamphetamine, and felony possession of drug paraphernalia. On September 21, 2015, the Defendant pleaded guilty as charged in exchange for an effective eight-year sentence with one year to serve in confinement and the remainder to be served on probation. On August 1, 2016, a probation violation report was filed with the trial court, alleging that the Defendant had been arrested on July 18, 2016, and charged with "distribution" of a controlled substance, unlawful possession of a weapon, and possession of drug paraphernalia. An arrest warrant for the violation was issued on August 2, 2016.

         The Defendant filed a motion to suppress the evidence obtained during the July 18, 2016 incident for purposes of the probation violation allegation. The suppression motion alleged that the police did not have legal grounds to search the Defendant's car during a traffic stop, which resulted in the Defendant's arrest for distribution of a controlled substance and for possession of drug paraphernalia. The motion also alleged that the police did not have legal grounds to search the Defendant's home, which resulted in the Defendant's arrest for unlawful possession of a firearm. The motion to suppress was addressed at the revocation hearing.

         At the hearing, Probation Officer Ti Rohasek testified that he supervised the Defendant but that he had never personally met the Defendant because he had only supervised the Defendant since the beginning of July 2016. Mr. Rohasek said that this was the Defendant's first probation violation allegation and that the Defendant had no difficulty reporting to his previous probation officer or paying his fees. Mr. Rohasek agreed the probation violation report was based solely upon the July 18 incident.

         On cross-examination, Mr. Rohasek testified that before the July 18 incident, he was contacted by Ardmore Police Officer Billy Grenko, who expressed concern that the Defendant was possibly involved with methamphetamine. Mr. Rohasek said that he and Officer Grenko discussed the condition of the Defendant's probation that required the Defendant to agree to a search of his "person, vehicle, property or place of residence by any probation/parole officer or law enforcement officer at any time." Mr. Rohasek explained to the officer that if the Defendant refused a search, the Defendant would be in violation of his probation. M r. Rohasek denied telling Officer Grenko that the police had "carte blanche" to search the Defendant and said he told the officer that he did not know how the rules of probation related to the police department.

         Ardmore Police Officer Billy Grenko testified that he had worked in law enforcement for about four years and that he initiated the July 18 traffic stop of the Defendant. Officer Grenko said that before the traffic stop, the police department received several complaints about "strange activity" occurring at the Defendant's home and that surveillance was conducted relative to the "comings and goings" at the Defendant's home. Officer Grenko said that he contacted Mr. Rohasek on July 18 to confirm whether the Defendant was on probation and to obtain a copy of the rules of the Defendant's probation. Officer Grenko said that he reviewed the probation rules to which the Defendant agreed and noticed that the Defendant agreed to allow law enforcement to search the Defendant, his vehicle, and his property. Officer Grenko decided to conduct a traffic stop.

         Officer Grenko testified that he requested Sergeant Luna to conduct the traffic stop when the Defendant left his home. Officer Grenko said that although the suspicion of drug activity was what drew his attention to the Defendant, the traffic stop was made based upon the rules of the Defendant's probation. Officer Grenko acknowledged he arrested the Defendant for the underlying 2015 charges for which the Defendant received probation. Officer Grenko searched the Defendant's car and found a "fake book in the back of the car that had a hidden safe inside of it." Officer Grenko said that he retrieved the Defendant's keyring, that he opened the safe with ...


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