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State v. Hodge

Court of Criminal Appeals of Tennessee, Jackson

September 8, 2017

STATE OF TENNESSEE
v.
BILLY JOE HODGE

          Assigned on Briefs February 7, 2017

         Appeal from the Circuit Court for Madison County No. 15-152 Kyle Atkins, Judge

          Christie Hopper, Jackson, Tennessee, for the appellant, Billy Joe Hodge.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; James G. Woodall, District Attorney General; and Nina Seiler, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen, and J. Ross Dyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Defendant, Billy Joe Hodge, was indicted by the Madison County Grand Jury for one count of possession of 0.5 grams or more of methamphetamine with intent to sell; possession of 0.5 grams or more of methamphetamine with intent to deliver; possession of marijuana; and possession of drug paraphernalia. Defendant filed a pretrial motion to suppress the evidence seized during a search of his home and person. Following a hearing, the trial court denied Defendant's motion, and Defendant entered guilty pleas to all four counts. The possession of methamphetamine with intent to sell and the possession of methamphetamine with intent to deliver were "merged" by the trial court, but the merger was not done in compliance with State v. Berry, 503 S.W.3d 360 (Tenn. 2015). Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the search of his home by law enforcement was lawful. After review, we conclude that exigent circumstances did not justify the warrantless search of Defendant's home. However, we conclude that there was probable cause for the issuance of a subsequent search warrant. Accordingly, we affirm the judgment of the trial court.

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

         Factual and procedural background

         At the hearing on Defendant's motion to suppress, Investigator Tikal Greer, a narcotics investigator with the Jackson City Police Department Narcotics Unit, testified that on May 21, 2014, he was informed by Sergeant Hallenback of the Endangered Child's Unit that a runaway female juvenile was at Defendant's residence. Sergeant Hallenback asked Investigator Greer to go to Defendant's home to try to locate the juvenile and advised him that the juvenile was diabetic and had not "been on her insulin in a couple of days." Investigator Greer and four or five other officers went to Defendant's home. Two officers were on the front porch with a co-defendant, "Mr. Johnson." Investigator Greer testified that he did not interact with Mr. Johnson "because at that point we had already had photographs of [Defendant], so I knew the actual owner and who the residence went back to."

         Investigator Greer, Sergeant Anderson, and Investigator Gilley went to the side door and knocked. Defendant answered the door, and Investigator Greer "smelled the odor of raw marijuana coming from inside the residence." Investigator Greer explained why he was there and asked Defendant if anyone was inside the residence. Defendant stated that he knew the juvenile, and he stated that she was not inside his residence. Defendant initially denied that anyone else was inside, but he then told Investigator Greer that there was a female inside. Investigator Greer testified that Defendant would not identify the person or state whether she was an adult or a juvenile.

         Investigator Greer and the other officers "started calling in, trying to get those individuals to come outside to us." He testified, "I believe it was four or five times we actually yelled[, ]" and no one exited the residence. Investigator Greer asked Defendant for consent to enter the residence "to see if this juvenile is actually in there, " and Defendant denied consent. Investigator Greer testified, "[a]t that point we placed him to the side. Again we called in, and at that point we entered the residence."

         Investigator Greer testified, "based on my experience I believed that that juvenile was in there. And since she was a diabetic patient, she may have passed out or be unresponsive." Once inside the residence, officers encountered an adult female coming out of Defendant's bedroom. Officers escorted the female outside, and they did not locate anyone else inside the residence. While inside the residence, officers found a digital scale, a bag of marijuana, and a bag of methamphetamines on a table in Defendant's bedroom. Investigator Greer took Defendant into custody and officers found "two baggies of methamphetamine ice" on Defendant's person during a pat down search. Investigator Greer subsequently obtained a search warrant to search Defendant's home for "illegal controlled substance[s]." Investigator Greer executed the search warrant and seized the scale, marijuana, methamphetamine, additional prescription pills, and "some other drug paraphernalia."

         On cross-examination, Investigator Greer testified that he did not recall how long it took to obtain the search warrant in this case, but that it normally takes "[m]aybe a[n] hour-ish, if that, to try to go write it up back at the office, contact the Judge, go meet the Judge, and come back to that scene." He described the layout of the home and testified that the side door entered a laundry area. He testified that the laundry area connected to the kitchen by a doorway, and to the left of the kitchen, "I believe you ...


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