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State v. Spray

Court of Criminal Appeals of Tennessee, Nashville

September 26, 2017

STATE OF TENNESSEE
v.
MICHAEL DONALD SPRAY

          Session Date: May 9, 2017

         Appeal from the Circuit Court for Bedford County No. 17746 Forest A. Durard, Jr., Judge

         Following a bench trial, the Defendant, Michael Donald Spray, a former dispatcher for the Bedford County Sheriff's Department, was convicted in the Bedford County Circuit Court of eight counts of sexual exploitation of a minor involving over 100 images, a Class B felony, and two counts of sexual exploitation of a minor involving over 50 images, a Class C felony, and was sentenced to an effective term of sixteen years in the Department of Correction. The sole issue the Defendant raises on appeal is whether the trial court erred in denying his motion to suppress the images on the basis they were discovered as a result of an illegal, warrantless search by a fellow employee of the sheriff's department. Following our review, we affirm the judgments of the trial court.

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

          John H. Norton, III, Shelbyville, Tennessee, for the appellant, Michael Donald Spray.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         On March 28, 2013, the Defendant was working as a civilian employee dispatcher for the Bedford County Sheriff's Department when a fellow dispatcher, Jonathan Evans, discovered pornographic images of children on the Defendant's cell phone. Mr. Evans reported what he had seen to a sergeant with the Bedford County Sheriff's Department, and a search warrant was subsequently obtained for the phone. After a detective had performed a cursory examination of the cell phone, which confirmed what Mr. Evans had reported, the Defendant was arrested and transported to the Shelbyville Police Department. The Defendant, who signed a waiver of his Miranda rights, told interviewing officers that he had downloaded similar images onto a laptop computer in his home and signed a written consent for the officers to seize and search the computer. The forensic examination of the cell phone and computer uncovered over 1000 images that appeared to depict children engaged in sexual activity or simulated sexual activity that was patently offensive. Consequently, on November 18, 2013, the Bedford County Grand Jury returned an indictment charging the Defendant with ten separate counts of sexual exploitation of a minor involving over 100 images.

         Suppression Hearing

         On February 28, 2014, the Defendant filed a motion to suppress the evidence and to dismiss all the charges, arguing, among other things, that the initial photographs discovered on his cell phone were obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures and that the subsequent photographs and videos discovered on his cell phone and computer were tainted by the illegality of the initial search. We will summarize only those portions of the evidentiary hearing that are pertinent to the issue the Defendant raises on appeal.

         At the April 10, 2014 suppression hearing, Jonathan Evans testified that in March 2013, he was employed as a dispatcher for the Bedford County Sheriff's Department, where his duties involved answering the phone, looking up warrants, and "run[ning] tags." His work shift on March 27-28, 2013, lasted from 6:00 p.m. to 12:00 a.m., when he was relieved by the Defendant. He went home, retrieved a movie he had borrowed from a city police officer, and returned to the sheriff's department, where he began watching the movie in the lounge with the city police officer and several deputies of the sheriff's department. At some point, the Defendant joined them in the lounge and began watching the movie with them.

         At approximately 2:30 a.m., the telephone rang and Mr. Evans offered to answer it. Although he could have answered the call on the phone in the lounge, he instead went to the dispatch area, where he handled the call away from the noise of the movie. After hanging up, he noticed the Defendant's cell phone, which was plugged into a charger, and decided to "play around with [the Defendant]" by taking a picture of himself and setting it as the phone's wallpaper. He picked up the phone, which was not password protected, touched the center button to display the phone's wallpaper, found the camera icon, and took a photograph of himself. However, when he began trying to set the photograph as the phone's wallpaper he was unable to find it and therefore "went looking for it." During that search, he "found what [he] found, " "realized what it was, ...


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