09/08/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 7, 2017
STATE OF TENNESSEE v. BILLY JOE HODGE
Appeal from the Circuit Court for Madison County
No. 15-152 Kyle Atkins, Judge
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No. W2016-01009-CCA-R3-CD
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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
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
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.
OPINION
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
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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 go into – down
some stairs into a bedroom.” Investigator Greer testified that Defendant appeared
“nervous, jittery.”
At the conclusion of the hearing, the trial court found Investigator Greer to be “a
credible witness who has many years of experience as a police officer, as a member of
the Drug Task Force, and that when he approached the house looking for the female he
encountered [Defendant], who was evasive and was not forthright in answering his
questions.” The court concluded, “that’s a rational and reasonable inference for
[Investigator Greer] to make, that there’s a minor without her medication who could
possibly be in an emergency situation as a result of her lack of insulin, which gave him
exigent circumstances under the totality of the circumstances in this case to enter.”
Additionally, the trial court found that the smell of marijuana gave officers probable
cause to obtain a search warrant for the residence. In its written order denying
Defendant’s motion, the trial court stated as follows:
The Court found the following factors contributed to the totality of the
circumstances to form the requisite exigent circumstances justifying the
warrantless search of Defendant’s residence: Inv[estigator] Greer’s
search for a[n] endangered runaway juvenile, who suffers from diabetes
and was reported to not have access to her insulin for several days; the
Defendant’s evasive answers to Inv[estigator] Greer’s questioning; the
Defendant’s acknowledgement that a female was present inside the
residence, who did not exit the residence upon Inv[estigator] Greer’s
request.
Additionally, independent of the exigent circumstances making the
warrantless search reasonable, Inv[estigator] Greer testified to the odor
of marijuana coming from inside the residence when the Defendant
opened the door. This provided probable cause for the search warrant
Inv[estigator] Greer obtained to conduct a full search of the residence,
wherein narcotics were located. The description of the odor emanating
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from the residence was described in the affidavit in support of the search
warrant, entered as an exhibit to the [hearing].
Defendant subsequently pleaded guilty to all four counts of the indictment in
exchange for an effective sentence of six years in confinement to be suspended on
Community Corrections. Defendant reserved the following certified question of law:
Whether law enforcement officers with the Metro Narcotics Unit
lawfully entered the Defendant’s residence in violation of the
Defendant’s Fourth Amendment rights, in that the assertion that the
officers were searching for a missing diabetic juvenile did not constitute
an exigent circumstance for entry into the Defendant’s home, and/or nor
was the assertion that the officer smelled marijuana while standing at the
Defendant’s side door sufficient probable cause to obtain a search
warrant into the Defendant’s residence, requiring suppression of any
evidence obtained thereafter?
Analysis
Defendant argues that exigent circumstances did not justify officers’ warrantless
entry into his home because Investigator Greer’s conclusion that the juvenile was inside
the home was based on speculation. The State argues that the exigent circumstances
exception to the warrant requirement applied because the facts available to Investigator
Greer allowed him to make an objectively reasonable inference that the juvenile was
inside Defendant’s home and in need of medical attention.
Because this appeal comes before us as a certified question of law, pursuant to
Rule 37(b) of the Tennessee Rules of Criminal Procedure, we must first determine
whether the question presented is dispositive. The question is dispositive “when the
appellate court ‘must either affirm the judgment [of conviction] or reverse and dismiss
[the charges].’” State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (alterations in
original) (quoting State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001); State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984)). An issue is never dispositive when this court
may exercise the option to reverse and remand. Wilkes, 684 S.W.2d at 667. This court
“‘is not bound by the determination and agreement of the trial court, a defendant, and the
State that a certified question of law is dispositive of the case.’” Dailey, 235 S.W.3d at
134-35 (quoting State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)).
This court must make an independent determination that the certified question is
dispositive. Id. at 135 (citing State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988)). Rule
37(b)(2) of the Tennessee Rules of Criminal Procedure provides that a defendant may
appeal from any judgment of conviction occurring as the result of a guilty plea if a
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dispositive question of law is properly certified and reserved. State v. Long, 159 S.W.3d
885, 887 (Tenn. Crim. App. 2004). The following are prerequisites for an appellate
court’s consideration of the merits of a question of law certified pursuant to Rule
37(b)(2):
(i) The judgment of conviction, or other document to which such
judgment refers that is filed before the notice of appeal, contains a
statement of the certified question of law reserved by the defendant for
appellate review;
(ii) The question of law is stated in the judgment or document so as to
identify clearly the scope and limits of the legal issue reserved;
(iii) The judgment or document reflects that the certified question was
expressly reserved with the consent of the state and the trial judge; and
(iv) The judgment or document reflects that the defendant, the state, and
the trial judge are of the opinion that the certified question is dispositive
of the case . . . .
Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).
In State v. Preston, our Supreme Court stated its intention to “make explicit to the
bench and bar exactly what the appellate courts will hereafter require as prerequisites to
the consideration of the merits of a question of law certified pursuant to Tenn. R. Crim. P.
37(b)(2)(i) or (iv).” 759 S.W.2d 647, 650 (Tenn. 1988). First, the final order or
judgment appealed from must contain a statement of the dispositive question of law
reserved for review. Id. The question must clearly identify the scope and limits of the
legal issue and must have been passed upon by the trial judge. Id. Second, the order
must also state that: (1) the certified question was reserved as part of the plea agreement;
(2) the State and the trial judge consented to the reservation; and (3) both the State and
the trial judge agreed that the question is dispositive of the case. Id. Third, the defendant
bears the burden of “reserving, articulating, and identifying the issue” reserved. State v.
Troy Lynn Woodlee, No. M2008-01100-CCA-R3-CD, 2010 WL 27883, at *2 (Tenn.
Crim. App., Jan. 6, 2010), perm. app. denied (Tenn., May 20, 2010) (citing Preston, 937
S.W.2d at 838). Failure to properly reserve a certified question of law pursuant to the
requirements stated in Preston will result in the dismissal of the appeal. Woodlee, 2010
WL 27883, at *2 (citing State v. Pendergrass, 937 S.W.2d 848, 838 (Tenn. 1996)). The
importance of complying with the Preston requirements has been reiterated by our
Supreme Court in State v. Armstrong, 126 S.W.3d 908, 913 (Tenn. 2003), which stated
that the Preston requirements are “explicit and unambiguous,” in rejecting the
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defendant’s argument in favor of substantial compliance with Tennessee Rules of
Criminal Procedure 37.
In the case under submission, Defendant’s issue on appeal meets these
requirements: he pleaded guilty; the judgment forms referenced the reservation of a
certified question; the addendum referenced in the judgment forms contains a statement
of the certified question of law and states that it is reserved with the express consent of
the trial court and the State and that all parties and the trial court agree that it is
dispositive of the case. We agree that the question included in the addendum attached to
Defendant’s judgment form is stated so as to identify clearly the scope and limits of the
legal issue reserved and is dispositive of the case. Thus, we conclude that the issue is
properly before this court.
Legality of Search and Seizure
Defendant argues that the warrantless search of his residence and subsequent
seizure of evidence was not conducted pursuant to a valid exception to the warrant
requirement. He contends that exigent circumstances did not justify warrantless entry
into his home because Investigator Greer’s conclusion that the juvenile was inside the
home was based on speculation. Defendant also contends that the independent source
doctrine does not validate the search because the affidavit supporting the search warrant
was based on evidence found in the home during the officers’ “illegal entry.”
Our standard of review for a trial court’s findings of fact and conclusions of law
on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.
1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the
prevailing party in the trial court is afforded the ‘strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this court reviews de novo the trial
court’s application of the law to the facts, without according any presumption of
correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact,
is able to assess the credibility of the witnesses, determine the weight and value to be
afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at
23. In reviewing a trial court’s ruling on a motion to suppress, an appellate court may
consider the evidence presented both at the suppression hearing and at the subsequent
trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
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Both the Fourth Amendment to the United States Constitution and Article I,
section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable
searches and seizures. Tennessee’s constitutional protections regarding searches and
seizures are identical in intent and purpose to those in the federal constitution. State v.
Turner, 297 S.W.3d 155, 165 (Tenn. 2009). “[A] warrantless search or seizure is
presumed unreasonable, and evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 626, 630 (Tenn. 1997). It is the State’s burden to demonstrate, by a
preponderance of the evidence, that a warrantless search passes constitutional muster.
State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008).
An exception to the warrant requirement exists for exigent circumstances. State v.
Reynolds, 504 S.W.3d 283, 304 (Tenn. 2016) (citing Mincey v. Arizona, 437 U.S. 385,
392-93, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)).
Exigent circumstances are those in which the urgent need for immediate
action becomes too compelling to impose upon governmental actors the
attendant delay that accompanies obtaining a warrant. Thus, in assessing
the constitutionality of a warrantless search, the inquiry is whether the
circumstances give rise to an objectively reasonable belief that there was
a compelling need to act and insufficient time to obtain a warrant. The
exigency of the circumstances is evaluated based upon the totality of the
circumstances known to the governmental actor at the time of the
[search]. Mere speculation is inadequate; rather, the State must rely
upon specific and articulable facts and the reasonable inferences drawn
from them. The circumstances are viewed from an objective
perspective; the governmental actor’s subjective intent is irrelevant. The
manner and the scope of the search must be reasonably attuned to the
exigent circumstances that justified the warrantless search, or the search
will exceed the bounds authorized by exigency alone. Where the
asserted ground of exigency is risk to the safety of the officers or others,
the governmental actors must have an objectively reasonable basis for
concluding that there is an immediate need to act to protect themselves
and others from serious harm.
State v. Meeks, 262 S.W.3d 710, 723-24 (Tenn. 2008) (footnotes omitted).
The State must show that the search is imperative, Meeks, 262 S.W.3d at 723, and
there is no time for law enforcement to secure a warrant. Missouri v. McNeely, 569 U.S.
141, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013). Exigency is determined on a fact-
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intensive, case-by-case basis. Id. at 1564. In making this determination, we consider the
totality of the circumstances to determine whether a law enforcement officer was justified
in acting without a warrant. Id.
We cannot conclude, based on the record before us, that the State met its burden of
establishing that the circumstances surrounding the search were so compelling that law
enforcement officers did not have time to obtain a search warrant. Initially, we note that
the officers took time to determine who the owner of the property was and obtain a
photograph of Defendant before going to Defendant’s home, which undermines the
State’s assertion that the warrantless entry was imperative. We agree with Defendant that
Investigator Greer’s conclusion that the runaway juvenile was inside Defendant’s home
and that “she was a diabetic patient, [and] she may have passed out or be
unresponsive[,]” was speculative. Investigator Greer testified that his conclusion was
“based on his experience” as a narcotics investigator. The only evidence offered by the
State in support of this conclusion was Investigator Greer’s testimony that another
officer, “Sergeant Hallenback,” who did not testify at the hearing, “advised [him] that this
juvenile was at this residence and if we could, go by there and see if we could locate her.”
Investigator Greer testified Sergeant Hallenback also “advised that she was a diabetic and
she hasn’t been on her insulin in a couple of days.” Investigator Greer’s speculation that
the juvenile was inside the home was based in part on Defendant’s evasiveness in
answering his questions. Investigator Greer “asked [Defendant] was there anyone else in
the house and he said yes. He said there was a female inside the house along with his
friend.” When Investigator Greer asked Defendant the identity of the female inside, “he
became very vague, evasive.” Although Defendant did not tell the officers who the
woman was, he had already told them that the juvenile was not inside the home. We
conclude that the warrantless entry by officers into Defendant’s home was in violation of
the Fourth Amendment to the United States Constitution and Article I, section 7 of the
Tennessee Constitution.
Defendant also asserts that the independent source doctrine does not validate the
search because the search warrant was tainted by facts gathered as a result of the “illegal
entry” into his home. Pursuant to the independent source doctrine, “an unconstitutional
entry does not compel exclusion of evidence found within a home if that evidence is
subsequently discovered after execution of a valid warrant obtained on the basis of facts
known entirely independent and separate from those discovered as a result of the illegal
entry.” State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992). In order for evidence
discovered during the execution of the subsequent search warrant to be found
independent of the prior unconstitutional entry, information obtained during the unlawful
entry must not have been presented to the issuing magistrate. Id. (citing Murray v.
United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2535, 101 L. Ed. 2d 472 (1988).
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The State argues that this issue is outside the scope of the certified question. The
“question of law must be stated so as to clearly identify the scope and the limits of the
legal issues reserved . . . [and] [n]o issue beyond the scope of the certified question will
be considered.” Preston, 759 S.W.2d at 650; see also State v. Day, 263 S.W.3d 891, 898
(Tenn. 2008).
The certified question does not make any mention of the independent source
doctrine or that information obtained during the unlawful entry was contained in the
affidavit in support of the search warrant. Rather, the certified question asks whether
“the assertion that the officer smelled marijuana while standing at the Defendant’s side
door sufficient probable cause to obtain a search warrant into the Defendant’s residence .
. . .” The trial court concluded that the odor of marijuana provided probable cause to
obtain the search warrant. We agree with the State that Defendant’s assertion that the
search and seizure pursuant to the search warrant violated the independent source
doctrine is not in the certified question and cannot be addressed by this court no matter
how meritorious the issue might be. Therefore, Defendant can get no relief on this issue.
“Probable cause generally requires reasonable grounds for suspicion, supported by
circumstances indicative of an illegal act.” State v. Williams, 193 S.W.3d 502, 507
(Tenn. 2006). “‘Probable cause must be more than a mere suspicion.’” State v. Echols,
382 S.W.3d 266, 278 (Tenn. 2012) (quoting State v. Lawrence, 154 S.W.3d 71, 76 (Tenn.
2005)). However, “probable cause ‘deal[s] with probabilities[,] . . . not technical[ities,]
. . . the factual and practical considerations of everyday life on which reasonable and
prudent [persons] . . . act.’” Id. (quoting Day, 263 S.W.3d at 902); see Brinegar v. United
States, 338 U.S. 160, 175 (1949).
Our case law reflects that probable cause can be based solely on an officer’s
detection of the odor of marijuana. See State v. Frederic A. Crosby, No. W2013-02610-
CCA-R3-CD, 2014 WL 4415924, at *8 (Tenn. Crim. App., Sept. 9, 2014) (citing Hicks v.
State, 534 S.W.2d 872, 874 (Tenn. Crim. App. 1975), State v. Hughes, 544 S.W.2d 99,
101 (Tenn. 1976), State v. James C. Leveye, No. M2003-02543-CCA-R3-CD, 2005 WL
366892, at *3 (Tenn. Crim. App., Feb. 16, 2005), and State v. Reginald Allan Gillespie,
No. 03C01-9706-CR-00222, 1999 WL 391560, at *3 (Tenn. Crim. App., June 16, 1999).
Defendant’s argument essentially rises and falls on the credibility of Investigator Greer
regarding his detection of the odor of marijuana. Investigator Greer testified that he was
trained in narcotics, that he had eight years’ experience as a narcotics unit investigator,
and that he recognized the smell of raw marijuana coming from inside Defendant’s home.
The trial court accredited his testimony. As the trier of fact at a suppression hearing, the
trial court is in a better position to assess the witness’s credibility, determine the weight
of the evidence and the value to be afforded it, and resolve any conflicts in the evidence.
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Odom, 928 S.W.2d at 23. We will not disturb that credibility finding on appeal.
Defendant is not entitled to relief.
We also want to address two matters by dicta, because of the limitations imposed
upon us in reviewing appeals involving certified questions of law. In reviewing a
certified question of law, we have only three options in which to rule: (1) affirm the
judgment(s); (2) reverse the judgment(s) and dismiss the charges; or (3) dismiss the
appeal. See Dailey, 235 S.W.3d at 134; see also State v. Walton, 41 S.W.3d 75, 95
(Tenn. 2001) (the question is dispositive “when the appellate court must either affirm the
judgment [of conviction] or reverse and dismiss [the charges].”). We cannot affirm and
remand for any purpose other than to carry out the judgment of affirmance. We cannot
reverse and remand other than for dismissal of the charges. Also, we have no power or
authority to affirm or reverse with instructions to modify anything. Id.
The indictment charged possession with intent to sell 0.5 grams or more of
methamphetamine in Count 1, and possession with intent to deliver 0.5 grams or more of
methamphetamine in Count 2. The guilty plea hearing transcript is not in the record. The
written plea agreement signed by Defendant shows that he was entering a guilty plea to
misdemeanor possession of marijuana, possession of drug paraphernalia, and possession
of less than 0.5 grams of methamphetamine with intent “to sell/deliver.”
There were four counts in the indictment, but there are only three judgments in the
appellate record. One of these judgments, at the top where the specific count of the
indictment is supposed to be given, says: “Count: 1, 2 (merge).” For the conviction
offense, the judgment states: Ҥ 39-17-417 РPoss. of Meth. w/Intent to Sell/Deliv. Under
.5G.” We assume that the trial court merged one of the methamphetamine convictions
with the other. However, if this was the intent, it was not done in compliance with our
Supreme Court’s order in State v. Berry, 503 S.W.3d 360 (Tenn. 2015) (“when two jury
verdicts are merged into a single conviction, the trial court should complete a uniform
judgment document for each count.”).
The second situation we observe is that even though a “tin” with “two baggies of
methamphetamine ice” was found on the person of Defendant while he was outside the
house, it is not clear from the record how much methamphetamine was in these two
baggies, or whether it was included in the methamphetamine which resulted in the felony
charges in Counts 1 and 2 of the indictment. The specific search of Defendant’s person
was not included in the certified question – the plain reading of the question deals only
with a search of the house. In his appellate brief, Defendant submits no argument as to
why the two baggies of methamphetamine found on Defendant’s person while he was
outside the house, pursuant to a “pat down,” should have been suppressed. The State did
not assert in its brief that the certified question of law failed to include all evidence
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seized, and therefore was not “dispositive.” We are unable to see anything that would
allow us to definitely conclude that the certified question was not dispositive.
Accordingly, we assume the “two baggies of methamphetamine ice” found on
Defendant’s person was not included in the methamphetamine included in Counts 1 and
2, and that those counts only included the methamphetamine found inside the home and
seized pursuant to the search warrant.
CONCLUSION
Based on the foregoing, we affirm the judgments of the trial court.
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THOMAS T. WOODALL, PRESIDING JUDGE
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