### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 2000 Session DEWEY LINEBERRY v. JASON LOCKE, ET AL 

### . Appeal from the Circuit Court for Wilson County No. 9355 and 9431 Jim T. Hamilton, Judge

No. M1999-02169-COA-R3-CV - Filed July 31, 2000

A citizen whose

private photogr

aphs and video tap

es were seized in

the execution of a search warrant sued the sheriff and a deputy for invasion of privacy and outrageous condu ct. The trial judge directed a verdict for the defendants at the close of the plaintiff’s proof. Because we a gree that the plaintiff did not pr

ove either cause

of action, we af

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

Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R
. and W ILLI

AM B. C AIN , JJ., joined. Henry Clay Barr

y, Leba non, Tennessee,

Elliott Ozment, Nashv

ille, Tennessee,

and Troy B

rooks, Cla rks vil le, Ten nes see, for the app ell ant , De wey Li neb erry. Thomas I. Carlton, Jr. andRebecca Wells Demaree, Nashville, Tennessee, for the appellees, Terry Ashe and Jason Locke.
OPINION
I.
On January 12, 199 4 , the Wilson County Sheriff’s Depa

rtment executed tw

o search warra

nts describing the home and office of the plaintiff, Dewey L ineberry. The warrants, obtained by the districtattorney

general, commanded the

officers to search for and seize an affixed two-way mirror locatedon the third floor of the office buildin

g along with

cameras, lenses, video tapes, recording equipment, and any

records cataloging

taped events. During the search the officers found revealing photographs of the plaintiff’s girlfriend, and video tapes showing the plaintiff engaged

in sexual acts withvarious women. In order to identify what was on the video tapes found at theplaintiff’s home, the officers vie

wed them in the pre

sence of the plai

ntiff’s son and oth

ers.-2-

Following the search, the d istrict attorney

general instru

cted one of the of

ficers to try

to identify the women in

the video tapes. In an effort to comply, the offic er, Defendant Jason Locke, showedthe tapes to plaintiff’s girlfriend and another person who appeared in the scenes taped through the two-way mirror.
On January 14, 1994, a local newspaper carried a story ab ou t the events surrounding the search. The reporter quoted an anonymous source d escribing the ma terials seized as “

sexually explicit photos and tapes depicting a wide array of car nal activity.” The

source also

said “some of the activity

was apparently

recorded through a two-way mirror located in ‘a waiting room area’ of the office building . . .”, and “Lineberry [the plaintiff] is shown in many of the photos and videos.” The reporter refused to reveal his source, and the source has never be en identified.
II.
This is not an action over

the execution of the search warrant; rather it is about revealing the evidence seized in the search. The complaint alleges that revealing the evidence amount ed t o an invasion of privacy and outrageo u s conduct because it was done maliciously, willfully, and opp res siv ely.
The distinction we make is important, because we cannot foresee a sheriff o r his deputies incurring any liability by

following the command of a facially valid search war rant. The s heriff’s duty is to e xecute the warrant, Te nn. Code Ann. § 8-8-

201(5)(A), and t

he failure to do so

is a contempt of court, Tenn. Co

de Ann. § 8-8-207.

In addition, po

lice officers e

n joy a qualified imm uni ty, which protects them from liability – even if the search wa

s unlawful –

if the officer di

d not know the search violated a clearly established right. Anderson v. Creighton , 48 3 U.S. 63 5 (1987). Although the defe nda nts rai sed an i mmu nit y defense, the lower court did not explore the question of whether the sheriff’s immun ity e xtended to events that occurred after the search, and the defendants have not pressed the immunity question on appeal. The parties have tre ated this complaint as stating a cause of action for ordinary invasion of privac y and outrageo

us con duct, without regard to the official positions of the two defendants. We will do the same.
III. I NVASION OF P RIVACY
A person has “the right to be let alone; the right ... to be free from unwarranted publicity.” Langford v. Vanderbilt Univ

ersity , 287 S.W.2d 32, 38 (Tenn. 1956). In Martinv. Senators, Inc. , 418 S.W.2d 660 (Tenn. 1967), the Court adopted the Restatement definition of the tort: “A person who unreasonably

and seriousl

y i nterferes with another’s interest in not having his affairs known to others or his likeness exhibite

d to the public is liab

le to the other.” Restatement of Torts § 867. The Court also quoted the comments which said: “It is only where the intrusion has gone beyond the limits of decency that liability accrue s.” See Restatement

of Torts§ 867 cmt. d.-3-

The tort has been further

divided into four

separate acts o

f the defendant:(1) intrusion into the plaintiff’s physical

solitude or seclusion; (2) public disclosure of private facts; (3) false light; and (4) appropriation of another’s name or likeness for advertising or other b usine ss purposes. Scarborough v. Brown Group, Inc. , 935 F. Supp. 954, 963 (W.D. Tenn. 1995). The only conduct asserted by the pl aintiff in this cas

e is the defendan

t’s public disclosur

e of private fac

ts. “Public disclosure” has to be understood in a particularized sense. In Beard v. Akzona, Inc. , 517 F. Supp. 12 8 (E.D. Tenn. 1981), the Court said that “[c]ommunication to a single individual or to a smal l group of people, absen

t . . . [a] confidentia

l relationship, will

notgive rise to liability.” 517 F. Supp. at 132. At ano ther place t he Court sa id (citing Restatement (S econd) of Torts § 6 5 2D cmt. a) that public disclosure means “communicating it to the pub lic at large, or to so many persons that the matter must be regarded as substantially certain to become one of public know ledge.” 517 F. Supp. at 133.
The evidence of

publication of the

materials found in

the search is that the officers viewed someof the tapes at the scene in the presence of the plaintiff’s son and possibly two other persons

. The son, however, testified that he left the room, and there is no evidence that the other persons present saw wh at the officer s saw. In addition, in an effort to identify some of the other alleg ed “victims” of the pl

aintiff’s conduc

t, Officer Locke showed some of the tapes to two of the women involved. The plaintiff complains of the publication of the story in the Lebanon newspaper, but there is no proof that the

story came

from either of the

defendants.
It is our opinion that the limited exposure of the content of the materials sei

zed in the search is not sufficient to make out a cause of action for the invasion of pr ivacy. I n order to proper

ly execut e the search warrant the officers had to view the material they found. They did n ot requir e anyone els e to vie w th em a t th e sce ne, nor did the y invite public s crutiny. Officer Locke showe d some of the tapes to two of the women involved in th e activity. But their viewing

could hardly

be calledpublishing the material, since both witnesses were already awa re of what had been going on in the areas where the filming took place.
IV. O UTRAGEOU S C ONDUCT
In Dun n v. Moto Photo, Inc., 828 S.W.2d 747 (Tenn. Ct. App. 1991), this Court revi ewe d the Tennessee cases that

led to the recognition of the tort of outrageous conduct. The Court quoted at length from Medlin v. Allied Inv. Co. , 398 S.W.2d 270 (Tenn. 1966), which, in turn, quoted from Restateme nt

(Seco nd) of Torts

§ 46 cmt. d: “Liability has been found only where the conduct has been so outra geou s in character, and so extreme in degree, as to go bey ond all possible bounds of dece ncy, and to be regar

ded as atr ocious, and utterly intolerable in a civilized community.” The samecomment state

d t hat it was not enoug

h that the defenda

nt “has acted with

an intent which is tortuious oreven criminal . . . or even that his conduct has been characterized by ‘malice’.” Thi s bas ic requirement for

establishing the

tort has consisten

tly appear

ed in our cases sin

ce it first appeared. See Newsom v. Textron Aerostructures , 924 S.W.2d 8 7 (Tenn. C t. App. 1995); Bringle v. Methodist Hospital , 701 S.W.2d 622 (Tenn. Ct. A pp. 1985); Dunbar

v. Strimas , 632 S.W.2d 558-4-

(Tenn. Ct. App. 1981); Moorhead v. J.C. Penney Co., Inc. , 555 S.W.2d 713 (Tenn. 1977); Swallows
v. Western Electric Company, Inc. , 543 S.W.2d 581 (Tenn. 1976); Johnson v. Woman’s Hospital , 527 S.W.2d 133 (Tenn. Ct. App. 1975).
Ordinarily

the question of whether the defendants’ acts are “outrageous in charac ter and extreme in d egre e” sh oul d go t o th e ju ry, Dunn v. Moto Photo, Inc. , but “[i]t is for the co urt to determine, in the first instance, whether the defendant’s conduct may reason

ably be reg

arded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.” Restatement (Second) of Torts § 46 cmt. h (quoted in Medlin v. Allied Inv. Co. , 398 S.W.2d at 275); see also Alexander v. Inman , 825 S.W.2d 102, 105 (Tenn. Ct. App. 1991). Thus, many of our cases dismiss outrageous cond uct claims, eit

her on summary judgment or at the close of the plaintiff’s proof. Newsom v. Textron Aerostructures , 924 S.W.2d 87 (Tenn. Ct. App. 1995); Fann v. Cit y of Fairview , 905 S.W.2d 167 (Tenn. Ct. App. 1994); Highfill v. Bapt ist Hos pital, Inc. , 819 S.W.2d 436 (Tenn. Ct. App. 1991).
For many of the reasons discussed in Part IV of this opinion, we hold that the plaintiff failed to prove that

the defendants wer

e guilty of outrageous con

duct. Even if the d

efendants intent

ionally made public the materials found in the search, their conduct might amount to another tort, but not outrageous con

duct.
V.
The appellant raised sever al issues in his brief regarding the exclusion of evidence, but he does not include anything in the argument section of the brief about these

issues. He does not

cite the portions of the record where the alleged errors occurred, nor doe s he attempt to show how the trial court’s actions prejudiced his case.
This Court is not required to search the record to find the proof relied on to support a party’s contentions. Redbud Cooperative Corp. v. Clayton , 700 S.W.2d 551, 557 (Tenn. Ct. App. 1985). Therefore, we

will not address the

se issues, as we a

ssume that the appe

llant has waived th

em.
We affirm the judgment of the trial court, and th

e cause is reman

ded to the Circuit

Court of Wilson County for any further proce edings necessary . Tax the costs on app eal to the appella

nt, Dewe y Line berr y.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.