# FILED
March 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9703- CC-00108 ) Appellee, ) ) CHEATHAM COUNTY V. ) ) ) HON. ROBERT E. BURCH, J UDGE GARY RAINES,DEBRA RAINES , ) and JERRY RAI NES ) ) Appellants. ) (CE RTI FI ED QU EST ION OF L AW)

FOR THE APPELLANTS : FOR THE APPELLEE : DALE M. QUI LLEN JOHN KNOX WALKUP Attorney for Gary Raines Attorney General& Reporter and Debra Raines 95 White Bridge Road, Suite 208 ELLEN H. POLLACK Nashvill e, TN 37205 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding MICH AEL J. FLAN AGAN 425 Fifth Avenue North Attorney f

or Jerry Rai nes Nashvill e, TN 37243 95 White Bridge Road, Suite 208 Nashvill e, TN 37205 DAN M. ALSOBROOKS District Attorn ey Ge neral JAMES WALLACE KI RBY Assistant Distri ct Attorney General 102 Cumberland Street Ashland City, TN 37015
OPINION FILED ________________________ AFFIR MED AS T O GA RY RA INES AND DEB RA R AINE S; AFFIRMED AS MODIFI ED AS TO JERRY RAINES THOMAS T. WOODALL, J UDGE-2- 

# OPINION
Following the den ial of t he ir motion to suppress evi dence, the Defendants, Gary Raines and D ebra R aines ple d guilty in the Cir cuit Court

of Chea tham C ounty to possession of marijuana for resal e and possessi on of drug paraphernal ia, and Defendant Jerry Raines pled guil ty to s imple possession of mari juana and possession of drug p araphe rnalia. In their pleas , Defend ants reserved the right to appeal the trial c ourt’s d enial o f t hei r mo tion to s uppress as a cert ified qu estion of law pursuantto Rule 3(b) of the T ennesse e Rules of A ppellate Proce dure and Rules 11(e) and 37(b)(2)(I) of the Tennes see Rules of Criminal Pro cedure. Spe cifically, the certifi ed question is: “Whether or not t he initi al entry upon the premisesand the subsequent consent search was legal .” We affirm t he judgment of the trial court , as modified to co rrect an appa rent clerical error.

On Novem ber 17, 1996 , Deputy T ravis Wa lker of the C heatha m Co unty Sher iff’s Depa rtment w ent to 452 5 Sear s Road in Pegra m, Te nness ee to serve an arrest warranton a woman charged with t heft. The af fidavi t in suppor

t of the war rant
was not signe d by the a ffiant. T he w oman named in the warrant was the former girlf riend of Defendant Jerry Raines. Defendants Jerry Raines and his parents, Gary and Debra Raines , all lived at 452 5 Sear s Road . The arre st w arran t listed the
wom an’s address as 4525 Sears Road. Deputy Walker indi cated in hi s testi mony thathe did not examine the aff idavit of complaint

prior to t aking the arr est warrant to the Defendants’ home.

The drivew ay to the hom e is circular an d the ho me is ab out thirty to fif ty yards from the road. Deputy Walker parked t he patrol car in the driveway, wal ked to the frontdoor, kn ocked , and Jer ry Raine s open ed the d oor. T he depu ty sheriff-3-

explained why he was there a nd Jerry Raines told hi m that the pers on he was looking for was his

ex-girlfriend and t hat she no longer lived t here. Walker test ified thathe smelled “t he strong odor of marijuana coming f rom the reside nce.” He then asked Jerry Raines

to step outside in or

der to speak to him privately since he had noticed som eone els e in the house with Jerry R aines. O nce ou tside, the d eputy explained to Jerry

Raines tha t he had “w orked drugs befo re . . . knew what marijuanasmelled li ke . . . [and that s mell] was coming f rom his house . . . .” Walker testif ied that whil e h e was talki ng to Jerry Raines that J erry pul led a small bag of marijuana fr

om his pocket and laid i t on the car. He also testified that he informed Jerry Raines that if he di dn’ t wa nt h im t here then he “didn’t have to be the re.” Walker testified that J erry Rai nes be came n ervous and then yelled for his father, Gary Raines, to co me to the patrolcar. Deputy Walker explaine d to Gary Raines thathe ha d sm ell ed m arij uana coming from his home and that his son had just produced a bag of marij uana. He then asked Gary Raines to si gn the conse nt t o search form. A gain, W alker e xpla ined that he d id not have t o be on the premises if they did no t want him to be. Both Ga ry and Jerry Ra ines signed the consent form at which point

Jerry was pl aced under arrest for possessi on of mariju ana. A search of the house reveal ed 608 grams (1 1/4 po unds) o f m arijuana and various dr ug paraphernali a. Gary Raines and hi s wife Debra were then also arrested. The residen ce was the hom e of all three Defen dants.

On cross-examinat ion, Deputy Walker admitted that at no ti me dur ing h is conversati on with Jerry Raines prior to his arrest

did he read him his Mirandarights. He also stated that Jer ry Raines could have produce d the bag of marijuana as a directresult of

possibly

being asked if

he had any marijuana i n his possessi on at that time.-4- We initi ally note tha t weareli mi ted in our review of this case to the preci se issue stated in the certified question of law. State v. Pendergrass , 937 S.W.2d 834, 836-37 (Tenn . 1996); State v. Preston , 759 S.W .2d 647 , 650 (T enn. 19 88).

“The party prevailing in the trial court is enti tled to t he strongest legiti mate view of the evidence adduced at the suppr ession heari ng as well as al l reasonabl e and legitimate inferences

that may be drawn f rom thatevidence .” State v. Odom , 928 S.W .2d 18, 23 (Tenn. 1996) . The credibi lity of witnes ses, the wei ght of th e evidence, and the resol ution of con flicts in the eviden ce are all matters entruste d to the trial judge as trier of fact. Id . Thus, thefactual fi nding s of the trial cou rt in suppression hearings are presumptivel y correct on appeal and will be upheld unless the evide nce pre ponde rates ag ainst them
. Id
.

This Court has observed that one does not have an ex pectation of privacy “in the front of his residence which leads from the public way to the front door.” State
v. Baker , 625 S.W .2d 7 24, 727 (Tenn. Cri m. App. 1981). Cl early, Deputy Walker had a right to knock on the fro nt door to i nqu ire as to the whereabouts of the defendantnamed in the arrest warrant . When Deputy Walkersmelled the mari juana emanating from the house, he simply obser ved what any per

son famil iar wit h that
s mell would have b een a ble to o bserv e from the sa me p osition . “Auth orit iesma y take note of anyt hing evident to their senses so long as t hey have a ri ght to be where theyare and do not resort to extraordinary m eans to m ake the obs ervation.” State
v. Hurl ey , 876 S. W.2 d 57, 67 (Tenn . 1993). D eputy W alker did n ot resort to extraordinary means by simply knock ing on the door and speaking to Jerry Raines. Defen dants argue that the arrest

warrantwas invali d because there i s no indicat ion thatthe affidavit o f comp laint was s worn to p rior to issua nce of the arre st warran t. See State v. Burtis , 664 S.W.2d 305, 307-08(Tenn . Crim. A pp. 198 3). Defen dants subm it that if t he arrest warrant fo r the third pa rty is invalid, Deputy W alker therefore-5-

did not have the right to be at the door of Defendants’ residence. Defendants argue thatin effect, De puty W alker wa s trespas sing at the tim e he knocked on the Defen dants’ do or with an invalid arres t warrant.

We respe ctfully disagree wi th the Defendants’ argument. There is no proof in the record to indi cate that any pe rson w ould b e put o n notic e that h e or sh e wou ld be a trespasser

upon merely approachi ng the Defendants’residence and knocking
on the door for

any reason. None of the Defendants wer

e char ge d in the arrest warrantpossessed by Deputy Walker. There was no search or seizure whi ch was incident to any arr

est und e r authority o f the purp ortedly inva lid arrest wa rrant. D eputy Walke r did not enter the resi dence under authority of or by virt ue of the arrest warrant. T here is no thing in the record to indicate th at Deput y Walker was
even aware thatthe arrest warrant might

be invali d, or that

use of it was a subterf uge to gathe r inform ation a bout a ny illega l activity by the De fenda nts ins ide the ir residence. It would be perfectly legit imate for any citi zen to knock on t he front door of the Defendants’residence and make i nquiries about the particul ar woman named
as a defendant i n the arrest warrant as i t is unc ontradict ed that she w as an exgirlf riend of Defendant Jerr y Raines. Fur

thermore, t he deputy asked Jerry Raines if the woman st il l re side d at t he home a nd Jer ry Ra inesresp onded, “[N] o.” U nder the facts of this case , w e hold that Deputy Walker had a rig ht to be i n the locat ion where h e was w hen he smelled the odo r of marijua na.

D ef endan ts argue that J erry Raines’right agai nst self-incri mination was violated since Deputy Walker failed to Miran dize him before Raines turned over incrimin ating evidence to the dep uty, thus making all ev idence seized du ring the subsequent search inadmissibl e as fruit of the poisono us tree. State v. Clark , 844 S.W.2d 597 (T enn. 19 92), citin g Wong Sun v. United States , 371 U .S. 471, 8 3 S. Ct. 407, 9 L. Ed. 2 d 441 (1 963). In Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1062,-6-

16 L. Ed. 2 d 694 (1966 ), the U nited S tates S uprem e Cou rt held that any inc ri minating statem ents m ade b y an ac cuse d can not be used unles s it is demonstrated that

the accused was warned any statement he might

give co uld be used against him. H oweve r , in the case sub judice , Jerry Raines did not give an incrimin ating statemen t, rather h e incri minated himself by the product ion of the marijuanafrom his pocket . The F ifth Ame ndm ent ha s bee n con strued to proh ibit statem ents of only a “

testimoni al or communicative nature, ” and not “real” evidence. See Schm erber v. Califor nia , 384 U.S . 757, 86 S . Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966). The Tennessee Supreme Court appears to have adop t ed the federal distin ction between testi monial and non-tes timonial e vidence
. See State v. Frasier , 914 S.W.2d 467 (T enn. 19 96). Therefo re, fol low ingtherea soni ng of our sup reme court, the producti on of the marijuana byJerry Raines was non-testi monial, t hus not violat ing his ri ght against self-i ncriminati on. Furthermore, the Miranda requirement only attachesif the potentialdefendant’s freedom has been rest ricted to the extent thathe is “in custody.” Stans bury v. C alifornia , 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994). The reasonable person ’s percept ion of what constit utes custodyunder the ci rcumstances is t o be used to determ in e whether the potential defendantis in custody. Berken er v. McC arty , 468 U. S. 420, 104 S. Ct. 3138, 82 L. Ed
. 2d 317 (1984). One l ooks at the totalit y of the ci rcumstances and determine s whetherthere was a formal arrest, or the indicia of an arrest. State v. S mith , 868 S.W .2d 561 , 570 (T enn. 19 93).

In this cas e, the d eputy aske d Jerry Raine s if he co uld sp eak w ith him privately. Dep uty Wal ker explai ned to Jerry Raines that he would leave if Raines wanted hi m to do so. He then told Jerry Raines that he had smelled marij uana “coming from the house. ” At some point during thi s discussi on, Jerry Raines pull ed
a bag of marij uana from his pocket and laid i t on the patrol ca r. Ther e is some discrepancy as to whether he produced thi s bag in res ponse to Deputy Walker-7-

askin g him if he had any marij uana on his person, or whether he pr oduced the marijuanaas a result of the generalconversati on about D eputy Walker smelli ng marijuanaemanating from t he house. Regardless of the exactwords Deputy Walker used, he did tell Jerry Raines that he woul d leave if he asked him to. Therefore, a reaso nable person would nothave believ ed himself to be “in custody” for p urposes of Fifth Amendment protection. Since there was no Miranda violatio n, th e subsequen t sea rch willnot be viewed, as Defendants urge, as flowi ng from any violati on of Jerry Raines’ Fif th Amendment rights.

If a defen dant give s conse nt to searc h volun tarily and w ithout c oercio n, it “is
an exception to the const itu tional requireme nt of a search w arrant.” State v. Jackson , 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993). “In order t o pass constit utional muste r, consen t to search must be un equivo cal, sp ecific, int elligen tly given, and uncontaminated by duress or co ercion.” State v. Brown , 836 S.W.2d 530, 547 (Tenn. 199 2). T hus, the quest ion becomes whether or not the consent

to the search in this case was give n voluntar ily. One looks at t he facts to determine whetherthe co nsen t was o ffered fr eely and volu ntarily. Jackson , 889 S.W.2d at 221. The trial court’s finding t hat a search is consensual wil l not be over turned on appeal unless the evidence preponderatesagainst t he ruling. State v. Woods , 806 S.W.2d 205, 208 (Tenn . Crim. A pp. 199 0), perm. to appeal denied (Tenn . 1991), cert
. d enied , 5 02 U.S . 1079, 11 2 S. Ct. 98 6, 117 L . Ed. 2d 1 48 (199 2); Brady v. S tate , 584 S.W .2d 245 , 251-52 (Tenn . Crim. A pp. 197 9).

When asked to consent to a search of

the house, Jer ry Rainescalled for his father, Gary, to come out and as sist. Depu ty Walker told Jerr y and Gary Raines t hat he could go get a search warrant . It was true that he could have obtained a search warrant based on the marijua na smell and bag of mari juana that Jerry Raines had produced. See Simm ons v. Sta te , 360 S.W.2d 10 (Tenn. 1962 ). Dep uty W alker to ld-8-

the men that if

they did not

want him the re then he “did n’t have to b e there.” Fur the rmo re, t he con sent form s which th ey read a nd signe d explicitly refer red to their rightto refuse to c onsen t to a searc h of their ho me ab sent a se arch wa rrant. Gary and Jerry R aines both fre ely and voluntarily si gned the form consent ing to the search . There fore, the se arch of D efenda nts’ hom e was va lid.
Lastly, since Debra Raines’husband, Gary, consented to t he search of t he residence, that consent was valid as to her

as well. One spo use can g ive effective consent forthe sear ch of a res idence where b oth spo uses re side. State v. Bartram , 925 S.W .2d 227, 230 -31 (Tenn . 1996).

After a careful review of the record, we find no evidenc e that w ould prepon derate against the findi ngs of thetrialcourt. However , even though not raised by any of the parties, we note a clerical erro r in t he judgment wherei n Defendant Jerry Raines was convic ted of possessi on of marijuana. Under the negoti ated plea agreem ent, Defendant Jerr y Raines recei ved a sentence of eleven (11) months and twenty-ni ne (29) days i n the Cheatham County Jai l, suspended wi th probati on of eleven (11) months and twenty-nine (29)days. The judgment refl ects that he was
con victed of possession of marijuana, but erroneously notes that the convic

tion i s fora C lass E felo ny. The judgm ent in Ca se No. 1 2428 is a mend ed to reflec t a conviction of a Clas s A mis deme anor rath er than a Class E felony.

The judgments of t he court as to Gary Raines and Debra Raines are affi rmed. The judgments regardi ng Defendant Jerr y Raines are af

firmed as modif ied.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:-9-

___________________________________ JOHN H. PEAY, Judge

___________________________________ DAVID H. WELLES , Judge