### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 20, 200 6

STA TE OF TEN NES SEE v. JERE MY S. CR OSBY

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2003-C- 1601 Steve D ozier , Judge

No. M2005- 00548-CCA -R3-C D - F iled Janu ary 26, 2007

F oll ow ing a jury tr ia l, De fe nd a nt, Jer e my S. Cro sb y , w a s c on vic te d o f p os se ssi on of ov e r . 5 g ra ms of c oc a ine wi th i nte nt t o s e ll a ndun la wf ul p os se ssi on of

dr ug pa ra ph e rn a lia

. He wa s sen te nc e d to

se rv e e ig hte e n y e ars in the De pa rt me nt o f C or

re c tio n f or the c oc a ine c on vic tio n a nde le ve n mo nth s, twenty -nine da y s for the pa raphe rnalia c onviction, for an eff ective sentenc e of eig hteen y ear s. On appea l, he ar g ues that the trial c ourt err ed in fa iling to g rant his m o t i o n to suppress, and that he

rec eived inef

fec tive assistance of counsel. After a re view of the rec ord, the judg ments of the trial
court a re a ffirme d.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and N OR MA M C G EE O G LE , J J . joined.

Mic ha e l Co la ve c c hio , N a sh vil le , T e nn e sse e , ( on app e a l) ; a ndRos s E . A lde rm an, Di stric t Pu bli c De fe nd er; Re bec c a

War fi e ld, As sis ta nt P ub lic De fe nd e r; a ndJ. Mic ha e l E ng le , A ssi sta nt P ub lic D e f e n d e r , N a s h v i l l e , T e n n e s s e e , ( a ttr i a l )
, f o r t h e a p p e l l a n t , J e r e m y S

. C r o s b y.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Jennifer L

. Ble dsoe, Assista n t At t o rney G e n e r a l; V ic to r

S. ( T o rr y ) Jo h n s o n I I I
, D is tric t A tt o r n e y G e n e r a l; A my

H

. E is e n b e c k
, A s s is tant Dist ri ct Attorney

Gene ral; and Pame la Ander son, Assistant District Attorney Gene ral, for

the appellee , the State of Te nnessee

.

OP IN ION

I. Bac kgr ound

On May 6, 2003, Scott By

rd of the Me tropolitan Poli ce D epartment responded to a drug compl ai n t at t h e P ear Tre e I nn, room 234. Off icer By rd wa s a member

of the F lex Unit which specia liz ed in investig ating drug complaints and other illeg al ac tiviti es in hig h crime a rea s. When Offic er B yrd ar

rived at room 234, he enc ountere d sever al individuals, one of whom wa s Bry an Ward.-2-

There was “ drug activity ” in the roo m , and Mr. W ard ha d drug s on his person. Mr. Ward wa s

arr ested but later

rele ased a fter rec eiving a misdemeanor citation. Mr. Ward told the of fice rs he wa s not stay ing at the motel. When Office r B yrd we nt to the motel of fice to a dvise the cle rk about what had occ urre d in room 234, he learned that Mr. W ard was a r eg istered g uest stay ing in r oom 430 at the motel.

At her r equest, Of

fice r B yrd ac companied the motel of fice cler k to pe rform a “lock out” on

ro om 4 30 . A ft e r re c e ivi ng no re sp on se fr om he r kno c k, the mot e l cle rk op e ne d the do or to the ro om. Fr om the doorwa y , Offic er B yrd saw two beds in the room. Michae l Ba rnes was ly ing on the bed closest to the door, a nd Def endant wa s ly ing on the other bed. Offic er By rd saw a “tr ay

sitti ng at the foot or partially underne ath [ Def endant’ s] bed with som e marijuana see ds and marijuana residue on it.” He a lso saw a box of sandwich ba g s sitti ng on the dre sser to the rig ht of the door.

Mr . B arn e s a ndDe fe nd a nt w e re pla c e d u nd e r a rr e st. Of fi c e r B yrd c on du c te d a se arc h o f the ir persons incide nt to their arr ests. De fe ndant was in possession of a white substance which fie ldtested positive for c ocaine . Offic er B yrd Mirandized De fe nd a nt anda sk e d h im s ome qu e stions. Def endant sa id he “pulled the cocaine off the nig htstand and stuffe d it in his pocket whe n he hea rd the knocking at the door, be cause he didn’t know who was at the door.” The office rs at the sc ene also rec overe d a spoon conta ining a white re sidue, baking soda, and two sets of digital sc ales, one of which c ontained a w hite residue, and another bag containing a white substanc e which f ield-tested positive for coc aine.

Offic er B yrd testified that sandw ich bag s, like the ones re cover ed from the m otel room, wer e typically used to pac kag e drug s. He also explained that scale s are “used to we igh out the amount of drug s . . . . For the purpose of packag ing them for the purposes of sa le.” One set of sca les was f ound on the dre sser in close pr ox imityto the sandwich ba g s. Offic er By rd said that baking soda wa s “g ener ally

used as a cutting ag ent or an age nt to help m ix in with the coca ine.” The cocaine found in the room was in powde r form.

Offic er K ristina Vivrette w as ca lled to the scene as bac k-up for Offic er B yrd. At trial, she testified that she wa s the last one to ar rive at the motel r oom w here Def endant was arr ested. She wa s

awa re tha t the room had be en re nted by Mr. Ward. S he said that it was c ommon for someone to re nt

a mot e l r oo m a ndthe n “ se t up some bo dy to s e ll the dr

ug s f or the m ou t of

the ro om. ” Whil e investigating the motel room, Offic er Vivrette noti ced a s ock behind the ni g htstand. She picked up the sock a nd discovere d that it contained a ba g of cocaine larg er than the bag that wa s initi ally found. She said that dig ital scales ha d also bee n found inside the dra wer of the nig htstand.

Kathy Carman, a

for e n s ic in v e s ti g ato r

w it hthe Tenne ssee B ureau of I nvestig ation, conducte d lab tests on the two bag s of white powde r take n from the s ce n e. She testified that the substance found in ea ch bag was c ocaine . One ba g of coc aine weig hed one point f ive three (1.53) g rams, and the other ba g was point nine four (.94) g rams, for

a total amount of two point four ( 2.4) g rams.-3-

Michae l Ba

rnes testified that he went to the Pea r Tree I nn on the ni g ht of t he incident to “ge t

so me po wd e r” fr om B ri a n Wa rd . Wh e n h e arrive d at th e mot e l r oom he kne w t o b e Mr . Wa rd ’s
, Def endant wa s the only

person pr esent in the room. It was Mr. B arne s’ under standing that Mr. Ward had left the room to g et s ome cocaine. When Mr. W ard returne d, Mr. Barne s boug ht “thirty dollars worth of powde r” f

rom him. He identified the sma ller of the two ba g s of cocaine re cover ed fr om the sce ne as the cocaine he pur chase d from Mr. W ar d

. M r. Ba rnes de nied any

knowledg e of the other ba g of coc aine f

ound in the sock behind the nightstand. He said that the baking soda and the spoon found at the sc ene be longe d to him. He had a g irlfriend bring the baking soda t o the motel room so that he could “cook crac k cocaine” on the s poon. He said that “a junkie uses a spoon,” and

one g ram would be the maxi mum a mount that could be cooked in a spoon. Mr. Ba rnes sa id that the scale s and the marijuana see ds were alre ady in the motel room when he arrived.

Whil e he w as waiting t o g et t he cocaine f rom Mr. Ward, Mr. B arne s drank a bottle of vodka with Defe ndant and g ot “stag g ering drunk.” A s a re sult of the alcohol, he pa ssed out on the bed befor e he ha d an opportunity to use the cocaine. He purchase d the coc aine be fore he passe d out, but le ft the c oc a ine la y ing on th e ni ghts tand w hil e he wa s a sle e p. He sa id that D e fe nd a nt d id n ot u se

coca ine, and he was not w orried about him taking the cocaine. Additionally
, he said that the room be lon g e d to Mr . Wa

rda nda ny

bo dy wh o n e e de d a ny

dr ug s c ou ld g e t th e m f

ro m Mr . Wa

rda ndwo uld not need to stea l his drugs. A ccor ding to Mr. B arnes , h e and his girlfriend, Mr. Ward, a nd Def endant, wer e the only individuals in the room during that time. Mr. Ba rnes said that there wer e

nu me ro us kn oc ks on the do or , bu t he a ndDe fe nd a nt d id n ot ans we r the do or . M r. War d c a me “ in and out a f

ew times” be fore the police c ame to the r oom.

Detec tive J esse Burc hwell of the Metropolitan Na shville Pol ice De partment testified a s an expert on drug s and drug investigation. Detective B urchw ell said that the spoon re cover ed fr om the motel room had a white powdery substance inside the spoon and the ba ckside of the spoon looked as thoug h it had been burned. He said that he ha d seen spoons in a similar c ondition in drug houses and in the possession of individuals who use and sell drug s. Acc ording to Detec tive Bur chwe ll, the spoons are used to cook a small amount of powder cocaine into c rac k cocaine by using a lig hter a s the heat source. H e said that when an indi vidual is found i n a mot el room, with a larg e quantity of

coca ine and a spoon but no cra ck pipe, the assumption would be that the individual is manufacturing

cra ck coc aine a nd selling it out of the r oom. Detec tive Buc hwell could not de fine what constitutes a “la rg e quantity

of coc aine.”

II. Suppr e ssi on H e ar ing

Prior to trial, Defe ndant filed a motion to s uppress the e vidence obtained as a result of the office rs’ wa

rra ntless entry

into the motel r oom. The proof prese nted at the suppression hea ring was

e sse nti a lly

the sa me pr oo f pr e se nte d a t tr ia l wi th the e xce pti on of De fe nd a nt’ s te sti mon y . T he Sta te objected to De fend an t ’s s tanding to protest the sea rch, a rg uing that he could not assert a privac y int e re st i n th e mot e l ro om. I n r e sp on se , D e fe nd a nt t e sti fi e d th a t he ha d a Pla y Sta tio n T wo , a

g old neckla ce, a g old ring, his c lothes, bag
, and his ma il in the motel r oom. He also said that he had ove r three -hundre d dollars in his pocket when he was arr ested. Def endant said that he arrived at the motel-4-

room approximately

three day s befor e he w as ar rested. H e said that he and Mr. Ward went to school toge ther, a nd Mr. Ward g ave him the motel room beca use he neede d a plac e to live and Mr. War d no longe r nee ded the r oom. Def endant said that Mr. Barne s had bee n in the motel room as long as Def endant, a nd that Def

endant ha d been pay ing the ir motel bill. He said that the m otel was a war e that he wa s stay ing in the r oom, but he did not transfe r t he room into his name because he did not have va lid identification.

III. Motion f

or Ne w T rial

Following his conviction, Defe ndant filed a m o t i o n fo r new trial in which he inc luded the issue that he had r ece ived ineff ective a ssistance of c ounsel. At the motion for new tria l hearing, Mr

. War d te sti fi e d th a t he re nte d r oo m 43 0 at th e Pe ar Tr e e I nn fo r on e da y

. Whe n he de c ide d no t to us e the room, Defenda nt offe red to take the room and re imburse Mr. Ward for his ex penses. Mr. War d ag ree d and helpe d Def

endant take his Play

Station Two and a tra sh bag full of clothes to the motel room. Mr. Ward wa s not awar e that the r oom remaine d rente d in h i s n am e for severa l day s. He

never saw De fenda nt pay

money to the motel cler

k to rent a room. He said he was at t he motel three da y s late r v isi tin g a

frie nd , n ot sta y ing in ro om 430 , whe n he re c e ive d a cit a tio n a ndwa s o rd e re d to leave the premises. Following Def endant’ s arr est, Mr. Ward helped De fenda nt’s g irlfriend r etrieve De fe nd a nt’ s b e lon g ing s f

ro m th e mot e l. M r. War d sai d tha t noth ing in the mot e l r oo m be lon g e d to him.

Def

endant testified that he was repre sented at trial by Rebec ca War field, and tha t she neve r

came to se e h im w h il e h e w a s in c ar c e r a te d

. H e s a id th a t h is o n ly c o n ta c t w ith M s

. Wa r f ie ld w as du ri ng c ou rt

app e ara nc e s. Th e y

ne ve r h a d a

private c on ve rs a ti on du ri ng the se me e tin g s b e c a us e Def endant wa s in a holding cell. He said that he was never interviewe d by

an investig ator fr om the public defe nder’ s office

.

Acc ording to Defe ndant, Ms. Warfield advise d him that he would los e if he went to trial. He said that he a sked her

to subpoena Brian W ard to testify on his behalf at the suppression hea ring and she re fused to do so. He said that trial counse l also ref used to file a m o t i o n t o sever the trial of De fe nd a nt a ndhis c o- de fe nd a nt an d to fi le a mot ion to i nd e pe nd e ntl y

te st the e vid e nc e a g a ins t hi m. Def endant sa id that a n independe nt te st should have been conducte d beca use more tha n one bag of

coca ine was taken fr om the room, but only a sing le sample wa s tested.

Def endant sa id that trial counsel failed to obta in the identify of the c lerk at the Pear Tr ee Inn

or to q ue sti on that cle rk a s to w he the r D e fe nd a nt h a d p a id f or the mot e l r oo m e ve ry da y . H e lik e wi se complained that tria l counsel did not question other individuals fr om the motel w ho could verify that he stay ed there fre quently and was renting room 430 at the time of his ar rest. He did not know the night c lerk who let Offic er By rd i nto the m otel room on the ni g ht of t he incident, nor di d he see her in the ro om tha t ni g ht. De fe nd a nt s a id that th e on ly de fe ns e wi tne ss t

ri a l counse l su bp oe na e d to testify was De tective Jesse Bur chwe ll, and he did not fee l the testimonywas he lpful to his case.-5-

Def endant sa id he was e mploy ed at Nashville Mobile Products at the time of his arre st, but he wor ked “w heneve r” he wanted to be cause he and his boss were f riends. He said that his mailing addre ss was Xavier Drive, Antioch, Tennessee, but admitted that he “ba sically ” floats around fr om

m o t el t o m o t el wi t h a b ag o f c l o t h i n g an d m o n ey t o p ay fo r a ro o m

. He m ai n t ai n ed t h at t h e d ru gs found in his pocket belong ed to Michae l Ba rn es , and that he w as not using dr ug s the nig ht of the

arr est. He de nied that he wa s cooking or selling cra ck coc aine in the motel room.

IV . A nal ys is

A. M ot ion to Suppr e ss

Def endant first arg ues that the trial court err ed in f ailing to gr ant his motion t o suppress the

e vid e nc e fo un d a s a re su lt of Of fi c e r B yrd ’s wa

rr a ntl e ss s e arc h o f the mot e l r oo m. T he Sta te a sse rt s that Def endant does not have standing to challeng e the se arc h beca use he did not demonstra te a legiti mat e ex pe c ta tio n o f p ri va c y in the mot e l r oo m. D e fe nd a nt a rg ue s th a t he ha d a

le g iti ma te expectation of privac y

in the m otel room bec ause he had per sonal belong ings in the r oom, and be c a us e he pa id f

or the ro om o n th e nig ht o f the arr e st a nd on e nig ht prior to the nig ht of the arr e st. He f urther a rg ues that the motel cle rk wa s acting as an ag ent for the State when she opened the door
to the ro om, a ndthe se arc h w a s il le g a l be c a us e the of fi c e r andthe c le rk

la c ke d p ro ba

bl e cause to enter the room without a wa

rra nt.

When the trial court make s findings of fac t at the conc lusion of a suppression hea ring , the fac ts are acc o rded the weig ht of a jury verdic t. State v. Stephe nson , 878 S.W .2d 530, 544 (Tenn. 1994). The trial court’s f indings a re binding upon this court unless the ev i d ence in the rec ord preponde rate s ag ainst them. Stat e v. O dom , 928 S.W .2d 18, 23 (Tenn. 1996) . Questions of

cre dibilit y

of witnesses, the w eig ht and value of the evidence, and resolution of conflicts in evidence

are ma tte rs e ntr

us te d to the tr ia l judg e a s the tr ie r of fa c t. Th e pa rt y pr e va ili ng in the tr ia l c ou rt is

e nti tle d to the str on g e st le g iti ma te vie w of the e vid e nc e a dd uc e d at the su pp re ssi on he ari ng a s w e ll as all rea sonable and leg itimate infere nces that may be dra wn from the e vidence

. Odom , 928 S.W .2d

a t 23 . T he app lic a tio n o f the la w t o th e fa c ts, ho we ve r, re qu ir e s de novo revie w. State v. Daniel
, 12 S.W

. 3 d 4 2 0
, 4 2 3

- 2 4 ( T e n n

. 2 0 0 0 )

. L i k e w i s e , i f t h e e v i d e n c e d o e s n o ti n v o l v e a c r e d i b i l i ty assessment, the r eviewing c ourt must ex amine the r ecor d de novo without a presumption of

corr ectne ss. State v. Y

eargan , 958 S .W.2d 626, 629 (Tenn. 1997). Review is not li mited to the

r e c o r d o f th e s u p p r e s s io n h e ar in g ; r a th e r , it e xte n d s to th e e n ti r e r e c o r d o f p r o c e e d in g s. S tate v. Henning , 975 S.W .2d 290, 299 (Tenn. 1998)

.

The F ourth Amendment to the United States Const itution and article I , section 7 of the Tenne s s e e Co n s ti tu ti o n , p r o v id e p r o te c ti o nf o r c it izens a g ainst “unre asonable sear ches a nd seizures.”

“ Th e e sse nc e of

the pr oh ibi tio n a g a ins t un re a so nab le se arc he s a ndse izur e s u nd e r the F ou rth Amendment is to ‘safe g uard the privac y and sec urity

of individuals ag ainst arb i t rary invasions of g overnme nt officials.’” State v. Downey
, 9 4 5 S

. W

. 2 d 1 0 2
, 1 0 6 ( T e n n

. 1 9 9 7 ) ( q u o t i n g Camara v. Mu nic ipa l Co ur t , 3 87 U. S. 5 23 , 5 28 , 8 7 S. Ct. 17 27 , 1 73 0 ( 19 67 )) ; see also State v. Zagorski , 701 S.W .2d 808, 812 (Tenn. 1985) (“F ourth Amendment prote ction is inapplicable to a se arc h or seizure-6-

eff ecte d b y a p rivate individual not ac ting a s an ag ent of the g overnme nt or with the participation or knowledg e of a ny

g overnm e n t o f

f ic ial.”). Conseque ntly , the Fourth Amendment ac ts as a re straint only on g overnme nt actors.

“ The F ou rth A me nd me nt p ro te c ts l e g iti ma te e xpe c ta tio ns of priva c y rathe r tha n s imp ly place s.” Illinois v. Andreas , 463 U .S. 765, 771, 103 S. C t. 3319, 3324 (1983). “O ne who c halleng es the re a so na

ble ne ss o f a

se arc h o r s e izur e ha s th e in it ial b ur de n o f e sta bli sh ing a

le g iti ma te expectation of privac y

in the place wher e prope rty is searc hed.” State v. Oody
, 823 S.W .2d 554, 560 (T en n

. C ri m

. Ap p

. 1 9 9 1 ) ( ci t i n g Rawlings v. Kentucky , 448 U.S. 98, 105-06, 100 S. Ct. 2556, 2561- 62 (1 98 0) ; State v. Robe rge , 642 S.W .2d 716, 718 (Tenn. 1982) ). Ac cording ly , when e valuating whether a particul ar de fenda nt’s Fourth Amendment rig hts have be en violated, we look to two inquiries: (1) whe ther the individual, by his conduct, has “ exhibi ted an a ctual (subjec tive) expectation of privac y ,” and ( 2) whe ther the individual’s subje ctive expectation of privacy is “one that society

is p re p ar ed to rec og nize as ‘re asonable .’” Sta te v . R os s , 49 S.W .3d 833, 840 (Tenn. 2 0 0 1 ) ( ci t i n g Katz v. United Stat es , 389 U.S. 347, 361, 88 S. C t. 507, 19 L . Ed. 2d 576 (1967) (Ha rlan, J., concurring )). The same prote ction enjoy ed by a ci t i z en i n his home is ex tended to a citizen in a “motel room and other temporary

living spac es.” Ro ss , 49 S.W .3d at 840.

I n th e pr e se nt c a se , th e tr ia l c ou rt fo un d a s f

oll ow s:

The State’s position is that the defe ndant does not have standing to contest the sea rch of room 430. This Court ag ree s. The proof was re -opene d to hear

testimonyfrom the def end an t re gar ding his standing . The de fenda nt testified that he had a video g a me sy ste m a ndoth e r i te ms o f p e rs on a lty in r oo m 43 0. One wh o c ha lle ng e s a

sear ch or se izure has the initial burden of e stablishing a l egi t i mate expectation of privac y i n t h e p l ac e or thing to be sea rche d. State v. Oody , 823 S.W .2d 554, 560 (Tenn. Crim. App. 1991). One who does not have suc h expectation of privac y lacks standing to c halleng e the se arc h. See State v . Patterson , 966 S.W .2d 435, 441 (Tenn. Crim. App. 1997). Ther e are seven fac tors to be considere d when determining if a le g iti ma te e xpe c ta tio n o f p ri va c y e xists :

(1 ) o wn e rs hip of

the pr op e rt y ; ( 2) wh e the r the de fe nd a nt ha s a possessory interest in the thing se ized; (3) whether the def endant ha s a possessory

interest in th e p l ac ed [ sic] searche d; (4) whe ther the defe ndant has the right to exclude other[s] from the place ; (5) whe ther he ha s e xhibi te d a su bje c tiv e e xpe c ta tio n th a t th e pla c e wo uldre ma in fre e fr o m i n tr

u s io n b y th e s tate ; ( 6 ) w h e th e r

th e d e f e n d a n t t o ok normal precautions t o maintain his privac y ; and (7) whether he wa s leg itimately

on the pre mises. Oody , 823 S.W .2d at 560.

Th e fa c t that a pe rs on is a n o ve rn ig ht g ue st i n a re sid e nc e or

in an a pa rt me nt, standing alone, is suffic ient to clot h e the g uest with a leg itimate expectation of privac yin th e p r e mi s e s s u f f ic ie n t t o c h a ll e n g e th e s e ar c h o r a n y r e s u lt in g s e iz u r e.-7-

See M innesota v. Olson , 495 U.S. 91 (1990). Howe ver, a “ca sual visitor” or a “tra nsient party g uest” does not have a reasonable expectation in the host’s residenc e or apa rtment. Se e Un ite d S tat e s v . D ix , No. 94-4065, 1995 WL 351182 (6 Cir., J une

th 9, 1995) (“ As a ca sual, albeit fr equent, visitor to his sist er’ s apartment, who did not keep c lothing ther e, who did not rec eive mail the re, and who had no key
, Dix had no

re a so na ble e xpe c ta tio n o f p ri va c y in the pr e mis e s. [“]) ; Se e als o Sta te v . Na sh , 2002 WL 1905328 (Tenn. Crim. App. 2002)

. The Court did not hear any testimonythat the def endant ha s any

owner ship interest in the motel room, nor wa s there any proof that the def

endant ha d the rig ht to ex clude other s.

No tw ith sta nd ing the Cou rt fi nd s th a t the de fe nd a nt la c ks sta nd ing to c on te st the se arc h, the se arc h of ro om 43 0 is no ne the le ss a c on sti tut ion a l se arc h. I t is we ll settled that under both the f eder al and state constitutions , war rantless sea

rche s and seizures are presumed to be unrea sonable. Se e Sta te v . Ke ith , 978 S.W .2d 861, 865 (Tenn. 19 9 8 ). It is the burden of the State to prove by a pre pondera nce of

the evidenc e that the searc h or seiz ure falls under a rec og nized exception to the warr ant require ment. Id . a t 86 5. Th e app lic able e xce pti on in thi s c a se is f ou ndin the plain view doctrine. The Court ha s stated that the plain view doctrine applies whe n (1) the ite ms s e ize d w e re in p la in v ie w; (2 ) the vie we r h a d th e ri g ht t o be in the po sit ion to view the items; (3) the items seized were inad v er t entl y discovere d; and (4) the incrim i n at i n g nature of the items was immediate ly appar ent. Sta te v . H

awk , 969 S.W .2d 936, (Tenn. Crim. App. 1997)

. Turning to the fac ts of this case, Of fice r B yrd testified that t h e ap ar tment manag er asked him if he w ould car e to ac company her to pe rform a lo ck o u t o n ro o m 430. Acc ording to the testimony , the offic er did not ente r the thre s h o l d o f the dwelling until he observed the i t ems of contr aband in plain view . The a partment mana g er, who is not a state ag ent, opene d the door to the apartment without any prompting by the offic er. The Court finds that the office r wa s lawf u l l y i n a position t o view the ite ms i n p la in v ie w w he n th e do or op e ne d. Th eref

or e , th e de fe nd a nt’ s mo tio n to suppress should be re spectfully denied.

We find nothing in the re cord w hich pre ponderates ag ainst the trial court’s finding s. I n our view, the trial court properly applied the seven- fac tor test for de termining whether an individual has

e xhibi te d a n a ctu al, sub

je c tiv e e xpe c ta tio n o f p ri va c y a nd , th e re fo re , h a s “ sta nd ing ” to c on te st a

sear ch or se izure. See O ody , 823 S.W. 2da t 56 0; Sta te v . Tu rn bil l , 6 40 S.W. 2d40 , 4 6 ( Te nn . Crim. App. 1982). The Tenne ssee Supre me Court has cha rac ter i z ed t h i s test as a “ totalityof the circ umstances a

pproac h.” Ro ss , 4 9 S

. W

. 3 d a t 8 4 1

. D e s p i t e D e f e n d a n t ’ s c o n t e n t i o n s t o t h e c o n tr ar y, there was no evidenc e that Def endant had a possessory interest in the rooms. No one saw Def endant pay the m o t el cler

k to rent the motel room. He never transfe rre d the motel room into his name. Th e re wa s n o e vid e nc e to i nd ic a te ho w l on g De fe nd a nt h a d a c tua lly be e n sta y ing in the mot e l r oo m, nor any witnesses who testified tha t they had see n Def

endant occupy ing the room for a period of

consec utive day s. Nor wa s there a ny testimony t hat Def

endant ha d acte d to preve nt any one fr om-8-

entering the motel r oom. I n fac t, when the of fice r inquired a s to Defe ndant’s addr ess, he g ave the of fi c e r a ho me a dd re ss o f 4 59 3 X a vie r D ri ve , A nti oc h, T e n n e sse e . A lth ou g h D e fe nd a nt h a d p ro pe rt y in the room, a Play

Station Two, some mail, and various items of clothing, the trial court did not find this sufficient to indicate De fenda nt had an expectation of privacy in the room. We ag ree with the trial court.

F urthe rm or e , w e a g re e wi th th e tr ial c ou rt ’s fi nd ing that th e se arc h w a s w ith in the “ pla in vie w” e xce pti on to the wa rr a nt r e qu ir e me nt. As no te d b y the tr ia l c ou rt , a

wa rr a ntless se arc h is g ener ally presumed unrea sonable, thus violative of constit utional protections. State v. Bartram , 925 S

. W

. 2 d 2 2 7
, 2 2 9 -3 0 (T en n

. 1 9 9 6 ) ( ci t i n g Coo lid ge v . Ne w H

am ps hire , 4 03 U. S. 4 43 , 4 54 -5 5, 91 S. Ct. 20 22 , 2 03 2, 29 L

. Ed .2 d 56 4 (1 97 1) ). As the tr ia l c ou rt a lso no te d, the “ plain v ie w” do c tr ine is one of the well-re cog nized ex ceptions to the wa rra nt require ment. State v. Bartram
, 925 S.W .2d at 230. I f the c ircumstance s of a challeng ed sear ch fall within this rec og nized e x ception, the f ruits of that se arc h a

re no t subj e c t to op e ratio n of the e xclu sio na ry ru le a nd ma y

be pr op e rl y

a dmi tte d in to evidenc e. State v. Shaw , 603 S.W .2d 741, 743 (Tenn. Crim. App. 1980). The State ha s the burden of e sta bli sh ing that the se arc h wa s con du c te d pur su a nt to an e xce pti on to the wa rr a nt r e qu ir e me nt. State v. Mc Clanahan , 8 06 S.W. 2d 21 9, 22 0 (T e nn . Crim . App . 199 1)

. I f the Sta te fails to s a tis fy its bu rd e n, the e xclu sio na

ry ru le ma y op e rate to bar the a dmi ssi bil ity of a ny e vid e nc e ob ta ine d d ir e c tly or derivatively

from the unc onstitut ional sear ch. W ong Sun v. United States , 371 U.S. 471, 485, 83 S. Ct . 4 07 , 4 16 , 9 L . E d. 2d44 1 ( 19 63 ); Sta te v . Cl ar k , 844 S.W .2d 597, 600 (Tenn. 1992)

.

The trial c ourt corr ectly set forth the require ments of the plain view doc trine. The e vidence shows the items that Offic er B yrd obser ved we re in his plain view. Of fi cer By rd testified that he

acc ompanied the motel cle rk to room 430 to perf orm a “lock out” at her reque st. After r ece iving no response to her knoc ks on the door, the motel c lerk ope ned the motel room door to pr ocee d with the “lock out.” T he cle rk opene d the door of he r own volition, and wa s n o t acting at the off icer ’s reque st, or as a state ag ent when she did so. Whil e he w as lawf ully standing outside the door to the motel room, Offic er B yrd shined his flashlig ht into the room and saw mar i j u an a see ds and a substance r esembling marijuana on a tra y that was protruding from under the bed. He also observe d sandwich ba g s and sca les on top of the dresse r. Ba sed on his e x perie nce, Offic er By rd identified the ite ms a s d ru g pa

ra ph e rn a lia us e d in the dis tr ibu tio n a ndsa le of dr ug s, thu s p ro vid ing h im w ith probable cause to arre st the occupa nts of the room. See State v . Cothran , 115 S.W .3d 513, 524 -525 (Tenn. Crim. App. 2003)

.

After waking the occupa nts of the motel room, Off icer By rd plac ed them under

arr est based on the items in plain vie w. He then conducte d a sear ch of their persons incident to that a rre st. The

sea r c h r e v e a le d th a t D e f

e n d a n t h a d c o c a in e in h is f r o n t p o c k e t. I n a d d it io n to th e p lain view doctrine, a contempora neous pol ice searc h following a lawf ul custodial arr est is an exception to the

war rant re quirement. State v. Crutcher , 989 S

. W

. 2 d 2 95, 300 (Tenn. 1999) . The off icer may

c o n d u c t a s e ar c h o f th e p e r s o n arr e s te d a n d th e im me d iate s u rr o u n d in g are a. Id . A sea rch ma y prec ede a formal a rre st if the police off

icer had proba

ble cause to a

rre st at the time of

the sea rch, a nd the ite ms s e ize d a s a

re su lt o f the se arc h w e re no t ne c e ss ary to su pp ort pr ob able c a us e to a rr e st. Rawlings v. Kentucky
, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L

. Ed. 2 d 6 3 3 (1980).-9-

Ac c or din g ly , O ff

ic e r B yrdwa s ju sti fi e d in se arc hin g the pe rs on of the oc c up a nts a ndthe imm e diate

are a inc ide nt t o th e ir arr e sts

. B e c a us e the se arc h wa s con du c te d co nte mpo rane ou s with the arr e st, the sea rch w as a valid sear ch, and the officer lawfully seized the drug s found in Def endant’ s pocket

a s a re su lt o f the se arc h. Th e dr ug s f ou ndin the fl oo r b e hin d th e nig ht s ta ndwe re lik e wi se la wf ull y

se ize d. We co nc lud e that the of fi c e r ha d pro ba

ble c a us e to ar

re st the oc c up a nts ba se d on th e ite ms in p la in v ie w, a nd that as a re su lt of the se arc h inc ide nt to the arr e st, he pr op e rl y se ize d th e dr

ug s. Cothran , 115 S.W .3d at 526. Def endant is not entitled to relief on this iss ue.

B. Inef fective Assistance of Cou nsel

Def endant ne x t arg ues t hat t he trial court erre d in failing to find that he rece ived ineff ective

a ssi st a n c e o f c o u n s e l

. S p e c i f i c a l l y , h e ar g u e s t h a t tr i a l c o u n s e l w a s i n e f f e c t i v e i n ( 1 ) f

a ili ng to

su bp oe na B ri a n Wa rdto t e sti fy

a t th e mot ion to sup pr e ss he ari ng a nda t tria l; ( 2) faili ng to m e e t w ith Def endant privately

prior to trial; (3) failing to identity and subpoena

the motel cler

k who Def

endant alleg edly paid his rent to ea ch day ; (4) fa iling to object to the he arsa y tes timonyby

Offic er B yrd relating to his conve rsation with the motel cler k; and (6) i gnoring the “c onvoluted testimony ” as related to the number of bag s of coca ine re cover ed fr om the motel room and the e x act locations of the bag s of coc aine whe n they wer e discove red by

law enf orce ment.”

We fi rs t no te that c la ims of ine ff e c tiv e a ssi sta nc e of c ou ns e l are g e ne ra lly mor e app ro pr ia te ly raised in a petiti on for post-conviction relief rathe r than on dire ct appe al. Se e Sta te v . Ca rru the rs , 35 S.W. 3d51 6, 55 1 ( Te nn . 2 00 0) ; see also State v. A nderson
, 83 5 S.W. 2d60 0, 60 6 ( Te nn . Crim. App. 1992) (“ Raising issues pe rtaining to the ineffe ctive assistance of counsel for the first time [ on dir e c t a pp e a l] in the app e llate c ou rt is a pr a c tic e fr a ug ht w ith pe ri l. ”). How e ve r, be c a us e the re is

no thi ng ba

rring a de fe nd a nt f

ro m bring ing a n in e ff

e c tiv e ne ss c la im i n a

dir e c t a pp e a l, we wi ll pr oc e e d w ith ou r a na ly sis of De fe nd a nt’ s c la im.

Un de r T e nn e sse e Cod e An no ta te d s e c tio n 4 0- 30 -1 10 (f ) ( 20 03 ), a defe nd ant s e e kin g po stconviction re lief on the ba sis of ineffe ctive as s i s tance of counse l is required to prove his or her alleg ations “by

cl ea r an d co n vincing evidenc e.” T his same standar d should apply even w hen the claim of inef

fec tive assistance of counse l is raised on direc t appea l. State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999) (citing State v. Ande rson , 835 S.W. 2d60 0 ( Te nn . Crim. Ap p. 19 92 )) . O n a pp e a l, the finding s of fa ct made by the trial court are conclusive and will not be dis t u rb ed u nless the evidenc e contained in the rec ord pre ponderates ag ainst them. Br oo k s v . S tat e , 756 S.W .2d 288-89 (Tenn. Crim. App. 1988)

.

When a def

endant se eks post-convic tion relief on the ba sis of i n ef fe ctive assistanc e of

co u n s el
, h e m u s tfi rs tes t ab l i s h t h at t h e s er v i ce s re n d er ed o r t h e a d v i ce gi v en we re b el o w “ t h e r an ge of compe tence demande d of attorne y s in criminal case s.” Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975) . He must then show that t h e d ef i ci en cies “actua lly

had an a dverse eff

ect on the defe nse.” S tr ic k la n d

v

. W a s h ington
, 4 6 6 U.S. 668, 687, 104 S. C t. 2052, 2064, 80 L . Ed. 2d 674 (1984). The err or mus t b e so serious as to rende r an unr eliable r esult. Id . at 687. Should the pe t i t i o n e r f

a i l t o e s t ab l i s h e i t h e r f

a c t o r , h e i s n o t e n t i t l e d t o r e l i e f

. “ B e c a u s e a p e t iti on e r m us t-10-

establish both prong s of the test, a failure to prove either deficienc y or prejudice provides a suffic ient basis to deny

relief on the ineff

ective a ssistance c laim. I ndeed, a court ne ed not ad d re ss the components in any

particular order or e ven addr ess both if the def endant make s an insufficie nt showing of one c omponent.” Go ad v . S tat e , 938 S.W .2d 363, 370 (Tenn. 1996)

.

On claims of inef

fec tive assistance of counse l, the defe ndant is not e ntitled to the bene fit of hindsight, may not se cond-g uess a rea sonably based trial strateg y , and cannot criticize a sound, but

unsucce ss fu l
, t ac t i cal de cision made during the cour se of the pr ocee dings. Ad k ins v . S tat e , 911 S.W. 2d33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tic a l de c ision s o f c ou ns e l, howeve r, applies only

if the choic es ar e made afte r ad eq u at e p re paration for the ca se. Cooper v. Sta te , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992). Claims of i neff ective assistance of counsel

are reg arde d as mix ed questio n s o f law a nd fac t. Sta te v . H on ey c utt , 54 S.W .3d 762, 766 (Tenn. 20 01 ). Whe n r e vie wi ng the app lic a tio n o f l a w t o th e tr ia l cou rt ’s fa c tua l fi nd ing s, ou r r e vie w i s de novo , and the tria l court’s c onclusions of law are g iven no presumption of cor rec tness. Fields v. Sta te , 40 S.W .3d 450, 457-58 (Te nn. 2001).

Def endant f irst arg ues that counsel was ineffe ctive for failing to c all Mr. Ward to testify at the suppression hea

ring or at trial. De fenda nt contends that Mr. Ward’ s testimonywould have established that De fenda nt had standing to contest the sea rc h beca use he ha d been sta y ing in a nd pay ing f or the motel room for

sever al day s. The trial c ourt found

Mr . Wa rd ’s te sti mon y

wo uldno t hav e be e n ad mis sib le [to pr ov e sta nd ing ] be c a us e he testified that he was not at the motel ev er y n i gh t and could not verify that the defe ndant was the one in fa ct paying f or the room e ach day . There fore
, Mr. Ward had no persona l know ledg e that the defe ndant was the one paying f or the room. He

c ou ld onl y

a ssu me that he wa s. Th e a dmi ssi ble te sti mon y of Mr . Wa rda c tua lly confirms the de fenda nt’ s lack of standing

. Additionally , the def endant ha s not made available the motel cler

k or re cords f

rom the motel f

or purposes of this hearing and the Court finds that this iss ue is there fore waived.

We a g re e wi th the tr ia l c ou rt that D e fe nd a nt h a s f

a ile d to c arry hi s b ur de n b y faili ng to demonstrate how he wa s prejudice d by the fa ct that Mr. Ward did not testify . Mr. Ward’s testimony

a t th e he ari ng on themot ion fo r n e w t ri a l di d n ot aid i n e sta

bli sh ing De fe nd a nt’ s st a nd ing to c on te st the sear ch o f the mot e l r oo m. It e sta bli sh e d o nly

that D e fe nd a nt g a ve Mr . Wa rdmon e y to s ta y in the mot e l roo m f

or on e nig ht andthat Mr . Wa rdhe lpe d D e fe nd a nt c arry so me of his be lon g ing s in to the room.

Def endant ne x t arg ues t hat t rial counsel was ineff ective f or fa iling to meet with De fenda nt privately prior to trial. The trial court found

[D] efe ndant testified that he sa w his trial attorney on day s he wa s in court and in the holding cells, wher e there wer e other inmates a round during their conve rsations. The Court is of the opinion that trial counsel did keep the defe ndant properly advised of-11-

the c a se a nddida de qu a te ly c ommun ic a te wi th h im. Ad dit ion a lly , o n th e re c or d is

an excer pt of the proc eeding s wher e t rial counse l announce d that she had a dvised de fe nd a nt no t to pr oc e e d to tr ia l ba se d on the Cou rt ’s ru lin g s on the mo ti on s to suppress and dismi s s

. T ra n. Pg. 1, lines 1-9. A fter be ing a dvised of the potential

ra ng e of pu nis hme nt a ndthe ma nn e r i n w hic h it wo uld be se rv e d in c on ne c tio n w ith his other ca ses, the defenda nt will [si c] wanted to procee d to trial. Tran. Pg . 1, lines 9-12.

Th e re wa s n o te sti mon y

fr om tria l cou nsel a t th e he ari ng on the mot ion fo r n e w t ri a l. Def endant pr ovided the only

testimony reg arding this issue. There was no further proof introduced to show that trial counsel fa iled to keep De fenda nt properly apprised of his c ase or to rende r advic e

as t o h o w t o p ro ce ed wi t h h i s ca s e. No ev i d en ce wa s p r e s e n t e d t o s h o w h o w a d d i t i o n al m ee t i n gs

or more private meeting s would have chang ed the outcome of Def endant’ s trial. There is nothing in the rec ord which pr eponder ates a g ainst the trial court’s finding s. There fore , we c onclude that Defendant ha s failed to show how he was pre judiced by

a lac k of private meeting s with his trial counsel.

Def endant ne x t contends that counsel was ineffec tive for failing to identify and subpoena the motel clerk who Def

endant alleg edly paid his r ent to e ach day . Def endant a rg ues ag ain that had the
mot e l c le rk

be e n id e nti fi e d a ndc a lle d to te sti fy , th e c le rk wo uldha ve est abl is hed his st a nd ing to contest the searc h

. I n our opinion, Defe ndant has not shown how he was pre judiced by

trial counsel’s f

ailure to subpoena

the motel cler

k to testify

. The motel cle rk did not testify at the motion for ne w trial hearing, no motel r ecor ds were introduced to show De fenda nt paid for the r oom, and

no wi tne sse s te sti fi e d th a t the y sa w De fe nd a nt pa y ing the mot e l c le rk . D e fe nd a nt o ff e re d o nly his own testimony

as evide nce that he paid for the motel room and ther efor e had standing to contest the

sear ch. Additionally
, the trial court found that “[a]ssum ing arg uendo that the def endant ha d standing
to c on te st the se arc h, the Cou rt is o f the op ini on that th e se arc h w a s n ot i lle g a l ba se d o n th e F ou rth Am e nd me nt a s a dd re sse d e arl ie r i n th e de fe nd a nt’ s f ir st i ssu e . T he re fore, any e rr or in f a ili ng to locate the motel c lerk would be harmless err or. The c ourt is of the opinion that this is sue is without merit.”

Def endant ne x t arg ues that trial counse l was ineff ective in f

ailing to objec t t o the hea rsay te sti mon y of

fe re d by Of

fi c e r B yrd re la tin g to his c on ve rs a tio n w ith the mot e l c le rk . D e fe nd a nt f a ils to cite any

specific portion of the rec ord as hear say and further fails to alleg e how he was pre judiced by c ou ns e l’ s a lle g e d f

a ilu re to o bje c t to the he ars a y . T hetr ia l c ou rt state d:

The de fense arg ues that the testimony by Offic er By rd reg arding the motel cler k was hear say and attempted to e stablish that the motel room in que stion be longe d to Bria n Ward, and not to the defe ndant. The Court has r eviewe d the ar ea of Offic er B yrd’s testimony wher ein t he defenda nt alleg ed the he arsa y occur red. The Court finds that the statement “ I t was at that point in time in discussing w ith the Clerk what we found in the room that we discovere d that this B rian Ward subject, who was up in this ot her room has a r oom reg istered, as well, I believe it wa s Room 430" is not hearsay since-12-

it was being offe red to show why the police went to Room 430 wit h the motel cler k. Tran. V ol. 1, Pg. 2, lines 21-24. Ac cording ly , the defendant’s a rg ument that trial counsel wa s ineffe ctive must fail.

The trial c ourt conclude d that the purported hear say statement was not he arsa y beca use it was not offer ed for

the truth of the matter

asserted. I n so doing, the court implied that had a n objection been made by trial counsel, it would have been ove rruled. If trial counsel ha d objected, and if the State had ar g ued that the state ment was not hea rsay , and if

the trial court had ruled as implied, any

err or in the evide ntiary

ruling would be harmless err or, and there fore we ag ree with the trial court that Def endant ha s not shown that he was prejudice d by trial counsel’s failure to object to Officer B yrd ’s state me nt. Con se qu e ntl y , h e ha s n ot s ho wn that tria l c ou ns e l w a s in e ff e c tiv e wi th re sp e c t to this iss ue.
Finally
, De fendant arg ues that trial counse l was ineff ective be cause he ig nored the “convoluted testimony as i t rela tes to the number of ba g s of coc aine, a nd the exact locations [of the bag s] when discovere d by law enf orce ment, in the room.” De fendant arg ues that althoug h two or three bag s of coc aine we re discove red in the motel room, the l ab report from the Tenne ssee B ureau of I nvestig ation indicated only one sample w as submitted for testing

. T h e t ri al court found a s fo llo ws :

The de fense alleg es t hat based on the arrest affidavits, there appea rs to be 3 bag s of

c oc a ine bu t th e la

b r e po rt ind ic a te s o nly

tw o. Th e de fe ns e arg ue s th a t th e ba g s mu st have be en “mixed” and that this re sults in the destruction of evidenc e critica l to the defe nse. Testim o n y b y Of fice r B yrd at both the motion to suppress hea ring and at trial indicate the re w ere two bag s containing cocaine. Additionally
, the testimony at the suppression hea

ring is that both bag s field tested positive for coc aine ba se. The

c ou rt a ff ir ms its prev io us ru lin g on thi s is su e a ndis o f the op ini on thi s is su e is without merit.”

D e f e n d an t h a s n o t d e m o n s t r at e d c ou ns e l’ s p e rf

orma nc e wa s b e low the re qu ir e d s ta nd ardwi th

re sp e c t to thi s is su e . N or

ha s h e sh ow n ho w he wa s pr e jud ic e d by c ou ns e l’ s a c tio ns

. We a g re e wi th the trial court and conc lude that this issue is without merit.

With re sp e c t to a ll c la ims ra ise d r e g ard ing his a lle g e d in effect iv e a ssi sta nc e of c ou ns e l, Def endant ha s failed to demonstrate that counse l was def icient in his repre sentation or that he wa s prejudice d by

counsel’s pe rformance . Acc ording ly , Def endant is not entitled to r elief on this issue.

CONCLUSION

For the fore g oing r easons, the judg ments of the trial c ourt are aff irmed.

_________________________________ THOMAS T. WOODAL

L , J UDGE