IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 10, 2007

STATE OF TENNESSEE v. CHARLES THOMAS LARD, II and 

DOREEN REBECA GATES LARD

 Appeal from the Circuit Court for Tipton County

No. 5224 Joseph H. Walker III, Judge

No. W2006-01941-CCA-R3-CD - Filed December 5, 2007

The Appellants, Charles Thomas Lard, II, and Doreen Rebeca Gates Lard, each pled guilty in the

Tipton County Circuit Court to possession of one-half ounce or more of marijuana with intent to

deliver and to the manufacture of one-half ounce or more of marijuana, both Class E felonies.

Pursuant to a plea agreement, the Lards reserved the following certified question for consideration

by this court on appeal: whether the trial court erred in denying their respective motions to suppress

evidence and statements obtained by the police after a search of their home, based upon its finding

that the Lards knowingly and voluntarily consented to the search. After thorough consideration of

the arguments of the parties and the record on appeal, we affirm. 

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

DAVID G.HAYES,J., delivered the opinion of the court, in which THOMAS T.WOODALL and NORMA

MCGEE OGLE, JJ., joined.

J. Barney Witherington IV, Covington, Tennessee, for the Appellant, Charles Thomas Lard, II.

Frank Deslauriers, Covington, Tennessee, for the Appellant, Doreen Rebeca Gates Lard.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

Mike Dunavant, District Attorney General; and Walt Freeland, Assistant District Attorney General,

for the Appellee, State of Tennessee.

OPINION

Factual Background

In September of 2005, the Tipton County Sheriff’s Department received a telephone call from

Department of Children’s Services (“DCS”) worker Edna Kalmon. Kalmon informed Deputy

Delashmit and Deputy Mike Rose, with the Narcotics Division, that she had received a referral as

to possible child abuse at the home of the Appellants. Specifically, the referral alleged that the child
Gates is the daughter of Appellant Doreen Rebeca Gates Lard and the stepdaughter of Appellant Charles

1

Thomas Lard, II. 

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of the Appellants’ daughter, Christine Gates, had suffered a broken leg. During the course of the 1

telephone conversation, the officers advised Kalmon that the Appellants’ home had been under

surveillance regarding possible drug use. Kalmon informed the officers of her intent to visit the

home and investigate, and she asked that an officer accompany her on the visit. 

At approximately 3:30 p.m. on September 20, 2005, Kalmon and Rose arrived at the

Appellants’ home and knocked on the door. Christine Gates opened the door, and Rose immediately

noticed the odor of burnt marijuana. Gates invited them into the house, and Kalmon informed her

of the purpose of the visit. Rose asked Gates, “Is there marijuana in this house? I can smell it.”

Gates said, “Yes, sir,” and, further, that she had “just smoked a joint about [thirty] minutes ago.”

Rose indicated that he needed to take a look around and asked Gates if she would sign a consent to

search form, to which Gates responded, “Yes, sir, but I can’t give you consent to my house. This

is my parents’ house. I can give you [consent] where I live. I live upstairs in my room.” At 3:40

p.m., Gates signed a consent form allowing the officers to search the “[l]iving [a]rea [u]pstairs . . .

to include all containers and [l]ocked [b]oxes.” During this interaction, another sheriff’s deputy,

Sergeant Dan Jones, arrived at the scene. The officers proceeded upstairs, and Gates directed them

to a closet area containing two or three jars of a green leafy substance that Gates identified to the

officers as marijuana. Gates informed the officers that her parents had given her the marijuana. At

some point shortly thereafter, Gates’s mother, the Appellant Doreen Lard, was contacted by

telephone. During this call, she told Rose to “[g]o ahead and search” the rest of the house, but Rose

informed her that he would wait until she arrived home from work in Memphis.

Approximately an hour later, the Appellants arrived at the home together. Rose immediately

approached them and stated that drugs had been found upstairs. Rose informed them that the officers

required consent to search the rest of the house. The Appellants each signed a consent form

permitting the officers to search the house, purportedly “[t]o include all outbuildings, vehicles, and

locked containers.” At the suppression hearing, Rose testified as follows regarding the officers’

discoveries throughout the course of the search:

Q. What were [the Appellants] doing while you searched the house?

A. They were very cooperative. They went with me and showed me everything

that they had in the house.

Q. Now, when you say “everything,” can you describe what you found in the

house?

A. I think there was [sic] approximately fifteen fruit jars that were sealed that

they said they had grown marijuana for their personal use. And as a matter

of fact, they showed me all of the guns, the shotgun, everything.

Q. Where were these fruit jars?

A. In their bedroom, underneath the bed were some of them. There were some

bags, loose bags with marijuana, scattered different places in the bedroom.
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The shotgun was in the closet. There was a pistol laying on the dresser, like.

There was [sic] three or four guns in the house. Then they – after we got

through there, they took me to another room where they had some lights and

some lines hanging with plants drying. Then they took me outside where

some plants were still standing.

The officers advised the Appellants of their rights against self-incrimination, which the Appellants

then each waived via written waiver. Both of the Appellants then provided a written statement to

the officers.

On November 7, 2005, a Tipton County grand jury indicted the Appellants for possession

with intent to deliver one-half ounce or more ofmarijuana and for the manufacture of more than onehalf ounce of marijuana. The Appellants each filed a motion to suppress the evidence seized and

statements given to the police. After the trial court held a hearing on August 9, 2006, it denied the

motions. On August 10, 2006, the Appellants entered a conditional guilty plea to the indicted

offenses, reserving a certified question for appeal. The trial court entered judgments of conviction

on August 29, 2006, sentencing the Appellants, as multiple offenders, to three years of supervised

probation, with a $2000 fine and service of sixty days in jail. The Appellants timely filed a notice

of appeal. 

Analysis

Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure allows an appeal from a guilty

plea in certain cases under very narrow circumstances. An appeal lies from a guilty plea, pursuant

to Rule 37(b)(2)(i), if the final order of judgment contains a statement of the dispositive certified

question of law reserved by an Appellant, wherein the question is so clearly stated as to identify the

scope and the limit of the legal issues reserved. State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988).

The order must also state that the certified question was expressly reserved as part of the plea

agreement, that the State and the trial judge consented to the reservation, and that the State and the

trial judge are of the opinion that the question is dispositive of the case. Id. 

The certified issue reserved for this court on appeal was articulated by the trial court in its

final order as follows:

whether or not the trial court erred by finding that the evidence seized by law

enforcement in this case and the statement given by defendant[s] were properly not

suppressed and that said evidence and statement[s] were not obtained as a result of

any coercion on the part of law enforcement and the consent to search and statements

were voluntarily given by [the Appellants]. 

On appeal, the Appellants contend that the record in this case indicates a “highly coercive

atmosphere at the time of the alleged consent to search” and that their consent was not given

voluntarily and intelligently. The Appellants cite Vaughn v. State, 477 S.W.2d 260 (Tenn. Crim.
We acknowledge the language of Vaughn, which observed that “the fact that a defendant consents to a search 2

knowing that contraband lies in the area that will be searched ‘militates heavily against his validly consenting.’” 477

S.W.2d at 263 (citing Higgins v. United States, 209 F.2d 819, 820 (D.C. Cir. 1954)). We would also note that the United

States Court of Appeals, Sixth Circuit, in United States v. Edward Kelly, 913 F.2d 261, 267 n.3 (6 Cir. 1990), rejected th

the holding of Higgins and observed that “this rule has been overwhelmingly rejected by other courts.” See, e.g., United

States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 1879 (1980); United States v. Williams, 754 F.2d 672, 675-76

(6 Cir. 1985); United States v. Manchester, 711 F.2d 458, 462 (1 Cir. 1983); United States v. Robinson, 625 F.2d th st

1211, 1218-19 n. 12 (5 Cir. 1980); United States v. Ciovacco, 518 F.2d 29, 29-31 (1 Cir. 1975); United States v. Piet,

th st

498 F.2d 178, 182 (7 Cir.), cert. denied, 419 U.S. 1069, 95 S. Ct. 655 (1974); Leavitt v. Howard, 462 F.2d 992, 997 th

(1 Cir. 1972). st

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App. 1971), for their argument that “[t]he fact that a defendant consents to a search knowing that

contraband lies in the area that will be searched ‘militates heavily against his validly consenting.’”2

The Appellants further assert that coercion is shown by the fact that Rose told them, prior to

obtaining consent, that he had already found marijuana in the home, thereby convincing them that

their consent was not of their own volition. 

“The Fourth Amendment to the Constitution protects ‘the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Wilson v.

Arkansas, 514 U.S. 927, 931, 115 S. Ct. 1914, 1916 (1995). “It is axiomatic that the ‘physical entry

of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ . . .

And a principal protection against unnecessary intrusions into private dwellings is the warrant

requirement imposed by the Fourth Amendment on agents of the government who seek to enter the

home for purposes of search or arrest.” Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S. Ct. 2091,

2097 (1984). Article I, section 7 of the Tennessee Constitution provides:

[t]hat the people shall be secure in their persons, houses, papers and possessions,

from unreasonable searches and seizures; and that general warrants, whereby an

officer may be commanded to search suspected places, without evidence of the fact

committed, or to seize any person or persons not named, whose offences are not

particularly described and supported by evidence, are dangerous to liberty and ought

not to be granted. 

State v. Stephenson, 195 S.W.3d 574, 592 n.13 (Tenn. 2006). This constitutional provision is

identical in intent and purpose with the Fourth Amendment. Id. (citing State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997)).

A search or seizure conducted without a warrant is presumed unreasonable, and any evidence

discovered as a result of such a search is subject to suppression. Coolidge v. New Hampshire, 403

U.S. 443, 454-55, 91 S. Ct. 2022, 2031 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).

However, the evidence will not be suppressed if the State proves that the warrantless search or

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (quoting Yeargan, 958 S.W.2d at

629). A consent to search is an exception to the normal requirement of a search warrant. State v.
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Watson, 227 S.W.3d 622, 644 (Tenn. Crim. App. 2006) (citing Schneckloth v. Bustamonte, 412 U.S.

218, 248, 93 S. Ct. 2041, 2059 (1973)). To pass constitutional muster, consent to search must be

unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Brown,

836 S.W.2d 530, 547 (Tenn. 1992). 

The sufficiency of consent depends largely upon the facts and circumstances in a particular

case. State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993). The determination of

whether consent to search was voluntary can only be made by examining the totality of the

circumstances surrounding the giving of consent. State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim.

App. 1999). The burden is on the prosecution to prove that consent was freely and voluntarily given.

 State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983). When a decision on a motion

to suppress is challenged, the trial court’s findings of fact are presumed correct unless the evidence

contained in the record preponderates against them. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.

2000). Without such a showing, we must affirm the trial court’s decision. 

The trial court announced its ruling at the conclusion of the hearing on the Appellants’

motions to suppress:

The Court finds that with regard to the issues raised by [the Appellants] in

their motion[s], that the officer was accompanying the children’s services about a

complaint that they had received, that they were invited into the premises, could

smell the odor of an illegal narcotic, which gave them reasonable basis. They were

lawfully there, first of all. Secondly, gave them a reasonable basis to investigate

further; that Ms. Gates gave a [c]onsent to [s]earch freely; and then [the Appellants]

were notified, or a[n Appellant] was notified, and then later [the Appellants]

appeared. 

The Court finds that there’s been no coercion or coercive behavior against

[the Appellants] shown in the proof today to require suppression of the [c]onsent to

[s]earch. 

. . . .

In this particular case they certainly had probable cause to secure a warrant

if they had wanted to go get a warrant in the meantime. The officers chose to wait

to see if the [Appellants] would consent to search. All the proof I’ve heard was that

[the Appellants] arrived, were cooperative, showed the officers, and maintained that

the substances were for their personal use.

Finding no reason to suppress the evidence or statements resulting from the search, the trial court

denied the Appellants’ motions. 
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In support of their argument that their consent to search the house was invalid, the Appellants

rely on Vaughn, a case which involved a warrantless police search of the trunk of the defendants’

vehicle during a traffic stop. 477 S.W.2d at 262. In that case, one of the defendants, who was

driving the car, was placed under arrest after the police officer discovered that he had no driver’s

license, and the other defendant was arrested after admitting ownership of a pistol found in the car.

Id. The police officer subsequently asked for consent to search the trunk of the vehicle, where he

discovered a quantity of narcotics. Id. On appeal, the defendants argued that the evidence from the

trunk should have been suppressed, because it was obtained as a result of an unconstitutional search.

Id. In reversing the convictionsfor possession of narcotics, this court discussed the controlling facts

and principles as follows:

The pivotal question, as we view this record, is whether the search as

conducted was legal. We are satisfied that the search of the trunk and the discovery

of the fourteen cases of Robitussin was not connected in any manner with the offense

which brought about the initial arrest. In fact, the only basis the officer had for

making the search was his suspicion that was aroused by the mannerisms of

[defendant] Vaughn. This is not sufficient. . . .

The trooper had no prior knowledge of any other offense having been

committed by the defendants, because, as he related, he was looking for anything he

could find. In short, he was conducting a condemned exploratory search.

The trial court found that the search was a consent search in permitting the

evidence (Robitussin) to go to the jury and in overruling the motion to suppress. We

are satisfied that a defendant may waive his rights relative to searches and seizures.

. . . We disagree with the trial court’s findings from our review of the record. We

note that the trooper took the keys from the ignition and unlocked the glove

compartment. His suspicions being aroused, he then inquired about looking into the

trunk. This permission was denied by Vaughn. The trooper then related that he had

to look in the car, that he could get a warrant. The defendant Vaughn then related he

would let him look but he did not have the key, that [defendant] Barnes had it. They

then proceeded to Barnes when Vaughn then stated he would let him look and stated

that he (the trooper) looked like a level-headed person he could do business with. 

Under the totality of the circumstances we do not believe the State has met

its heavy burden and shown that the defendant Vaughn intelligently consented to this

search. The fact that the contraband was known by Vaughn to be in the trunk

militates heavily against his validly consenting. . . . The very fact that Vaughn

refused the trooper’s request to search in the first instance is incongruous with validly

consenting to the search. His hedging and delaying in producing the key conveys to

us acquiescing to authority rather than clear positive words and actions denoting a

valid consent. . . .
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Under these circumstances, we are satisfied that Vaughn’s act of consenting

was of necessity and not of his volition.

Id. at 262-63 (citations omitted). 

The Appellant’s reliance on Vaughn is misplaced. The holding of that case turned on this

court’s analysis of the totality of circumstances, which indicated that the search of the defendant’s

vehicle was unrelated to the offense for which arrest was made and that the defendant had initially

refused to consent to a search of the vehicle before eventually conceding to the officer’s requests.

See id. The present case is distinguishable in numerous respects. Here, DCS worker Kalmon

requested that police officers accompany her to the Appellants’ residence after she received a referral

alleging child abuse at the address. Once they arrived at the home, Gates invited them inside, and

Officer Rose immediately noticed the smell of marijuana. After obtaining Gates’ consent to search

her room, the validity of which is not at issue, the law enforcement officers discovered contraband,

which Gates stated had been given to her by the Appellants. At the suppression hearing, the

Appellants failed to establish any basis for concluding that their consent to search the house was a

result of their “acquiescing to authority rather than clear positive words and actions denoting a valid

consent[,]” as was held to be the situation in Vaughn. The proof does not preponderate against the

trial court’s finding that Rose waited for the Appellants to return home and asked them for consent

to search the rest of the house, which we conclude that they provided, without reluctance, in written

form, voluntarily and without coercion. We hold that in this case the State carried its burden of

establishing that the Appellants’ consent to search their home was freely and voluntarily given.

Accordingly, the Appellants’ assignments of error to the trial court’s denial of the motions to

suppress are without merit, and the judgments are affirmed.

CONCLUSION

Based upon the foregoing, the judgments of the Tipton County Circuit Court are affirmed.

 

 

___________________________________ 

DAVID G. HAYES, JUDGE