### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

uly 11, 2001

STATE OF TENNESSEE v. RAND ALL KEITH SMITH

Direct Appeal from the Circuit Court for Henry County

No. 12999 Julian P. Guinn, Judge

No. W2000-02596-CCA-R3-CD - Filed September 6, 2001

The Appellant, Randall Keith Smith, appeals from the denial of his motion to supp res s evidence seized in his residence during the execution of a search warrant. A written “motion to suppress” was filed with the clerk on the day prior to Smith’s schedule

d trial for drug

charges. On th

e date of trial, following the close of all pr oof in the case, Smi

th’s trial counsel

orally move

d to suppr ess the evidence seized as a result of the search, based upon the grounds recited in the written motion. The trial court denied the motion, finding that (1) there was no factual basis to support suppression; and (2) the motion was untimely. The jury found Smith guilty of manufacturing methamphetamine, a class C felony, and he

received a three-year community corrections sentence. After review, we find the Appellant’s suppression motion untimely. Accordingly, the judg ment is affirmed.
Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and A LAN E. G LENN , JJ., joined.

Rosella M. Shackel

ford, Paris, Tenn

essee, for the A

ppellant, Randall K

. Smith

Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Robert “Gus” Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On January 1 9, 2000, Henry County Deputies William David Archie and Adam Killion drov e to the Appellant’s r

esidence for the

purpose of obtain

ing the Appellan

t’ s signa ture on a forfeiture receipt. Officer Archi

e explained that the

purpose for his presence

at the Appellant’s residence was because-2-

I had arrested a Jeffrey Neese two or th ree days prior t o this. And I was seizing a vehicle that belonged to

Mr. Smith for Mr. Ne

ese bein g revoked i n Tennessee for DUI and, also , for a drug sei zure. And I ha

d to obtain a signa

ture for recei

pt.

. . . I had to have a statement from Mr. Smith that he knew what was going on with the vehicle.

Officer Archie related

that, on this occasion, Neese was arrested on charges of driving on a revoked license, felony evading arrest and possession of methamphetamine.
Upon arriv al at the Appellant’s residence, the door was answered by Ne ese. The officers askedto speak with the Appellant. Neese closed the door and proceeded to get the Appellant, who

was also inside the residence. At this time, the offic ers smelled ammonia. When the Appellant appeared at the door, the officers requested permission to enter the residence in order to fill out the paperwork

concerning the forfeiture receipt. The Appellant agreed

and allowed the officers inside. Once inside, the odor of ammonia was even stronger. Also, Officer Archie testified that he observed

an empty jar in t

he kitchen. Offi

cer Archie susp

ected that the ind

ividuals were involved

in i lle gali ty, basedupon the ammonia odor, the empty jar, a nd the prior arrest of Neese for methamphetamine possession two days previously. Additionally, Officer Killion observed a ja r with white residue and

a smoking bong in one of the bedrooms. This information was relayed by Officer Archie to another deputy and, ba sed u pon these facts and other known information concerning the Appellant and Neese’s involve

ment in drug activity, a warrant was obtained to search the Appellant’s residence. Officers Archie and Killion remained at the residence while the search warrant was being obtained.

Officers arrived on the scene wi th a search warrant approximately three hours later and a search of the Appellant’ s residence was conducted. The o

fficers found, i

n addition to 7.06 g

rams of methamphetamine, numerous articles used in the manufacturing of methamphetamine.

Procedural History

On March 6, 2000, t

he Appellant and Je

ffrey Ne ese were indicte

d by a Henry

County Grand Jury for manufacturing methamphetamine. The Appellant was a rraigned on this charge on March 13, 2000, a

nd, after being

found indigent, t

he public defend

er’s office wa

s appointed to represent him. On this date, a scheduling order was entered by the trial court which directed that the last date for filing pre-trial motions was March 23, 2000. As no “settlement” of the case was reached, the case was scheduled for trial on July 3, 2000. On June 12, 2000, substitution of counsel was entered. In order to accommodate substituted counsel’s schedule, the trial da te was continued until July 13, 2000. On July 12 th , Appellant’s tria

l counsel filed a mo

tion to suppress the evidence seized as a result of the search, alleging that the deputies’ entry into the Appellant’s residence was made without permission or authority and, as such, the warra nt was invalid. On July 13 th , the case proce

eded to trial. Fol

lowing the close

of all proof in the

case, but prior to closing arguments, the Appellant moved to suppress the evidence, which had already been-3-

introduced before the jury. The trial court denied the motion, holding that (1) ther e was no factual basis to support it; and (2) the motion was untimely filed.

Analysis
On appeal, the Ap

pellant argues

that the trial cour

t committed rever

sible error when

it “failed to permit the pretrial motion of suppression to be argued even though such motion was not timely filed.” Denial of the motion was based upon (1) the trial court’s holding that the motion’s filing date violated the scheduling order; and (2) the motion was without merit. The untimely presentation of the motion violated Rule 12(b)(3) of the Tennessee Rules of Criminal Procedure which requires that a “motion to suppress evidence” must be raised prior to trial. See also State v. Davidson , 606 S.W.2d 293, 295 (Tenn. Crim. App. 1980). “Prior to trial” means sometime earlier than the day of the trial. State v. Hamilton , 628 S.W.2d 742, 744 (T enn. Crim. App. 1981); Tenn. R

. Crim. P. 12, Note 3. T

he failure to pur

sue a motion to suppr

ess “prior to trial” constitutes waiver unless good cause is shown for the failure to move for suppression in a timely manne

r. Tenn. R. Crim. P. 12

(f); Hamilton , 628 S.W.2d at 744; State v. Zy la , 628 S.W.2d 39, 41 (Tenn. Crim.

App. 1981); Davidson , 606 S.W.2d at 295.
The rationale underlying Rule 12's requirement that a motion to suppress be r aised “prior to trial”, as stated by this Court in Feagins v. State , 596 S.W.2d 108 (Tenn. Crim. App. 1979), i s:
It avoids interrupting a trial in progress with auxiliary inquiries which br eak the continuity of the jury’s attention and it avoids inconveniencing jurors and witnesses by requiring them to stand by idly while the court he ars a motion to suppress. The practice prevents mistrials from the jury’s exposure to unconstitutional evidence. It is to the advantage of b

oth the prosecutio

n and defense to k

now prior to trial w

hether certain

items will or will not be ad

mitted into evidenc

e. Granting the

pre-trial motion mi

ght result in abandonment of the prosecution; if the pre-trial motion is denied, then the defendant may either plead guilty and gain whatever conc ession might be obtained from the State, or change his trial strategy.
Further, the consideration of a motion to suppress after the beginning of the trial can adversely affect the State’s right to appeal an a dverse ruling. When a pre-trial judgment is adverse to the State, the State’s right to appeal is preserved. Jeopardy attac hes when a jury is sworn. This prevents an appeal by the State from judgment suppressing evidence rendered after the beginning of a trial. Id . at 110; See Davidson , 606 S.W.2d at 296.
Thus, not only

do we find that the

motion to suppress wa

s untimely for

failure to raise

it “prior to trial”, but we also find that the motion was untimely because it did not comply with the scheduling order of the trial court. “The court may, a t the time of the arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if r equired, a later date of hearing.” Tenn. R. Crim. P. 12(c). Failure to comply with the time set by the trial-4-

court constitutes waiver, but the trial court may grant relief from wa iver for “cause shown.” Tenn. R. Crim. P. 12(f). In this case, no threshold showing of good cause for the Appellant’s failure to make a

timely motion is

shown or even sug

gested. Accor

dingly, the

Appellant’s Four

th Amendment argument was procedurally defaulted.

CONCLUSION
We hold that the trial court did not err in ruling the Appellant’s motion to suppress was untimely file

d. Pursuant to the Te

nnessee Rules of Cr

iminal Procedure

, a motion to suppres s must be raised “pr

ior to trial.” Fur

thermore, the moti

on was untimely

because it did not c

omply with the trial cour

t’s scheduling or

der. According

ly, the judg

ment of the Henry

County Circui

t Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE