# FILED
December 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9708-CR- 0 035 9 ) vs. ) Sumner County ) SHERYL L. PENDERGR ASS, ) Hon. Jane Wheatcraft, Judge

) Appellant. ) (Certified Question - Motion to Suppress)

FOR THE APPE LLANT: FOR THE APPELLEE: DAVID A. DOYLE JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter 117 E. Main St. Gallatin, TN 37066 DARYL J. BRAND Clifton, TN 38425 Senior Counsel for the State 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 LAWRENCE RA

Y WHITLEY District Attorney General DEE GAY Asst. Distr ic t Attorney General 113 W. Main St. Gallatin, TN 37066

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE2 OPINION The defendant, Sheryl L. Pendergrass, appeals a ce rtified question of law pursuant to Rule 37( b)(2)(I), Tennessee Rules of Criminal Procedure. In t he Sumner County Criminal

Court, the defendant pleaded guilty to three drug offense s, subject to reservation of the certifie d q uestion. In her certified q uestion, the defendant contends that law enforcement officers infri nged on her rights to be free of unreasonable searches and sei zures pursuant to the Four th Amendment of the United States Constitution and art ic le 1, section 7 of the Tennessee Constitution. We affirm the judgment of the trial court.

In 1991, the defendant's cordless telephon e conversations were intercepted by the Sumner County Drug Task Force by use of police scanners and tape recorders. The intercepted conversations substantiated the de fendant's involvement

in the drug trade, and they formed the basis of the state's case against the defendant. A mo t ion to suppress was hear d and denied in 1992. The defendant pleaded guilty a few months later, subject to res ervation of

a certi fi ed question of law. This court rule d on the certified question i n 1995. We held that the trial court correctly deni ed the suppression motion. State v. S heryl L. Pendergrass , No. 01C01-9306-CR-00169 (Tenn. C rim. App., Nashville, Mar. 9, 1995). In 1996, the supreme court reversed our ruling , holding that the defendant had not properly reserved her certified question, and therefore, the substantive i ssue was not properly before the court. See State v. Pendergrass , 937 S.W.2d 834 (Tenn. 1996). On March 2 5, 1997, the defen dant obt ained po st-conv iction relief f r om the trial court, and her plea was set asi de. Then, in 1997, she again pleaded guilty, this time properly reserving her cer tified question of

law. No further evi dence was presented in the trial court on the suppr ession issue. The case is now before this court with the same substantive issue and evidence on which w e ruled in 1995.3 In Sheryl L. Pendergrass , a panel of this court c onside red the very issue which is before us agai n. In a thoughtful opinion, the panelheld that altho ugh Pendergrass had a subject ive expectation of privacy in her cordless phone conversations, her expectation was not objectively rea sonable. Sheryl L. Pendergrass , slip op. at 14-28. Therefore, st ate and federal constitutional protections did not mandate suppression of the ev idence. Sheryl L. Pendergrass , slip op. at 14-28. Although thesupreme court later rev ersed this court's rul ing in the case, the basis for the reversal was the defendant's failure to reserv e explicitly the certified question for appellate review. Pendergrass , 937 S.W.2d at 838. Thus, the supremecourt did not

consider the propr iety of ou r holding o n the sub stantive issue.
Followingthe successful post-convi ction proceedings and the second guilty plea, the defendant has returned to this court with exactly the same case on the merits as in 1995. Since our 1995 opinion, neither this cour t nor the Tennessee SupremeCourt has had occasion to consider the constitutional ramifications of warrantless ele ctronic surveillance of c ordless telephone convers ations. The United States SupremeCourt has been silent on thi s issue, as well. The logic and citations of the earlier panel's deci sion are compelling. The facts are identical. As

such, we adhere to our earlier ruling in State v. Sheryl L. Pendergrass , No. 01C01-9306-CR00169 (Tenn. Crim. App., Nashville, Mar. 9, 1995), and once again w e affirm the trial court's determinat ion that the evidence wa s not subject to suppressio n.

________________________________ JAMES CURWOOD WITT, JR., JUDGE4

CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE