IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 2, 2010 Session

STATE OF TENNESSEE v. RANDALL KEITH SMITH AND NICHOLAS

RYAN FLOOD

Direct Appeal from the Circuit Court for Henry County

Nos. 14444 and 14446 Donald E. Parish, Judge

No. W2009-02678-CCA-R3-CD - Filed December 27, 2011

Following the discovery by police of numerous materials commonly used in the manufacture

of methamphetamine on property controlled by Defendant Randall Keith Smith, he was

convicted of manufacturing methamphetamine, a Class C felony, and possession of drug

paraphernalia, a Class A misdemeanor. He was sentenced as a Range II, multiple offender

to ten years in the Department of Correction for manufacturing methamphetamine and to a

concurrent eleven months and twenty-nine days for possession of drug paraphernalia.

Defendant Nicholas Ryan Flood, who was in the company of Defendant Smith when the

materials commonly used in the manufacture of methamphetamine were discovered on the

property, was convicted of a single count of manufacturing methamphetamine. Defendant

Flood was sentenced as a Range II, multiple offender to nine years in the Department of

Correction. On appeal, Defendant Smith claims that the trial court erred by admitting certain

evidence seized from his property under the auspices of a search warrant. Defendant Flood

claims that there was insufficient evidence to support his conviction and that the sentence

imposed by the trial court was excessive. After carefully reviewing the record and the

defendants’ arguments, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which JERRY L. SMITH

and CAMILLE R. MCMULLEN, JJ., joined.

Paul Hessing, Paris, Tennessee, for the appellant, Randall Keith Smith.

Guy T. Wilkinson, District Public Defender, and W. Jeffrey Fagan, Assistant District Public

Defender, for the appellant, Nicholas Ryan Flood.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Hansel J. McCadams, District Attorney General; and James Williams, III, and Beth B. Hall,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

In the early morning hours of November 5, 2008, Henry County Sheriff’s Department

Deputy Jamie Myrick was patrolling along Pleasant Hill Road in Henry County, Tennessee.

As he passed the residence located at 2465 Pleasant Hill Road, he detected a chemical odor

which, from his law enforcement experience, he associated with the production of

methamphetamine. He parked his car and walked a short distance toward the residence.

While standing on the public road using night vision equipment, he observed a lit room

through an open window of the residence. Vapors and smoke were billowing out of that

open window, and the curtains inside appeared to be moving outward as if blown by a fan.

After watching for about ten minutes, Deputy Myrick observed an individual (later identified

as Defendant Flood) approach the open window from the back of the house with an object

which he either handed to someone inside or placed on the window’s ledge.

Deputy Myrick radioed headquarters and reported the situation to hissupervisors, who

began the process of preparing an affidavit for a search warrant based on the information

they received from him. They instructed him to remain on the scene and continue

observation until additional backup arrived and the warrant could be secured. Soon

thereafter, Corporal Mellon arrived as backup for Deputy Myrick, and the two observed a

pickup truck arrive at the residence. The officers then heard two truck doors open and close,

and they surmised that two individuals had just left the vehicle and entered the residence.

These persons (later determined to be Mr. James Staveley and Mr. Gary Herrin)

subsequently attempted to leave in their vehicle. Pursuant to orders they received from

headquarters, the deputies unsuccessfully attempted to detain the vehicle at the entrance to

the public roadway as it left the premises. After narrowly missing the officers, the vehicle

sped off, but not before the officers were able to take down its license tag number and

visually identify its occupants.

Believing that their presence had been revealed to anyone inside the house by the

noises that had been made in their attempt to stop the escaping vehicle, the officers then

made the decision to leave the public road, enter private property, and approach the residence

in order to ensure that no other occupants escaped. As they neared, they heard a cell phone

ringing and a male voice exclaim, “the cops are outside.” Deputy Myrick could smell that

the noxious fumes were getting stronger as he approached the residence, and was also able

to hear scuffling, running, and the sounds of rattling glass. He reached the house and decided

to elevate himself several feet by climbing onto a rock foundation pier that extended out

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slightly from the house’s side so he could peer into the residence through the open kitchen

window. Inside, he observed three persons, at least two of whom were engaged in what he

believed to be the disposal of the remnants of a methamphetamine production by pouring

chemicals down the kitchen sink’s drain. Deputy Myrick shouted an order for them to

remain still. One of the individuals, Defendant Smith, complied, but Defendant Flood and

a woman later identified as Ms. Samantha Arnold fled the room. Deputy Myrick requested

permission to search the premises, but Defendant Smith denied this initial oral request.

Additional officers continued to arrive, and the police on the scene consulted with

police headquarters. Collectively, a decision was made to enter the premises due to safety

concerns pertaining to the close proximity of what police believed to be inflammable (and

potentially explosive) methamphetamine chemicals to a heated wooden stove. All three

individuals found inside the residence were arrested. Both prior to and during this entry,

police incidentally observed a modest amount of what they suspected to be contraband,

including a mason jar and coffee filters, but none of this property was actually seized.

Defendant Smith, Defendant Flood, and Ms. Arnold were handcuffed and placed in patrol

cars. Defendant Smith was read his Miranda rights and, sometime thereafter, signed a

“Permission to Search” form.

As these events were transpiring, the police on the scene stayed in contact with both

their superiors and Lieutenant Scott Wyrick of the Henry County Sheriff’s Office Metro

Crimes Unit. Lieutenant Wyrick, who was trained and certified in processing and dealing

with methamphetamine labs, crafted an affidavit in support of a search warrant for the

premises that generally included the facts described above. Afterward, he presented the

affidavit to a General Sessions Court judge, who signed the warrant shortly after Defendant

Smith gave his written consent to search the premises. Lieutenant Wyrick took the warrant

to Pleasant Hill Road and, armed with both the warrant and Defendant Smith’s written

consent, the police on the scene again entered the residence.

During the ensuing search, police found numerous incriminating items in and around

the residence. Police found a piece of burnt aluminum foil, a razor blade, and a lighter under

a sofa cushion in the living room. In that same room, they found a digital scale with a white

residue that field-tested positive for methamphetamine. In another room, a backpack

containing coffee filters was found (no coffee maker was found in the residence). Next to

the open kitchen window, a mason jar, a round glass bowl, and a turkey baster were found.

A blue cooler containing drain cleaner, starter fluid, and acetone was found in a barn on the

property. A blue metal gas can with a fabricated air hose attachment was found on a table

in the barn. Nearby were several stripped lithium batteries and a coffee filter that field tested

positive for methamphetamine. A Pyrex jug was also found containing wet pill sludge,

which later tested positive at the TBI lab for the presence of methamphetamine. A bag on

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the outskirts of the property contained “liquid fire” (a drain cleaner) and a red funnel. Near

a Ford Explorer belonging to Defendant Flood, police found an air compressor. Various

other items often associated with the production of methamphetamine were also found on the

property, including assorted glassware and some lye. With the exception of a few items

mentioned earlier, all of these items were seen by police for the first time during this

extensive search conducted pursuant to the search warrant. The police seized these items.

On March 2, 2009, Defendants Smith, Flood, and Samantha Arnold (who is not part

of this appeal) were each indicted on one count of manufacturing methamphetamine.

Defendants Smith and Flood were also indicted on one count of possession of drug

paraphernalia, and Defendant Smith was indicted on one count of tampering with evidence.

The State dismissed this last count prior to trial.

Defendant Smith filed suppression motions related to the warrantless search of his

premises, as well as to evidence obtained pursuant to the search warrant. On April 9, 2009,

the trial court held a hearing to parse through the relatively complex Fourth Amendment

issues raised by the facts of the case. Defendant Smith argued that the police lacked probable

cause when they entered and conducted a warrantless search of his premises and that

information obtained during this illegal search was then used to unlawfully obtain the

ensuing search warrant. However, the State responded that the initial entry onto the property

by the police and their initial entry into Defendant Smith’s residence were permissible. The

State argued that its officers were lawfully positioned on a public road when they detected

the distinct chemical odor of drug manufacturing, thereby giving them probable cause to

investigate further, and that, during the course of that investigation, the existence of exigent

circumstances (i.e., the possibility of an explosion of unattended chemicals) enabled them

to enter the premises without first needing to obtain either the owner’s consent or a search

warrant. The State further urged that both the search warrant and the defendant’s written

consent served to empower the police to conduct the later, more extensive search of the

property. After hearing the evidence, reviewing the relevant legal precedent, and carefully

listening to the parties’ arguments, the trial judge ruled that the officers had entered the

defendant’s property without constitutional authorization and granted Defendant Smith’s

motion to suppress the warrantless search. Because no evidence was actually seized by the

police during these entries, no actual evidence was suppressed, but the State was prohibited

from introducing at trial any testimony concerning events that transpired or observations

made by the police between the time Deputy Myrick left the public road and the time the

search warrant was executed.

Turning to Defendant Smith’s motion to suppress the evidence seized during the

extensive search of the premises, the trial judge first ruled that the defendant’s written

consent to the search was tainted by his improper arrest and detention. However, the trial

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court upheld the search as conducted under the auspices of the search warrant and declined

to suppress any of the seized evidence. The trial judge reached this conclusion by first

redacting the State’s affidavit in support of the warrant to remove any and all references to

information obtained by the police as a result of their unlawful entry (i.e., all references

pertaining to events that occurred after the time Deputy Myrick left the public roadway),

thereby purging the affidavit of any legally tainted information. However, the trial court

found that the search warrant affidavit, as redacted, sufficed to establish probable cause and

that this fact sufficed to render the ensuing search constitutionally permissible.

The defendants were tried by jury on August 19-21, 2009. The State presented the

testimony of Lieutenant Wyrick, who testified to his considerable experience and familiarity

with the operation and components of methamphetamine labs. Lieutenant Wyrick testified

that there is a unique smell associated with methamphetamine production and that this smell

is easily recognizable to trained officers. He testified that on the night in question, he

prepared an affidavit in support of a search warrant application for Defendant Smith’s

premises based on facts relayed to him by Officer Myrick. After submitting the affidavit and

receiving the search warrant, Lieutenant Wyrick testified that he arrived at the defendant’s

premises, executed the search warrant, and found the various items described above.

Lieutenant Wyrick explained to the jury how each of the items that were seized could be used

in the production of methamphetamine. He further testified that each of these individual

items, even if stored together in close proximity, would not create the aforementioned odor

that is unique to the manufacture of methamphetamine; this smell can only be created if and

when these various items are used in methamphetamine production. Finally, Lieutenant

Wyrick identified Defendant Smith as possessing the premises that were searched on the

night in question and identified Defendant Flood and Ms. Arnold as having also been present

at the scene.

Thereafter, the State presented the testimony of Ms. Melanie Johnson, Special Agent

of Forensic Science at the Tennessee Bureau of Investigation laboratory in Memphis,

Tennessee. She testified that she tested some sludge collected and sent to her by the Henry

County Police Department and that this material, which weighted 0.4 grams, tested positive

for the presence of methamphetamine. Following this testimony, the State presented the

testimony of Deputy Jamie Myrick, who gave lengthy testimony concerning the events he

witnessed on the night in question, as was described above.

Finally, the State presented the testimony of the two individuals who fled the premises

in the pickup truck on the night in question. Mr. Gary Herrin, who had all charges against

him dismissed in exchange for his testimony, testified that, at an earlier point in time, he

brought Defendant Smith three boxes of Sudafed (an over-the-counter cold medicine

commonly used as a methamphetamine precursor) with the understanding that he would be

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reimbursed for the items with either cash or finished methamphetamine product. Mr. Herrin

testified that both he and Mr. James Staveley returned to Defendant Smith’s residence on the

night in question in Mr. Staveley’s vehicle, so that he could receive his payment. Mr. Herrin

testified that Defendant Smith and Defendant Flood met them outside the residence and took

them inside, where Mr. Herrin smelled the strong odor of methamphetamine production.

They sat on the living room couch, and Defendant Flood went into the kitchen, where Ms.

Arnold was located. Later, Defendant Smith entered the kitchen, pulled out a set of scales,

separated out and weighed 1.5 grams of finished methamphetamine product, and gave it to

Mr. Herrin. Afterward, he, Defendant Smith, and Mr. Staveley smoked some of the drug,

and then Mr. Herrin and Mr. Staveley left in Mr. Staveley’s vehicle. When individuals with

flashlights attempted to stop their vehicle, they drove off and attempted to escape.

The last witness for the State was Mr. James Staveley, who began by detailing his

criminal history and explaining that all current charges against him would be dismissed in

exchange for his testimony. Mr. Staveley stated that: (1) he drove his truck with Mr. Gary

Herrin to Defendant Smith’s premises on the night in question; (2) Defendants Smith and

Flood took them into Defendant Smith’s residence; (3) he smelled a strong chemical odor

inside; and (4) while he was there, he smoked some methamphetamine with Defendant Smith

and Mr. Herrin. Mr. Staveley stated that when he attempted to leave the residence in his

vehicle, he was frightened by some men with flashlights and sped away. Sometime later, he

was arrested. Mr. Staveley testified that while he was in jail with Defendant Smith,

Defendant Smith stated to him that the police had “nothing they can charge me with,” in part

because he had put all of the methamphetamine in the house in the fireplace. At the

conclusion of this testimony, the State rested.

None of the defendants presented any evidence in their own defense. Each defendant

was advised of and waived his or her right to testify in his or her own defense, pursuant to

the procedures described in Momon v. State, 18 S.W.3d 152, 162-64 (Tenn. 1999). The case

was then submitted to the jury. On August 21, 2009, the jury found Defendants Smith and

Flood guilty of manufacturing methamphetamine and found Defendant Smith guilty of

possession of drug paraphernalia. Ms. Samantha Arnold was found guilty of the lesser

included offense of facilitation of the manufacture of methamphetamine.

On September 19, 2009, the trial court sentenced Defendant Smith to ten years as a

Range II, multiple offender for the manufacturing of methamphetamine conviction and to a

concurrent eleven months and twenty-nine days for possession of drug paraphernalia. The

trial court sentenced Defendant Flood to nine years as a Range II, multiple offender for his

manufacturing of methamphetamine conviction. Defendants Smith and Flood each filed a

timely motion for a new trial. These were denied on November 24, 2009. The requisite

notices of appeal were timely filed, and these appeals followed.

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I.

Defendant Smith raises a single challenge concerning the trial court’s denial of his

motion to suppress the evidence seized by police pursuant to the search warrant. Defendant

Smith agrees with the trial court that the initial warrantless entry by police onto his property

was unlawful but asserts that all items seized during the execution of the later search warrant

should have been suppressed under the Fourth Amendment pursuant to the well-known “fruit

of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Defendant Smith maintains that the search warrant obtained by the police cannot serve as an

independent, “unpoisoned” source of discovery for the items found during the search,

because the initial affidavit for the search warrant made reference to some facts and evidence

uncovered during the illegal entry. Defendant Smith contends that the trial court erred by

redacting the search warrant affidavit to eliminate any reference to these illegally-garnered

facts and evidence and, thereafter, considering whether the resulting redacted affidavit

sufficed to establish probable cause (thus supporting the General Sessions judge’s decision)

in order to uphold the search warrant. However, after reviewing the facts and relevant

precedent, we believe that the trial court not only acted appropriately on this score but keenly

parsed through the difficult legal issues involved. Consequently, we affirm its decision to

deny Defendant Smith’s motion to suppress the items found pursuant to the search warrant.

We must analyze Defendant Smith’s challenge to the trial court’s denial of his motion

to suppress under the standard established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

“Under this standard, ‘a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.’” State v. Hicks, 55 S.W.3d 515, 521 (Tenn.

2001) (quoting Odom, 928 S.W.2d at 23). However, Defendant Smith does not dispute the

trial court’s findings of fact. Under the Odom standard, a trial court’s conclusions of law are

reviewed “under a de novo standard without according any presumption of correctness to

those conclusions.” Hicks, 55 S.W.3d at 521. Because Defendant Smith challenges only the

trial court’s legal conclusion that it was permitted to redact the search warrant of any

reference to illegally-obtained information and evidence (and thereafter uphold the search

warrant because the affidavit as redacted still sufficed to established probable cause), we

review his claim de novo.

Both the United States Constitution and the Tennessee Constitution generally prohibit

(1) the police from searching a citizen’s home without first obtaining a search warrant, and

(2) judges from issuing such warrants in the absence of probable cause. See U.S. CONST.

amend. IV ( stating “the right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated” and asserting that

search warrants shall issue only “upon probable cause, supported by Oath or affirmation”);

Tenn. Const. art. I, § 7 (stating “the people shall be secure in their persons, houses, papers

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and possessions, from unreasonable searches and seizures,” and precluding the issuance of

search warrants except upon “evidence of the fact committed”). “Probable cause” for

purposes of upholding a warrant has long been defined as a “reasonable ground of

suspicion,” supported by circumstances warranting the belief that an illegal act is occurring

or has occurred. Lea v. State, 181 S.W.2d 351, 352 (Tenn. 1944). If the State is found to

have violated the constitutional rights described above, the possible consequence is wellknown – any and all evidence discovered during the unlawful search may be suppressed

pursuant to the exclusionary rule. See, e.g., Murray v. United States, 487 U.S. 533, 536

(1988); Weeks v. United States, 232 U.S. 383, 398 (1914).

Almost simultaneously with the creation of the exclusionary rule, the United States

Supreme Court developed the “independent source” doctrine. See Murray, 487 U.S. at 537-

39. This doctrine permits the State to utilize any evidence that would otherwise be

suppressed pursuant to the exclusionary rule if that evidence is obtained through an

independent, lawful search or from other “activities untainted by the initial illegality.” Id.

at 537. The rationale behind the development of this doctrine is that “the interest of society

in deterring unlawful police conduct and the public interest in having juries receive all

probative evidence of a crime are properly balanced by putting the police in the same, not a

worse, position that they would have been in if no police error or misconduct had occurred.”

Nix v. Williams, 467 U.S. 431, 443 (1984). The independent source doctrine also applies to

claims brought under the Tennessee Constitution. State v. Clark, 844 S.W.2d 597, 600

(Tenn. 1992).

Following the independent source doctrine, “an unconstitutional entry does not

compel exclusion of evidence found within a home if that evidence is subsequently

discovered after execution of a valid warrant obtained on the basis of facts known entirely

independent and separate from those discovered as a result of the illegal entry.” Clark, 844

S.W.2d at 600 (citing Segura v. United States, 468 U.S. 796, 813-14 (1984)). After its

redaction by the trial court, it is undisputed that the affidavit for the search warrant of

Defendant Smith’s premises made reference only to facts discovered prior to (and therefore

separate from) the unlawful entry and that the redacted affidavit sufficed to establish

probable cause for the issuance of a search warrant. Consequently, if the redaction was

proper, the trial court’s denial of the motion to suppress was proper under the independent

source doctrine as expounded in Segura and Clark.

Defendant Smith urges that the practice of redacting an affidavit of material

discovered as a result of an illegal entry itself violates our state supreme court’s decision in

Clark, relying on language in that case to the effect that, “[i]n order for the subsequent

warrant and search to be found genuinely independent of the prior unconstitutional entry,

[Murray requires] that information obtained during the illegal entry may not have been

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presented to the issuing Magistrate.” Id. (emphasis added). Defendant Smith argues that

while the affidavit may have been subsequently redacted, the information obtained during

the illegal entry was, nonetheless, initially presented to the magistrate and, therefore, violates

the United State’s Supreme Court decision in Murray as interpreted by our supreme court in

Clark.

However, Defendant Smith’s argument reads this language in Clark too literally and

inconsistently with both federal practice and the practice of this court. The Clark decision

did not deal directly with the issue of redaction. While the phrase, “may not have been

presented,” if taken absolutely literally, would appear to entirely prohibit the common

independent-source-related practice of redacting any affidavit that includes both tainted and

lawfully obtained information, in practice, material that has been redacted from an otherwise

tainted affidavit is, for purposes of Clark and Murray, deemed to have never been presented

to the issuing authority, and any resulting search is deemed constitutional so long as the

redacted affidavit has been properly scrutinized and stillsuffices to establish probable cause.

Nothing in the practice of redacting affidavits is inconsistent with either Clark or

Murray. In Murray, the United States Supreme Court considered the situation of federal

agents who entered a warehouse without a warrant, saw illegal drugs, and then applied for

a warrant without mentioning the prior entry or making any reference to any information

gained as a result. 487 U.S. at 535-36. In the course of holding that the evidence seized

pursuant to that search warrant was admissible under Fourth Amendment principles, the

Supreme Court squarely accepted the argument that the independent source doctrine

permitted admission of “all evidence acquired in a fashion untainted by the illegal evidencegathering activity,” including “evidence initially discovered during, or as a consequence of,

an unlawful search, but later obtained independently from activities untainted by the initial

illegality.” Id. at 537-38. In ruling that the search warrant at issue was potentially an

“activit[y] untainted by the initial illegality,” the Court relied on the government’s contention

that the agents’ decision to seek the warrant was not prompted by what they had found during

the illegal search and that material from the illegal search was not included and relied upon

by the magistrate in his decision to issue the warrant. Id. at 542. It would appear to be the

Supreme Court’s assertion that the inclusion of tainted material must have “affected [the

magistrate’s] decision to issue the warrant” before any resulting search might be deemed

unconstitutional, id., which permits the practice of redaction for Fourth Amendment

purposes; if probable cause still exists for a warrant to be issued after an affidavit has been

redacted of all tainted material, then it is reasonable to infer that the magistrate did not rely

on the tainted material in issuing the warrant.

Since the Supreme Court’s decision in Murray, the Sixth Circuit has continued its

longstanding practice of redacting “mixed” affidavits that contain both tainted and untainted

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material. Beginning several years prior to Murray, the Sixth Circuit had applied the

independent source rule in such a manner that “when a search warrant is based partially on

tainted evidence and partially on evidence arising from independent sources, if the lawfully

obtained information amounts to probable cause and would have justified issuance of the

warrant apart from the tainted information, the evidence seized pursuant to the warrant is

admitted.” United States v. Smith, 730 F.2d 1052, 1056 (6th Cir. 1984) (quoting United

States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980) (internal quotation omitted)).

Following the Murray decision, the Sixth Circuit continued to apply this precedent unabated

in situations legally indistinguishable from the case at bar. See United States v.

Shamaeizadeh, 80 F.3d 1131, 1136 (6th Cir. 1996); United States v. Campbell, 878 F.2d 170,

173 (6th Cir. 1989). Without making explicit reference to Murray, the Sixth Circuit justified

its ongoing decision to redact mixed affidavits by analogizing the situation of affidavits

partially comprised of the fruits of an illegal search to the situation of affidavits partially

comprised of false statements, in which redaction was the established remedy, see Franks v.

Delaware, 438 U.S. 154 (1978), and noting that the Supreme Court “has also applied the

Franks principle where a warrant has been approved in reliance on an affidavit containing

information obtained through illegalsurveillance.” Campbell, 878 F.2d at 172 (citing United

States v. Karo, 468 U.S. 705, 719 (1984)). Implicit in this reasoning would appear to be the

premise that, if the Supreme Court had intended to overrule Karo and change existing circuit

court practice in Murray, it would have done so explicitly. In the absence of any express

direction to the contrary, “irrespective of the legality of the initial entry into the residence to

secure the premises, we can nevertheless examine the balance of the underlying search

warrant affidavit for probable cause in order to determine whether the lawfully obtained

evidence was sufficient to determine that the search and seizure should be upheld.”

Shamaeizadeh, 80 F.3d at 1136 (quoting United States v. Korman, 614 F.2d 541, 547 (6th

Cir. 1980)).

In a similar vein, this court has never interpreted and applied the Tennessee Supreme

Court’s Clark decision, which only interpreted and applied Murray, as forbidding the

practice of redacting mixed affidavits. The Clark decision involved police officers who, in

the course of investigating a pair of stolen cars, entered a defendant’s home without probable

cause, consent, or exigent circumstances, and questioned him about the crimes. See 844

S.W.2d at 598. Following this illegal entry, this defendant made several incriminating

statements and was arrested. The police then sought and received a search warrant based on

these incriminating statements and found numerous incriminating items during the ensuing

search. The Tennessee Supreme Court ruled that these items should have been suppressed

under the Fourth Amendment, noting that the search warrant affidavit contained crucial

references to the incriminating statements made by the defendant following his arrest (which

apparently had never been redacted, as the trial court had upheld the search). As a result, the

Tennessee Supreme Court reached the unsurprising conclusion that the warrant violated the

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core principle of Murray that police may not profit from illegal activity by obtaining a

warrant where their probable cause has been established by presenting the fruits of an illegal

search or seizure to the magistrate. See id. at 600-01. Although the Clark court did not

expressly discuss the issue of the magistrate’s reliance on the tainted information or the

possibility of redaction as a remedy, that argument does not appear to have been raised by

the State, and no discussion appears to have been called for on the facts of the case.

Regardless, just like federal courts in the wake of the Murray decision, following

Clark, it has remained the practice of this court to analyze the reliance issue that was so

crucial to the Supreme Court in Murray by permitting trial courts to redact those search

warrant affidavits partially tainted by illegal material of any and all references to the same

and then to re-scrutinize the redacted affidavit in order to determine whether or not probable

cause remains nonetheless. See, e.g., State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn.

Crim. App. 1997); State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993).

Indeed, in State v. Stephen J. Udzinski and Donna Stokes a/k/a Donna Story, No.

01C01-9610-CC-00431, 1998 WL 44922 (Tenn. Crim. App. at Nashville, Feb. 5, 1998), we

were confronted with an argument virtually identical to the one made in this case – that

Murray and Clark “require exclusion of the evidence as a blanket remedy where an affidavit

in support of a search warrant application improperly informs the magistrate of the results

of an illegal search” because the effect “the tainted information [could] have on the

magistrate’s ability to perform his functions” is “immeasurable.” Id. at *23. We roundly

rejected that argument and also rejected the notion that Murray required a subjective inquiry

into what information the magistrate may have relied upon in issuing his or her decision.

Instead, we opted to follow the well-accepted practice of redacting any affidavit containing

both legally and illegally gathered evidence, excising all tainted material, and scrutinizing

whatever remains to confirm the continued presence of probable cause. Id. at *30.

We reaffirm this conclusion today. As a matter of law, we can discern no reason to

treat material that was improperly included by police in a search warrant affidavit as a result

of an illegal entry or search any differently than material that was improperly included in a

search warrant because it was obtained by police as a result of illegal surveillance (where

redaction was approved in Karo) or material that was improperly included because it was

false information that was recklessly included by police (where redaction was approved in

Franks). The harm to society sought to be prevented is no greater in the first instance than

it is in the others.

Accepting Defendant Smith’s present invitation to suppress the evidence at issue

would, of course, violate the core rationale underpinning the independent source doctrine –

that the police not be placed in a worse position than they would have been in if no

misconduct had occurred. In this case, police had all the incriminating information necessary

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to establish probable cause and receive a warrant prior to entering Defendant Smith’s

property. Had they chosen to wait to enter the property until after they had received a

warrant, all of the evidence now at issue would have been properly seized and admitted at

trial. Consequently, holding that this evidence must be suppressed would leave the police

in a far worse position than if they had never illegally entered the property, in direct

contravention of the teachings of Williams. 467 U.S. at 443. We decline to so hold.

Because we have ruled that the trial court did not err in denying Defendant Smith’s

motion to suppress the search warrant, we find it unnecessary to address the State’s

argumentsthat: (1) the trial court erred by concluding that Defendant Smith’s blanket consent

– given as a condition of his then-existing probation – to the search of his property “without

a warrant . . . at any time” was legally insufficient to uphold the search due to (a) the timing

of the search and (b) the fact that the officer involved was unaware of Defendant Smith’s

status as a probationer, (2) the trial court erred in concluding that Defendant Smith did not

have a diminished expectation of privacy on his premises due to his status as a probationer,

and (3) the trial court erred in concluding that Defendant Smith’s written consent to the

search given after his arrest was unconstitutional. Now rendered moot by our resolution of

Defendant Smith’s claim, we leave these potentially thorny issues for another day.

II.

Defendant Flood challenges the sufficiency of the evidence to support his conviction

for manufacturing methamphetamine. However, with respect to challenges concerning

sufficiency of evidence, a jury’s guilty verdict strips a defendant of the presumption of

innocence and replaces it with a presumption of guilt. State v. Dorantes, 331 S.W.3d 370,

379 (Tenn. 2011). Defendants must strive to overcome this presumption on appeal. Id.

Defendant Flood has not met this burden. He generally claims that “the inconsistencies in

the State’s case are such that there was not a showing of sufficient evidence to convict the

defendant of Methamphetamine Manufacture.” Inconsistenciesin the prosecution’s evidence

do not give rise to an insufficiency of the evidence claim. Regardless, reviewing the record

as a whole, we find the evidence sufficient to support the jury’s verdict.

“When the sufficiency of the evidence is challenged, the relevant question is whether,

after reviewing the evidence in the light most favorable to the State, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Dorantes,

331 S.W.3d at 379; see also Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319

(1979). Great weight is given to the result reached by the jury in a criminal trial; matters

such as the credibility of witnesses, the weight given their testimony, and the proper

resolution of any conflicts in the evidence are ordinarily left in their care. Dorantes, 331

S.W.3d at 379 (emphasis supplied). “On appeal, the State must be afforded the strongest

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legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.”

Id. (quoting State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007)). Under no circumstances

may an appellate court “substitute its inferences for those drawn by the trier of fact.” Id.

Defendant Flood was convicted of violating Tennessee Code Annotated section 39-

17-417(a)(1), which states that “[i]t is an offense for a defendant to knowingly . . .

[m]anufacture a controlled substance.” T.C.A. § 39-17-417(a)(1) (2011). A violation of this

statute that involves “methamphetamine in an amount of less than point five (.5) grams, is

a Class C felony.” Id. at § 39-17-417(c)(2)(A). Defendant Flood appears to challenge the

State’s proof concerning both (1) whether any manufacturing of a controlled substance was

occurring on the property and (2) whether he was aware of and knowingly participated in any

such manufacturing.

Concerning whether any controlled substance was being manufactured on the

premises, Defendant Flood points out that the State’s witnesses testified that: (1) all of the

items the police found during their search of the property, when combined together, were still

not enough to successfully manufacture methamphetamine, and (2) neither anhydrous

ammonia nor Sudafed (or any other form of Ephedrine), both of which are necessary

components for the manufacturing of methamphetamine, were found on the property.

Concerning his lack of participation in any methamphetamine manufacturing that may have

occurred on the premises and his general lack of mens rea, Defendant Flood observes that

both State’s witnesses Gary Herrin and James Stavely testified that he was not in the room

and did not participate when they smoked methamphetamine with Defendant Smith earlier

that morning. The State’s police witnesses further testified that the items used to smoke the

methamphetamine, as well as the scales and much of the other evidence, were hidden from

sight and were only uncovered during the ensuing search by police – and thus would not have

been in the plain view of Defendant Flood merely because he was in the house. Defendant

Flood urges that the State failed to disprove his contention that he was on Defendant Smith’s

property on the day in question solely for the purpose of deer hunting (and carried a crossbow

for that purpose) and that none of the State’s witnesses could place him in the barn where

many of the incriminating items were found or, for that matter, even state with any certainty

that the incriminating items found in the barn were not left over from an earlier

methamphetamine lab, which had existed and been quarantined on the property in 2007.

Finally, Defendant Flood urges that the pill sludge found by police in the barn could have

tested positive for methamphetamine due to cross-contamination by the police officers and

crime lab technicians handling the evidence.

These arguments, brought to light by the skilled cross-examination of the State’s

witnesses by Defendant Flood’s trial counsel, show that Defendant Flood was wellrepresented during his trial. A reasonable jury might have accepted them and concluded that

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Defendant Flood was not guilty of the offense charged (and apparently did so with respect

to the charge of possession of drug paraphernalia). However, it is well established that,

based on the sufficiency of the evidence, these sorts of inconsistencies in the State’s evidence

and/or disagreements concerning the inferences to be drawn from circumstantial evidence

provide no basis for an appeal. See Dorantes, 331 S.W.3d at 379.

As the trial judge astutely noted in the course of denying certain defense motions,

viewing all of the evidence, and drawing all inferences in the light most favorable to the

State, the evidence suffices to support Defendant Flood’s conviction. With respect to

whether methamphetamine was, in fact, being manufactured on the premises on the night in

question,several witnesses testified that an odor uniquely associated with methamphetamine

production could be detected emanating from Defendant Smith’s residence and that this odor

was so strong that it could be detected from the public road a considerable distance away.

Following a search of the residence, numerous items associated with the production of

methamphetamine were found. The jury was free to infer from this evidence that

methamphetamine had been recently produced on the premises and reject the defense’s

contention that no such conclusion should be reached because some of the necessary

elements were never discovered. Moreover, several items field-tested, and some wet pill

sludge taken from the barn lab-tested, positive for the presence of methamphetamine. The

jury was free to infer that these items did so because methamphetamine had been recently

produced on the premises and was free to reject the defense’s implication that they did so

because of contamination by the police.

With respect to Defendant Flood’s mens rea pertaining to the offense, there is,

likewise, sufficient evidence to support the jury’s conclusion. Numerous witnesses testified

that Defendant Flood was on the premises and in the company of Defendant Smith during

the early morning hours of the night in question. Deputy Myrick testified that he initially

observed Defendant Flood appear from behind Defendant Smith’s residence and that

Defendant Flood placed an unidentified object through that house’s open window – a

window that had visible vapors emanating from it along with the detectable odor of

methamphetamine production. Two witnessestestified that Defendants Flood and Smith met

them outside Defendant Smith’s house and that Defendant Flood accompanied them inside

the house where the strong odor of methamphetamine production was present. Those same

witnesses further testified that Defendant Flood was in the kitchen of that residence when

Defendant Smith went into that same room and then returned with finished

methamphetamine product. Defendant Flood’s vehicle was found parked behind a barn in

which numerous incriminating items were discovered. A cooler located next to Defendant

Flood’s vehicle contained drain cleaner, acetone, starter fluid, and other items commonly

used in the production of methamphetamine (and contained no items that could not be used

in the process of manufacturing methamphetamine). An unusual air compressor, which one

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witness identified as belonging to Defendant Flood, was found on the property, and near

Defendant Flood’s vehicle, the police found a bucket with a spout that had been modified to

connect to that air compressor. Witnesses testified how these items could be used to produce

methamphetamine. Taken together, this circumstantial evidence was sufficient for a jury to

reasonably conclude that Defendant Flood was a knowing and active participant in any

methamphetamine production occurring on the premises.

In sum, Defendant Flood had his fair day in court to present these evidentiary

arguments to the jury, and the jury considered and rejected them. We will neither disturb a

jury’s resolution of conflicting evidence nor alter its evidentiary inferences on appeal. See

Dorantes, 331 S.W.3d at 379. Consequently, Defendant’s Flood’s challenge to the

sufficiency of the evidence to support his conviction must be denied.

III.

Defendant Flood claims that the nine-year sentence imposed by the trial judge was

“excessive.” However, this sentence was within the range established by the legislature for

his offender class and the crime for which he was charged, a Class C felony. As the

defendant concedes, his sentencing range was between six and ten years. Nine years is

between six years and ten years.

“The burden of demonstrating that a sentence is erroneous is [placed] upon the party

appealing.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). Our review of a trial court’s

sentencing decision is de novo, but as long as the trial court considered all the proper

sentencing principles and relevant facts and circumstances, we must presume that the trial

court’s determinations are correct. Id. at 344-45. If our review reflects that the trial court

properly considered all the relevant legal factors and that its findings of fact are adequately

supported by the record, we must affirm the sentence even if we would prefer a different

result. State v. Goodwin, 143 S.W.3d 771, 783 (Tenn. 2004); State v. Pike, 978 S.W.3d 904,

926-27 (Tenn. 1998). “If, however, the trial court applies inappropriate mitigating and/or

enhancement factors or otherwise fails to follow the Sentencing Act, the presumption of

correctness fails” and “our review is simply de novo.” Carter, 254 S.W.3d at 345 (internal

quotation omitted).

Here, the trial court appears to have followed the Sentencing Act and appropriately

applied all of the sentencing factors. Defendant Flood does not challenge the trial court’s

determination of his sentencing range. The offense of manufacturing methamphetamine in

an amount less than point five grams was a Class C felony under Tennessee Code section 39-

17-417(c)(2)(A). See T.C.A. § 39-17-417(c)(2)(A) (2009). Defendant Flood admitted to

three prior felonies, which served to properly establish his offender class as a Range II,

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multiple offender. See T.C.A. § 40-35-106. The sentence for a Range II offender for a Class

C felony is “not less than six (6) nor more than ten (10) years.” T.C.A. § 40-35-112(b)(3).

It is undisputed that the trial court properly determined and applied this range during

Defendant Flood’s sentencing. The nine-year sentence imposed by the trial court is within

this range. Therefore, we can grant no relief to Defendant Flood.

Before setting Defendant Flood’s sentence at nine years, the trial court carefully

considered all of the statutory factors and relevant circumstances. The trial court considered

the various statutory enhancement and mitigating factors urged by the parties. These factors,

however, are advisory only, and the weight a trial court gives to these factors does not

provide any basis for reversal. Carter, 254 S.W.3d at 345. As long as the trial court properly

finds and considers the appropriate statutory factors, the particular sentence that the court

imposes is essentially unreviewable on appeal as long as it falls within the appropriately

determined range.

In this case, the trial court properly found two enhancement factors applicable to

Defendant Flood: (1) he had prior criminal behavior (including prior criminal convictions)

at the time of his sentencing above that necessary to establish his sentencing range, and (2)

prior to sentencing, he failed to comply with the conditions of a sentence involving his

release into the community. See T.C.A. §§ 40-35-114(1), (8). The trial court found the

presence of one mitigating factor – that the defendant’s criminal conduct neither caused nor

threatened serious bodily injury. See T.C.A. § 40-35-113(1). The trial court considered and

balanced these factors and ultimately concluded that, under the circumstances, the defendant

presented a poor prospect for rehabilitation. The trial court accordingly imposed a sentence

toward the upper end of the range. It was well within its discretion to do so.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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