IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 30, 2010

STATE OF TENNESSEE v. BILLY R. SUMMEY

Appeal from the Criminal Court for Monroe County

No. 08-318 Carroll L. Ross, Judge

No. E2009-00999-CCA-R3-CD - Filed July 21, 2010

The Monroe County grand jury indicted the Defendant, Billy R. Summey, for alternative

counts of sale or delivery of more than one-half ounce but less than ten pounds of marijuana,

a Class E felony. Following the denial of his motion to suppress, the Defendant pled guilty

to the indictment and received a sentence of two years as a Range I, standard offender to be

served on probation. Pursuant to the guilty plea, the Defendant also reserved a certified

question of law that is dispositive of his case challenging the legality of the tape-recorded

drug transaction that occurred in his home, without a warrant, between himself and an

informant. See Tenn. R. Crim. P. 37(b)(2)(i). In this appeal as of right, the Defendant argues

that the trial court erred in denying his motion to suppress. Following our review, we affirm

the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

is Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

William L. Gribble, II, Maryville, Tennessee, attorney for appellant, Billy R. Summey.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; R. Steven Bebb, District Attorney General; and Paul Rush, Assistant District

Attorney General, attorneys for appellee, State of Tennessee.
OPINION

On April 13, 2009, the parties presented only argument regarding the motion to

suppress. Therefore, the facts underlying this offense seem undisputed. As stated by

defense counsel, “the evidence against [the Defendant] stems from a conversation recorded

by an informant that was sent into [the Defendant’s] home, wired with a recording device.”

The Defendant does not contend that the informant was inside his home without his

permission. The trial court’s order denying the motion to suppress does not contain any

findings of fact or conclusions of law but merely states that the motion to suppress is denied

and that the issue will be reserved as a certified question upon the Defendant’s plea of guilty.

The transcript of the motion hearing indicates that the parties agreed that there is a split of

authority regarding this issue among the state jurisdictions. The parties also asserted that the

issue was one of first impression in Tennessee. The trial court declined to rule the recording

procedure unconstitutional. Accordingly, the trial court accepted the Defendant’s guilty plea

with reservation of the certified question.

On appeal, the State acknowledgesthat the Defendant properly reserved the following

certified question of law pursuant to his guilty plea:

Is it a violation of [a]rticle I, [section] 7 [of the Tennessee Constitution] for the

police to invade the privacy of a person’s home by employing an informant to

use an electronic surveillance device to record matters occurring in that

person’s home without first obtaining a duly authorized search warrant?

The Defendant argues that article I, section 7 of the Tennessee Constitution may

provide additional protection beyond that of the Fourth Amendment of the United States

Constitution. He also argues that the Supreme Court’s decision in United States v. White,

401 U.S. 745 (1971), relied upon by the State, considered the Constitutionality under the

Fourth Amendment of warrantless monitoring – not recording – of conversations occurring

in a defendant’s home and is, therefore, distinguishable from the facts in this case. The State

contends that the warrantless recording of conversations between a defendant and an

informant occurring in a defendant’s home does not violate either the Fourth Amendment to

the United States Constitution or article I, section 7 of the Tennessee Constitution.

Following our review, we agree with the State.

We note that, at trial and on appeal, the Defendant relied upon cases from other

jurisdictions to argue that article I, section 7 should provide greater protection than the

Fourth Amendment concerning recorded conversations between a Defendant and an

informant occurring in a Defendant’s home without a warrant. His argument fails to

acknowledge that this court has previously ruled that such practices are constitutional under

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article I, section 7 of our constitution. In State v. Vanderford, 980 S.W.2d 390, 401 (Tenn.

Crim. App. 1997), this court held that “[w]hen the suspect permits a confidential informant

into his residence, and he freely and voluntarily talks to the confidential informant, the

suspect has no expectation of privacy regarding the conversation.” This court specifically

held that such action “does not violate the Fourth Amendment to the United States

Constitution or [a]rticle I, § 7 of the Tennessee Constitution.” Id. Furthermore, contrary to

the Defendant’s argument on appeal, the Supreme Court has ruled constitutional the

recording of such conversations between a defendant and an informant. White, 401 U.S. at

749 (no search warrant needed when a “secret agent” uses “electronic equipment to record

the defendant’s words”). Accordingly, we conclude that the trial court properly denied the

Defendant’s motion to suppress.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

D. KELLY THOMAS, JR., JUDGE

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