### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON August 4 , 2015 Session

STATE OF TENNESSEE v. JOHN A. SNIDER

Appeal from the Circuit Court for Madison County

No. 13

- 473 Donald H. Allen, Judge

No. W2014

- 018 4 8

- CCA

- R3

- CD

- Filed August 25, 2015

The Defendant, John A. Snider, plead ed guilty in the Circuit Court f or Madison County to three counts of p ossession of a controlled substance with the intent to sell

, simple p ossession of a c ontrolled substance , possession of synthetic can nabinoid, and possession of drug p araphernalia

. See T.C.A. § § 39

- 17

- 417 ( S upp. 2012) (amended 2014) (possession of psilocybin, marijuana, diazepam, alprazolam with intent to sell )

, 39

- 17

- 418 ( 2010 ) (amended 2014) (simple possession of oxycodone )

, 39

- 17

- 42 5 ( 2014 ) ( possession of drug paraphernalia)

, 39

- 17

- 438 ( S upp. 2012) (amended 2013, 2014, 2015) ( possession of synthetic cannabinoids)

. The trial court sentenced the Defendant to an effective ten years, ordered him to serve eleven months , twenty

- nine days in

confinement

, and ordered him to serve the remainder on community corrections

. On appeal, the Defendant presents a certified question of law regarding the legality of the

warrantless entry into the Defendant’s home and the seizure of the Defendant from his doorway

. We dismiss the appeal b ecause the certified question is not dispositive of the

case

.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

R OBERT H. M ONTGOMERY

, J R

., J. , delivered the opinion of the court, in which A LAN E.

G LENN and R OG ER A. P AGE

, JJ. joined

.

Lee R. Sparks (on appeal)

, Jerry M. Mosier (at the guilty plea hearing ), and David Camp (at the suppression hearing ), Jackson , Tennessee, for the appellant, John A. Snider

.

Herbert H. Slatery III, Attorney General and Reporter; Da vid H. Findley

, Senior Counsel ; James G. Woodall, District Attorney General ; and Shaun A. Brown, Assistant District Attorney General

, for th e appellee, State of Tennessee.- 2

- OPINION

This case relates to a “knock and talk” encounter at the Defendant’s ho me on January 9, 2013, and to the s eizure of the Defendant from his doorway by an officer

. The

Defendant was detained and held in an officer’s vehicle while a search warrant for his

home was obtained. After the search warrant was executed, the Defendant was arrested

for multiple drug

- related offenses. The Defendant filed a motion to suppress the

evidence obtained during the search , alleging that the search was tainted by the officer’s prior unlawful warrantless entry into the Defendant’s home and by the unlawful detention

of the Defendant.

At the suppression hearing, Madison County Sheriff’s Office Investigator Tikal

Greer testified that on January 9, 2013, he and other officers went to the Defendant’s

home after re ceiving two anonymous tips from C r ime S toppers that the Defendant was

grow ing marijuana. Officer Greer arrived at the Defendant’s home around 6:25 p.m.

without a warrant to conduct a k nock and talk

.

Officer Greer testified that he and another officer went to the front door and

knocked several times. He hear d music coming from inside the house. He said t he Defendant opened the door “[p]robably shoulder width

. ” Officer G reer said that he immediately smell ed the odor of marijuana once the door was open ed

. He said that he

had worked in the n ar cotics division for five years a nd that he had smelled marijuana

numerous times. The offic ers explained to the Defendant why they were there, and t he

Defendant told the officers that he would not consent to a search of his home

. Officer

Greer said the y t old the Defendant that they were not asking for his consent to search his

home. Officer Greer said that t he D efend ant attempted to close the door and that Officer Greer “got [the Defendant] out ” and detained him to prevent the Defendant from destroying th e marijuana Officer Greer suspected was inside the home. Officer Greer left

the scene to obtain a search warrant.

Officer Greer returned with the warrant and the home was searched. He said that

officers found 6.2 pounds of marijuana and seventy

- three j ars of f ermented psilocybin

mushrooms. In four or five of the jars, the mushrooms were growing. The police also

found equipment f

or cultivating marijuana and mushrooms, six ounces of “hashite

, ” 2.5

ounces of synthetic cannabinoids, 169 pills of assorted controlled substances, and approximately $2 000 in cash.

On cross

- examination, Officer Greer testified that he received the first anonymous tip regarding the Defendant around December 18, 2012. T he officers began driving past

the Defendant’s home twice d aily and also conducted nighttime surveillance

. Officer- 3

-

Greer said the surveillance was unproductive

. He said that the officers discussed a “trash pull” but that they decided to conduct a knock and talk instead. T he officers did not

conduct regular surv eillance between C hristmas and New Year’s

.

Officer Greer testified that he received the second anonymous tip on January 3,

2013. Surveillance resumed

, but no unlawful activity was observed

. Officer Greer stated

that he was not frustrated or irritated a t the lack of suspicious activity at the Defendant’s

home and agreed that he had no specific reason to conduct the knock and talk on January

3

.

Officer Greer agreed that a weather report from the day of the search showed temperatures in the low 50’s with rain and 5.8 to 6.9 m.p.h. wind speeds. He said he smelled the marijuana despite the weather

.

Officer Greer testified that he knocked f or two or three minutes before the

Defendant opened the door

. Officer Greer agreed music was playing inside the home a nd said it was possible the Defendant did not hear the initial knock

.

Officer Greer testified that he placed his foot inside the front door to “grab” the

Defendant and to ensure the Defendant did not close the door. He said the Defendant was standing at the door. Officer Greer sai d that it took about two hours to obtain the

search warrant and return and that the other officers reported no one entered or left the

home while he obtained the warrant

.

Officer Greer testified that the raw marijuana he smell ed initially was found in the Defendant’s bedroom, ten to fifteen feet from the fron t door

. The Defendant’s bedroom door was open when officers entered

. Marijuana was found in plastic containers, in jars,

and loose on the bedroom dresser.

On redirect e xamination

, Officer Greer testifie d that he was approximately two

feet from the front door when the Defendant opened it

, that he leaned in closer to smell,

and that the ho me smelled of raw marijuana.

The trial court denied the Defendant’ s motion to suppre ss. The court reviewed the

search warrant and credited Officer Greer’s testimony

. The court stated that a n officer

“ has a right to detain someone who the officer believes is attempting to perhaps destroy

evidence .” The court found that Officer Greer’s t estimony supported a conclusion that the marijuana would have be en destroyed if the Defendant had closed the door. The

court noted that the detention was brief and concluded that based on the totality of the- 4

-

circumstances, the officers did n ot violate the Defendant’s rights. The court stated that the officers had a right to approach the Defendant’s home. The court also stated,

They approached the residence and smelled marijuana coming fro m inside

.

. . it would appear that there’s quite a bit of carpeti ng

. . . fabric and material of that nature would absorb the odor of marijuana and it would be apparent, so I credit the testimony when the officer said he could smell marijuana [

. ]

After the suppression hearing, the Defendant pleaded guilty on all counts

, and pursuant to his plea agreement reserved one certified question for appeal:

Whether the warrantless entry and subsequent search of the Defendant’s home by officers

. . . on or about January 9, 2013, violated the defendant’s rights granted pursuant to the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 7, 8, and 9 of the Tennessee Constitution and whether any evidence obtained as a result of said search should be suppressed as the fruits of an

unconsti tutional search in that:

a. The original forcible entry and dete ntion of the Defendant was made without a warrant and without the consent of the defendant,

b. There were no exigent circumstances present to justify the original warrantless entry and search [ the Court having found that exigent circumstances existed because of the strong odor of marijuana coming from inside the Defendant’s residence which was detected by the officers as they stood just outside the front door of the

defendant’s residence ] , and

c. Th e consensual nature of the knock and talk procedure was effectively nullified by the action of the officers, resulting in the

Defendant’s unlawful detention and ultimate unlawful search [ the Court having found that the Defendant attempted to close the fron t
door of his residence which caused the officers to enter the residence to prevent possible destruction of evidence of drug activity ]

.- 5

-

Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can b e taken from a plea of guilty if the Defen dant enters into a plea agreement and explicitly reserves with the consent of the State and the trial court a certified question of law that is dispositive of the case. See Tenn. R. Crim. App. 37(b)(2)(A)(i)

- (iv); State v. Armstrong

, 126 S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either affirm the judgment or reverse and dismiss. An issue is never dispositive when we might

reverse and remand [

. ] ” State v. Wilkes , 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984). Furthermore, the fa ct that the defendant, the State, and the trial judge have agreed the issue is dispositive does not bind this court

. State v. Preston , 759 S.W.2d 647, 651 (Tenn. 1988). “ [T] he appellate courts must

. . . determine if the record on appeal

demonstrates how that ques tion is dispositive of the case . . . If the appellate court does not agree that the certified question is dispositive, appellate review should be denied. ”

Id

. (citing State v. Jennette , 706 S.W.2d 614, 615 (Tenn. 1986) ) ; see State v. Dailey , 2 35 S.W.3d 131, 134

- 5 (Tenn. 2007).

The record reflects that the trial court confirmed the dispositive n ature of the certified question in an order and the judgments

. It appears that the court and the parties

assumed that the initial entrance and seizure and detention of the Defendant affected the validity of the search warrant. However, e ven if the investigator detained the Defendant

in a manner that exceeded constitutional limits

, we conclude that the search warrant

remain ed valid.

The search warrant was based on the anonymous tips and the smell of marijuana

, all of which were known before the officer placed his foot inside the residence and physically seized the Defendant

. 1 A neutral and detached magistrate determined that the anonymous tips, as corr oborated by Officer Greer ’s observations, gave rise to probable

cause tha t the house contained marijuana. T his court treats that determination with

deference. See Illinois v. Gates , 462 U.S. 213 , 236 (1983 )

, State v. Jacumin , 778 S.W.2d 430, 431 (Tenn. 1 989)

. Furthermore, t he police obtained no information or evidence to
secure the warrant as a result of seizing and detaining the Defendant before execution of

the search warrant

. Because the legality of the initial detention does not affect the

admissib ility of the evidence obtained pursuant to the search warrant, the certified

qu estion is not dispositive

. The Defendant is not entitled to relief.

1 At oral argument, defense counsel raised for the first time whether the Defend ant was seized before opening the door due to the authoritative nature of the knocking, which affect ed the validity of the

warrant. Issues which are raised for the first time on appeal will be treated as waived. See Tenn. R. App. P. 36(a); State v. Johns on , 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996).- 6

-

In consideration of the foregoing and the record as a whole, we conclude that the certified question is no t dispositive of the case

. As a result, we lack jurisdiction and dismiss the appeal.

____________________________________ ROBERT H. MONTGOMERY, JR., JUDGE