IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 11, 2011 Session

STATE OF TENNESSEE v. JOHN B. ALBERTS

Appeal from the Circuit Court for Williamson County

No. I-CR033269 Jeff Bivens, Judge

No. M2010-01208-CCA-R9-CD - filed June 21, 2011

The Williamson County Grand Jury indicted Appellant, John B. Alberts, for eight counts of

rape of a child, one count of solicitation of a minor to commit rape of a child, and one count

of solicitation of sexual exploitation of a minor. Appellant filed a motion to suppress

evidence recovered through the execution of a warrant to search Appellant’s car. At the

hearing on the motion to suppress, the trial court granted Appellant’s motion based upon the

conclusion that the search warrant was invalid. At the hearing, before the trial court

announced its decision, the State argued an alternative theory that the search was valid as a

warrantless search through an exception to the warrant requirement i.e., probable cause with

exigent circumstances. The trial court declined to rule on the validity of the search based

upon this alternative theory. The State asked for and was granted an interlocutory appeal

pursuant to Rule 9 of the Tennessee Rules of Appellant Procedure to determine if the trial

court can consider the alternative theory to uphold the search. We have concluded that the

trial court should consider an alternative theory to determine if the search was valid as a

warrantless search based on probable cause and exigent circumstances. We remand the case

back to the trial court for proceedings in accordance with this opinion.

Tenn. R. App. P. 9 Appeal as of Right; Judgment of the Circuit Court is Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Ron Davis, District Attorney General, and Mary K. White, Assistant

District Attorney General, for the appellant, State of Tennessee.

Vanessa P. Bryan, District Public Defender and James L. Elkins, III, Assistant Public

Defender, Franklin, Tennessee, for the appellee, John B. Alberts.
OPINION

Factual Background

In January 2007, three parents reported to Detective Tameka Sanders of the

Williamson County Sheriff’s Department that Appellant had sexually abused their children.

The victims alleged that Appellant had licked their vaginas. Detective Sanders began her

investigation and discovered that Appellant had been convicted ten years before for

performing oralsex on a nine-year-old girl. Subsequently, Appellant was arrested on January

31, 2007 for violation of the sex offender registration law.

Also in January 2007, the parents of one of the victims reported to Detective Sanders

that Appellant had used their computer in their home. Detective Sanders obtained consent

to search the computer and took possession of it. The detective did not testify as to any

images contained on the victim’s parents’ computer. The victim’s mother also told Detective

Sanders that Appellant had a laptop and a digital camera that he kept in the trunk of his car.

On February 6, 2007, Detective Sanders, accompanied by Detective Grant Benedict

of the Williamson County Sheriff’s Department and Lieutenant Robert Denton of the

Lawrence County Sheriff’s Department, went to Appellant’s former place of employment to

check the computer. Mr. Jimmie Pennington, the proprietor, signed a consent to search form

for the search of the computer primarily used by Appellant during his employment. The

search revealed images numbering in the hundreds or thousands of sexually provocative

photographs of young girls. While the images were flashing on the screen, Detective Sanders

thought she recognized one of the victims in one of the images.

Lieutenant Denton left the business to obtain a search warrant. While Lieutenant

Denton went to get a search warrant, Detectives Sanders and Benedict located Appellant’s

residence at 50 Sweet Gum Lane. They spotted Appellant’s car parked in the driveway.

Detectives Sanders and Benedict interviewed a neighbor who told them that Appellant liked

to take pictures of children, but he would only take pictures of girls. While they were waiting

for Lieutenant Denton to return with the search warrant, the detectives secured Appellant’s

car. When Lieutenant Denton returned with a search warrant, the officers had Appellant’s

neighbor unlock Appellant’s car. The officers searched the car and seized a laptop computer

and a digital camera. The computer contained photographs of Appellant kissing the victims,

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one victim performing fellatio on Appellant, and Appellant performing cunnilingus on one

of the victims.

In March 2008, the Williamson County Grand Jury indicted Appellant for eight counts

of rape of a child, one count of solicitation of a minor to commit rape of a child, and one

count of solicitation of sexual exploitation of a minor. On November 12, 2009, Appellant

filed a motion to suppress the evidence, in particular the laptop computer, seized as a result

of the search warrant obtained by Lieutenant Denton. The trial court held a hearing on the

motion on January 6, 2010. On February 8, 2010, the trial court filed an order granting

Appellant’s motion to suppress based solely on the conclusion that the search warrant was

invalid. On March 8, 2010, the State petitioned the trial court for an interlocutory appeal

pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court granted

the State’s request on May 25, 2010. This Court granted the application for interlocutory

appeal on July 15, 2010.

ANALYSIS

On appeal, the State argues that the trial court erred in determining that after having

decided that the search warrant was invalid, it was restrained from considering any

exceptions to the warrant requirement to establish that the search was reasonable. Appellant

argues that the trial court did not err.

This Court will uphold a trial court’s findings of fact in a suppression hearing unless

the evidence preponderates otherwise. State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)

(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party

in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable

and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16

S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).

“Questions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts

is de novo, with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.

2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on

evidence that does not involve issues of witness credibility, however, appellate courts are as

capable as trial courts of reviewing the evidence and drawing conclusions and the trial

court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217

(Tenn. 2000). Further, we note that “in evaluating the correctness of a trial court’s ruling on

a pretrial motion to suppress, appellate courts may consider the proof adduced both at the

suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). The

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question presented by the State in this case is one of law. Therefore, there is no presumption

of correctness with regard to the trial court’s decision. Walton, 41 S.W.3d at 81.

At the hearing on the motion to suppress, the trial court expressed the belief that it was

restrained from considering any alternate theories because it was restricted to a review of the

warrant in ruling on the motion to suppress. It is true that, “Tennessee law is clear that in

determining whether or not probable cause supported issuance of a search warrant only the

information contained within the four corners of the affidavit may be considered.” State v.

Keith, 978 S.W.2d 861, 870 (Tenn. 1998) (citing State v. Jacumin, 778 S.W.2d 430,

432(Tenn. 1989)). This language refers to a court’s determination whether or not the warrant

itself is valid. This language does not prevent a court from determining whether a search is

valid based on an exception to the warrant requirement. We have found no legal impediment

to prevent the trial court from addressing the State’s argument that the search was

permissible as a warrantless search based on the existence of probable cause to search and

exigent circumstances. We point out that in the case at hand, the State presented this

argument to the trial court prior to the trial court’s ruling on the validity of the warrant.

The trial court allowed the State to present an offer of proof with regard to probable

cause and exigent circumstances. However, the trial court made no factual findings

regarding the validity of the search as a warrantless search. Because we can find no

precedent preventing the trial court from determining whether an exception to the warrant

requirement applies to the facts at hand when the search warrant has been determined to be

invalid, the trial court should make findings of fact regarding this issue and rule on the

validity or invalidity of the search of Appellant’s car as a warrantless search. Both the Fourth

Amendment to the United States Constitution and article I, section 7 of the Tennessee

Constitution protect individuals against unreasonable searches and seizures by government

agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. Under both constitutions, “a

warrantless search or seizure is presumed unreasonable, and evidence discovered as a result

thereof is subject to suppression unless the State demonstrates that the search or seizure was

conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.”

Yeargan, 958 S.W.2d at 629 (citing Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91

S. Ct. 2022, 29 L.Ed.2d 564 (1971)); see also State v. Garcia, 123 S.W.3d 335, 343 (Tenn.

2003). As stated above, in the hearing on remand, the State will have the burden of proof to

show the search of Appellant’s car is a valid warrantless search.

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CONCLUSION

For the foregoing reasons, we remand this case for the trial court to conduct further

proceedings to determine whether one of the exceptions to the warrant requirement exists in

the facts at hand.

___________________________________

JERRY L. SMITH, JUDGE

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