IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 3, 2009

STATE OF TENNESSEE v. ANGELO ALLEN

Direct Appeal from the Criminal Court for Shelby County

No. 07-05518 James C. Beasley, Jr., Judge

No. W2008-00955-CCA-R3-CD - Filed September 23, 2009

The defendant, Angelo Allen, was convicted of possession of cocaine and two counts of possession

of marijuana, allClass A misdemeanors. The defendant was sentenced to eleven months and twentynine days for each conviction. The court ordered that the marijuana convictions be merged and that

the remaining two convictions run concurrently, for a total effective sentence of eleven months and

twenty-nine days. The defendant raises four issues on appeal: (1) the trial court improperly denied

his motion to suppress; (2) count two of his indictment should have been dismissed; (3) venue was

not established at trial; and (4) he was sentenced improperly. After careful review, we conclude that

the motion to suppress was properly denied, count two was proper, and venue was established.

However, we remand for affixing a percentage of the sentence to be served by the defendant.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part

and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and

CAMILLE R. MCMULLEN, JJ., joined.

Michael J. Gatlin, Memphis, Tennessee, for the appellant, Angelo Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Byron B. Winsett, III, Assistant District

Attorney General, for the appellee, State of Tennessee. 

OPINION

In this case, a Memphis police officer observed the defendant in possession of drugs in front

of the defendant’s residence. Upon the officer’s approach, the defendant attempted to enter the

residence. The officer apprehended him in the open doorway, and the defendant then threw a

“baggie” into the residence. The “baggie,” which contained drugs, was seized by the officer, as were

other drugs found in the living room of the residence.

Hearing on the Motion to Suppress
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The defendant filed a motion to suppress the evidence seized during and immediately after

his arrest. Following a hearing on the motion to suppress, the trial court concluded that both the

plain view and hot pursuit exceptions to the warrant requirement applied to the facts of the case. The

officer observed the defendant holding a “baggie” of drugs in “plain view” as he rode past the

defendant. The trial court further found that the additional evidence was admissible because the

defendant fled, causing the officer to chase him into the doorway of the residence, and threw the

drugs inside, giving the officer the right to perform a cursory search of the room.

At Trial

Officer John Cooper, a Memphis police officer stationed with the North Precinct bicycle

patrol, testified that he was on duty on July 29, 2005, when he observed the defendant and another

man on the front porch of a duplex in Memphis. The officer testified that he was twenty to twentyfive yards away from the defendant when he saw a plastic “baggie” in the defendant’s hands. He

said that he saw “white rocks” in the plastic bag that he believed to be crack cocaine. When the

defendant saw the officer, he pulled the bag up into his hands. The officer said that he continued

riding past the duplex as if he had not seen anything.

The officer called other officers to meet him. He opined that it took fifteen minutes for the

other officers to arrive and formulate a plan. One officer drove past the duplex as a diversion, and

the other officers approached the defendant’s residence from the rear and side. The defendant and

the other man on the porch watched the officer drive past the residence. Officer Cooper approached

the residence on his bike while the defendant was watching the patrol car. The officer testified that,

because the defendant attempted to run into the residence when he saw the police, he jumped on the

porch to prevent the defendant from entering the residence. The defendant threw two clear plastic

“baggies” into the house and started shouting, “shut the door, shut the door” to a woman inside the

house. The officer stuck his foot in the doorway to prevent the woman inside the house from closing

the door. As the officer struggled with the defendant, a second officer handcuffed the defendant. 

Officer Cooper said that he entered the residence and saw the two “baggies” lying on the

floor, just inside the door. The bags were determined to contain marijuana. The officer also saw

“numerous rocks of crack cocaine” on a coffee table inside the house near the front door.

Additionally, he saw a set of digital scales and sandwich bags normally used to package crack

cocaine. 

Officer Anthony Russell of the Memphis Police Department corroborated Officer Cooper’s

testimony. He testified that he rode past the residence as a diversion. He said it was not necessary

to open the front door to see the drugs inside the residence because Officer Cooper used his foot to

hold the door open.

A Tennessee Bureau of Investigation agent in the drug chemistry section testified that she

tested the substances found in the “baggies” seized by the officers. She said the marijuana weighed

1.9 grams and the crack cocaine weighed 2.9 grams. 
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An employee of Memphis Light Gas and Water (MLGW) testified that he kept the records

from MLGW’s database. He said the defendant requested service at 1497 Fairfax Street on June 10,

2005, and received his first bill on June 29, 2005, and his final bill on April 11, 2006. 

The defendant also testified at trial. He stated he had a dog leash or plastic dog toy in his

hand when the officer rode by on his bicycle. He testified that the officer entered his yard and told

him that he had a warrant against the defendant for domestic violence. The defendant said he got

up from the porch and called to his girlfriend, who was in the house. The defendant said his

girlfriend came to the door, and he asked her to shut the door because he did not want his children

to see what was going on outside. 

The defendant moved to dismissthe case at the close of proof and argued that the State failed

to establish venue. Specifically, the defendant argued that no witness testified that the events

occurred in “Memphis, Shelby County, Tennessee.” The trial court responded that Officer Cooper

had testified that he arrested the defendant at “1497 Fairfax in Memphis, Shelby County, Tennessee.”

The trial court further found that Officer Russell had testified that 1497 Fairfax is located in the

North precinct of Memphis in ShelbyCounty, Tennessee. The court concluded, “So, Ithink that has

been covered.”

At the conclusion of the trial, the defendant was convicted of possession of cocaine and two

counts of possession of marijuana, all Class A misdemeanors. 

Sentencing Hearing

During the sentencing hearing, the State made the defendant’s presentence report an exhibit.

The defendant had five prior felony convictions including assault with the intent to commit murder,

aggravated assault, two convictions for reckless endangerment involving a deadly weapon, and

attempted voluntary manslaughter. The defendant also had thirteen prior misdemeanors which

included two drug convictions. 

The trial court found that the defendant had an extensive history of criminal convictions and

criminal behavior dating back fifteen years. After merging the two convictions for marijuana

possession, the court sentenced the defendant to eleven months and twenty-nine days for each of the

remaining two convictions, with the sentences to run concurrently. The trial court specifically stated

that the defendant was not a proper candidate for probation.

Analysis

First, the defendant argues that the trial court erred in denying his motion to suppress the

evidence seized following his arrest. The findings of fact made by the trial court at the hearing on

a motion to suppress are binding upon this court unless the evidence contained in the record

preponderates against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the

trier of fact, is able to assess the credibility of the witnesses, determine the weight and value to be
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afforded the evidence, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996). The prevailing party is entitled to the strongest legitimate view of the evidence and

all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn.

2001). However, this court is not bound by the trial court’s conclusions of law. State v. Randolph,

74 S.W.3d 330, 333 (Tenn. 2002). The application of the law to the facts found by the trial court

are questions of law that this court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.

2000). The defendant has the burden of establishing that the evidence contained in the record

preponderates against the findings of fact made by the trial court. Braziel v. State, 529 S.W.2d 501,

506 (Tenn. Crim. App. 1975).

The defendant contends that the arrest was completed and it was not necessary for the officers

to enter the residence. Further, he argues that the officer’s observation was at best sufficient to

justify his arrest but not to warrant an entry into the residence. The trial court found that exceptions

to the warrant requirement applied to justify the search of the residence that resulted in the discovery

of the drugs. 

Here, the trial court found that the hot pursuit exception was applicable because the defendant

attempted to run from the officer. The officer caught the defendant in the threshold of his doorway.

The question of whether circumstances were sufficient to justify a warrantless search is a mixed

question of law and fact. Review of mixed questions of law and fact is de novo with no presumption

of correctness. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008).

The Fourth Amendment of the United States Constitution states the following:

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 no warrants

shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized. 

Further, Article I, Section 7 of the Tennessee Constitution provides

[t]hat the people shall be secure in their persons, houses, papers and possessions,

from unreasonable searches and seizures; and that general warrants, whereby an

officer may be commanded to search suspected places, without evidence of the fact

committed, or to seize any person or persons not named, whose offenses are not

particularly described and supported by evidence, are dangerous to liberty and ought

not to be granted. 

The purpose and intent of Article I, Section 7 is identical to that of the Fourth Amendment,

which is to “‘safeguard the privacy and security of individuals against the arbitrary invasions of

government officials.’” State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002) (quoting Camara v.

Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967)); State v. Gonzalez, 52 S.W.3d 90,

95 (Tenn. Crim. App. 2000).
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A warrantless search is presumed unreasonable under both the federal and state constitutions,

and evidence seized from the warrantless search is subject to suppression unless the State

demonstrates by a preponderance of the evidence that the search was “conducted pursuant to one of

the narrowly defined exceptions to the warrant requirement.” State v. Simpson, 968 S.W.2d 776, 780

(Tenn. 1998); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971).

The main exceptions to the requirement for a search warrant are: (1) consent to search; (2) a search

incident to a lawful arrest; (3) probable cause to search with exigent circumstances; (4) in hot

pursuit; (5) a stop and frisk situation; and (6) plain view. State v. Bartram, 925 S.W.2d 227, 230

(Tenn. 1996).

The United States Supreme Court has recognized “that a warrantless entry by criminal law

enforcement may be legal when there is compelling need for official action and no time to secure a

warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1492 (1978). Exigent circumstances are

one compelling need and are limited to three situations: (1) when officers are in hot pursuit of a

fleeing suspect; (2) when the suspect represents an immediate threat to the arresting officers or the

public; and (3) when immediate police action is necessary to prevent the destruction of vital evidence

or thwart the escape of known criminals. Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir. 1989); see

also State v. Stacy N. Mooneyhan, No. M2006-01330-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS

861, at **18-19 (Tenn. Crim. App. at Nashville, Oct. 30, 2007), perm. to appeal denied (Tenn. Jan.

18, 2008). 

The State bears the burden of demonstrating that exigent circumstances overcome the

presumption of unreasonableness that attaches to all warrantless home entries. Welsh v. Wisconsin,

466 U.S. 740, 750, 104 S. Ct. 2091 (1984). An objective standard is used to determine the

reasonableness of the officer’s belief that an emergency situation existed at the moment of entry.

Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868 (1968). In determining whether the officer acted

reasonably, this court must consider the totality of the circumstances, including the personal

observations of the trained police officer and the rational inferences and deductions therefrom. See

State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). 

Here, the trial court determined that both the plain view and the hot pursuit exceptions to the

warrant requirement were applicable. The trial court found that the officer observed the drugs in

plain view during the initial pass by the defendant’s residence. The court then concluded that the

officer gave chase in hot pursuit of the defendant and reached him at the threshold of the doorway.

The court determined that because the officer had a right to perform a cursory search because he

pursued the defendant to the living room doorway and apprehended him just inside the residence.

The trial court cited United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406 (1976), to support

its conclusion that the search was valid. In Santana, the police had probable cause to believe a

woman standing on her front porch had committed a crime. When she noticed law enforcement

officers approaching her, she ran into the house. An officer testified that the defendant was standing

directly in the doorway; one step forward would have put her outside and one step backward would
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have put her in the vestibule of her residence. Santana, 427 U.S. at 40, 96 S. Ct. at 2408 n.1. The

United States Supreme Court concluded that the officers’ warrantless entry into the house was

justified under the hot pursuit exception to the warrant requirement. The Court specifically noted

that a hot pursuit does not need to be an extended hue and cry in and about the public streets. Id. at

42-43. That the pursuit ended almost as soon as it began did not render it any less a hot pursuit

sufficient to justify the warrantless entry into Santana’s house. Id. at 43. 

The facts of the underlying case are similar to those in Santana. The officer was in hot

pursuit of the defendant just as he attempted to go inside his residence. The court found that the

officer reached the defendant at the threshold of the residence. The officer saw the defendant throw

a “baggie” into the front room of the residence. The State argues, and we agree, that, because the

officer was in hot pursuit of the defendant and apprehended him at the doorway and because the

defendant threw the suspected drugs into the residence, it was permissible for the officer to retrieve

the drugs that were discarded as he attempted to arrest the defendant. 

With regard to the cocaine, the officer was lawfully in the defendant’s residence. The plain

view exception to the warrant requirement applied to the drugs discovered beside the front door and

on the coffee table. This court has stated that the plain view doctrine applies when (1) the items

seized were in plain view; (2) the viewer had the right to be in the position to view the items; and

(3) the incriminating nature of the items was immediately apparent. State v. Cothran, 115 S.W.3d

513, 525 (Tenn. Crim. App. 2003). Here, the officer was lawfully in the residence because he saw

the defendant throw the “baggies” into the residence. The other drugs observed by the officer were

in plain view in the living room where he retrieved the “baggies” that had been thrown into the room.

The trial court properly denied the motion to suppress.

Next, the defendant argues that the State failed to establish venue and contends that, during

the prosecution of the case, no mention was made of the incident occurring in Memphis, Shelby

County, Tennessee. However, the record reflects that two witnesses for the State testified that the

incident occurred at 1497 Fairfax in Memphis, Shelby County, Tennessee.

An accused is entitled to a trial in the county where the offense was committed. State v.

Marbury, 908 S.W.2d 405, 407 (Tenn. Crim. App. 1995); State v. Bloodsaw, 746 S.W.2d 722, 723

(Tenn. Crim. App. 1987). The burden is on the State to prove that the offense was committed in the

county specified in the indictment. Marbury, 908 S.W.2d at 407; Bloodsaw, 746 S.W.2d at 724.

Tennessee Code Annotated section 39-11-201(e) (2006) provides that the State must prove venue

“by a preponderance of the evidence.” This means there must be sufficient factual information to

cause the fact finder to believe an allegation is probably true, i.e., it must have the greater convincing

effect in the fact finder’s belief. Marbury, 908 S.W.2d at 408.

 Venue is not an element of the offense which must be proved beyond a reasonable doubt;

it is a jurisdictional fact which must be proved by a preponderance of the evidence. State v.

Hutcherson, 790 S.W.2d 532, 533, 535 (Tenn. 1990); State v. Smith, 926 S.W.2d 267, 269 (Tenn.

Crim. App. 1995); see T.C.A. § 39-11-201(e). Venue may be shown by either direct or
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circumstantial evidence. Hutcherson, 790 S.W.2d at 533; Smith, 926 S.W.2d at 269. A jury is

entitled to draw a reasonable inference from proven facts as to the issue of venue. State v. Reed, 845

S.W.2d 234, 238 (Tenn. Crim. App. 1992). 

During the State’s proof, the officers testified on the record that the incidents occurred in

Memphis, Shelby County, Tennessee. This evidence is sufficient to establish venue. 

Next, the defendant argues that there was a material variance between the indictment and the

evidence presented at trial. Specifically, he argues that the State failed to prove the felony amount

of marijuana and, consequently, was unable to go forward with the indictment. The defendant was

initially indicted for the offense of possession of one-half ounce (14.175 grams) of marijuana with

the intent to sell or deliver. The evidence at trial showed that the marijuana weighed 1.9 grams. The

State acknowledged, at the conclusion of their case, that it did not appear the proven amount of

marijuana was sufficient to establish the indicted crime and asked the court to charge on the lesser

included offense of possession of marijuana. The trial court agreed, directed a verdict as to the

charges of possession with intent to sell or deliver, and stated it would allow the jury to consider the

lesser included offense of simple possession of marijuana. 

At the close of the defendant’s proof, the court held a jury-out hearing on the issue of jury

instructions. The defendant argued that the charge of simple possession should not be presented to

the jury because the indicted charge had been dismissed. Before a variance will be held fatal, it must

be deemed to be material and prejudicial. A variance between an indictment and the proof in a

criminal case is not material where the allegations and proof substantially correspond; the variance

is not of a character which could have misled the defendant at trial and is not such as to deprive the

accused of his right to be protected against another prosecution for the same offense. State v. Moss,

662 S.W.2d 590 (Tenn. 1984). The variance is not fatal in the instant case. The defendant was on

notice that he was charged with possession of marijuana. Any variance with respect to the amount

of marijuana was immaterial. The defendant is not entitled to relief on this issue.

Next, the defendant argues that he was improperly denied a sentence of probation. Because

of the defendant’s “extensive record,” the trial court determined that he was not a proper candidate

for probation. At the time of sentencing, the defendant had several prior convictions, including

aggravated assault, attempted voluntary manslaughter, two vandalism charges, two counts of drug

possession, two counts of reckless endangerment with a deadly weapon, three assault charges, and

six counts of driving while his license was suspended or revoked. In determining if incarceration

is appropriate, a trial court may consider the need to protect society by restraining a defendant having

a long history of criminal conduct. T.C.A. § 40-35-103(1)(A) (2006). We agree that the defendant’s

record supports the trial court’s denial of probation. 

The defendant wassentenced to concurrent sentences of eleven months and twenty-nine days

for his convictions. He was convicted of two Class A misdemeanors. A trial court is allowed greater

flexibility in setting misdemeanor sentences than felony sentences. State v. Johnson, 15 S.W.3d 515,

518 (Tenn. Crim. App. 1999). No separate sentencing hearing is required, though the court must
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give the defendant a reasonable opportunity to be heard regarding the length and manner of service

of the sentence. T.C.A. § 40-35-302(a) (2006). There is no presumption of a minimum sentence.

State v. Humphreys, 70 S.W.3d 752, 768 (Tenn. Crim. App. 2001). 

The sentence must be specific and in accordance with the principles, purposes, and goals of

the Sentencing Act. T.C.A. § 40-35-302(b) (2006); State v. Palmer, 902 S.W.2d 391, 393 (Tenn.

1995). A determinate sentence should be set with a percentage of not greater than seventy-five

percent to be served in confinement. T.C.A. § 40-35-302(d). The trial court should consider the

enhancement and mitigating factors when calculating the percentage of the sentence to be served in

confinement. Id.; State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The trial court is

authorized to place the misdemeanant on probation either immediately or after a term of

confinement. T.C.A. § 40-35-302(e).

In imposing a misdemeanor sentence, the court shall fix a percentage of the sentence to be

served by the defendant. After service of such a percentage of the sentence, the defendant shall be

eligible for consideration for work release, furlough, trusty status, and related rehabilitative

programs. T.C.A. § 40-35-302. In the instant case, no percentage is set on the judgment, but it is

clear from the record that the trial court did not intend for the percentage of service to be zero

percent. Therefore, we remand to the trial court so that the court may affix a percentage of the

sentence to be served by the defendant. In determining the percentage of the sentence to be served

in actual confinement, the court shall consider the purposes of this chapter, the principles of

sentencing, and the enhancement and mitigating factors set forth in this chapter, and it shall not

impose such percentages arbitrarily.

Conclusion

Based on the foregoing and the record as a whole, we affirm the judgments from the trial

court with regard to all issues not related to sentencing. We remand the issue of sentencing to the

trial court for affixing a percentage of the sentence to be served by the defendant.

___________________________________ 

 JOHN EVERETT WILLIAMS, JUDGE