### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs February 17, 2016

STATE OF TENNESSEE v. GUY LEE POWELL

Appeal from the C ri minal Court for Hancock County No. 13CR017 John F. Dugger, Jr., Judge

No. E2015

- 00741

- CCA

- R3

- C D

– Filed April 19, 2016



### _____________________________

After a bench trial, the Defendant , Guy Lee Powell, was convicted of manufacturing a controlled substance, possession of a controlled substance with intent to sell or deliver, felony possession of drug paraphernalia, and possession of a still. The trial court imposed concurrent sentence s for an effective sentence of two years ‟ incarceration . On appeal, the Defendant challenges the trial court‟s denial of his motion to suppress evidence seized from his premises during a search

. After review, we affirm the trial court‟s judgment s

.

Tenn. R. App. P. 3 Appea l as of Right ; Judgment s of the C ircuit Court Affirmed

R OBERT W. W EDEMEYER

, J., delivered the opinion of the Court, in which T HOMAS T.

W OODALL

, P.J., and R OBERT H. M ONTGOMERY

, J R

., J.

, joined.

Jonathan M. Holcomb, Morristown, Tennessee, for the appellant

, Guy Lee Powell.

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

, Senior Counsel ; Dan Armstrong, District Attorney General; and Connie G. Trobaugh , Assistant District Attorney General, for the a ppellee, State of Tennessee.

OPINION

I. Facts

A Hancock County grand jury indicted the Defendant for manufacturing a controlled substance (marijuana); possession of a controlled substance with intent to sell or deliver (marijuana); felony possession of drug paraphernalia; and possess ion of a still.

The Defendant filed a motion to suppress the search of an outbuilding o n his property where police found a marijuana plant, bagged marijuana, a distillery, yeast, and other drug paraphernalia.2

At the hearing on the Defendant‟s motion, the parties presented the following evidence: Leamon Maxey, the Hancock County Sheriff, testified that on July 30, 2012, he was investigating a report of the production of moonshine. Some of the landowners who owned property adjacent to the Defendant‟s p roperty gave law enforcement permission to enter their properties. While on an adjacent property, Sheriff Maxey observed the Defendant near an outbuilding on his property and heard what sounded like

a running W eed E ater. Sheriff Maxey said that, while us ing binoculars and standing on the roadway of the adjacent property, he also observed a marijuana plant outside the Defendant‟s outbuilding. After seeing the marijuana plant, Sheriff Maxey called Chief Deputy Anthony Maxey “about getting the search warran t.” He then walked down to the building and retrieved the “power pole number” to determine ownership of the property.

Sheriff Maxey testified that after Chief Maxey contacted him that the search

warrant had been served

, he began searching the outbuild ing on the Defendant‟s property. He explained that the Defendant‟s residence was located at the front of the Defendant‟s property. The outbuilding was located on “the backside” in a wooded area. The officers approached the Defendant‟s property from the rear. He estimated that he was approximately 400 feet from the outbuilding when he first observed the marijuana plant. Sheriff Maxey said that he identified the plant outside the outbuilding as marijuana based on his experience and the distinct shape of the leaves.

Sheriff Maxey testified that, while he waited for the search warrant, he had

observed the area on which a W eed E ater had been used, a shovel, sugar bags, a burn p ile with sugar and yeast bags in it, and various tools. After the search warrant was executed,

officers found inside the building another marijuana plant, a distillery, potting soil, yeast, a bag of marijuana in a refrigerator, scales, and marijuana leaves. After the search warrant was served, the Defendant walked from his hom e to the outbuilding and was present for the search.

Anthony Maxey, the chief deputy for the Hancock County Sheriff‟s Department, testified that Sheriff Maxey contacted him on July 30, 2012, about possible drug activity on a property located off of She rm Mountain Road. Chief Maxey applied for a search warrant and then executed the search warrant. While preparing the affidavit for the search warrant, Chief Ma x ey relied on information provided by Sheriff Ma x ey and

De puty Petti e cord. In preparing the de scription of the location for the affidavit, Chief

Ma x ey relied upon information from the officers present, the Tennessee Property Viewer, and the GPS coordinates retrieved from the Tennessee Property Viewer.

Chief Maxey testified that

, once the judge si gned the search warrant, he and

Detective Brewer served the warrant on the Defendant at a residence. Chi e f Maxey said that he believed the house was “Effie Neamyer‟s” residence and that the Defendant3

stayed there “part of the time.” The Defendant then es corted the officers back to the outbuilding. Chief Maxey could not remember specifically the procedure he followed when serving the search warrant

, but he said he “normally” explain s to the owner of the property why he i s there and then read s the search w arrant to the owner before conducting the search. Chief Maxey confirmed that he reviewed the return on the search warrant with the Defendant at the jail to make him aware of what property was seized.

On cross

- examination, Chief Ma x ey agreed that the aff idavit did not contain any

information about the training and experience of the “fellow officers” or of Chief

Ma x ey‟s own training.

The Defendant testified and identified survey maps of “[his] and [his] girlfriend‟s property.” He testified that there was not a “logging road” on his property but that there was a logging road on his neighbor‟s property

, which allowed for access to his property.

The Defendant sta ted that the vegetation in the area surrounding the outbuilding was “[t]hick and heavy” making a “clear line of sight” from the adjacent property impossible. The area was also very hilly. The Defendant identified a photograph of a “no trespassing” sign l ocated at the front of his property near his driveway. Near that sign was another sign that read, “Trespassers will be shot and then violated.” The Defendant identified a final picture of a “no trespassing” sign posted where his neighbor‟s property

ended and the Defendant‟s driveway began.

The trial court stopped the hearing due to confusion over the specific locations of the various pictures of the property being submitted to the trial court as evidence . The trial court asked the State to take a pic ture of the view from where Sheriff Ma x ey stood when he observed the marijuana plant outside of the Defendant‟s outbuilding and rescheduled the hearing for April 17, 2013.

At the April 17 hearing, Sheriff Maxey testified that, since the last hearing, he had gone to the adjacent property and photographed the Defendant‟s outbuilding from where he first saw the marijuana plant. Sheriff Maxey stated that his testimony during the first hearing about his location as he marked it on the survey map was incorrect . Sheriff Maxey marked, on the same survey map, with the indication “2

, ” his actual location at the time he observed the Defendant‟s outbuilding and the marijuana plant and marked a

“1” next to where he had incorrectly indicated his location during the fi rst hearing. He explained that the Tennessee Property Viewer map did not show a driveway outside of the property

, and he knew he had been on either a driveway or a logging road. The only indication of a road was at the rear of the property

, so he marked that roadway due to his certainty that he was on a driveway or logging road at the time.4

Sheriff Maxey testified that he had used binoculars on the day of the search to confirm that the plant was marijuana. The State the n submitted two photographs of t he outbuilding take n from where Sheriff Ma x ey had stood when he first saw the outbuilding

. One of the photographs

, was taken with a telephoto lens and one was taken without the lens. In both photographs the outbuilding can be clearly seen. The State als o submitted a photograph of a “property pin” and the road that Sheriff Maxey referenced when speaking of his location upon seeing the outbuilding and marijuana plant

. A photograph of the fence line that ran along the logging road was also admitted into ev idence

. Sheriff Maxey stated that

, when he returned to the property, Officer Terry Kinsler and a photographer accompanied him. The photographer recorded video footage of the area.

On cross

- examination, Sheriff Maxey stated that the adjacent property own er had told

him that the fence line marked the property line before the officers walked out onto the

property.

The trial court again continued the hearing to allow the State to speak with the adjacent property owner to confirm that the fence that ran along the logging road or driveway was the property line. At the subsequent hearing, Carl Seal testified that he

ow ned property that adjoined the Defendant‟s property on Sherm Mountain Road. Mr.

Se a l purchased his property approximately twelve years earlier and, at the time of the purchase, hired a surveyor to determine the lines of his property.

Mr. Seal testified that Sheriff Maxey had asked him to show him the property lines. Sheriff Maxey showed Mr. Seal where he was standing when he first observed the Defendant‟s outbuilding. The State showed Mr. Seal the photographs that Sheriff Maxey

had taken of the lo c ation and that the State had submitted as evidence at the prior hearing. Mr. Seal identified his property in the photographs and stated that he knew it was his property because he is familiar with the lines of his property based upon the survey. Mr.

Seal identified the road on his property in one of the photographs. Mr. Seal confirmed that he gave members of the Sheriff‟s Department permission to enter the land on the day

the y discovered the Defendant‟s marijuana plant.

On cross

- examination, Mr. Seal testified that he had never seen the Defendant‟s outbuilding from his property because he had “never been close enough.” He agreed that Sheriff Maxey showed him where Sheriff Maxey had been standing when he first observed the Defendant‟s outbuilding and that Mr. Seal could not see the outbuilding from that location. He explained that he “never even looked for a [outbuilding].” He also noted that the trees did not have leaves in the photographs providing a clearer view of the outbuilding.

After the he aring, the trial court made the following ruling:5 Court finds that

. . . Sheriff Maxey had permission from Carl Seal and Gary Hicks and Ray Robinson to go to properties and look for marijuana. Carl Seal has testified today that the sheriff has taken hi m to the spot where he was standing when he observed [a] marijuana plant growing on the porch of a small cabin which is in exhibit fourteen, but exhibit

fourteen was taken when there were no leaves on the trees. This occurred on July the 30[th], 2012. Mr . Seal said that he couldn‟t see a cabin. However, the sheriff testified that he was armed with binoculars on that day and that he saw marijuana plants growing on the porch of the cabin and he walked down to the cabin. The cabin was open, and he could se e paraphernalia in the cabin. Search warrant obtained from that and subsequent search, in count one is two marijuana plants and then there was a subsequent 310.55 grams of marijuana found along with other things.

The Court finds that . . . based on th e testimony of the sheriff . . . and Mr. Seal, the owner of the property, the adjacent property, and the sheriff says that he saw it with binoculars. So the Court believes that he was in a place that he had a right to be and that he observed the marijuana and he could secure the scene until he obtained the search warrant and everything

that he saw while he was there is in the affidavit and search warrant was in plain view and no search was completed until they got the search warrant. So your motion to sup press is denied.

A n appellate court may consider the evidence presented both at the suppression hearing and at the subsequent trial when reviewing a motion to suppress

. State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). As such, we also include Josh P etti e cord‟s testimony from the trial. Deputy Petti ecord testified that, after receiving consent from the property owners, he accompanied Sheriff Maxey onto some property where authorities had information that there was an illegal moonshine still. He stat ed that they began on

Mr. Seal ‟ s property and heard a radio playing and a running weed eater. Deputy

Petti e cord positioned himself to see who was in the area

, and he observed the

Defendant‟s truck.

Deputy Petti e cord testified that, at some point, the D efendant got in his truck and drove out through Mr. Seal‟ s property to the main road. The officers “kind of hid” as the

Defendant drove down Mr. Seal‟ s road. The officers then returned to the edge of the fence and, with the use of binoculars, saw the out building and a marijuana plant. Based upon this observation, Deputy Petti e cord and Sheriff Maxey walked down to the property

to secure the mari

juana plant and called Chief Maxey to ask him to seek a search warrant. After the search warrant was brought to the scene and served, the officers entered the outbuilding.6

Deputy Petti e cord testified that

, while securing the marijuana plant, he observed the numbers on the power pole and contact was made with Powell Valley Electric to ascertain ownership. Deputy Petti e cord and Sheriff Maxey remained outside the outbuilding until Chief Maxey approached from the Defendant‟s residence after serving

the warrant on the Defendant. Once Chief Maxey and the Defendant arrived, the search of the inside of the building com menced.

Deputy Petti e cord testified that the inside of the building was “like a barn” with a dirt floor, except for one room that had drywall and a floor. In this room he observed buckets, fertilizer, and “grow lights.” Inside other parts of the building he saw a moonshine still, a jar of moonshine, marijuana on a table, a set of scales, and a refrigerator. Inside the refrigerator was turbo yeast and a bag of marijuana. Deputy

Petti e cord stated that there was also a W ee d E ater sitting outside the front door of the outbuilding.

On cross

- examin ation, Deputy Petti e cord confirmed that he saw the Defendant and the Defendant was using the W eed E ater. Deputy Petti e cord agreed that he photographed the marijuana plant and the number on the power pole while securing the marijuana plant. Deputy Petticord stated that

, through radio transmission, the officers

were made aware that the warrant had been served. A follow

- up phone call indicated that the Defendant wanted to be present . Deputy Petticord said that he entered the outbuilding as Chief Maxey and the Defendant walked up.

II. Analysis

The Defendant appeals, asserting that the trial court erred when it denied his motion to suppress because: (1) the location stated in the search warrant was not specific enough; and (2) there were no exigent circumstances to justify law enforcement enter in g his property and the illegal seizure of the marijuana plant sitting outside the Defendant‟s outbuilding.

Our standard of review for a trial court ‟ s findings of fact and conclusions of law on a motion to suppress evidence is set forth in State v. Odom , 9 28 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 Id . at 23. As is customary, “ the prevailing party in the trial court is afforded the „ st rongest 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)). Nevertheless, this C ourt reviews de novo the trial

court ‟ s application of the law to the facts, without according any presumption of7

correctness to those conclusions. See State v. Walton , 41 S.W.3d 75, 81 (Tenn. 2001);

State v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve any conflicts in the evidence. Odom , 928 S.W.2d at

23

. In reviewing a trial court ‟ s rulin g on a motion to suppress, an appellate court may consider the evidence presented both at the suppression hearing and at the subsequent

trial. State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998).

The State asks us to waive the Defendant‟s first argument r egarding the sufficiency of the location description in the search warrant because this issue was not raised in the Defendant‟s motion for new trial or at the motion for new trial hearing

, thereby preventing the trial court from ruling on the issue and lim iting this Court‟s ability to effectively review the trial court‟s ruling. Further, at the suppression hearing, the Defendant made no argument to the trial court regarding the sufficiency of the location description in the search warrant. According to Te nnessee Rule 3(e) of Appellate Procedure, “no issue presented for review shall be predicated upon error .

. . admission or

exclusion of evidence .

. . unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treate d as waived.” The Advisory Commission Comments add that “relief need not be granted to a party who fails to take whatever action is reasonably available to prevent or nullify the harmful effect of error.” We agree

with the State that t he Defendant has wa ived our review of the sufficiency of the location description in the warrant. We turn now to the Defendant‟s argument that law enforcement illegally entered his property.

Law officers are permitted to temporarily seize property to secure a scene while awaiting a search warrant when probable cause exists and there is a “need for immediate action to prevent the departure” of evidence from the jurisdiction. State v. Hawk , 688 S.W.2d 467, 471 (Tenn. Crim. App. 1985). In essence, probable cause and exigent circumstances are required to justify this temporary warrantless seizure. Id

. The mere possibility, though, that evidence will be removed or destroyed does not permit such a

seizure. Id

. Our S upreme C ourt has said, “ [T]he curtilage [of residential property] is entitled to the same constitutional protection against ground entry and seizure as the

home.” State v. Prier , 725 S.W.2d 667, 671 (Tenn. 1987).

The Defendant insists the officers ‟ intrusion upon his property violat ed his Fourth Amendment rights. The evidence does not su pport that contention. The deputies, based upon a complaint about the production of moonshine, lawfully gained access to adjoining

property. Once on the adjoining property

, officers heard a running weed eater and saw the Defendant in the area of the outbuilding. With the use of binoculars, officers observed a marijuana plant located outside the Defendant‟s outbuilding in the same area

f r om which the sound of the W eed E ater was emanating. It is cle ar that exigent8

circumstances existed, as found by the trial judge, which warranted officers going on the

D efendant ‟ s property. Exercising an abundance of caution

, the officers secured the premises while they obtained a search warrant. T he evidence shows both probable cause for obtaining the search warrant and the need for immediate action to prevent the destruction of the marijuana plant existed

. The officers had information regarding the illegal production of moonshine, observed a marijuana plant in a portable container, and

knew the Defendant to be in the area at the time. We are satisfied that law enforcement here had sufficient exigent circumstances to warrant the temporary seizure of the premises, as well as probable cause for obtaining the issuance of the search warrant. The

Defendant is not entitled to relief

.

III. Conclusion

After a thorough review of the record and relevant authorities, we affirm the trial

court‟s judgment s

.

________________________________ _ ROBERT W. WEDEMEYER, JUDGE