IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 3, 2007 Session

R.D.S. v. STATE OF TENNESSEE

Appeal by Permission from the Court of Appeals, Middle Section

 Circuit Court for Williamson County

No. II-CR04274 R.E. Lee Davies, Judge

No. M2005-00213-SC-R11-JV - Filed February 6, 2008

JANICE M. HOLDER, J., concurring and dissenting.

I concur in the majority’s analysis of the alleged Miranda violations in Parts I and II (A). I

respectfully dissent, however, as to the majority’s conclusions in Part II (B) concerning the motion

to suppress the evidence discovered in R.D.S’s truck.

A motion to suppress evidence must be raised before trial, and a party waives “any defense,

objection, or request by failing to complywith . . . rules requiring such matters to be raised pre-trial.”

Tenn. R. Crim. P. 12(b)(2)(C), (f). In addition, a motion to suppress evidence must state “with

particularity the grounds on which it is made.” Tenn. R. Crim. P. 47(c); see also State v. Burton, 751

S.W.2d 440, 448 (Tenn. Crim. App. 1988) (holding that the defendants waived their challenge to a

witness’s in-court identification because the defendant failed to file a motion to suppress on those

grounds before trial). R.D.S.’s motion to suppress did not state with particularity any ground for

suppression based on an alleged illegal search in violation of the Fourth Amendment or article I,

section 7 of the Tennessee Constitution. R.D.S. therefore waived the issue concerning the illegal

search.

It is within our discretion to consider issues that have been waived, but this discretion should

be “sparingly exercised.” Tenn. R. App. P. 13(b), Advisory Comm’n Comments. Our exercise of

this discretion is generally limited to situations in which our consideration of an issue prevents

needless litigation, prevents injury to the interests of the public, or prevents prejudice to the judicial

process. Tenn. R. App. P. 13(b). The majority’s decision today effectuates none of these goals.

Instead, it rewards a party who has failed to raise an issue at any point prior to appellate review.

Even if we overlook this obvious waiver, R.D.S. did not raise the issue of the validity of the

search during the suppression hearing in the trial court. The groundsfor R.D.S.’smotion to suppress

the evidence found in his truck were limited to the following: 1) that his statements were made

without “an intelligent, knowing or voluntary waiver of his constitutional right to counsel and his
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right not to incriminate himself ” in violation of Miranda; and 2) that any evidence obtained as a

result of those statements should be suppressed as fruit of the poisonous tree. Counsel for R.D.S.

focused entirely on the issue of the voluntariness of the statements made by R.D.S. Early in the

suppression hearing, the court asked, “Does [the S.R.O.] need [R.D.S.’s permission to search the

vehicle] on school property? I don’t think so, does she?” Defense counsel replied, “No, your Honor,

but it goes to his voluntariness as to whether he went out to the truck voluntarily or not.” During

closing argument on the motion, defense counsel argued only that the evidence of the search should

be suppressed based upon Miranda violations, including the voluntariness of the statements made

by R.D.S. The trial court clearly understood the issue presented. When the trial court reconvened

for a second day of the hearing, it summarized its ruling denying the motion to suppress, stating, “He

wasn’t in any kind of custodial interrogation. His statement was really voluntary as they were

walking out to the pickup truck.” Counsel for R.D.S. continued to argue the involuntariness of the

statements. At no time did he argue any other ground for the suppression of evidence.

A close examination of the record reveals that R.D.S. failed to question the validity of the

search on school grounds in either the juvenile court or the circuit court and certainly raised no issue

as to which standard should be applied to searches by school resource officers. Although the

majority attempts to justify its consideration of the validity of the search by referencing an single,

out-of-context comment by the trial judge, it is overwhelmingly clear from the totality of the record

that neither party questioned whether the search was valid. Furthermore, the trial court’s mention

of probable cause is insufficient to raise an issue that was not set forth in the motion to suppress

evidence. See Tenn. R. Crim. P. 12(b)(2)(C), (f).

On appeal, R.D.S. argued for the first time that Deputy Lambert did not have probable cause

to search his truck. “It is elementary that a party may not take one position regarding an issue in the

trial court, change his strategy or position in mid-stream, and advocate a different ground or reason

in [an appellate court].” State v. Adkisson, 899 S.W.2d 626, 635-36 (Tenn. Crim. App. 1994)

(quoting State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988)). Further, a trial judge

“cannot be put in error as to a matter upon which he did not rule.” State v. Dotson, 454 S

+.W.2d 174, 177 (Tenn. Crim. App. 1970) (quoting Garner v. State ex rel. Askins, 266 S.W.2d 358,

362 (Tenn. Ct. App. 1954)). Given the failure of R.D.S. to raise the issue of the validity of the

search, it should come as no surprise that the trial court failed to state whether it applied the

reasonable suspicion standard or the probable cause standard to searches conducted by school

resource officers.

As interesting as this issue may be in the abstract, the majority correctly states that the record

is devoid of any factors that would allow the majority to determine which standard to apply. Faced

with an inadequate record, the majority is left to make the abstract pronouncement that a reasonable

suspicion standard applies to those officers who are assigned to schools on a “regular basis” and

assigned duties “such that he or she may be considered a school official as well as a law enforcement

officer.” Deprived of the facts necessary to properly resolve the issue, the majority simply remands

this case to the trial court to “develop the record in order for the trial court to determine whether

probable cause or reasonable suspicion standard applies to the search of R.D.S.’s truck.” I would
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not provide R.D.S. with a second opportunity to develop an issue that he neglected to raise at trial

and would await a case in which the issue was properly preserved. I respectfully dissent.

___________________________________ 

JANICE M. HOLDER, JUSTICE