State of Tennessee v. Angela Carrie Payton Hamm and David Lee Hamm ( 2017 )

08/11/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 4, 2017 Session
STATE OF TENNESSEE v. ANGELA CARRIE PAYTON HAMM and
DAVID LEE HAMM
Appeal from the Circuit Court for Obion County
No. CC-16-CR-15 Jeff Parham, Judge
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No. W2016-01282-CCA-R3-CD
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The State appeals the trial court’s order granting the Defendants’ motions to suppress
evidence seized as a result of a warrantless search of their house. The trial court found
that, although Defendant Angela Hamm was on probation at the time of the search and
was subject to warrantless searches as a condition of her probation, the search was invalid
because the police officers did not have reasonable suspicion to justify the search. On
appeal, the State contends that (1) the search was supported by reasonable suspicion; (2)
the search was reasonable based upon the totality of the circumstances; (3) Angela Hamm
consented to the search by agreeing to the warrantless search probation condition; and (4)
the warrant search was valid as to Defendant David Lee Hamm under the doctrine of
common authority. Upon review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court. JOHN EVERETT
WILLIAMS, J., filed a separate concurring opinion. ALAN E. GLENN, J., filed a separate
dissenting opinion.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Tommy A. Thomas, District Attorney General; and James Cannon,
Assistant District Attorney General, for the appellant, State of Tennessee.
Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellee, Angela Carrie Payton
Hamm.
James T. Powell, Union City, Tennessee, for the appellee, David Lee Hamm.
OPINION
In November 2015, police officers conducted a warrantless search of the
Defendants’ home and seized various drugs and drug paraphernalia. As a result, the
Defendants were arrested and subsequently indicted for possession of more than 0.5
grams of a substance containing methamphetamine with the intent to sell or deliver,
possession of alprazolam with the intent to sell or deliver, possession of morphine with
the intent to sell or deliver, possession of amphetamine with the intent to sell or deliver,
possession of clonazepam with the intent to sell or deliver, possession of hydrocodone
with the intent to sell or deliver, and possession of drug paraphernalia.
The Defendants each filed a motion to suppress, challenging the warrantless
search of their home. Angela Hamm argued that, although she was on probation at the
time of the search, the police officers did not have reasonable suspicion to conduct the
search. David Hamm argued that neither he nor Angela Hamm consented to the search
and that he retained a reasonable expectation of privacy in the home despite Angela
Hamm’s status as a probationer. The State did not file a written response.
During an evidentiary hearing, the State presented the testimony of Officer James
Hall, who was a member of the Obion County Sheriff’s Department Drug Task Force in
November 2015. Officer Hall testified that, on November 16, 2015, he served a drug-
related arrest warrant on Lindsey Gream from Dyer County, Tennessee. Officer Hall
stated that Gream thanked him for taking her to the hospital and keeping her alive and
mentioned “heavy players in Obion County” whom the officers should watch. When
Officer Hall asked Gream who the people were, Gream replied, “Well, I’m not going to
say specifically who exactly. I will let you know of the location, and they’re in Glass,” a
community in Obion County. Officer Hall asked Gream whether the person was David
Hamm, and Gream nodded her head and smiled. Officer Hall said Gream told him that
“they” had been trafficking ice methamphetamine to Obion County from “across the
river” on a frequent basis. Gream did not indicate how she knew this information.
Officer Hall stated Gream did not provide “concrete” information regarding how often
the trips across the river had occurred. Rather, she stated that “they” made the trips often
and had “re-upped” or had purchased more drugs a few days prior to her conversation
with Officer Hall. Officer Hall shared this information with other members of the drug
task force, including Officer Ben Yates.
On cross-examination, Officer Hall testified that he did not attempt to secure a
search warrant based on Gream’s information because he did not believe that the
information was sufficient to establish probable cause for a search warrant. Rather, he
believed that, based on this information, the officers had reasonable suspicion to conduct
a “probation search” on Angela Hamm. Officer Hall stated that, according to one of the
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rules in Angela Hamm’s probation order, she had agreed “to a search, without a warrant,
of her person, vehicle, property, place of residence by any probation/parole officer or law
enforcement officer at any time.” Officer Hall testified that he also believed that
reasonable suspicion was necessary to conduct the search because Angela Hamm’s
probation order did not include the “without reasonable suspicion” language that some
probation orders did.1 Officer Hall did not believe that he had the probation order in his
possession prior to conducting the search but said officers confirmed through the State
probation office that Angela Hamm had signed the order.
Officer Hall acknowledged that, while Angela Hamm was on probation at the time
of the search, David Hamm was not on probation and had not signed any forms agreeing
to have his residence searched. Officer Hall also stated that David Hamm owned the
residence but that Angela Hamm was either married to David Hamm or was in a
relationship with him and had been living in the residence for “quite some time” prior to
the search.
Officer Hall testified that Gream was a defendant in one of the cases which he had
investigated in Dyer County and was a “known methamphetamine user.” He said Gream
was neither a citizen informant nor a “paid informant.” When defense counsel asked
Officer Hall how he classified Gream as credible and reliable, Officer Hall replied,
In my experience in working narcotics, it is common for some users—
dealers, users to throw bones at somebody else to keep their attention off of
them. And whether this is the case with her, I don’t think so. She was
already caught. And what she got in Dyer County, there was no deal made,
no money passed, no signing of her being on some sort of program to work
with the [drug task force]. She just gave me that information.
Officer Hall acknowledged that Gream provided the information while a drug charge was
pending against her.
1
Defense counsel sought to question Officer Hall about a Westate Corrections Network
Community Corrections Rules form signed by defendants who receive community corrections
supervision through Westate Corrections Network. The State objected, arguing that the form and its
contents were irrelevant because Angela Hamm never signed the form and was not subject to the rules.
The trial court sustained the State’s objection but allowed defense counsel to submit the form as an offer
of proof. One of the rules on the form provides:
Offenders will allow the Case Officer to visit his/her home, employment site, or
elsewhere at any time during the day or night and shall carry out all instructions given by
the Case Officer, whether oral or in writing. Offenders will allow law enforcement to
conduct a search of offender and all areas of the house upon request to control contraband
or locate missing or stolen property.
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Officer Hall acknowledged that Gream never told him that she had ever been
inside of the Defendants’ home or that she had ever purchased drugs from the
Defendants. Office Hall did not know whether Gream was relaying information that
someone else told her, and he did not corroborate any of the information that she
provided.
Officer Hall testified that neither of the Defendants was home when the officers
searched the house and that David Hamm never consented to the search. Officer Hall
believed that Clifton Hamm allowed the officers inside of the residence. When defense
counsel asked whether Clifton Hamm opened the door and allowed the officers inside the
house, Officer Hall replied, “We asked . . . [where] the bedroom was, and I believe he
pointed us in the direction and said that’s the bedroom.” Officer Hall acknowledged that
the officers first learned that the Defendants slept in the same bedroom after the officers
entered the house.
Based on the information that he received from Gream, Officer Hall and three
other officers went to the Defendants’ house. The officers knocked on the front and side
doors, but no one answered. The officers asked a boy, who was approximately thirteen or
fourteen years old, and who was outside the home, whether either of the Defendants was
there. The teenager replied that the Defendants had just left to visit the parole or
probation officer. The teenager stated that Clifton Hamm and others were in the shop
behind the house. Officer Yates and Officer Kelly walked to the shop located
approximately twenty to thirty yards behind the house where they met Clifton Hamm,
Vernon Harrell, and Mark Payton. Clifton Hamm lived at the home, Payton was Angela
Hamm’s ex-husband, and Harrell was a friend. Officer Hall stated that Officer Yates told
him that when he approached the shop, the men were watching the security system
camera and that Clifton Hamm turned off the security camera when Officer Yates walked
into the shop. Officer Hall said Officer Yates and Officer Kelly remained at the shop for
approximately five minutes. The officers reported that Clifton Hamm told them where
the Defendants’ bedroom was located.
Officer Hall testified that the officers opened the side door and entered the
residence. They searched the entire house, except a little girl’s bedroom. While
searching the Defendants’ bedroom, Officer Kelly found pills in the nightstand on Angela
Hamm’s side of the bed. Inside a closet shared by the Defendants, Officer Hall found a
magnetic eye glass case that contained weighing scales and two bags of ice
methamphetamine. Two glass pipes were also located in the Defendants’ bedroom. No
evidence was found in the remainder of the house.
Officer Ben Yates of the Union City Police Department testified that, on
November 17, 2015, while he was a member of the drug task force, he participated in a
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“probation search” at Angela Hamm’s residence. Officer Yates stated that on November
16, he received information from Officer Hall about a conversation that Officer Hall had
with Gream. Officer Yates said that, prior to his conversation with Officer Hall, a
reliable informant told Officer Yates that the Defendants were “doing it big in Glass.”
Officer Yates explained that the informant had provided information in the past that led
to the seizure of narcotics in numerous cases. The informant had not observed the drugs
transactions but said that he “has friends that purchase methamphetamine.” Officer Yates
said that he did not believe that he had sufficient evidence to procure a search warrant
because the informant had not been in the residence or seen the drug transactions.
Officer Yates also testified that, prior to receiving the information about Gream
from Officer Hall, an informant who was cooperating with the drug task force went to
Clifton Hamm’s residence to purchase methamphetamine from Clifton Hamm but was
unable to do so. Officer Yates said that, at that time, he was unaware that Clifton Hamm
was living with the Defendants.
Officer Yates testified that he and other officers confirmed with the probation
office that Angela Hamm was on probation as a result of a conviction for manufacturing
a controlled substance. The officers also confirmed that the probation order provided that
Angela Hamm was subject to a warrantless search. Officer Yates could not recall
whether he obtained a copy of Angela Hamm’s probation order before going to the
Defendants’ home. He said he may have spoken to Angela Hamm’s probation officer
before going to the home and obtained a copy of the probation order later.
Officer Yates testified that when he, Officer Hall, Agent Andrew Kelly, and
Investigator David Crocker arrived at the Defendants’ house, Officer Yates came in to
contact with Clifton Hamm’s teenaged son, who was standing at the side door near a
detached garage. When Officer Yates asked the teenager whether the Defendants were
home, the teenager stated that the Defendants had just left for the probation office in
Union City, Tennessee. Officer Yates asked if anyone else was there, and the teenager
replied that everyone else was in the shed.
Officer Yates stated that he and other officers walked behind the house to a
detached shop and stopped Harrell as he was leaving the shop. Harrell said he was a
visitor and did not live at the residence. Officer Yates said he and Officer Hall entered
the shop, and Officer Yates saw Clifton Hamm and Payton holding pool sticks and
watching a television that depicted video from four security cameras set up around the
property. When Officer Yates entered the shop and asked the men how they were doing,
Clifton Hamm quickly turned off the television. Officer Yates asked Clifton Hamm
where the Defendants were, and Clifton Hamm told him that they had just left to go to
Union City. When Officer Yates asked Clifton Hamm why he was acting nervous and
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why he had turned off the television, Clifton Hamm denied that the television was on.
Officer Yates stated that, at that time, he did not know where Clifton Hamm was residing,
but that he later learned that Clifton Hamm was living at the Defendants’ home.
Officer Yates returned to the Defendants’ home where he saw Clifton Hamm’s son
standing at the door with another officer. Officer Yates asked him whether he lived at the
home. The teenager confirmed that he, Clifton Hamm, and the Defendants lived at the
home. Officer Yates asked the teenager which bedroom belonged to the Defendants, and
the teenager stated that their bedroom was located in the back of the house on the right.
All of the evidence seized during the search was located in the Defendants’ bedroom.
On cross-examination, Officer Yates acknowledged that David Hamm never
consented to the search and that, to his knowledge, David Hamm was not on probation at
the time of the search. Officer Yates did not know who owned the Defendants’ house.
Officer Yates acknowledged that, although he received information from a reliable
informant who had previously provided information that led to convictions, he did not
believe that the information provided by the informant regarding the Defendants was
sufficient to establish probable cause because the informant had not been inside the
Defendants’ home and had not observed illegal activity. Rather, the informant was
providing secondhand information. Defense counsel asked, “So, what we have here is a
lot of people telling other people stuff, and that’s how that information came to be; would
you say that’s pretty fair?” Officer Yates responded, “That’s pretty fair.”
Defense counsel for David Hamm presented the testimony of Evelyn Stigler,
Angela Hamm’s probation officer. Stigler testified that she had been supervising Angela
Hamm since November 8, 2013, and that Angela Hamm signed a form agreeing to a
warrantless search as a condition of probation. Stigler said that to her knowledge, David
Hamm was not on probation and had not signed a form agreeing to a search of his person
or home. She also said that she had never spoken to David Hamm or informed him that
he was subject to a lesser expectation of privacy. Stigler stated that Angela Hamm’s
name was Angela Payton when she signed the probation order, and that it appeared she
had married since signing the order.
Following the suppression hearing, the trial court entered an order granting the
Defendants’ motion to suppress. The trial court found that, although Officer Hall
received a tip of some “heavy players” in the Glass community of Obion County, the
person “never mentioned a name or how she knew this information.” The trial court
noted that when Officer Hall suggested the name of David Hamm, the person “winked
and smiled” but did not mention Angela Hamm. The trial court found that, while Officer
Yates testified that he received information from a reliable informant about people in
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Glass “doing it big,” the informant was not identified and no evidence was presented
establishing the informant’s reliability. The trial court also found that “[t]he informant’s
information was second-hand information from another informant who had attempted
unsuccessfully to purchase drugs from another resident (Clifton Hamm) at the location.”
The trial court concluded that the evidence did not establish “articulable facts to support
the reasonable suspicion of the officer to justify a search pursuant to the probation order.”
The State represented to the trial court that it was unable to proceed with the
prosecution as a result of the order suppressing the evidence. Accordingly, the trial court
granted the Defendants’ motions to suppress and dismissed the indictment. It is from this
order that the State now timely appeals.
ANALYSIS
On appeal, the State contends that the warrantless search of the Defendants’ home
was constitutional because it was supported by reasonable suspicion and authorized as a
condition of Angela Hamm’s probation. The State asserts that, even if the search was not
supported by reasonable suspicion, the search was reasonable based upon the totality of
the circumstances. Next, the State contends that Angela Hamm consented to the search
by agreeing to be subject to warrantless searches as a condition of her probation. Finally,
the State maintains that the warrantless search was valid as to David Hamm under the
doctrine of common authority.
A trial court’s factual determination in a suppression hearing will be upheld on
appeal unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). Questions regarding the credibility of witnesses, the weight or value of the
evidence, and determinations regarding conflicts in the evidence are matters entrusted to
the trial judge as trier of fact. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010). “The
party prevailing in the trial court is entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” State v. Williamson, 368 S.W.3d 468,
473 (Tenn. 2012) (quoting Odom, 928 S.W.2d at 23). The trial court’s application of the
law to the facts is reviewed de novo. State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000).
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for individuals against unreasonable
searches and seizures. State v. Day, 263 S.W.3d 891, 900-901 (Tenn. 2008); see State v.
Randolph, 74 S.W.3d 330, 334 (Tenn. 2002) (recognizing that Tennessee’s constitutional
provision against unreasonable searches and seizures is “identical in intent and purpose
with the Fourth Amendment”) (quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn.
1968)). “[A] warrantless search or seizure is presumed unreasonable, and evidence
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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.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
The general prohibition against warrantless searches is “relaxed if the person
being searched has been convicted of a criminal offense and is serving a sentence.” State
v. Turner, 297 S.W.3d 155, 161 (Tenn. 2009). A defendant who has been convicted of a
criminal offense is subject to “a continuum of possible punishments ranging from solitary
confinement in a maximum-security facility to a few hours of mandatory community
service.” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). “An offender’s place on this
continuum alters what is ‘reasonable’ for purposes of the Fourth Amendment.” Turner,
297 S.W.3d at 161. The least protected in this continuum are incarcerated defendants
who do not have an expectation of privacy in their prison cells. See Hudson v. Palmer,
468 U.S. 517, 526 (1984); Turner, 297 S.W.3d at 161. Because probationers fall further
along the continuum, their privacy interests under the Fourth Amendment are reduced but
are not as diminished as the privacy interests of prisoners. Turner, 297 S.W.3d at 161.
In United States v. Knights, the United States Supreme Court applied the totality
of the circumstances test in determining the constitutionality of the warrantless search of
a probationer’s home. 534 U.S. 112, 118 (2001). The defendant accepted as a condition
of his probation that he would “[s]ubmit his . . . person, property, place of residence,
vehicle, personal effects, to search at anytime, with or without a search warrant, warrant
of arrest or reasonable cause by any probation officer or law enforcement officer.” Id. at
114. In applying the totality of the circumstances test, the Court characterized the
defendant’s probation search condition as a “salient circumstance” and analyzed the
reasonableness of the search by balancing “‘the degree to which it intrudes upon an
individual’s privacy [against] the degree to which it is needed for the promotion of
legitimate governmental interests.’” Id. at 118-19 (quoting Wyoming v. Houghton, 526
U.S. 295, 300 (1999)). The Court concluded that the defendant’s “status as a probationer
subject to a search condition informs both sides of that balance.” Id.
The Court examined the degree of intrusion upon a probationer’s privacy interest
and determined that
[i]nherent in the very nature of probation is that probationers do not enjoy
the absolute liberty to which every citizen is entitled. Just as other
punishments for criminal convictions curtail an offender’s freedoms, a
court granting probation may impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens.
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Id. at 119 (internal quotation marks and citations omitted). The Court determined that the
search condition “would further the two primary goals of probation—rehabilitation and
protecting society from future criminal violations” and that the defendant’s reasonable
expectation of privacy was “significantly diminished” as a result of the search condition.
Id. at 119-20.
In examining the governmental interest, the Court recognized that
it must be remembered that the very assumption of the institution of
probation is that the probationer is more likely than the ordinary citizen to
violate the law. The recidivism rate of probationers is significantly higher
than the general crime rate. And probationers have even more of an
incentive to conceal their criminal activities and quickly dispose of
incriminating evidence than the ordinary criminal because probationers are
aware that they may be subject to supervision and face revocation of
probation, and possible incarceration, in proceedings in which the trial
rights of a jury and proof beyond a reasonable doubt, among other things,
do not apply.
Id. at 120 (internal quotation marks and citations omitted). The Court also recognized
that states have a dual concern with a probationer. Id. The Court explained that “[o]n the
one hand is the hope that [the probationer] will successfully complete probation and be
integrated back into the community. On the other is the concern, quite justified, that he
will be more likely to engage in criminal conduct than an ordinary member of the
community.” Id. at 120-21.
The Court concluded that “the balance of these considerations requires no more
than reasonable suspicion to conduct a search of [the] probationer’s house.” Id. at 121
(emphasis added). The Court noted that “[t]he degree of individualized suspicion
required of a search is a determination of when there is a sufficiently high probability that
criminal conduct is occurring to make the intrusion on the individual’s privacy interest
reasonable.” Id. (citation omitted). The Court recognized that, although the Fourth
Amendment ordinarily requires probable cause, “a lesser degree satisfies the Constitution
when the balance of governmental and private interests makes such a standard
reasonable.” Id. (citation omitted). The Court determined that “[w]hen an officer has
reasonable suspicion that a probationer subject to a search condition is engaged in
criminal activity, there is enough likelihood that criminal conduct is occurring that an
intrusion on the probationer’s significantly diminished privacy interests is reasonable.”
Id. The Court noted that the same circumstances upon which the Court relied in
determining that “reasonable suspicion is constitutionally sufficient also render a warrant
requirement unnecessary.” Id. at 121-22 (citing Illinois v. McArthur, 531 U.S. 326, 330
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(2001) (noting that general or individual circumstances, including “diminished
expectations of privacy,” may justify an exception to the warrant requirement)).
The Court held that the warrantless search of the defendant, which was supported
by reasonable suspicion and authorized by a condition of his probation, was reasonable
under the Fourth Amendment. Id. at 122. The Court left open the question of “whether
the probation condition so diminished, or completely eliminated, [the probationer’s]
reasonable expectation of privacy . . . that a search by a law enforcement officer without
any individualized suspicion would have satisfied the reasonableness requirement of the
Fourth Amendment.” Id. at 120 n.6.
This court first addressed the issue of probation searches in State v. Davis, 191
S.W.3d 118 (Tenn. Crim. App. 2006). The defendant in Davis appealed the revocation of
his probation for marijuana and methamphetamine offenses stemming from his violation
of a condition of his probation in which he agreed “to a search, without a warrant, of my
person, vehicle, property, or place of residence by any Probation/Parole officer or law
enforcement officer, at any time.” 191 S.W.3d at 119. The defendant’s probation officer
and two law enforcement officers requested permission to search the defendant’s
residence following numerous complaints of traffic in and out of the home and
surveillance which revealed that people known to be involved in the manufacture of
methamphetamine were entering the home. Id. The defendant refused to allow the
officers to search his home, and the defendant’s probation was revoked as a result. Id.
On appeal, this court applied the analysis in Knights and concluded that the search
was permitted because: (1) the warrantless search provision was reasonably related as a
condition of the [defendant’s] probation; and (2) the attempted warrantless search of the
[defendant’s] residence was supported by reasonable suspicion.” Id. at 121-22.
Accordingly, the defendant’s refusal to submit to the search constituted a violation of a
condition of his probation. Id. at 122.
I. Reasonable Suspicion. The State contends that, like the search in Knights and
the attempted search in Davis, the search of the Defendants’ home was supported by
reasonable suspicion. Reasonable suspicion requires “a lower quantum of proof than
probable cause.” State v. Pulley, 863 S.W.2d 29, 31 (Tenn. 1993). The Tennessee
Supreme Court has recognized that
“[r]easonable suspicion is a less demanding standard than probable cause
not only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause, but also in the sense that reasonable suspicion can
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arise from information that is less reliable than that required to show
probable cause.”
Id. at 32 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). In evaluating whether a
police officer has a reasonable suspicion, supported by specific and articulable facts to
believe a crime, a court must consider the totality of the circumstances. State v. Binette,
33 S.W.3d 215, 218 (Tenn. 2000). “Those circumstances include the objective
observations of the police officer, information obtained from other officers or agencies,
information obtained from citizens, and the pattern of operation of certain offenders.”
State v. Day, 263 S.W.3d 891, 903 (Tenn. 2008). Additionally, the court “must also
consider the rational inferences and deductions that a trained police officer may draw
from the facts and circumstances known to him.” State v. Watkins, 827 S.W.2d 293, 294
(Tenn. 1992) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).
The evidence presented at the suppression hearing established that Officer Hall
received information from Gream, a known methamphetamine user, as he was serving
her with an arrest warrant. She mentioned “heavy players” in the Glass community in
Obion County but declined to identify anyone. When Officer Hall mentioned David
Hamm, Gream smiled and nodded her head. Gream told Officer Hall that “they” had
been trafficking ice methamphetamine to Obion County from “across the river” on a
frequent basis and had purchased more drugs within the past few days. Officer Hall did
not testify who “they” were, and the State did not ask Officer Hall to clarify the identities
of the referenced persons. Regardless of the reliability of the information, none of
Gream’s information implicated Angela Hamm in any illegal activity.
The only information linking Angela Hamm to any illegal activity is the
conclusory statement from the confidential informant that David and Angela Hamm were
“doing it big in Glass.” The informant had not observed the drug transactions and
provided secondary information from “friends [who] purchase methamphetamine.” No
evidence was presented at the suppression hearing to establish that the informant was
able to clarify how the Defendants were “doing it big,” from whom his friends had
purchased drugs, or where the drugs transactions occurred. This conclusory statement
fails to establish reasonable suspicion that Angela Hamm, the probationer subject to the
warrantless search provision, had engaged or was engaging in legal activity justifying the
warrantless search of her home.
Likewise, the officers’ attempted controlled purchase of methamphetamine from
Clifton Hamm at the Defendants’ residence failed, and the officers were unable to
establish through an independent investigation that any illegal activity was occurring in
the Defendant’s house or that Angela Hamm was involved. No explanation of their
failure to purchase drugs was offered at the suppression hearing. If anything, the attempt
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at corroboration tended to disprove the allegation that David or Angela Hamm was
engaged in the sale of methamphetamine. Furthermore, Angela Hamm’s association with
those who may have been engaged in illegal drug-related activity was neither illegal nor a
violation of any conditions of her probation.
The State also relies upon the officers’ interaction with Clifton Hamm in the shop
behind the Defendants’ house to establish reasonable suspicion. However, we note that
the presence of security cameras around the property where Angela Hamm lived as
observed by the officers was not unlawful. While Clifton Hamm falsely denied watching
the video feed of the cameras around the property and turning off the television once the
officers entered the shop, his untruthfulness did not implicate Angela Hamm. Moreover,
the officers continued to the Defendants’ backyard into an outbuilding, with the
knowledge that the Defendants’ were not at home.
We conclude that the information possessed by the officers at the time of the
search was insufficient to establish reasonable suspicion that Angela Hamm was engaged
in illegal drug-related activity at the home.
II. Totality of the Circumstances. The State also asserts that reasonable
suspicion to support the probation search was not required and that the search of the
Defendants’ house was reasonable based upon the totality of the circumstances. While
neither the United States Supreme Court nor the Tennessee Supreme Court have squarely
addressed whether something less than reasonable suspicion would permit searches of
probationers, this court has previously held that, “[w]hen a person has signed a probation
agreement providing written consent for a warrantless search of the person’s residence,
such a search may be conducted if reasonable suspicion for the search exists.” State v.
Tracy Lynn Carman-Thacker, No. M2014-01859-CCA-R3-CD, 2015 WL 5240209, at *5
(Tenn. Crim. App. Sept. 8, 2015) (citing United States v. Knights, 534 U.S. 112 (2001),
and State v. Davis, 191 S.W.3d 118 (Tenn. Crim. App. 2006)) (no perm. app. filed); State
v. Janet Michelle Stanfield, Tony Alan Winsett, and Justin Bradley Stanfield, No.
W2015-02503-CCA-R3-CD, 2017 WL 1205952 (Tenn. Crim. App. Mar. 31, 2017),
perm. app. granted (Tenn. July 19, 2017). “When determining whether an officer had
reasonable suspicion, a court must consider the totality of the circumstances, as well as
the rational inferences and deductions that a trained officer may draw from the facts
known by the officer.” State v. Robert Lee Hammonds, No. M2005-01352-CCA-R3-CD,
2006 WL 3431923, at *11 (Tenn. Crim. App. Nov. 29, 2006) (citing State v. Watkins,
827 S.W.2d 293, 294 (Tenn. 1992)).
Applying the above authority, we conclude that there was no reasonable suspicion
to support the search in this case. The record simply does not show that, at the time the
officers searched the house, they had reasonable suspicion that Hamm was engaged or
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was engaging in criminal activity. To be clear, the officers admitted that they received
vague information that the Hamms may be engaged in drug activity. The officers
attempted to buy drugs from the Hamm house but were unable to do so. After their
unsuccessful attempt, the officers went to Hamm’s house again, and she was not there.
They continued to the backyard area of Hamm’s house to an outbuilding, where they
encountered other individuals who were not engaged in criminal activity. Nevertheless,
they continued to search Hamm’s house. Under the totality of the circumstances
approach, the officers’ subsequent search of Hamm’s house was not supported by
reasonable suspicion; and therefore, did not comport with Constitutional limits. See
Knights, 534 U.S. at 114; Tessier, 814 F.3d at 433; Tracy Lynn Carman-Thacker, 2015
WL 5240209, at *2; State v. Janet Michelle Stanfield, Tony Alan Winsett, and Justin
Bradley Stanfield, 2017 WL 1205952, at *9.
We are compelled to note the State’s reliance upon Tessier, 814 F.3d 432, to
advance its position that reasonable suspicion is not required to search a probationer
subject to a warrantless search condition. In Tessier, the United States Court of Appeals
for the Sixth Circuit held that the search of the home of a Tennessee probationer who was
subject to a warrantless search condition was constitutional under the totality of the
circumstances and absent reasonable suspicion. 814 F.3d at 433-35. The defendant was
subject to the same warrantless search condition as Angela Hamm, which the Sixth
Circuit described as a “‘standard’ search condition that applies to all probationers in
Tennessee.” Id. at 433. The court held that, due to the existence of this “standard”
condition and its conclusion that the search served legitimate law enforcement and/or
probationary purposes, the search was constitutional. Id. at 432-35.
We find Tessier distinguishable because the warrantless search condition to which
Angela Hamm was subject was not a “standard” provision to which all probationers in
Tennessee are subject. Our state legislature has not expressly authorized warrantless
searches as a condition of probation. See T.C.A. § 40-35-303(d) (listing conditions of
supervised probation that a trial court may require of a defendant). While the conditions
listed in section 40-35-303(d) are not exhaustive, there is not a uniform warrantless
search provision to which every probationer in Tennessee is subject. Moreover, the
evidence presented at the suppression hearing established that three different warrantless
search provisions are used by probation officers in that district alone.2 It appears that the
language of a warrantless search provision differs according to the office, division, or
entity supervising the probationer.
2
While one of the warrantless search provisions presented during the hearing was utilized by a
private probation service which provides supervision for the community corrections program, a defendant
may be sentenced to probation to be supervised under the community corrections program. See State v.
Christopher Schurman, No. M2011-01460-CCA-R3-CD, 2012 WL 1657057, at *2 (Tenn. Crim. App.
May 10, 2012) (discussing probation supervised by community corrections).
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III. Consent. It is unnecessary to resolve the State’s remaining issues concerning
common authority and whether Angela Hamm consented to the search of her home by
agreeing to the warrantless search provision as a condition of her probation because we
have concluded that the search of Hamm’s house was not supported by reasonable
suspicion.
CONCLUSION
Based on a thorough review of the record, we affirm the trial court’s ruling
suppressing the evidence and dismissing the indictment as to both Defendants.
___________________________________
CAMILLE R. MCMULLEN, JUDGE
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