State of Tennessee v. Robert G. Thornton, Jr. ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 21, 2016
STATE OF TENNESSEE v. ROBERT G. THORNTON, JR.
Appeal from the Circuit Court for Hickman County
No. 145023CR James G. Martin, III, Judge
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No. M2015-01555-CCA-R3-CD – Filed January 10, 2017
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The Defendant entered a plea of nolo contendere to eleven counts of sexual exploitation
of a minor, a Class D felony, with an agreed-upon sentence of two years for each count,
all to be served concurrently. The Defendant reserved a certified question of law
challenging the search of his vehicle and its contents, including a laptop computer which
was the source of the images which serve as the basis of the convictions. After a
thorough review of the record, we conclude that there was probable cause to search the
Defendant‘s vehicle, and we accordingly affirm the convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, J., joined. NORMA MCGEE OGLE, J., filed a separate dissenting opinion.
Richard Boehms, Hohenwald, Tennessee, for the appellant, Robert G. Thornton, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Kim R. Helper, District Attorney General; and Kate Yeager Delk, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant came to the attention of the authorities when he began sending text
messages to an eleven-year-old boy,1 attempting to arrange a meeting at night. The
Defendant was apprehended near the prearranged meeting spot, and his telephone was
seized as a search incident to his arrest. Law enforcement then discovered his vehicle
parked nearby at his sister‘s home, and they took it into custody, securing a laptop
computer in the process. The computer was searched subject to a warrant obtained
eleven days after the arrest, and the images which form the basis for the convictions on
appeal in this case were found as part of the search of the computer. The Defendant was
also charged with offenses based on images recovered from his cellular telephone, with a
solicitation offense involving the minor to whom he sent text messages, and with offenses
charging that he engaged in sexual contact with two other minor victims.
The Defendant moved to suppress ―any evidence obtained from the seizure of the
Defendant‘s vehicle and cellular phone following his arrest.‖ At the suppression
hearing,2 Detective Brad Garland testified that he was a patrol supervisor on April 17,
2013, and that he was approached by the father of the minor solicitation victim. The
minor‘s father stated that his son had been receiving text messages from an adult who
identified himself as ―Bobby,‖ and the minor‘s father felt the messages were
inappropriate. ―Bobby‖ was later determined to be the Defendant. Detective Garland
received information that the minor had first had contact with the Defendant at a skating
rink, and the minor‘s father told Detective Garland where the Defendant lived and
described the Defendant‘s car. The minor‘s father gave police consent to search the
telephone on which his son received the messages, and Detective Garland took the
telephone into evidence pending an investigation. Detective Garland acknowledged that
his first report stated that, based on his review of the telephone, there were no messages
requesting any sexual acts. However, the report also indicated that the minor received a
message that stated, ―Ok I dont mind givin you a condom but I just dont trust alot of
people when it comes to condoms and sexual items.‖ Other messages were repeated
queries apparently regarding the victim‘s ability to meet the sender. Detective Garland
explained that his report referred to ―Brian‖ and not ―Bobby‖ because they were calling
1
It is the policy of this Court not to identify minors by name. The minor with whom the
defendant was communicating is the victim of a separate count charging solicitation of a minor, and that
charge is not at issue in this appeal.
2
The suppression hearing was presided over by a different judge from the one who accepted the
plea and the reserved certified question.
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the sender of the messages ―Brian‖ at the time. He could not recall if the source of the
moniker ―Brian‖ was the victim‘s father or the telephone.
Detective Garland was absent from the station, pursuing unrelated matters, for a
period of time after the minor‘s father had given him the telephone, and when he
returned, he saw that the minor‘s telephone, which he had taken into evidence, had
received several new messages asking the minor to meet the sender near the minor‘s
home.
Detective Garland consulted with other officers, including Detective Levy
Mobley, and they began to send messages to ―Bobby‖ from the minor victim‘s telephone.
Detective Mobley went to the minor‘s house for protection around 11:00 p.m. The
Defendant initially arranged to meet the minor near a church, but the locale was changed
after the Defendant saw two police vehicles. Law enforcement had set up surveillance
near the site of the meeting, and Officer Cody Woods, ―a smaller guy,‖ was waiting on
the railroad tracks where the meeting was to occur. Detective Garland testified that at
one point, the Defendant seemed unsure about meeting, and he asked to speak to the
minor. Law enforcement arranged with the minor‘s parents for the minor to have
telephone contact with ―Bobby‖ so that ―Bobby‖ would believe he was meeting a young
boy.
At the time of the meeting, law enforcement observed some late-night traffic
consisting of cars driving by, but no other foot traffic in the area. Detective Mobley, who
was at the minor‘s house, observed the Defendant walking down the railroad tracks,
which were about one hundred yards from the minor‘s house, and Detective Mobley
alerted the other officers. Detective Garland ordered the Defendant to stop, and the
Defendant fled. The Defendant was tackled on the railroad tracks and, after a struggle,
handcuffed by Detective Garland and Officer Danny Roberts. The Defendant was in
possession of a telephone and a condom. The telephone was the same one that had been
in communication with the minor‘s telephone. The arrest occurred either in the late hours
of April 17, 2013, or the early hours of April 18, 2013.
After he was taken into custody, the Defendant revealed to law enforcement that
he had driven to the location of the prearranged meeting, but he would not tell where he
had parked his vehicle. Deputy David Epley and Officer Cody Woods found a vehicle
matching the description of the Defendant‘s vehicle in the front yard of a private
residence. Deputy Epley testified that the car had a Tennessee license plate affixed over
an Alabama license plate. A bag for a laptop computer was in the backseat. Deputy
Epley testified that there was a small ditch by the road, and that it appeared that the
vehicle had turned onto the driveway, passed the ditch, and then turned directly into the
yard. Officer Woods requested a tow truck for the vehicle and conducted an inventory of
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its contents, including the laptop computer. According to Officer Woods, the vehicle was
seized because it was used in a crime.
Officer Roberts testified that the vehicle was approximately one-quarter mile from
the arrest site and that it was in the yard, beside the driveway, and next to the road. The
car was located ―at [the Defendant‘s] sister‘s house at the end of the driveway next to
Highway 48.‖ Officer Roberts elaborated that the car was approximately fifty feet from
the road and that it was not obstructing traffic. The laptop was lying in the backseat, and
Officer Roberts could not recall if the laptop itself was visible from the road.
Detective Mobley joined the officers who were conducting an inventory of the
vehicle‘s contents. He testified that he could see the laptop in the backseat of the car.
The car was two to three hundred yards from the victim‘s house and approximately two
hundred yards from the arrest site. Detective Mobley testified that the car was in the
driveway or the yard of the Defendant‘s sister‘s home.
Dana Lewis, the Defendant‘s sister, testified that the Defendant arrived at her
house that night and told her he would sit in his car because ―it was nice and cool and he
likes to listen to the crickets and stuff.‖ Ms. Lewis fell asleep around 12:00 or 12:30 a.m.
At approximately 1:13 a.m., she went to investigate why her dogs were barking. Eight
police officers approached her, asking ―Is he in there, is he in there?‖ Approximately ten
minutes later, the sheriff told her, ―I don‘t know why they told you that because we
already have him in custody.‖ Ms. Lewis testified that the Defendant‘s vehicle was
parked half an acre away from the road, in the grass. The police then looked through the
contents of the car, and she believed that one of them got into the vehicle to drive it to the
road because the tow truck driver did not want to come onto the property.
Detective Mobley obtained a search warrant for the computer and telephone on
April 29, 2013, after he had conducted numerous interviews while investigating the
Defendant. The warrant was introduced into evidence. However, the affidavit
accompanying the warrant is not a part of the appellate record.
The trial court denied the motion to suppress. The trial court found that police had
probable cause to arrest the Defendant based on the messages he had exchanged with an
eleven-year-old boy and based on his presence at the rendezvous point. The trial court
then found that the seizure and administrative inventory of the vehicle were proper for
two independent reasons. First, the trial court found that
the same facts establishing the probable cause that existed to justify the
[D]efendant‘s arrest are also sufficient to establish probable cause to
believe that the vehicle contained evidence which was subject to seizure.
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The car was in operable condition and was located on property belonging to
the [D]efendant‘s sister. Because the car contained evidence, was readily
mobile and located on property belonging to [the D]efendant‘s sister,
impounding the car for safekeeping was reasonable. Moreover, the
[D]efendant, during a voluntary custodial interrogation[,] was evasive about
the car and did not provide law enforcement with any reasonable alternative
to impounding the vehicle.
The trial court concluded that an independent justification of the seizure of the vehicle
was that ―the vehicle was an instrumentality of the offense and was subject to being
seized for this reason as well.‖ The trial court noted that the vehicle was used to commit
the offense and that leaving it on the property of the Defendant‘s sister presented a risk to
any potential evidence in the vehicle.
The trial court found that an inventory of the car was conducted, that it ―was
reasonably necessary to impound the vehicle,‖ and that the need for the inventory
outweighed any privacy interests. The trial court further found that the laptop computer
was in plain view and that the police had a ―reasonable belief that the laptop contained
evidence of a crime.‖
Regarding the search of the contents of the computer and telephone,3 the trial court
found that the search pursuant to the warrant was valid. The trial court found that ―[t]he
search warrant was based upon an affidavit that reliably stated facts sufficient to support
probable cause to believe that evidence of a crime was likely to be found in the electronic
memory, files and contents of the laptop and phones.‖ The trial court, at the hearing, also
made an oral finding that ―the affidavit supplied to the General Sessions Judge is
adequate and does provide probable cause for [the] magistrate to issue a warrant.‖
The Defendant was charged in a twenty-one count indictment which included the
offense of solicitation of a minor against the victim who received the text messages; one
count of sexual battery and one count of exploitation of a minor by electronic means
against a second victim; two counts of rape against a third victim; five counts of sexual
exploitation of a minor for images recovered from the cellular telephone; and the eleven
counts of sexual exploitation of a minor based on the computer images. The Defendant‘s
offenses were severed, with the two rape charges to be tried together; charges alleging
sexual battery and exploitation of a minor by electronic means to be tried together; the
solicitation offense against the minor victim who received the text messages to be tried
alone; and the charges stemming from images on the cellular telephone to be tried
3
There was some confusion, raised during the suppression hearing and not germane to this
opinion, regarding whether a second telephone was recovered and where it was found.
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together. The eleven counts that are the subject of the instant appeal, which stem from
the images discovered on the computer, were also severed from the other charges. A jury
found the Defendant guilty of the rape charges.
After his rape convictions, the Defendant pled nolo contendere to eleven counts of
sexual exploitation of a minor related to the images on the computer. The Defendant
reserved the following certified questions of law:
(1) Was there probable cause to believe that the Defendant‘s vehicle
contained evidence which was subject to seizure; (2) was the defendant‘s
vehicle an instrumentality of the offense of which he was arrested; (3) did
law enforcement have grounds to impound the vehicle and subsequently
perform an administrative inventory of said vehicle; (4) did law
enforcement have reasonable belief that the laptop contained evidence of a
crime thus invoking the plain view doctrine[;] and (5) was the search
warrant allowing law enforcement to search the contents of the laptop a
valid warrant?
The trial court, the Defendant, and the prosecution consented to the preservation of the
questions and agreed that the questions were dispositive of the charges.
ANALYSIS
The Defendant argues that the search and seizure of his laptop computer was
illegal. He first challenges the seizure of the vehicle parked in his sister‘s yard, the
contents of which included the laptop. He also contends that the search warrant for the
electronic contents of the laptop was in violation of the protections against unreasonable
searches and seizures. The State counters that there was probable cause to seize the
vehicle.
Under Tennessee Rule of Criminal Procedure 37(b)(2)(A), a defendant may appeal
from a plea of guilty or nolo contendere if the defendant ―explicitly reserved – with the
consent of the state and of the court – the right to appeal a certified question of law that is
dispositive of the case‖ and the requirements of the Rule are otherwise met. A certified
question is dispositive when the appellate court is faced with the choice of affirming the
judgment of conviction or reversing the conviction and dismissing the charges. State v.
Dailey, 235 S.W.3d 131, 134 (Tenn. 2007). The appellate court is not bound by the
determination of the trial court that a question is dispositive but must make an
independent determination. Id. at 134-35. Here, the charges are entirely based on the
information discovered on the laptop, and the Defendant has properly framed the
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alternative grounds the trial court relied on in concluding that the search and seizure of
the laptop was proper. We conclude that the question is properly certified.
The certified question addresses the trial court‘s ruling on the motion to suppress.
A trial court‘s findings of fact on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn.
2000). Questions about the ―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.‖ State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). ―The
prevailing party 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. Day, 263 S.W.3d 891, 900
(Tenn. 2008). The trial court‘s application of the law to the facts is reviewed de novo
with no presumption of correctness. State v. Kenneth McCormick, __ S.W.3d __, No.
M2013-02189-SC-R11-CD, 2016 WL 2742841, at *3 (Tenn. May 10, 2016). The
existence of probable cause is a mixed question of fact and law reviewed de novo. State
v. Bell, 429 S.W.3d 524, 529 (Tenn. 2014).
I. Seizure of the Vehicle
The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution guarantee the right to be free from unreasonable searches and
seizures. A warrantless search is presumed unreasonable. State v. Cox, 171 S.W.3d 174,
179 (Tenn. 2005). Evidence discovered as the result of a warrantless search is subject to
suppression unless the State demonstrates by a preponderance of the evidence that the
search was conducted pursuant to an exception to the warrant requirement. State v.
Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).
It has long been held that when the search pertains to an automobile, the existence
of probable cause coupled with an automobile‘s mobility creates ―a valid exception to the
warrant requirement of the Fourth Amendment.‖ Hawkins v. State, 543 S.W.2d 606, 610
(Tenn. Crim. App. 1976). Accordingly, ―the exigencies attendant to ready mobility
justify searches without prior recourse to the authority of a magistrate so long as the
overriding standard of probable cause is met.‖ State v. Leveye, 796 S.W.2d 948, 952
(Tenn. 1990) (quoting California v. Carney, 471 U.S. 386, 392 (1985)). No separate
finding of exigency is required. State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009); see
also Maryland v. Dyson, 527 U.S. 465, 466-67 (1999). Instead, ―[t]he ‗automobile
exception‘ to the warrant requirement permits an officer to search an automobile if the
officer has probable cause to believe that the automobile contains contraband.‖ Saine,
297 S.W.3d at 207. The justification for the ―automobile exception‖ to the warrant
requirement depends on a reduced expectation of privacy in an automobile and the
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inherent mobility of an automobile. Leveye, 796 S.W.2d at 952 (citing Carney, 471 U.S.
at 392). ―If the officer has probable cause to believe that the automobile contains
contraband, the officer may either seize the automobile and then obtain a warrant or
search the automobile immediately.‖ Saine, 297 S.W.3d at 207.
We note here that the fact that the Defendant‘s vehicle was parked at a private
residence is not determinative in analyzing whether the ―automobile exception‖ applies.
In State v. John Burley Alberts, the defendant argued that because he was under arrest
and his car was parked at a private residence, law enforcement did not have the authority
to seize the vehicle containing a computer and camera because it was not ―readily
mobile.‖ This court rejected that argument. No. M2015-00248-CCA-R3-CD, 2016 WL
349913, at *5-6 (Tenn. Crim. App. Jan. 28, 2016), perm. app. denied (June 23, 2016); see
also United States v. Brookins, 345 F.3d 231, 237-38 (4th Cir. 2003) (concluding that
there was probable cause to search a vehicle when police had reasonable belief that drugs
were present in the vehicle, despite the fact that the defendant was arrested outside the
vehicle and that the defendant‘s wife had driven the vehicle to a private residence and
parked it there); State v. Jose Roberto Ortiz, No. M1998-00483-CCA-R3-CD, 1999 WL
1295988, at *15 (Tenn. Crim. App. Dec. 30, 1999) (―‗It is the characteristic mobility of
all automobiles, not the relative mobility of a car in a given case, that gives rise to the ...
standard … which allows for warrantless searches when probable cause exists.‘‖ (quoting
United States v. Perry, 925 F.2d 1077, 1081 n.4 (8th Cir. 1991))).
A. Probable Cause to Believe that the Vehicle Contained or Constituted Evidence
The Supreme Court has expressly held that the ―automobile exception‖ is
applicable ―‗[i]f a car is readily mobile and probable cause exists to believe it contains
contraband.‘‖ Dyson, 527 U.S. at 467 (quoting Pennsylvania v. Labron, 518 U.S. 938,
940 (1996)). ―Without probable cause, neither the ‗automobile exception‘ nor a
forfeiture provision is available to support a warrantless search or seizure.‖ Brookins,
345 F.3d at 235. Accordingly, we must determine if probable cause existed to seize the
Defendant‘s vehicle.
Probable cause is a ―fair probability that contraband or evidence of a crime will be
found.‖ State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997) (quoting United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). ―Probable cause has
been defined as a reasonable ground for suspicion, supported by circumstances indicative
of an illegal act.‖ State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998). It is more than
mere suspicion, but it need not be absolute certainty. State v. Bell, 429 S.W.3d 524, 530
(Tenn. 2014). Probable cause is based on facts and circumstances and reliable
information sufficient to warrant a prudent person in believing that evidence or
contraband will be found. State v. Richards, 286 S.W.3d 873, 879 & n.4 (Tenn. 2009).
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―‗In dealing with probable cause, ... we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.‘‖ Day, 263 S.W.3d at 902 (quoting Brinegar v.
United States, 338 U.S. 160, 175 (1949)). Probable cause is ―a ‗fluid concept — turning
on the assessment of probabilities in particular factual contexts — not readily, or even
usefully, reduced to a neat set of legal rules.‘‖ Richards, 286 S.W.3d at 884 (Koch, J.,
dissenting) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). A probable cause
determination depends on the totality of the circumstances. Id. In determining the
existence of probable cause, courts should consider the nature of the property sought, the
normal inferences as to where a criminal would hide the evidence, and the perpetrator‘s
opportunity to dispose of incriminating evidence, as well as whether the criminal conduct
is an isolated instance or a protracted pattern of conduct. State v. Reid, 91 S.W.3d 247,
275 (Tenn. 2002). In other words, ―[t]he nexus between the place to be searched and the
items to be seized may be established by the type of crime, the nature of the items, and
the normal inferences where a criminal would hide the evidence.‖ State v. Smith, 868
S.W.2d 561, 572 (Tenn. 1993).
The scope of a warrantless search is confined by the probable cause determination.
John Burley Alberts, 2016 WL 349913, at *7 (citing United States v. Ross, 456 U.S. 798,
823 (1982)). Probable cause to search a vehicle extends to all parts of the vehicle and
any articles or containers in which the objects of the search may be concealed, but no
farther. State v. Andre Anthony, No. W2002-01377-CCA-R3-CD, 2003 WL 23100339,
at *11 (Tenn. Crim. App. Dec. 30, 2003).
Accordingly, courts have found probable cause for a warrantless vehicle search
when law enforcement had reasonably trustworthy information which would warrant a
prudent person believing that evidence of criminal activity would be found in the vehicle.
See State v. Carrie Lynn Ronewicz, No. W2011-01332-CCA-R3-CD, 2012 WL 6719646,
at *20 (Tenn. Crim. App. Dec. 26, 2012) (concluding that victim‘s identification of stolen
items in van gave probable cause to search the van); State v. Jason Paul Sherwood, No.
M2005-01883-CCA-R3-CD, 2007 WL 189376, at *9 (Tenn. Crim. App. Jan. 26, 2007)
(concluding there was probable cause to search a van when police knew that a shooting
had occurred two hours earlier at a salvage yard and a suspect had driven off in a white
van, and when the defendant and van matched the description of the suspect, the
defendant was present an area that the suspect was thought to live, and there was an
engine visible in the van‘s interior); State v. Leslie Darrell Debord, No. E2001-02808-
CCA-R3-CD, 2003 WL 21476507, at *5-6 (Tenn. Crim. App. June 26, 2003) (upholding
probable cause to seize truck when police found a stolen ATV in a secluded area next to a
truck which was still warm and contained machinery in the back); Andre Anthony, 2003
WL 23100339, at *11 (concluding that when the defendant was apprehended while trying
to use a stolen credit card, had no identification other than the victim‘s, and was parked
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nearby in a public parking lot, there was probable cause to believe that the vehicle
contained other property reported stolen and belonging to the victim); Tony A. Makoka v.
State, No. 01C01-9603-CC-00124, 1997 WL 469528, at *3 (Tenn. Crim. App. Aug. 15,
1997) (determining probable cause existed to search a vehicle when a shooting had just
taken place, police saw the petitioner standing in the area with or near a gun, and
ammunition could be seen in the vehicle); State v. Ronald Edward Parrish, No. 01C01-
9309-CC-00292, 1995 WL 678810, at *3 (Tenn. Crim. App. Nov. 16, 1995) (holding
there was probable cause to search a vehicle because the nature of the call-in prostitution
business made it likely that the vehicle used to drop off prostitutes would contain
business records).
However, probable cause is lacking when the facts known to law enforcement fail
to establish a nexus between the vehicle and evidence of criminal activity. See State v.
Jerry T. Dixon, No. 01-C-01-9205-CC-00176, 1993 WL 17097, at *2-3 (Tenn. Crim.
App. Jan. 28, 1993) (concluding that there was an insufficient nexus when police
observed individuals walk to a pickup truck and return to a van parked thirty feet away,
and police observed a marijuana cigarette being smoked in the van, but there was no
indication that the drugs were transferred to the van from the truck); Nolan v. State, 588
S.W.2d 777, 780-81 (Tenn. Crim. App. 1979) overruled on other grounds as recognized
in Carrie Lynn Ronewicz, 2012 WL 6719646, at *17 n.1 (concluding that there was no
probable cause to search a vehicle parked in hotel parking lot based on the discovery in a
hotel room of a television which appeared to have been stolen because the car was ―some
distance removed and unconnected with the location of the television‖).
The State appears to concede that the trial court‘s reliance on the vehicle being an
instrumentality of the offense would not justify a seizure of the vehicle. We note that a
vehicle which is the evidence or instrumentality of a crime is subject to seizure. 3 Wayne
R. LaFave, Search and Seizure § 7.3(a) (5th ed.) (―[I]f there is probable cause [to believe
that] the vehicle is evidence of crime …, then it is certainly arguable that it should be just
as subject to warrantless seizure and search as a vehicle merely thought to contain
evidence.‖); see, e.g., Capraro v. Bunt, 44 F.3d 690, 691 (8th Cir. 1995) (vehicle used to
accomplish a kidnapping was an instrumentality of the crime). Accordingly, when there
is probable cause to believe that the vehicle itself has evidentiary value, it may properly
be seized. State v. Arthur B. Harbin, Jr., C.C.A. No. 60, 1990 WL 126729, at *1 (Tenn.
Crim. App. Sept. 5, 1990) (upholding seizure of vehicle and examination of brakes when
the vehicle had struck and killed a child); see also State v. Donald Curtis Reid, No.
M1999-00058-CCA-R3-CD, 2000 WL 502678, at *7 (Tenn. Crim. App. Apr. 28, 2000)
(upholding seizure of the vehicle used to flee a robbery as an instrumentality of the crime
because a witness had taken a photograph of the ―rather unique‖ vehicle and the vehicle
itself therefore had potential evidentiary value regarding the identity of the perpetrators,
and also upholding search as incident to arrest); United States v. Sanchez, 612 F.3d 1, 5-6
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(1st Cir. 2010) (upholding seizure of motorcycles with false license plates as evidence of
the licensing infractions). Here, there was no indication that the vehicle itself had
evidentiary value in relation to the solicitation crime or was used to commit the crime,
and accordingly, its seizure cannot be justified under the theory that it was an
instrumentality of the offense.
The State argues that there was probable cause to believe that the vehicle
contained evidence. The Defendant was arrested for solicitation of a minor and resisting
arrest. The Defendant had exchanged text messages with the minor, and he wrote the
minor, ―Ok I dont mind givin you a condom but I just dont trust alot of people when it
comes to condoms and sexual items.‖ The Defendant arranged a late-night meeting with
the minor, and he changed the meeting spot based on his observation of police activity in
the area. He also insisted on speaking with the minor through the telephone to confirm
that he would be meeting a child. He left his vehicle at his sister‘s home, where it was
unlikely to be discovered, and the trial court found that he was later ―evasive‖ about its
location. The Defendant was charged with solicitation of a minor for the criminal acts he
committed that evening. The telephone that the Defendant used to communicate with the
minor and a condom were recovered from the Defendant‘s person; accordingly, law
enforcement could not have expected to find them within the vehicle. Nevertheless, the
State argues that there was a ―fair probability‖ that the vehicle contained additional
evidence of the crime, referencing the text message regarding ―sexual items.‖
We note initially that there was no nexus between the laptop computer and the
crime for which the Defendant was then under investigation — solicitation of the minor
victim. That crime had been accomplished with a telephone, and there is no indication
that law enforcement had reason to suspect that any additional evidence would be found
on the Defendant‘s computer. Compare John Burley Alberts, 2016 WL 349913, at *7
(concluding that there was probable cause for a warrantless search of the vehicle when
police had found pornographic images of children on the defendant‘s work computer,
including images of a local victim, and knew from interviews that the defendant kept a
laptop and a digital camera which he used to photograph children in his car).
Accordingly, the laptop‘s incriminating nature was not immediately apparent in this case,
and the plain view doctrine does not apply. See Armour v. Totty, 486 S.W.2d 537, 538-
39 (Tenn. 1972); State v. Cothran, 115 S.W.3d 513, 524 (Tenn. Crim. App. 2003).
However, lack of a nexus between the laptop and the solicitation offense does not
mean that law enforcement had no reason to suspect that the vehicle would yield
additional evidence related to the crime under investigation. As the State suggests, there
was a reasonable probability that the vehicle contained additional condoms, the
referenced ―sexual items,‖ or other evidence of criminal activity which would have been
relevant to the prosecution. In making this determination, we consider the ―nature of the
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property sought, the normal inferences as to where a criminal would hide the evidence,
and the perpetrator‘s opportunity to dispose of incriminating evidence,‖ as well as
whether the criminal conduct is an isolated instance or a protracted pattern of conduct.
State v. Reid, 91 S.W.3d 247, 275 (Tenn. 2002).
The Defendant referenced a condom and ―sexual items‖ in his text message to the
victim. He insisted on confirming through a telephone conversation that the person he
was communicating with was a child, and he changed the location of the meeting when
he observed police activity in the area. The Defendant then brought a single condom
with him to the late night, outdoor meeting with the child. Accordingly, law enforcement
could have inferred that there was a ―fair probability‖ that additional condoms or the
referenced sexual items were in the car. Yeargan, 958 S.W.2d at 632.
The Defendant‘s attempt to conceal the location of his vehicle may also be
factored into the probable cause determination. In United States v. Whitner, the
defendant was asked about his residence and gave suspicious and deceptive answers, and
the court concluded that the suspicious and deceptive responses, together with other
information regarding his activities related to drugs, led to the inference that he was
―storing some evidence of illegal activity at the apartment.‖ 219 F.3d 289, 299 (3d Cir.
2000); see also United States v. Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996) (concluding
that there was probable cause to search a home when the defendant was arrested in
connection with the possession of a large amount of cocaine and subsequently lied about
his address). Here, the Defendant drove to a location near the prearranged meeting spot
in his vehicle and attempted to conceal the location of his vehicle by parking at a
distance, at his sister‘s home, and answering questions regarding the vehicle‘s location in
an ―evasive‖ manner. When police found his vehicle, they discovered that there was a
Tennessee license plate affixed on top of an Alabama license plate. We conclude that
law enforcement could have relied on the Defendant‘s inexplicable evasiveness regarding
his vehicle as one factor in the totality of the circumstances when making the probable
cause determination.
We note also that at the time of the arrest, the exact contours of the Defendant‘s
crime were not clear. The Defendant had done his best to entice a child to leave his home
and go to a secluded area late at night, and he had indicated his desire to avoid adult
detection by insisting on speaking with the child and by changing the meeting location to
avoid police detection. The search of the vehicle was justified by probable cause to
believe it contained additional evidence of the Defendant‘s criminal activity.
Given the totality of the circumstances, a rational inference is that the Defendant
was concealing additional evidence in his vehicle which might bear on his planned
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meeting with the minor. Accordingly, while we acknowledge that this issue is close, we
conclude that there was sufficient probable cause to seize the vehicle.
B. Impoundment
The Defendant suggests that his vehicle was improperly impounded and subjected
to an administrative search as part of that impoundment. When a vehicle is taken into
police custody, the police may properly inventory the contents. State v. Roberge, 642
S.W.2d 716, 720 (Tenn. 1982). The purpose of such a search is to protect the owner‘s
property and to protect law enforcement against claims related to property loss. Id.; State
v. John Beasley Seay, No. M2011-02769-CCA-R3-CD, 2013 WL 3777169, at *6 (Tenn.
Crim. App. July 16, 2013).
The Defendant argues that his vehicle did not properly come into police custody
because it was parked on private property, was not obstructing traffic, and a reasonable
alternative to impoundment was to leave it in his sister‘s custody. In Drinkard v. State,
584 S.W.2d 650, 654 (Tenn. 1979), the Tennessee Supreme Court concluded that the
seizure of a vehicle was unjustified because police denied the defendant the ―reasonable
alternative‖ of leaving the car in the care of his passenger, who was willing and able to
assume custody. The court summarized the principle involved:
[I]f the circumstances that bring the automobile to the attention of the
police in the first place are such that the driver, even though arrested, is
able to make his or her own arrangements for the custody of the vehicle, or
if the vehicle can be parked and locked without obstructing traffic or
endangering the public, the police should permit the action to be taken
rather than impound the car against the will of the driver and then search it.
Just cause to arrest the driver is not, alone, enough; there must also be
reasonable cause to take his vehicle into custody.
Id. at 653; see also State v. Crutcher, 989 S.W.2d 295, 301 n.7 (Tenn. 1999). ―In other
words, the State must show that impounding the vehicle was necessary.‖ Jason Lee
Fisher v. State, No. M2014-02327-CCA-R3-PC, 2015 WL 5766521, at *5 (Tenn. Crim.
App. Oct. 2, 2015), perm. app. denied (Tenn. Feb. 18, 2016). The prosecution has the
burden of establishing an exception to the warrant requirement by a preponderance of the
evidence. State v. Watkins, 827 S.W.2d 293, 295 (Tenn. 1992). Here, there was no
necessity for impounding the vehicle which was parked, by permission, at a private
residence. Accordingly, an inventory pursuant to the vehicle‘s impoundment does not
provide a separate justification for the search.
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However, because we have concluded that the seizure of the vehicle was justified
by probable cause to believe it contained additional evidence of the Defendant‘s criminal
activity, and because law enforcement had the option of searching it immediately or
having it towed and subsequently searched pursuant to a warrant or the inventory
exception, the search was proper. State v. Clay Stuart Gregory, No. M2012-00546-CCA-
R3-CD, 2013 WL 6187919, at *20 (Tenn. Crim. App. Nov. 25, 2013) (holding that a
warrantless search could be conducted after the seizure of the automobile); Carrie Lynn
Ronewicz, 2012 WL 6719646, at *20 (Tenn. Crim. App. Dec. 26, 2012) (same).
II. Search of Laptop’s Contents
The Defendant asserts that the State‘s failure to introduce into evidence the
affidavit accompanying the warrant makes the trial court‘s finding that the warrant was
valid erroneous. The State argues that the defense has waived the issue regarding the
validity of the warrant because the question was not presented to or ruled on by the trial
court. The State attributes the failure to introduce the affidavit supporting the warrant
into evidence to the fact that the warrant was not challenged in the motion to suppress.
The Defendant‘s motion to suppress challenged in very broad terms the search and
seizure of the vehicle and moved to suppress ―any evidence obtained from the seizure of
the Defendant‘s vehicle.‖ The motion did not specifically challenge the warrant. At the
hearing, the Defendant agreed with the trial court that the issues were the ―warrantless
seizure of the automobile and its contents and a warrantless search of the interior of the
automobile,‖ as well as the seizure of the telephone. Sergeant Mobley testified that he
prepared the affidavit to search the computer and any telephones some time after the
seizure. He explained that he was conducting a fairly lengthy investigation which
involved numerous interviews and that at some point he decided that he ―needed to see‖
what was on the electronic equipment.4 The defense then introduced a copy of the
warrant, which was signed April 29, 2013. In presenting closing argument to the trial
court at the suppression hearing, the defense did not argue that the warrant was
insufficient or that the affidavit was lacking.
At the hearing, the trial court made oral findings from the bench. It found that it
needed to determine the ―sufficiency of the affidavit and the warrant itself.‖ The court
then found that ―the affidavit supplied to the General Sessions Judge is adequate and does
provide probable cause for [the] magistrate to issue a warrant.‖ The Defendant did not
object to this finding on the basis that the affidavit had not been made an exhibit, despite
4
We note that the record in a separate appeal brought by the Defendant suggests that Sergeant
Mobley had been investigating the crimes against the other victims and had interviewed the rape victim
during this period. See State v. Robert G. Thornton, Jr., No. M2015-01895-CCA-R3-CD.
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the trial court‘s inquiry regarding whether the defense wished the court to address
anything further. In its order denying the motion to suppress, the trial court further found
that the search pursuant to the warrant was valid because the warrant was ―based upon an
affidavit that reliably stated facts sufficient to support probable cause to believe that
evidence of a crime was likely to be found in the electronic memory, files and contents of
the laptop and phones.‖
We agree with the State that this issue is waived. Neither the Defendant‘s written
motion nor the Defendant‘s oral arguments at the suppression hearing challenged the
sufficiency of the warrant. Accordingly, the State cannot be faulted for failing to present
proof on the issue. Furthermore, the record suggests that the trial court was able to
examine the affidavit as part of the proof at the hearing. The trial court made an explicit
finding that the affidavit was sufficient, both from the bench and in its written order. The
Defendant did not challenge this finding at the time. See Tenn. R. App. P. 36(a)
(―Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.‖). We are not able to revisit the trial
court‘s determination that the affidavit was sufficient because the affidavit is not part of
the appellate record. See State v. Banks, 271 S.W.3d 90, 169 (Tenn. 2008) (appendix)
(―It is the burden of the Appellant to prepare a full and complete record for appellate
review.‖); State v. Bledsoe, 226 S.W.3d 349, 357 (Tenn. 2007); Tenn. R. App. P. 24(b)
(mandating that the appellant has the duty to prepare a record which conveys ―a fair,
accurate and complete account of what transpired with respect to those issues that are the
bases of appeal‖). Accordingly, we do not reach the question of the sufficiency of the
warrant as part of this appeal.
CONCLUSION
Because there was probable cause to seize the Defendant‘s vehicle, we conclude
that the trial court did not err in denying the Motion to Suppress.
____________________________________
JOHN EVERETT WILLIAMS, JUDGE
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