State of Tennessee v. James Robert Christensen, Jr. ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 3, 2015 Session
Heard at University of Memphis Cecil C. Humphreys School of Law1
STATE OF TENNESSEE v. JAMES ROBERT CHRISTENSEN, JR.
Appeal from the Circuit Court for Tipton County
No. 7799 Joseph H. Walker III, Judge
No. W2014-00931-CCA-R3-CD - Filed May 14, 2015
Appellant, James Robert Christensen, Jr., stands convicted of resisting arrest, a Class B
misdemeanor; promotion of methamphetamine manufacture, a Class D felony; initiation
of methamphetamine manufacture, a Class B felony; and two counts of possession of a
firearm during the commission of a dangerous felony, Class D felonies. He received an
effective sentence of three years‟ incarceration followed by eight years suspended to
supervised probation. On appeal, appellant contends that the trial court erred by denying
his motion to suppress evidence and that the evidence was insufficient to sustain his
convictions for two counts of possession of a firearm during the commission of a
dangerous felony. Following our careful review, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROGER A. PAGE, J., delivered the opinion of the court. JOHN EVERETT WILLIAMS, J., filed
a concurring and dissenting opinion. CAMILLE R. MCMULLEN, J., concurred in results
only.
Charles A. Brasfield (at trial and on appeal) and Amber Griffin Shaw (at trial),
Covington, Tennessee, for the appellant, James Robert Christensen, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and James Walter Freeland,
Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
1
This case was heard on the campus of the University of Memphis Cecil C. Humphreys School of Law
as a special project of the Tennessee Court of Criminal Appeals in furtherance of the educational process
of students and faculty.
OPINION
I. Facts
On August 3, 2013, investigators with the Tipton County Sheriff‟s Office
discovered an active methamphetamine lab, multiple firearms, materials used in the
manufacture of methamphetamine, and several inactive methamphetamine labs in
appellant‟s residence. As a result of these findings and appellant‟s conduct when officers
attempted to detain him, appellant was indicted for resisting arrest, promotion of
methamphetamine manufacture, initiation of methamphetamine manufacture, and two
counts of possession of a firearm during the commission of a dangerous felony.
A. Motion to Suppress
Prior to trial, appellant moved to suppress the evidence against him, arguing that
because appellant had posted “no trespassing” signs on his property, the officers‟ actions
in entering his property were subject to the warrant requirement.
At the suppression hearing, Investigator Michael Green testified that the sheriff‟s
office had received information that Mariah Davis had purchased pseudoephedrine.
Investigators were aware that she was associated with Cody Gatlin, whom Investigator
Green knew through his law enforcement experience. Investigator Green and
Investigator Brent Chunn went to Mr. Gatlin‟s home, which was next door to appellant‟s
residence. They spoke first to Ms. Davis, who called Mr. Gatlin to come home. Mr.
Gatlin reported to the investigators that he had taken the pseudoephedrine to appellant
and that appellant was in the process of making methamphetamine. The investigators
then went to appellant‟s residence. Investigator Green recalled that the grass around
appellant‟s driveway was very tall, that a “no spraying” sign was posted near the road,
and that the driveway was sixty to seventy yards long. There were two trailers at the end
of the driveway. The investigators parked in the driveway and proceeded directly to the
front door of appellant‟s trailer. Investigator Green testified that he smelled the odor
commonly associated with the active manufacturing of methamphetamine as he
approached the residence. Appellant exited the front door and closed it behind him. The
investigators asked for appellant‟s consent to search his residence, but appellant refused.
Investigator Green testified that methamphetamine labs were “very volatile” and could
“catch fire real quick,” so he and Investigator Chunn decided that they needed to locate
the active lab for safety reasons. Investigator Chunn entered appellant‟s residence while
Investigator Green attempted to detain appellant. He placed a handcuff on appellant‟s
right wrist, but thereafter appellant began to fight him. Appellant yelled for “Bear,” later
determined to be a dog, to come and for his mother, who lived in an adjacent trailer, to
call 1-800-THE-FIRM.2 When Investigator Chunn returned, the investigators were able
2
We have determined that 1-800-THE-FIRM is the number for the Cochran Firm, established by the late
Johnnie Cochran.
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to handcuff appellant. Investigator Green testified that he then entered the residence and
saw a “bolt action 410 pistol right at the door, [and] a 410 shotgun and a rifle on the
couch.” Investigator Chunn located the active lab, and they found “remnants of . . . older
cooks, several cans of empty Coleman fuel, and then [they] located the ten separate one-
pot labs in the freezer.” The investigators took turns letting pressure off the active lab to
make it safe. Investigator Green testified that the fire department decontaminated
appellant and transported him to the hospital because “his heart rate or blood pressure
was really, really elevated.”
On cross-examination, Investigator Green testified that Ms. Davis told them that
she had purchased the pseudoephedrine for appellant. Investigator Green said that after
speaking with Ms. Davis and Mr. Gatlin, he did not believe that he had probable cause to
obtain a search warrant nor exigent circumstances to search appellant‟s residence without
a search warrant. He felt that he had exigent circumstances to enter appellant‟s residence
after appellant exited his residence. Investigator Green testified that he did not see the
“no trespassing” sign posted by appellant‟s driveway, but he recalled seeing a
handwritten sign stating, “organic farm, do not spray,” or words to that effect. He stated
that he did not see any “private property” signs or other similar signage. He said that he
asked for consent to search appellant‟s residence despite believing that he had exigent
circumstances because he wanted to develop a rapport with appellant. He recalled
appellant‟s telling the investigators to leave his property but stated that he had already
smelled the methamphetamine at that point. Investigator Green further recalled
appellant‟s saying that he had an injury that would prevent his being handcuffed but
because “[h]e showed [Investigator Green] shortly thereafter that those injuries didn‟t
apply to fighting,” Investigator Green believed that “handcuffs would have been okay.”
Investigator Green testified that appellant told the investigators where to find the active
lab after he had been handcuffed.
On re-direct examination, Investigator Green testified that when a
methamphetamine lab catches fire, it is “just like a flame thrower.” He further testified,
“I‟ve seen one that actually was in a trailer like this, that it actually blew the walls away
from the flooring, and the guy that was in there had a tattoo up here [by his shoulder], and
it was down here [by his wrist]. It just melted, just ran down his skin.”
Investigator Brent Chunn testified that he did not believe that Cody Gatlin‟s
information (that he had taken the pseudoephedrine to appellant and that appellant was in
the process of making methamphetamine) was enough for probable cause to search
appellant‟s residence or to obtain a search warrant. He characterized their approach of
appellant as a “follow up investigation” rather than a “knock and talk” because they
would have been more cautious if they had been conducting a “knock and talk.”
Investigator Chunn did not recall seeing any “no trespassing” signs on appellant‟s
property or any other signs. Investigator Chunn testified that he first smelled
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methamphetamine when he was approximately fifteen feet away from appellant. He
recalled that appellant first asked them whether he could help them. After appellant
would not consent to a search of his residence, Investigator Chunn “[f]orced the door
open.” He went through the residence to make sure no one else was inside. He testified
that he saw a pistol “right inside the door.” When he exited, he saw Investigator Green
and appellant “wrestling on the ground.” Investigator Chunn testified that he later found
the active methamphetamine lab in the freezer of appellant‟s refrigerator. Investigator
Green found the inactive labs in a separate deep freezer. Investigator Chunn commented
that placing labs in freezers was not a common practice.
Tammy Atkins testified that she knew appellant through her church. She said that
on July 13, 2013, she was visiting people on appellant‟s road for her church and noticed
“no trespassing” signs on his property. She testified that there were several “no
trespassing” or “private property” signs and identified three such signs in a photograph of
appellant‟s property. Ms. Atkins said, “[W]e‟re not supposed to go to houses that have
„no trespassing‟ signs.” She testified that she had been on appellant‟s road several times
since July 13 and always saw the “no trespassing” signs.
The trial court took the matter under advisement and later issued an order denying
appellant‟s motion to suppress. In its order, the trial court stated that the investigators
“had reasonable suspicion of illegal activity based on substantiated facts” and that the “no
trespassing” sign “was not a bar from the officers[‟] investigating an ongoing dangerous
highly combustible activity.” The trial court further stated that the investigators had
“reasonable grounds” to search appellant‟s residence after smelling methamphetamine
because “[t]hey knew that the lab must be bled or it might burst into flames or explode.”
B. Trial
At trial, Investigator Green testified consistently with his testimony at the
suppression hearing. In addition, he testified that appellant‟s trailer was forty to fifty feet
from Cody Gatlin‟s residence, “as the crow flies.” Investigator Green also listed all of
the items seized from appellant‟s residence: one pound of non-liquid drain opener; thirty-
two ounces of liquid drain opener; four empty Coleman fuel cans; two jars of Coleman
fuel; nine inactive labs; eight empty HCL generators; a bag of Epsom salts; an empty box
of Sudafed; and “miscellaneous lab trash.” All of these items were destroyed because
they were contaminated with methamphetamine. Investigator Green said that he
collected from just inside the front door a loaded, sawed-off 410 shotgun3 with a
homemade magazine made from duct tape. He also collected a loaded 410 shotgun with
a laser sight and an unloaded .22 rifle from the residence‟s couch.
3
Apparently this weapon was short enough that the trial participants also referred to it as a handgun.
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On cross-examination, Investigator Green testified that he first learned about
methamphetamine possibly being manufactured on August 3 from his lieutenant, whose
source was Kyle Wolfe. The specific information was that Mariah Davis would be
purchasing pseudoephedrine for the purpose of manufacturing methamphetamine.
Investigator Green said that when he talked to Cody Gatlin, Mr. Gatlin had just come
from appellant‟s house. He stated that he saw Mr. Gatlin in appellant‟s yard and assumed
that he had come from inside the house. Mr. Gatlin told the investigators that there “was
an active cook going on.” He agreed that it would have been possible for Mr. Gatlin to
have been the person actually manufacturing.
Investigator Chunn testified next. He narrated the video from a patrol car driven
by Corporal Jeff Thompson that was recorded when Corporal Thompson responded to
appellant‟s address on August 3. Investigator Chunn said that he did not see a “standard
„no trespassing‟ sign[]” in the video. The remainder of Investigator Chunn‟s testimony
was consistent with his suppression hearing testimony and Investigator Green‟s
testimony. Notably for purposes of this case, he affirmed that he saw the three guns
previously mentioned when he was conducting his first sweep of appellant‟s residence.
On cross-examination, Investigator Chunn identified a still-shot photograph taken
from the patrol car video. He confirmed that the photograph depicted signs on a post but
that the photograph was too blurry to read the signs.
The State rested its case after Investigator Chunn‟s testimony. For the defense,
Kyle Wolfe testified that he had been to appellant‟s house once. He recalled watching
appellant and Cody Gatlin shooting guns in the yard. The three men also smoked
marijuana that day. Mr. Wolfe testified that he told law enforcement that Mr. Gatlin was
going to “cook” methamphetamine on August 3. He knew this information because Mr.
Gatlin had asked him to purchase a box of pseudoephedrine. He refused to do so.
Cody Gatlin testified that appellant was his father‟s next-door neighbor. Mr.
Gatlin said that he did not know anything about the guns in appellant‟s house but recalled
hearing appellant shooting on his property. Mr. Gatlin recalled that on August 3, he took
“sinus medication” to appellant and that appellant had asked Ms. Davis to purchase the
medication for him. He said that appellant promised to give Ms. Davis money and drugs
for the medication. Mr. Gatlin testified that he did not see any money exchange,
however. He also testified that he had been on his way back from appellant‟s house
when Ms. Davis called him about the investigators being at his father‟s house. Mr. Gatlin
said that he was not going to help anyone manufacture methamphetamine and that he did
not know how methamphetamine was manufactured.
Appellant testified that he had four or five “no trespassing” signs on his property
and identified a photograph of the one that was at the beginning of his driveway, which
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read, “no trespassing[,] hunting[,] or fishing.” Appellant said that he started using
methamphetamine when he suffered depression due to an unfortunate medical diagnosis.
He stopped using drugs for a time period but resumed using drugs when he allowed Cody
Gatlin to begin manufacturing methamphetamine in his house. He said that Mr. Gatlin
purchased all the supplies for manufacturing and explained that he only left his home a
few times a year because he did not have a driver‟s license or a car. Appellant said that
his agreement with Mr. Gatlin was that Mr. Gatlin would give him half of the drugs made
in exchange for the use of his house. Appellant testified that on August 2, 2013, he
practiced target shooting in his backyard. He would normally have cleaned his guns after
practicing but did not do so that day. On August 3, he was about to clean his guns when
Mr. Gatlin came over and began making methamphetamine. Mr. Gatlin received a
telephone call from Ms. Davis about the police being at his father‟s house, so Mr. Gatlin
placed the methamphetamine lab in the freezer and left. Appellant testified that he shut
and locked his front door (for which he did not have a key), exited his back door, and
walked to his front porch to await the officers. He said that he was not armed at that time
and did not have access to his guns. Appellant testified that when the officers approached
him, he told them, “Could I help you? I don‟t know if you‟ve noticed this or not, but you
passed „no trespassing‟ signs to get here. If you don‟t have a search warrant, you need to
leave my property. What you‟re doing is unconstitutional.” Appellant said that
Investigator Green told him that he was going to detain him. Appellant responded that
because of previous injuries, they would have to break his arm to handcuff him. He said
that Investigator Chunn stated, “„Oh, we‟re breaking your arm.‟” When Investigator
Green did not contradict Investigator Chunn, appellant said that he pulled his arm back
and told them to leave his property. Instead, he said that “[t]hey started punching [him]
and kicking [him] and choking [him].”
On cross-examination, appellant testified that the loaded handgun on the floor by
the front door was there because he had been interrupted before he could clean it. He
said that he set it on top of his television when he went to answer the door and that it
must have fallen when the door was kicked in. Appellant said that during the struggle
with the police, his elbow and shoulder were dislocated but that he did not receive
medical treatment for the dislocation. Rather, the joints “come back in place [sic]”
approximately a week later.
After the close of proof and deliberations, the jury convicted appellant as charged.
The trial court held a sentencing hearing and imposed an effective sentence of three
years‟ incarceration followed by eight years suspended to supervised probation.
Appellant‟s motion for new trial was subsequently heard and denied, and he now appeals
the judgments of the trial court.
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II. Analysis
A. Motion to Suppress
Appellant argues that the trial court erred by denying his motion to suppress, in
which he contended that the evidence seized should be suppressed due to an illegal search
of his residence. On appeal, he maintains that the “no trespassing” signs on his property
meant that the investigators could not legally enter his property to conduct a “knock and
talk” investigation. Instead, appellant asserts that the investigators either needed a
warrant or exigent circumstances to approach his residence, and he further asserts that
there was no exigency until the investigators were already at appellant‟s front door.
Appellant also contends that any exigency had expired after the initial sweep of
appellant‟s residence and that consequently the investigators should have obtained a
warrant before re-entering the residence.
In reviewing the trial court‟s decision on a motion to suppress, we review the trial
court‟s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008).
In doing so, we give deference to the trial judge‟s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “„[C]redibility 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.‟” Northern, 262 S.W.3d at 747-48 (quoting
Odom, 928 S.W.2d at 23). In reviewing the findings of fact, evidence presented at trial
may “„be considered by an appellate court in deciding the propriety of the trial court‟s
ruling on the motion to suppress.‟” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003)
(quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the
motion to suppress is afforded the “„strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.‟” Northern,
262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State
v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23.
At a hearing on a motion to suppress evidence recovered as a result of a
warrantless search, the State must prove that the search was reasonable. State v. Coulter,
67 S.W.3d 3, 41 (Tenn. Crim. App. 2001). To carry its burden, the State must prove that
law enforcement conducted the warrantless search or seizure pursuant to one of the
narrowly-defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215,
218 (Tenn. 2000). Our supreme court has held:
[U]nder both the federal constitution and our state constitution, a
search without a warrant is presumptively unreasonable, and any evidence
obtained pursuant to such a search is subject to suppression unless the
[S]tate demonstrates that the search was conducted under one of the
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narrowly defined exceptions to the warrant requirement. Moreover,
Tennessee has approved of and adopted exceptions to the requirement of
obtaining a valid search warrant, including search incident to arrest, plain
view, stop and frisk, hot pursuit, search under exigent circumstances, and
others.
State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005) (citations omitted); see State v. Echols,
382 S.W.3d 266, 277 (Tenn. 2012). Pursuant to the exigent circumstances exception, a
warrantless search may be conducted where there are exigent circumstances and probable
cause. Fuqua v. Armour, 543 S.W.2d 64, 68 (Tenn. 1976); State v. Adams, 238 S.W.3d
313, 321 (Tenn. Crim. App. 2005). “Exigent circumstances are limited to three
situations: (1) when officers are in „hot pursuit‟ of a fleeing suspect; (2) when the suspect
presents an immediate threat to the arresting officers or the public; or (3) when immediate
police action is necessary to prevent the destruction of vital evidence or thwart the escape
of known criminals.” Adams, 238 S.W.3d at 321 (quoting State v. Steven Lloyd Givens,
No. M2001-00021-CCA-R3-CD, 2001 WL 1517033 (Tenn. Crim. App. Nov. 29, 2001))
(internal quotation marks omitted). “Given the importance of the warrant requirement in
safeguarding against unreasonable searches and seizures, a circumstance will be
sufficiently exigent only where the State has shown that the search is imperative.” State
v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008) (citations omitted). “No amount of
probable cause can justify a warrantless search or seizure, absent „exigent
circumstances.‟” Fuqua, 543 S.W.2d at 68 (quoting Coolidge v. New Hampshire, 403
U.S. 443, 468 (1971)) (internal quotation marks omitted).
However, “[i]t is well settled that the Fourth Amendment‟s procedural safeguards
do not apply to police investigative activities unless those activities constitute a „search‟
within the meaning of the Fourth Amendment.” State v. Bell, 832 S.W.2d 583, 589
(Tenn. Crim. App. 1991). “In consequence, „an investigation by governmental
authorities which is not a search as defined by the Supreme Court may be conducted
without probable cause, reasonable suspicion or a search warrant.‟” State v. Talley, 307
S.W.3d 723, 730 (Tenn. 2010) (quoting Bell, 832 S.W.2d at 589-90). Under both the
federal and state constitutions,4 we must inquire “(1) whether the individual had an
actual, subjective expectation of privacy and (2) whether society is willing to view the
individual‟s subjective expectation of privacy as reasonable and justifiable under the
circumstances.” State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001). A government
intrusion without a warrant or without an applicable exception to the warrant requirement
is illegal when an individual has a justifiable expectation of privacy. See Bell, 832
4
We note that our state supreme court has held that Article 1, section 7 of the state constitution “„is
identical in intent and purpose with the Fourth Amendment‟” but that under the state constitution, the
state supreme court may extend greater privacy protections than the federal constitution when necessary.
State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002) (quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn.
1968)).
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S.W.2d at 589; see also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (A “search”
occurs when an expectation of privacy that society is prepared to consider reasonable is
infringed.). The United States Supreme Court has also presented an alternative definition
of a search as an “unlicensed physical intrusion” into a constitutionally protected area.
Florida v. Jardines, --- U.S. ---, ---, 133 S. Ct. 1409, 1415, 185 L. Ed. 2d 495 (2013). For
purposes of our opinion, we will apply both the reasonable expectation of privacy test
and the Jardines test for a search in our analysis.
In this case, there are three separate government actions to consider when
determining whether the evidence seized as a result of the warrantless search of
appellant‟s residence should have been suppressed. First, the investigators entered
appellant‟s property to conduct a “follow-up investigation” despite appellant‟s “no
trespassing” signs, which the officers did not see. Second, after smelling
methamphetamine, Investigator Chunn forced entry into appellant‟s residence and
conducted a brief sweep, during which he saw the firearms and some of the components
for making methamphetamine but did not see the active or inactive labs. Third, after
appellant told the officers that the lab was in the freezer, the investigators re-entered
appellant‟s residence and collected the active lab from the refrigerator freezer and the
inactive labs from the deep freezer. Investigators also collected the firearms and
manufacturing components.
Thus, we must first inquire whether the investigators were legally on appellant‟s
property when they drove down appellant‟s driveway and approached his front door to
contact him about the information they received from Mr. Gatlin and Ms. Davis. “As
with all Fourth Amendment questions, the touchstone of the analysis is reasonableness.”
State v. Moats, 403 S.W.3d 170, 194 (Tenn. 2013). Our courts have recognized the
validity of the so-called “knock and talk” police procedure, whereby police officers
approach a residence for purposes of furthering an investigation by asking questions of
the inhabitants or asking for consent to search the residence. State v. Cothran, 115
S.W.3d 513, 521-23 (Tenn. Crim. App. 2003). The reasoning behind the validity of the
“knock and talk” procedure is that any private citizen, by a “license . . . implied from the
habits of the country,” may “approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger longer) leave.” Jardines, 133
S. Ct. at 1415. “Thus, a police officer not armed with a warrant may approach a home
and knock, precisely because that is „no more than any private citizen might do.‟” Id. at
1416 (quoting Kentucky v. King, 563 U.S. ---, ---, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d 865
(2011)). In addition, our supreme court has reasoned that “[a] person does not have an
expectation of privacy in the area in front of his or her residence leading from the public
way to the front door.” State v. Carter, 160 S.W.3d 526, 533 (Tenn. 2005).
Appellant contends that unreported cases from this court have held that a “no
trespassing” sign invalidated the “knock and talk” procedure by revoking the implied
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invitation of the front door. See State v. Monty Blackwell, No. E2009-00043-CCA-R3-
CD, 2010 WL 454864, at *7 (Tenn. Crim. App. Feb. 10, 2010) (stating in dicta that “no
trespassing” signs revoked the implied invitation of the front door); see also State v.
Rebecca Draper and J.C. Draper, No. E2011-01047-CCA-R3-CD, 2012 WL 1895869, at
*6 (Tenn. Crim. App. May 24, 2012) (quoting Monty Blackwell, 2010 WL 454864, at
*7), State v. Scotty Wayne Henry, No. W2005-02890-CCA-R3-CD, 2007 WL 1094146,
at *5 (Tenn. Crim. App. Apr. 11, 2007) (stating in dicta, “The only issue presented that
would have made the „knock and talk‟ unacceptable would have been the presence of the
„No Trespassing‟ signs.”). It is upon these cases that appellant relies, essentially arguing
that these cases present a bright-line rule that this court should follow. However,
unreported cases are persuasive authority, not controlling. See Tenn. R. Sup. Ct. 4G.
Furthermore, our supreme court has eschewed the creation of bright-line rules for
purposes of Fourth Amendment analysis. See Talley, 307 S.W.3d at 734 (“[W]e reject
any bright-line rule and maintain our view that the totality of the circumstances test is
best-suited for determining the reasonableness of an expectation of privacy.”). Likewise,
the United States Supreme Court has stated that “[i]n applying this [reasonableness] test,
the Court has consistently eschewed bright-line rules, instead emphasizing the fact-
specific nature of the reasonableness inquiry.” Ohio v. Robinette, 519 U.S. 33, 34 (1996).
In addition, the cases relied upon by appellant are distinguishable from the case sub
judice; therefore, we conclude that no bright-line rule has been established by this court.
Thus, we will examine the totality of the circumstances in this case to determine whether
appellant revoked the implied invitation of the front door.
We must determine for this case what effect, if any, the “no trespassing” sign had
on appellant‟s expectation of privacy and the validity of the law enforcement action in
this case. In so doing, we have reviewed numerous cases from this and other
jurisdictions. Our court, in the case that first recognized the validity of the “knock and
talk” procedure, quoted a Ninth Circuit case that stated a “knock and talk” was acceptable
“[a]bsent express orders from the person in possession against any possible trespass . . . .”
Cothran, 115 S.W.3d at 521 (quoting United State v. Cormier, 220 F.3d 1103, 1109 (9th
Cir. 2000)). The Ninth Circuit has repeatedly held that “no trespassing” signs alone did
not invalidate “knock and talk” procedures. See United States v. Hammett, 236 F.3d
1054, 1060 (9th Cir. 2001) (holding that “no trespassing” signs posted at entry of
driveway did not invalidate “knock and talk” when officers approached home from
helicopter‟s landing site and did not see the signs); United States v. Robert, 747 F.2d 537,
541-43 (9th Cir. 1984) (holding that it was acceptable for troopers to approach house
after having accessed house by means of a private road posted with “no trespassing”
signs). Thus, for the Ninth Circuit, “no trespassing” signs alone do not rise to the level of
“express orders . . . against any possible trespass.”
Notably, the federal district court in the Eastern District of Tennessee recently
ruled that a “no trespassing” sign did not prevent officers from conducting a “knock and
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talk.” United States v. Denim, No. 2:13-CR-63, 2013 WL 4591469, at *4 (E.D. Tenn.
Aug. 28, 2013). The Denim court reasoned as follows:
As sacred as the home is, including its curtilage, society is not willing to
accept as reasonable an expectation that a police officer may not come
within the curtilage to question a resident of a dwelling to ascertain if that
resident has information regarding the commission of a criminal offense.
Even in the face of No Trespassing signs, it is not unreasonable for a police
officer to intrude upon private property to ask if the resident has any
information that will aid in the investigation of a crime.
Id. The Sixth Circuit has also held that a “no trespassing” sign was of no consequence
when the police were conducting a “knock and talk.” See United States v. Hopper, 58 F.
App‟x 619, 623 (6th Cir. 2003). The Sixth Circuit reasoned that “no trespassing” signs
did not extend the curtilage of the defendant‟s residence and that even if the signs had
extended the curtilage, “the actions of the police in this case would not have violated the
Fourth Amendment because law enforcement officials may encroach upon the curtilage
of a home for the purpose of asking questions of the occupants.” Id. We find the
reasoning in these cases to be persuasive. See Sneed v. State, 423 S.W.2d 857, 860
(Tenn. 1968) (holding that federal search and seizure cases should be considered
persuasive authority in Tennessee).
We have also examined cases from other federal circuits and states. Some states
have held that “no trespassing” signs demonstrate a legitimate expectation of privacy that
requires a warrant to overcome. See State v. Roubique, 421 So. 2d 859, 862 (La. 1982);
State v. Bullock, 901 P.2d 61, 75-76 (Mont. 1995); People v. Scott, 593 N.E.2d 1328,
1338 (N.Y. 1992). The vast majority of states that have directly addressed the issue,
however, consider signage to be but one consideration when determining whether a
person has demonstrated a legitimate expectation of privacy. See, e.g., Michel v. State,
961 P.2d 436, 437-38 (Alaska Ct. App. 1998) (holding that “[p]ersons visiting the
residence for social or commercial purposes” would not construe “no trespassing” signs
along driveway “as meant to prohibit their entry”); Burdyshaw v. State, 10 S.W.3d 918,
921 (Ark. Ct. App. 2000) (“[E]ven though the property was posted, the gates were open,
the driveway was not blocked, and entry onto the property was not an intrusion
prohibited by the Fourth Amendment.”); Burkholder v. Superior Court, 96 Cal. App. 3d
421, 428 (Cal. Ct. App. 1979) (holding that expectation of privacy was objectively
reasonable when “[e]ntry to the property was openly restricted by posted signs along, and
locked gates across[] the rural access road signif[ied] an intention to deny access to the
public in general, including government agents”); Brown v. State, 152 So. 3d 619, 624
(Fla. Dist. Ct. App. 2014) (“While this Court has found that a policeman may enter the
curtilage surrounding a home in the same way as a salesman or visitor could, no such
person would reasonably go through both a gated four-foot fence and a gated six-foot
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fence, surrounded by several „No Trespassing‟ signs in order to conduct business with the
residents.”); Wysong v. State, 614 So. 2d 670, 671 (Fla. Dist. Ct. App. 1993) (holding that
officers did not illegally enter yard to knock on door despite “no trespassing” sign); State
v. Rigoulot, 846 P.2d 918, 923 (Idaho Ct. App. 1992) (“Posting „No Trespassing‟ signs
may indicate a desire to restrict unwanted visitors . . . . However, such signs cannot
reasonably be interpreted to exclude normal, legitimate, inquiries or visits by mail
carriers, newspaper deliverers, census takers, [etc.] who restrict their movements to the
areas of one‟s property normally used to approach the home.” (citations omitted)); Mundy
v. State, 21 N.E.3d 114, 118-19 (Ind. Ct. App. 2014) (holding that it was unreasonable for
officers to enter property when it was posted, there was a chain across the driveway, and
a security camera was on a tree near the chain); State v. Fisher, 154 P.3d 455, 470-75
(Kan. 2007) (ruling that deputy was legally on property to conduct “knock and talk” but
could not seize evidence from curtilage; presence of “no trespassing” signs was part of
curtilage analysis); Jones v. State, 943 A.2d 1, 12 (Md. 2008) (“For Fourth Amendment
purposes, appellant could not have had a reasonable expectation that the „No
Trespassing‟ sign would or should prevent visitors with a legitimate purpose from
walking to the front door, including police officers in furtherance of an investigation.”);
State v. Kruse, 306 S.W.3d 603, 611-12 (Mo. Ct. App. 2010) (stating that signage is one
consideration when determining whether police intrusion into backyard was reasonable);
State v. Pasour, 741 S.E.2d 323, 326 (N.C. Ct. App. 2012) (“[W]hile not dispositive, a
homeowner‟s intent to keep others out and thus evidence of his or her expectation of
privacy in an area may be demonstrated by the presence of „no trespassing‟ signs.”); State
v. Mittleider, 809 N.W.2d 303, 307-08 (N.D. 2011) (holding that “no trespassing” signs
on farm did not create reasonable expectation of privacy in entrance to the farm but
leaving open the question of whether such signs could ever create a reasonable
expectation of privacy); State v. Morgan, No. 13-CA-30, 2014 WL 1836015, at *3-4
(Ohio Ct. App. May 1, 2014) (holding that initial “knock and talk” was
“unobjectionable”—despite “no trespassing” signs in front of house but entry into
backyard was unreasonable, partly because of the signage), no perm. app. filed; State v.
Roper, 294 P.3d 517, 520 (Or. Ct. App. 2012) (holding that fence plus signage
“objectively manifested intent to exclude the public”); State v. Gabbard, 877 P.2d 1217,
1221 (Or. Ct. App. 1994) (concluding that “no trespassing” sign on boundary fence,
without more, would not have served to exclude the “reasonable visitor . . . who desired
to contact the residents” and that, therefore, officers could rightfully use driveway to
approach house); Robinson v. Commonwealth, 639 S.E.2d 217, 222 (Va. 2007) (“Implied
consent can be negated by obvious indicia of restricted access, such as posted „no
trespassing‟ signs, gates, or other means that deny access to uninvited persons.”); State v.
Johnson, 879 P.2d 984, 992 (Wash. Ct. App. 1994) (holding that the defendants
manifested “their subjective intent to close their property by fencing it, erecting a gate,
and placing signs near the gate saying „No Trespassing‟ and „Private Property.‟”).
In addition, we note that the United States Supreme Court in Oliver v. United
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States, when determining whether “no trespassing” signs created a legitimate expectation
of privacy in open fields when there would otherwise be no expectation of privacy stated,
“Certainly the Framers did not intend that the Fourth Amendment should shelter criminal
activity wherever persons with criminal intent choose to erect barriers and post „No
Trespassing‟ signs.” Oliver, 466 U.S. at 183 n.13. Even under the Jardines search test,
which focuses more on trespass law than on expectation of privacy, the officers‟ actions
in merely conducting a “knock and talk” would not be proscribed as a warrantless search.
See Jardines, 1415-18 (ruling that bringing a drug-sniffing canine into defendant‟s
curtilage objectively demonstrated that the police were intruding upon a constitutionally
protected area to search, not merely conducting a “knock and talk”). “The law of trespass
generally gives members of the public a license to use a walkway to approach the front
door of a house and to remain there for a brief time.” Id. at 1420 (Alito, J., dissenting).
Consequently, if the officers‟ actions were not a search, then the Fourth Amendment
protections would not apply.
Taking all of these cases into consideration, the emerging rule appears to be that
the implied invitation of the front door can be revoked but that the revocation must be
obvious to the casual visitor who wishes only to contact the residents of a property. See
State v. Grice, 767 S.E.2d 312, 319 (N.C. 2015) (“The implicit license enjoyed by law
enforcement and citizens alike to approach the front doors of homes may be limited or
rescinded by clear demonstrations by the homeowners and is already limited by our
social customs.”). Thus, in this case, we must determine whether a small sign reading
“no trespassing[,] hunting[,] or fishing,” posted in a field next to appellant‟s driveway
that is difficult to see when driving down the driveway, as evidenced by the “dashcam”
video presented in this case, is sufficient to revoke the implied invitation.5 Several courts
when ruling on this issue have noted that such a sign, especially on a rural property, is
generally intended to prevent people from unauthorized use of the property, not to
prevent a casual visitor from approaching the residence. See, e.g., U.S. v. Ventling, 678
F.2d 63, 66 (8th Cir. 1982); Michel, 961 P.2d at 438. The Ventling court quoted with
approval the magistrate‟s opinion in that case:
The absence of a closed or blocked gate in this country creates an invitation
to the public that a person can lawfully enter along the driveway during
daylight hours to contact the occupants for a lawful request and if the
request is refused to leave by the same way. The presence of “no
trespassing” signs in this country without a locked or closed gate make the
entry along the driveway for the purposes above described not a trespass
and therefore does not constitute an intrusion prohibited by the Fourth
Amendment.
5
We note that Ms. Atkins testified that there were other signs on the property, but because the
“dashcam” video does not show those signs, we conclude that they are not visible to someone
approaching the house using the driveway, as the officers did in this case.
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Ventling, 678 F.2d at 66. The Michel court likewise reasoned that the “no trespassing”
signs were not intended to forestall casual visitors from using the driveway to reach the
residence:
The Michels live in rural Alaska, and their residence lies some distance off
the main highway, connected by a long driveway. Under these
circumstances, a visitor to the Michels‟ residence would reasonably
conclude that the “No Trespassing” signs posted along the driveway were
intended to deter people who might be tempted to leave the highway and
use the Michels‟ driveway as an access route for their own purposes (e.g.,
hunting, camping, hiking, or the like). Persons visiting the residence for
social or commercial purposes would not construe those signs as meant to
prohibit their entry.
Michel, 961 P.2d at 438. Likewise, we conclude that the sign in this case would not have
prevented the casual visitor or the reasonably respectful citizen from approaching
appellant‟s residence. Therefore, the sign did not revoke the implied invitation of the
front door, and Investigators Green and Chunn lawfully entered appellant‟s property
when they drove up his driveway and approached his front door. Such conduct was not a
search under Fourth Amendment jurisprudence.
However, the warrantless entry into appellant‟s home for the purpose of
discovering active methamphetamine labs was unquestionably a search; therefore, we
must consider whether exigent circumstances justified the warrantless entry into
appellant‟s residence. The investigators testified that they smelled the methamphetamine
as they approached the residence. There is no question that an active methamphetamine
lab was present in appellant‟s residence. The investigators stated that an active lab has a
distinctive odor apart from the general odor of methamphetamine. They also testified
about the dangers of unattended active labs. Investigator Green in particular gave a
graphic description of the aftermath of a methamphetamine explosion. Our supreme
court has held that exigent circumstances existed to justify law enforcement‟s warrantless
entry into a hotel room when an active methamphetamine lab was present:
The undisputed facts clearly establish the sort of exigent circumstances that
justified the officers‟ decision to enter Room 110 of the Park Motel without
first obtaining a search warrant. They knew that an actively operating
methamphetamine laboratory posed a serious danger not only to the persons
in the room itself but also to all persons in the immediate vicinity. The
distinct odor surrounding Room 110, the intensity and strength of the odor,
the fumes emanating from Room 110, and the effects of the odor and fumes
on the inhabitants of Room 109 provided the officers with enough facts to
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believe that the persons in Room 110 were actively manufacturing
methamphetamine. This conclusion provided the officers with an
objectively reasonable basis for concluding that there was an immediate
need to act to protect themselves and others from serious harm. The fact
that the officers overlooked clearing the adjoining rooms before they
entered Room 110 does not undermine the reasonableness of their decision
to enter Room 110 without waiting for a search warrant. Accordingly, the
officers‟ warrantless entry into and search of Room 110 was not an
unreasonable search under either the Fourth Amendment to the United
States Constitution or Article I, Section 7 of the Constitution of Tennessee.
State v. Meeks, 262 S.W.3d 710, 726-27 (Tenn. 2008) (footnote omitted). While
appellant‟s residence was in a more rural area, there was a trailer immediately adjacent to
his own, and neighbors were located within fifty feet. Moreover, appellant himself and
the investigators were in immediate danger had the active lab exploded. Therefore, we
conclude that exigent circumstances not only existed to justify the initial warrantless
entry into the residence but that the exigency continued until the active lab was
deactivated and no other active labs were found.6
Finally, we must determine whether evidence other than the active lab was
properly seized. The State argues that the plain view doctrine operates to justify the
seizure of the evidence in this case. This court has stated that the plain view exception
applies when: (1) the objects seized were in plain view; (2) the viewer had a right to be in
position to view the seized object; and (3) the incriminating nature of the object was
immediately apparent. Cothran, 115 S.W.3d at 524-25 (Tenn. Crim. App. 2003) (citing
State v. Hawkins, 969 S.W.2d 936, 938 (Tenn. Crim. App. 1997)). In this case, the
pictures of appellant‟s residence show that the majority of the seized evidence was in
plain view. The exception is that the inactive labs were concealed in a freezer; however,
the necessity of finding any and all active labs, especially when appellant mentioned a
freezer in particular, means that the exigent circumstances encompassed the search of the
deep freezer. We have already concluded that the investigators were rightfully in
position to view all of the objects seized. Based on the investigators‟ experience with
methamphetamine manufacturing, the incriminating nature of the evidence seized was
6
In appellant‟s reply brief and at oral argument, he argued that appellant‟s statement to investigators that
the laboratory was in the freezer did not create additional exigent circumstances. However, our ruling
that the exigency continued from the time that investigators smelled methamphetamine until the active lab
was disabled encompasses both Investigator Chunn‟s initial entry, when he did not find an active lab, and
his second entry, when he found an active lab based on appellant‟s statement; thus, appellant‟s argument
regarding his statement is inapposite. Moreover, any argument that appellant‟s statement was not
voluntary or was taken in contravention of his constitutional rights is waived for failure to address it in
the trial court. 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.”).
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apparent to them. Therefore, we conclude that none of the evidence seized in this case
was subject to suppression. Appellant is therefore without relief as to this issue.
B. Sufficiency of the Evidence
For his second issue, appellant contends that the evidence was insufficient to
prove that he possessed firearms with the intent to go armed during the commission of a
dangerous felony. He does not contest his other convictions. The State responds that the
jury had ample evidence from which it could have determined that appellant was guilty of
the two firearm offenses.
The standard for appellate review of a claim challenging the sufficiency of the
State‟s evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, appellant must demonstrate that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
319. This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
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In this state, “[i]t is an offense to possess a firearm with the intent to go armed
during the commission of . . . a dangerous felony.” Tenn. Code Ann. § 39-17-1324(a).
Initiating the process to manufacture methamphetamine is listed in section 39-17-
1324(i)(1)(K) as a dangerous felony. As appellant stands convicted of initiation of the
process to manufacture methamphetamine, that element of the offense has clearly been
met. Appellant claims, however, that the State failed to prove that he intended to go
armed. This court has previously ruled that “[t]he fact that the firearm was holstered,
loaded, and within the immediate proximity of the contraband established the defendant‟s
intent to go armed and demonstrated a nexus between the firearm and the drugs.” State v.
Ronnie Paul Trusty, No. W2012-02445-CCA-R3CD, 2013 WL 3488150, at *4 (Tenn.
Crim. App. July 11, 2013) (citing State v. Yarbro, 618 S.W.2d 521, 524-25 (Tenn. Crim.
App. 1981)), no perm. app. filed; State v. Victor Armando Martinez, No. M2010-01820-
CCA-R3-CD, 2012 WL 5992148, at *9 (Tenn. Crim. App. Dec. 3, 2012)). In this case,
appellant had loaded firearms within reach and/or actually in his hands as the
methamphetamine lab was processing in the same small mobile home. From this
information, the jury was within its prerogative to find appellant guilty of two counts of
possessing a firearm with the intent to go armed during the commission of a dangerous
felony. Therefore, we affirm appellant‟s convictions for this offense.
CONCLUSION
Following our careful review of the record, the arguments of the parties, and the
applicable law, we affirm the judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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