Bentley v. State

• Decision Date: 21 January 1977
• Citation: 552 S.W.2d 778
• Parties: Alvin BENTLEY, Wayne Kephart and Gary Lane, Appellants, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 778

552 S.W.2d 778

Alvin BENTLEY, Wayne Kephart and Gary Lane, Appellants, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Jan. 21, 1977.

Certiorari Denied by Supreme Court June 13, 1977.

Jere B. Albright, Humboldt, Fred Collins, Milan, for appellants.

R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, W. R. Kinton, Jr., Dist. Atty. Gen., Trenton, for appellee.

OPINION

DWYER, Judge.

The appellants, Alvin Bentley, Wayne Kephart and Gary Lane, appeal their convictions for committing the offense of contributing to the delinquency of a minor, T.C.A. 37-201 et seq., with resulting punishment to each of a fine of fifty dollars plus confinement for six months in the Gibson County Jail.

The appellant Kephart also appeals his conviction for committing the offense of possessing marijuana imposed by the trial court when Kephart waived the jury. The punishment imposed on this judgment was confinement for sixteen days in jail. We will consider both appeals in this opinion.

There are several assignments of error which paraphrased are these: the search warrant obtained for Kephart's motel room was fatally defective and the evidence seized as a result of that search should have been excluded; the warrantless search of Lane's room was illegal because his consent was not free and voluntary; the court erred in not dismissing the possession of marijuana charge against Kephart; the trial court erred in not charging appellants' special request, to wit, it must be shown that appellants knew the prosecutrix was under eighteen years of age in order to convict them; and the argument of the State's attorney was a comment on appellants' failure to testify.

The evidence in this record reveals that a girl seventeen years of age, with physical attributes of a much older woman, was posing with the appellants in photographs which depicted acts of intercourse, fellatio, cunnilingus and group sex interplay. The girl, testifying as a witness for the State, acknowledged that she had told the appellants that she was eighteen, that she had been married and that she had a child. This witness also acknowledged providing the camera and suggesting taking the photographs which, coupled with her testimony, support the indictment charge. There is no suggestion from the proof of the State that this girl was other than a willing participant in all the acts that were supposed to have contributed to her delinquency. When she was taken into custody with the appellant Bentley, she gave her age as eighteen to the officers.

The appellants did not testify; however, the appellant Lane called one of the officers who arrested him to show that initially he had refused the officer's permission to search his motel room. This officer related that only after being placed under arrest, being told that the officers would get a search warrant and come back, and being put in a police car which started to leave the motel, did the appellant give them permission to search his room. Some of the incriminating photographs introduced at trial were then found in a suitcase in his room at the Southgate Motel, which photographs depict Kephart and the girl engaging in sexual activity.

The search of appellant Kephart's room and car at the Greystone Motel was accomplished by the Milan and Gibson officers after obtaining a search warrant, upon the following affidavit "Affiant further states as follows: Informant who has in the past furnished reliable and credible information stated to affiant that informant while in the aforedescribed room was shown obscene and pornographic materials by an occupant of the room and that affiant believer (sic) based on informant's information that obscene and pornographic materials are on the aforedescribed premises for the purpose of sale or distribution."

This search warrant, we think, is void: it fails to state a date when the offense was supposed to have occurred, Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938); and the photographs being described as obscene and pornographic, we think, states a bald conclusion, Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968). The State concedes that considerable questions are raised as to the validity of the search warrant and the obtaining of the photographs and the marijuana as a result of this search.

The photographs recovered as a result of the search of Kephart's room under the warrant should not have been admitted into evidence, we think, against Kephart over his objection.

Consequently, the discovery of the marijuana in Kephart's room as a result of this unreasonable search and its admission into evidence over objection was error. His conviction for possessing marijuana cannot stand and is accordingly reversed.

The State argues that under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), "(the) 'fruits of the poisoned tree' (doctrine)" requires that all of the photographs seized in Kephart's room should have been suppressed as to all three appellants; if we follow this argument, the only evidence left would be the testimony of the prosecutrix and the pictures taken from Lane's possession. The State then argues that her testimony would be sufficient evidence to sustain these convictions.

In applying Wong Sun, supra, to the facts in this case, we think none of the photographs seized in either search were admissible against Kephart as the pictures illegally taken from his room led to the arrest and search of Lane with discovery of pictures of Kephart and the girl in Lane's suitcase.

We think Bentley and Lane cannot claim the constitutional right of Kephart to exclude evidence gathered from the unreasonable search of his room due to lack of standing. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). The use of the incriminating photographs depicting prohibited sexual acts involving Lane and Bentley seized from Kephart's room, therefore, were competent against them and proper for the jury to consider.

We think the search of Lane's room under the circumstances shown in this record was a far cry removed from a free consent search. The clear evidence reflects his refusal to permit a search when arrested and placed in custody in the squad car. His consent came about only when told they (police) would go get a warrant if he did not consent and started the squad car to do so. His permission then falls short of being voluntary in view of the "totality of circumstances" rule found in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2058, 2059, 36 L.Ed.2d 854 (1973).

In substance, we hold the pictures seized from Kephart were inadmissible against him as a result of the defective search warrant and the search of Lane's room and the discovery of photographs of Kephart and the girl were the fruits of the unreasonable search on the defective warrant as outlined. These pictures of Kephart...