Simmons v. State

• Decision Date: 07 September 1962
• Citation: 360 S.W.2d 10,14 McCanless 443,210 Tenn. 443
• Parties: Kenneth Brooks SIMMONS v. STATE of Tennessee. 14 McCanless 443, 210 Tenn. 443, 360 S.W.2d 10
• Court: Tennessee Supreme Court

Page 10

360 S.W.2d 10

Kenneth Brooks SIMMONS v. STATE of Tennessee.

14 McCanless 443, 210 Tenn. 443, 360 S.W.2d 10

Supreme Court of Tennessee.

Sept. 7, 1962.

Ward Hudgins, Richard H. Frank, Jr., Nashville, for plaintiff in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

DYER, Justice.

The plaintiff in error, defendant below, was convicted under six separate indictments for burglary in the third degree. He received a three year sentence on each conviction with four convictions to run consecutively and two to run concurrently with the other four. From these convictions defendant has seasonably appealed to this Court assigning errors.

As stated in the excellent briefs for both the State and defendant the only question presented here for determination is in regard to the search of the trailer home occupied by defendant, where the officers as a result of the search found certain stolen property upon which these convictions are based.

Robert T. Morrison a detective with the Nashville Police Department and three other officers received information on the night of May 23, 1961, that defendant's trailer contained stolen property consisting of a radio, television, cameras, pistols, and narcotics. About 9:00 A.M. on May 24, 1961 Detective Morrison and the three other officers went to this trailer, where they conducted a search finding certain stolen property and arresting defendant. Detective Morrison testified in regard to this search and it was stipulated should the other officers have testified their testimony would have been in substance the same.

Detective Morrison knocked on the door of the trailer and in response thereto Defendant opened the door, whereupon Morrison said, 'Hi, Kenneth, how are you doing?' The defendant at this time did not recognize these men as officers. The testimony of just what happened next is herein copied from the record of the testimony of Detective Morrison:

'A. So he opened the door, said 'come on in.' I stepped up to the doorway, Mr. Owen behind me, and I looked over in the bed and I seen I thought it was a girl there, to start with. I later found out it was Sompayrse.

'THE COURT: Can you speak up louder? I'm afraid the Jury can't hear you.

'A. I could see three or four radios and one television in view. I said, 'Kenneth, we came out here to talk to you. We have information that you have some stolen stuff and a bunch of guns and narcotics, and harboring a juvenile here in the trailer.' I said, 'Now we'll--we want to look around, if you request it, we'll have to get a warrant, and if you request the warrant some of us are going to stay here and let the others go get the search warrant to search.' I had done seen enough I knew it was necessary to search. So he said, 'well, I don't know what you're looking for but if you insist you're going to get a warrant, anyway, just go ahead and search.' Well, I just turned around just behind me, first thing I seen was a gas mask and some burglar tools. Then when I went to pulling them out, he run over to me, I said, 'Kenneth,' I said, 'I've done seen enough. You're under arrest. Go over there and sit down.' I went to this radio and I found out it was a radio we had a description of been stolen out of an insurance company.'

The state admits they have the burden of showing that the search was made with the consent of defendant or by waiver of his right to be protected against unreasonable searches and seizures in accordance with Article 1, Section 7, Constitution of Tennessee and the Fourth Amendment, Constitution of the U. S. (Fourth Amendment, Constitution of the U. S., is applicable since the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081).

It is true a defendant may waive his rights relative to searches and seizures under the Constitutions of Tennessee and the United States. Frix v. State, 148 Tenn. 478, 256 S.W. 449; U. S. v. Jones, 7 Cir., 204 F.2d 745. It is also true that for a search without a warrant to be valid the entry must be without coercion. Byrd v. State, 161 Tenn. 306, 30 S.W.2d 273.

The State relies upon the cases of Frix v. State, 148 Tenn. 478, 256 S.W. 449, and U. S. v. Jones, 7 Cir., 204 F.2d 745.

During the April Term 1923 this Court announced its opinion in the case of Hampton v. State, 148 Tenn. 155, 252 S.W. 1007. In this case officers procured a search warrant for the premises of Hampton and went...