State v. Barger, 78

• Decision Date: 29 September 1980
• Docket Number: No. 78,78
• Citation: 612 S.W.2d 485
• Parties: STATE of Tennessee, Appellee, v. Charles L. BARGER, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 485

612 S.W.2d 485

STATE of Tennessee, Appellee, v. Charles L. BARGER, Appellant.

No. 78

Court of Criminal Appeals of Tennessee, at Knoxville.

Sept. 29, 1980 Permission to Appeal Denied by Supreme Court Feb. 2, 1981.

Gordon W. Smith, Asst. Atty. Gen., Nashville, Jan Hicks, Asst. Dist. Atty. Gen., Clinton, for appellee.

Robert W. Knolton, Clinton, for appellant.

OPINION

DAUGHTREY, Judge.

The appellant-defendant, Charles L. Barger, was convicted of second degree burglary and grand larceny. He received concurrent sentences of three to five years on each count. On appeal Barger challenges (1) the sufficiency of the evidence to support the jury's verdict, (2) the admissibility of evidence seized in a warrantless search of the vehicle in which he was riding, and (3) the admissibility of evidence obtained through the use of a bloodhound. We find no reversible error in connection with these issues, and we therefore affirm the judgment of conviction.

The proof at trial indicated that at 10:00 A.M. on February 28, 1979, the defendant appeared at the door of a Mrs. Laura Holbrook, in Anderson County, near Clinton, Tennessee. He asked Mrs. Holbrook if she knew where the Sandersons lived. She responded that she did not, and that no one by that name lived in her Skyline Drive neighborhood. Mrs. Holbrook noticed that the defendant had a missing front tooth and was wearing a red toboggan and a navy blue windbreaker. She also noticed that the defendant and another person departed in a "cream or beige or light tan" automobile, the passenger side door of which was a contrasting gray color.

At the same time, two other young men visited a Mrs. Clark at her residence in the same neighborhood, and asked where the Ridenours lived. Shortly after these separate visits, Mrs. Holbrook and Mrs. Clark talked by telephone, and they became alarmed. A relative of the vacationing Mr. Ridenour was then contacted, along with another neighbor, who in turn alerted the Sheriff's Department. The Ridenour relative visited the Ridenour home and discovered that it had been burglarized. The Sheriff's Department was again notified.

Sheriff's Deputy Kathleen Johnson received radio dispatches in rapid succession, to the effect that some boys had been knocking on doors in the Skyline Drive neighborhood area, and the Ridenour home had been broken into. In the third dispatch, one of the individuals who had been making inquiries in the area was described has having bushy hair and a missing tooth, and wearing a red toboggan and a blue windbreaker.

As Deputy Johnson entered Skyline Drive via the sole entrance and exit point, she saw coming toward her a light tan automobile, a fender of which was a different color, heading out of the neighborhood. Seated in the car were two males, one of whom had bushy hair and was wearing a red toboggan and a blue windbreaker. The deputy motioned for the car to stop, but it did not. She blocked the roadway with her patrol car, finally causing the oncoming car to halt. The two occupants emerged from the car and approached the deputy's vehicle. In response to a question as to their purpose in the area, they replied that they were looking for a job.

During the course of this discussion, Deputy Faye Smith and local neighborhood resident Joe Magill arrived on the scene. Deputy Smith informed Deputy Johnson that there had indeed been a burglary at the Ridenour home. Deputy Johnson went to the Ridenour residence, leaving the two men, identified as the defendant and Jacky Burkhart, in the custody of Deputy Smith.

Smith took the two men first to Mrs. Clark, who stated that these were not the two men she had seen earlier. When the deputy next presented the men to Mrs. Holbrook, she was able to positively identify the defendant as the man who had earlier appeared at her door.

A short distance from the Ridenour home, Deputy Smith spotted and picked up two juveniles who fit the descriptions given by Mrs. Clark. They were placed in the back of the squad car along with the defendant and Burkhart, and all four persons were conveyed to Mrs. Clark's, where she identified the two youths as the individuals who had earlier come to her door.

Deputy Smith then received a call from a Sheriff's Department investigator who instructed her to arrest all four of the suspects. This she did. Smith proceeded to convey the defendant and the three others to the Anderson County Jail.

In the meantime, Sheriff's Department investigator Danny Phillips arrived on Skyline Drive at the moment Deputy Smith, with the defendant and Burkhart, first drove off from the location where the tan car with the off-color fender or door was stopped. Phillips had heard the radio reports of the burglary of the Ridenour home and descriptions of the suspects and their car.

With no one present other than himself and neighborhood resident Joe Magill, Phillips approached and looked inside the automobile in which the defendant had been riding. In the back seat he saw three coats; two were of a type used in construction work and one was leather with a wool lining. In the front seat and on the front floorboard, he spotted a brick, some silver dollars, and a watchband.

After seeing these items, Phillips entered and searched the car, uncovering in addition a watch, a knife, a bent screwdriver, and a medicine bottle with a prescription for James H. Barger. Phillips then radioed Deputy Smith and instructed her to arrest the suspects, "for investigation of burglary."

When Deputy Smith arrived at the Anderson County Jail with the four suspects, she obtained from each a shirt and a shoe. The items were placed in four separate paper bags and were taken to the Ridenour house. The shirt and shoe belonging to defendant Barger were sniffed by a bloodhound, Clayboy, owned by J. D. Nelson. The bloodhound then led Nelson to a cache in the woods behind the Ridenour yard of items missing from the Ridenour residence, including a rifle, two shotguns, a tool box, and camera equipment.

The defendant insists that the evidence in this case is not sufficient to convict, on the grounds that the items seized from his automobile were inadmissible, that the bloodhound evidence was likewise improperly allowed into evidence, and that even if this evidence were properly admitted, the State's case was merely circumstantial in nature and therefore insufficient to convict. We find no merit to these contentions.

As set out above, the car in which Barger and Burkhart were riding was searched by Sheriff's Department investigator Danny Phillips. He arrived at the site where the car was pulled over to the side of Skyline Drive in time to see Deputy Smith's police cruiser (containing Barger and Burkhart) drive away. Phillips had already heard radio reports describing the Ridenour burglary and the car driven by the suspects. The car on the scene fit the description.

The State maintains that the ensuing warrantless search of the car was justified by probable cause gained through plain view, and exigent circumstances. The formula used by the Tennessee courts with regard to plain view searches is that set out in Armour v. Totty, 486 S.W.2d 537 (Tenn.1972). The requirements are as follows:

(1) The object must be in "plain view."

(2) The viewer must have the right to be in position for the view.

(3) The seized object must be discovered inadvertently.

(4) The incriminating nature of the object must be apparent on its face.

In the instant case, the objects seen by Phillips, three coats, some silver dollars, and a watchband, were in plain view as he peered through the car window. As an employee of the Anderson County Sheriff's Department, he clearly had a right to be in a position to look through the windows of a car parked on a county road.

In contesting the inadvertence of the view, the defendant maintains that because the officer had heard of the burglary at the time he looked into the car, the objects were not seen inadvertently. But the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 470-71, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971), indicates that inadvertence is lacking only when the police know in advance the location of the evidence, and thus intend to seize it. In the instant case, Phillips knew only that a burglary had taken place in the neighborhood, and that a car matching the description of the vehicle he saw parked at the side of Skyline Drive had been reported as containing occupants who had behaved in a suspicious manner in the neighborhood at around the same time as the burglary. We conclude that because Phillips did not look into the car with the anticipation of seeing specific items, his view of the objects was inadvertent within the meaning of applicable state and federal law. Armour v. Totty, supra; Coolidge v. New Hampshire, supra.

Whether the incriminating nature of the objects was immediately apparent is a closer question. Although Phillips testified that the presence of a clean, fur-lined coat in the back seat of the car was out of character with the beat-up nature of the car and the two dirty construction-type coats which were also present, it does not seem unreasonable or overly suspicious for such a coat to be in a car in February. Under the totality of the circumstances, however, the presence of a watchband protruding from under the seat, along with very uncommon silver dollars lying on the floor of the car, coupled with the fact that a burglary had just been reported in the neighborhood, and given the suspicion-arousing reports which had been communicated to the police about the car's occupants, make it reasonable to believe that the officer immediately perceived the incriminating nature of the objects sufficiently to justify the search.

The State also relies on the exigent circumstances exception to the search warrant requirement. In response, the defendant contends that no probable cause existed for the original stop of the vehicle. The record shows,...