State v. Brewer

• Citation: 640 S.W.2d 33
• Parties: STATE of Tennessee, Appellee, v. Robert BREWER and Barbara Brewer, Appellants.
• Decision Date: 22 February 1982
• Court: Tennessee Court of Criminal Appeals

Page 33

640 S.W.2d 33

STATE of Tennessee, Appellee, v. Robert BREWER and Barbara Brewer, Appellants.

Court of Criminal Appeals of Tennessee at Knoxville.

Feb. 22, 1982.

Permission to Appeal Denied by

Supreme Court May 10, 1982.

Feb. 22, 1982.

John F. Southworth, Asst. Atty. Gen., Nashville, John M. Roberts, Dist. Atty. Gen., Livingston, Marsha L.K. Selecman, Asst. Dist. Atty. Gen., Crossville, for appellee.

James S. Smith, Jr., Rockwood, for appellants.

OPINION

DAUGHTREY, Judge.

Robert Brewer and Barbara Brewer, husband and wife, were convicted of manufacturing marijuana and of possession of marijuana for resale. They were sentenced to two to five years imprisonment and assessed a fine of $2500 in each case. On appeal they challenge (1) the sufficiency of the evidence, (2) the validity of the search of their premises, (3) the admissibility of a statement made at the jail by Barbara Brewer, and (4) the validity of the jury's verdict, in view of an extraneous comment allegedly made by one of the jurors. We find no reversible error in connection with these issues.

The charges against the Brewers and their non-appealing co-defendant, John Paul Taylor, resulted from the execution of a search warrant at the Brewers' rural Cumberland County home, where they lived with their two children. The Brewer residence was located on a three acre lot in a heavily wooded and largely undeveloped subdivision known as Genesis Estates. The gravelled road on which the Brewers lived had no official designation, but according to their rural mail carrier, it was apparently referred to by the Brewers and their correspondents as Cannibis Lane. The mailbox in front of the Brewer home was painted with the names of the four individual family members and with large green marijuana leaves.

Officers executing the search warrant found three plant beds in which several thousand small marijuana plants were growing. Two of these were on the Brewers' property behind the house. The third was apparently just beyond their property line on a neighbor's uninhabited lot. Searching a partially constructed house behind the Brewer's home, officers also found large glass jars of dried marijuana, one of which bore the label "Bob's Sinsemillia, just picked Christmas 1978." This house was also uninhabited, and access had been gained by pulling away some of the siding. The owner testified that the controlled substances seized were not his and that he had not given anyone permission to store contraband in his house.

Officers found a briefcase containing several plastic bags of marijuana in the kitchen area of the Brewer home. Barbara Brewer was there at the time of the search and was put under arrest. Across the road officers also arrested Taylor, who was apparently living in a converted bus on the Brewers' property. They found a quantity of marijuana on Taylor's person and in the bus.

Taylor and Barbara Brewer were transported to the Cumberland County Jail. There a judicial commissioner, in the course of drawing up an arrest warrant, asked Brewer if she had any comment. She replied that she had grown the marijuana located on her property but denied any knowledge of the marijuana found in the briefcase seized from her home. This oral statement was introduced at trial over defense counsel's objection. The trial court ruled that it was a "voluntary" statement, apparently finding that it was not the result of custodial interrogation.

The defendants now argue that the search conducted on Cannibis Lane so far exceeded the scope of the warrant as to make the search illegal. This contention is based on defense testimony that a roughly drawn map showing where officers searched encompassed an area of not less than nine acres and possibly as much as forty acres. However, the officer who sketched the diagram in question had cautioned that it was not drawn to scale. He also verbally described the area searched, estimating its size at three acres, and told of the difficulty officers experienced in trying to determine just where the Brewers' property line was, in view of the fact that none of the lots in the subdivision were staked out or otherwise marked.

From our review of the record, it appears that the officers did not stray far from the Brewers' property. Certainly the extent of the search cannot be said to be unreasonable under all the circumstances. Moreover, as the State correctly points out, the defendants have failed to establish a privacy interest in any area that was searched beyond their property line. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Furthermore, the bulk of the contraband seized in the search was found on the Brewers' premises. We thus find no error in the trial court's ruling on the motion to suppress.

The trial court did err, however, in admitting Barbara Brewer's inculpatory statement, in the absence of testimony that she had waived her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ^* There can be little question, and the State apparently conceded at trial, that Barbara Brewer was in custody at the time the statement was made. None of the prosecution witnesses was able to establish that Brewer had been given Miranda warnings; she explicitly denied...