State v. Harris

• Decision Date: 01 June 1995
• Citation: State v. Harris, 919 S.W.2d 619 (Tenn. Crim. App. 1995)
• Parties: STATE of Tennessee, Appellee, v. Ronald HARRIS and Ralph Gallaty, Appellants.
• Court: Tennessee Court of Criminal Appeals

Page 619

919 S.W.2d 619

STATE of Tennessee, Appellee, v.Ronald HARRIS and Ralph Gallaty, Appellants.

Court of Criminal Appeals of Tennessee at Knoxville.

June 1, 1995.

Appeal from Hancock County; Hon. James E. Beckner, Judge.

R. Jackson Rose, Cumberland Gap, for Appellants.

Charles W. Burson, Attorney General & Reporter, Sharon S. Selby, Assistant Attorney General, Criminal Justice Division, Nashville, C. Berkeley Bell, Jr., District Attorney General, William Rhea, Assistant District Attorney General, Clarksville, for Appellee.

OPINION

WHITE, Judge.

Appellants, Ronald Harris and Ralph Gallaty, pled guilty to a single charge of manufacturing thirty-four grams of marijuana.¹Harris received a sentence of eighteen months and a $2,500 fine.Gallaty was sentenced to one year and fined $2,000.Prior to pleading guilty, appellants entered into a plea agreement in which they reserved a certified question of law pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure.The issue reserved for appeal is whether the search of appellants' property which yielded the marijuana was valid.

The state has chosen not to respond to the substantive issue but argues only that appellants have not properly reserved an issue that is dispositive of the case.We disagree.Appellants have complied with Rule 37(b) according to the requirements of our Supreme Court in State v. Preston, 759 S.W.2d 647(Tenn.1988).

Rule 37(b) provides that an appeal "lies from any order or judgment ... where the law provides for such appeal, and from any judgment of conviction ... upon a plea of guilty ... if ... defendant entered into a plea agreement under Rule 11(e) but explicitly reserved with the consent of the State and of the court the right to appeal a certified question of law that is dispositive of the case."Tenn.R.Crim.P. 37(b)(2)(i).

In Preston, the Supreme Court adopted the following prerequisites to the consideration of the merits of a certified question of law pursuant to Rule 37(b)(2)(i):

1.The final order or judgment must contain a statement of the dispositive question of law reserved by defendant for appellate review;

2.The order must state that the certified question was expressly reserved as part of a plea agreement;

3.The order must state that both the state and the trial judge have consented to the reservation and are of the opinion that the question is dispositive of the case; and

4.The question of law must be stated so as to clearly identify the scope and the limits of the legal issue reserved.

State v. Preston, 759 S.W.2d 647, 650(Tenn.1988).Appellant has the burden to see that the prerequisites are in the final order.Id.

The trial judge's amended order unquestionably meets the first three requirements.The state contends only that the statement of the certified question in the final order does not clearly identify the scope and limits of the legal issue being reserved and that the stated issue is not dispositive of the case.The order identifies the certified question of law as: "That is, the validity of the search of the defendant's property where the marijuana was found."

The issue is not framed according to what might be referred to as standard "law-school" format.The wording is not as felicitous as it could be.However, the criteria in Preston demands only that the question as stated "clearly identify the scope and limits of the legal issue reserved."The statement in the trial judge's final order unquestionably satisfies these requirements.

In this case, there were two searches.The first was a search of the property behind the residence in which the marijuana plants were found.The officers conducted this search without a warrant and in appellants' absence.The second, the search of the residence, was conducted with the consent of appellant Harris.In this second search, the officers found the drug paraphernalia, a plastic baggie containing a small amount of marijuana, and four pills for which Harris and Gallaty could produce no doctor's prescription.The statement of the certified question of law clearly limits the scope of review to the question of the validity of the first search.

The question as stated is dispositive of the case.The first count of the indictment, to which appellants pled guilty, was based on the evidence seized pursuant to the search behind the residence.If the search was invalid, the state would have no evidence to introduce against appellants.The evidence seized as a result of the consensual residential search are irrelevant since the charges relative to that evidence were dismissed.

The pertinent facts are these.Ronald Harris lives on a secluded piece of fenced property in Hancock County.To reach the Harris home, one must first enter an iron gate which is posted with "no trespassing signs" and then drive approximately a half mile down a private lane.The house, which was built by Harris, has no running water or electricity.Water for household use is carried from a spring located approximately 125 yards behind the house.The land behind the house is mowed regularly.An old hog pen is located about 100 yards away from the house on a lane leading to the spring.The land has been used for livestock and gardening.Ralph Gallaty shares the house and pays a proportionate share of the expenses.Both men are self-employed as mobile home mechanics.

On the afternoon of April 16, 1993, Sheriff Tony Seals and Deputy Carl Lowe arrived at Harris' home to serve civil process on him.At least one car was parked in the driveway and smoke was visible in the chimney.Deputy Lowe knocked on the front door but got no response.He looked inside a sliding glass door on the side of the house and determined that no one was at home.The sheriff, who had remained in the police car, got out and went around the side of the house.He saw no one, but observed some logs, a tractor, and a loader a distance from the house.At some point, the sheriff observed an enclosure which appeared to be covered with plastic.The sheriff walked down the lane one hundred yards and found an old hog pen with three feet high "tin" sides.According to his testimony, inside the enclosure the sheriff observed small plants growing beneath a torn plastic sheet.After determining that the plants were marijuana, the two officers waited in their car for some five or six hours for Harris and Gallaty to return home.

Neither officer left to obtain a search warrant.When appellants returned home at seven or eight o'clock in the evening, the officers questioned them.Harris admitted it was his pot growing in the hog pen and signed a consent form to search his home and his car.

At the suppression hearing, the police officers, Gallaty and Harris testified.The sheriff and the deputy admitted that the only purpose for being on Harris's property was to serve civil process relating to child support arrears.Both acknowledged that they had no idea that marijuana might be found there.²Neither officer maintained that the marijuana plants were visible from the front of the house or the porch.A photograph in the record shows that the house is barely visible from the hog pen and that the plastic cover is approximately level with the surrounding enclosure.The logs and brush are lying beyond and to one side of the hog pen.The lane to the house is clear.The record contains no photograph of the lane and hog pen from the porch or side of the house.

At the conclusion of the hearing, the trial judge sustained the search because he found that the officers were legitimately on the property to serve civil process.He found that the presence of smoke in the chimney and indications of logging gave the officers probable cause to believe that Harris was hiding to avoid service of process.Therefore, the court concluded, it was appropriate to look behind the house and down the lane where the signs of recent logging were observed.Since the hog pen was a place where a person could hide, the judge concluded, the sheriff had probable cause to look in there.Upon looking, the marijuana was in plain view through a hole torn in the plastic.³Under these circumstances, the trial judge found that the motion to suppress should be denied.

The trial judge in a suppression hearing hears the evidence, determines the credibility of the witnesses, and applies the law to the facts that are found.Consequently, a trial judge's findings of fact are accorded the same weight as a jury verdict, and as in jury cases, these facts are binding upon this court unless the evidence presented at the suppression hearing preponderates against the trial court's findings.State v. Aucoin, 756 S.W.2d 705, 710(Tenn.Crim.App.), perm. to appeal denied, (Tenn.1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845(1989).On appeal, appellant has the burden of showing that the evidence in the record preponderates against the ruling of the trial judge.State v. West, 767 S.W.2d 387, 393(Tenn.1989).

The record supports the trial judge's conclusion that the officers were legally on appellants' property to serve civil process.However, the evidence does not support a conclusion that the sheriff believed or had any reason to believe that Harris was hiding either in the woods at the end of the lane or in the hog pen.⁴The sheriff testified that he thought someone might be working in the area where he observed the logs and the enclosure, and that he looked in the pen because he saw the plastic sheet.Little evidence supports the sheriff's conclusion that someone was working on the property.The logs and brush were located beyond the hog pen.None of the equipment was running.No one was visible.The sheriff did not report hearing any voices or machinery.No effort was made to get the attention of anyone who might be nearby.

Moreover, nothing in the law justifies the sheriff's proceeding down the lane behind a residence for over a hundred yards to...