State v. Jennette

• Decision Date: 20 January 1986
• Citation: 706 S.W.2d 614
• Parties: STATE of Tennessee, Appellant, v. Jerry JENNETTE and Marita Jennette, Appellee. 706 S.W.2d 614
• Court: Tennessee Supreme Court

Page 614

706 S.W.2d 614

STATE of Tennessee, Appellant, v. Jerry JENNETTE and Marita Jennette, Appellee.

706 S.W.2d 614

Supreme Court of Tennessee at Nashville.

Jan. 20, 1986.

David M. Himmelreich, Asst. Atty. Gen., Nashville (W.J. Michael Cody, Atty. Gen. and Reporter, Nashville, of counsel), for appellant.

William P. Redick, Jr., Nashville, for appellee.

OPINION

HARBISON, Justice.

In this case appellees pled guilty to a charge of manufacturing marijuana for resale. In connection with their guilty plea they undertook to reserve, with the consent of the trial court, questions of law for review on appeal pursuant to Rule 37(b)(2)(iv), Tennessee Rules of Criminal Procedure.

That rule permits an appeal from a conviction on a guilty plea if:

"[d]efendant explicitly reserved with the consent of the court the right to appeal a certified question of law that is dispositive of the case."

Nowhere in the order of the trial court is a dispositive certified question stated, nor does the same appear in a written motion to suppress filed by appellees. Instead, at the suppression hearing counsel for appellees stated that there were "several issues" involved in the case including "a whole range of Fourth Amendment questions and Article I, Sec. 7 questions of the Tennessee Constitution...."

In the Court of Criminal Appeals and in this Court appellees have sought to raise a large number of questions involving the broad field of search and seizure without any specification or certification from the trial court and without demonstrating how most of these questions could be dispositive of the case.

Apparently the State raised no objection to the procedure followed, and the Court of Criminal Appeals accepted the case for review. It resolved most of the questions against appellees, but sustained their position on one issue. The Court of Criminal Appeals then dismissed the charges in their entirety, despite the fact that this single issue could not have been dispositive under the facts and circumstances of the case.

Finding error both in the procedure involved and on the issue which the Court of Criminal Appeals decided for appellees, we reverse and reinstate the judgment of the trial court.

A. Factual and Procedural Background

State and local police officials conducted a helicopter search for growing crops of marijuana in Cheatham County on September 1, 1981. They flew over a 25-acre tract owned by appellees in a rural section of the county. They did not know the boundaries of the tract, the names of the owners, or whether a house seen in the area was or was not located on the tract where two small but widely separated patches of marijuana were observed. They radioed the local sheriff who went to the area with other officers and entered the premises without a warrant. The helicopter personnel landed nearby and were also transported to the scene. At the suppression hearing appellees testified that they owned the 25-acre tract and that the house situated thereon was their residence. They confirmed the testimony of the officers that marijuana was in fact growing on their property in the areas observed from the air. Neither patch was sufficiently close to the residence to be claimed a part of the "curtilage". Appellees contend that neither patch could have been seen or observed from the ground by officers standing or driving at the boundary of their property.

There were two entrances to the property, although this fact was not known to the officers. The one which they used was a back entrance, not regularly used by appellees. It was posted with "No Trespassing" signs and blocked by a cable. The officers walked from this entrance for several hundred yards to the house and then went to the marijuana patches.

From the air, no one had been observed where the marijuana was situated, and the two patches together contained only twenty-six stalks of the material. These were large stalks, from eight to twelve feet high, sixteen in one patch and ten in the other. Mrs. Jennette and her sixteen-year-old stepdaughter were in the house, and later Mrs. Jennette was seen carrying some marijuana past one of the windows. The officers thereupon entered the house and searched it. Appellees, however, have not raised any separate question concerning this entry and search. We do not attempt to deal with it, because suppression of the brief testimony concerning marijuana found in the residence could not in any sense be dispositive of this case under Rule 37, T.R.Crim.P.

The local sheriff testified that he visited both patches of marijuana. He stated as follows:

"And see, when we got down in the hollow, it was a small amount of marijuana looked like it had been pulled off that morning and dropped right at the end of the field."

The officers pulled the remaining marijuana plants and transported them off the premises on vehicles which they drove under the cable suspended across the drive through which they had entered. They destroyed the crop that evening, preserving only a small sample of it. Although the motion to suppress was couched in terms of suppressing the evidence seized, obviously its thrust was to suppress the testimony of the officers about the entire transaction as well as to suppress the small quantity which had been preserved but which was not, insofar as we can tell from the record, exhibited at the suppression hearing.

The motion to suppress was stated in general terms, alleging an improper warrantless search under the state and federal constitutions. The suppression hearing consisted of the filing of a transcript of a preliminary hearing held on December 3, 1981 and of testimony adduced from appellees on October 11, 1982.

In November, 1981 the Court of Criminal Appeals rendered its opinion in the case of State v. Roode, upholding the seizure of marijuana observed from a helicopter overflight. This Court granted permission to appeal by the defendant. On February 11, 1982, counsel for appellees filed a motion in the present case to stay the proceedings because of the pending appeal in the Roode case, stating in the motion that the instant case "raises identical legal questions." He sought to have the trial court stay the present case until it might "have the benefit of the Supreme Court opinion in the case of State v. Peter Roode...."

This Court rendered its decision in the Roode case on November 22, 1982. See State v. Roode, 643 S.W.2d 651 (Tenn.1982). The Court held, as had the Court of Criminal Appeals, that there was no search involved in a lawful aerial overflight, so that there were no Fourth Amendment questions presented with reference to observations made by officers conducting such activity. Similarly there are no such questions raised under the comparable state constitutional provisions.

Although he ruled on the suppression motion prior to this Court's decision in Roode, the trial judge held that there was no search involved insofar as the testimony of the officers concerning the overflight was concerned. The Court of Criminal Appeals agreed.

That should have ended the case. If the testimony of the officers concerning the overflight could not have been suppressed, it alone was sufficient to convict the appellees. Only if appellees could have suppressed all testimony about both the overflight and the subsequent entry could any question "dispositive of the case" under Rule 37 have been presented. Since the Court of Criminal Appeals agreed that there was no unlawful search in connection with the overflight, no other proper Rule 37 issue was before it. However, appellees undertook to raise a series of issues in the Court of Criminal Appeals and have pursued most of them here. In the Court of Criminal Appeals they questioned the authority of officers of the Tennessee Highway Patrol to enforce the drug control statutes, argued that the Roode case, supra, had been erroneously decided by this Court and sought its overruling or modification, sought guidelines concerning limits on the right of overflight and finally complained of the warrantless entry upon their property by the officers after the aerial observation. Most of those same issues have been pursued in this Court. As stated, none of them could be dispositive, except suppression of the entire evidence, and that would involve the overruling of the Roode case. We have no disposition to disturb that holding but reaffirm it. Nothing in the record in the present case suggests anything illegal or improper about the helicopter observation or the manner in which it was conducted. Accordingly, since the motion to suppress must have failed, at least in part, the judgment of the trial court should have been sustained under Rule 37.

The Court of Criminal Appeals did not do so, however, but went further to hold that even though the initial observation of the marijuana was lawful and proper, still the later entry upon appellees' property without a warrant was improper conduct by the officers. The Court of Criminal Appeals accordingly reversed the judgment of the trial court and dismissed the indictment. In doing so, we are of the opinion that the Court of Criminal Appeals improperly applied Rule 37, T.R.Crim.P.

It is possible for there to be more than one certified question under Rule 37, but any question sought to be presented under that rule, following conviction on a guilty plea, should (1) be precisely stated in the order of the trial court certifying the question and (2) be dispositive of the case if the trial court is in error. The rule was never designed to authorize a general review of numerous factual and legal issues without express articulation and without these being completely controlling.

Because the State did not object and because the Court of Criminal Appeals accepted the appeal in the posture presented, we feel it appropriate to deal with the issue which that Court did decide in favor of appellees, although, as stated, it is not and could not be...