State v. Manning
Decision Date | 05 February 1973 |
Citation | 490 S.W.2d 512 |
Parties | STATE of Tennessee, Petitioner, v. Fred D. MANNING, Respondent. |
Court | Tennessee Supreme Court |
David M. Pack, Atty. Gen., State of Tennessee, Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, H. H. Winstead, Dist. Atty. Gen., Rogersville, Charles E. Fraley, Asst. Dist. Atty. Gen., Church Hill, for petitioner.
Respondent was indicted in two cases for the sale of legend drugs in violation of T.C.A. Section 52--1204, and a third case for the possession of legend drugs in violation of T.C.A. Section 52--1206. He was found guilty in each of the three cases and sentenced to not less than one nor more than five years imprisonment and a fine of.$1000.00 in each case. The trial judge ordered the sentences to run consecutively.
The Court of Criminal Appeals, by a split decision, dismissed the indictment for possession of legend drugs and reversed and remanded the other two convictions. We granted the State's petition for certiorari.
The conviction of the unlawful possession of legend drugs was dismissed on the ground the evidence relied on by the State was obtained by an unlawful search and seizure. In dismissing this conviction, the majority opinion states:
However, the facts are Ed Trent and Joel Seals, members of the Morristown Police Department, were patroling a street in that city about four A.M., on the morning of January 13, 1971, when they observed a car traveling at a very slow rate of speed.
They had been ordered to stop cars using the streets during the late and early hours of the day which they deemed suspicious because recently many burglaries had occurred in the city during those hours.
The officers stopped the car and asked respondent if they could search his car and he replied in the affirmative; and, in fact, opened the trunk of the car himself.
An assortment of legend drugs was found in the interior of the car.
Respondent testified concerning the search. He stated he permitted the officers to search his car only at their direction. On cross examination, the following occurred:
'
In the case of Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), the Court said:
Moreover, assuming the stopping of the car was an illegal arrest, there is no constitutional immunity from an unlawful arrest. The constitution only guarantees freedom from unreasonable searches and seizures. Satterfield v. State, 196 Tenn. 573, 269 S.W.2d 607 (1954); High v. State, 188 Tenn. 166, 217 S.W.2d 774 (1948). A permissive search by the owner is not an unlawful or unreasonable search. Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 (1967).
Furthermore, respondent took the stand and testified he did not know the pills were in his car.
Lester v. State, 216 Tenn. 615, 393 S.W.2d 288 (1965), certiorari denied 383 U.S. 952, 86 S.Ct. 1214, 16 L.Ed.2d 214.
Accordingly, it was error for the Court of Criminal Appeals to reverse the conviction and dismiss the indictment.
In reversing the two cases charging respondent with the unlawful sale of legend drugs, the Court of Criminal Appeals held respondent was denied a fair trial due to certain questions asked respondent and his mother on cross examination.
The majority opinion states:
'Although the guilt of the defendant of these two violations is clear, the convictions must be reversed because he was not afforded a fair trial.'
The first instance relied on by the Court of Criminal Appeals occurred when the District Attorney General cross examined respondent, as follows:
'
'
'Mr. Quillen: Your Honor, I object.
'Mr. Quillen: I move for a mistrial, if Your Honor, please, it is so prejudicial and so unfair.
'The Court: Your motion for a mistrial is denied, Mr. Quillen.
'Mr. Quillen: Note an exception.
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