Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

A warrantless search of a car or truck in Tennessee is usually prohibited , however there are exceptions to this rule. If a police officer can demonstrate probable cause that a car might contain marijuana , a police officer can search a car or truck. The big question is whether the smell of marijuana is enough to justify a search of a car in Tennessee.

Tennessee Courts have upheld a warrantless search of a car  based on the smell of marijuana alone.  One question is  it the smell of raw marijuana or burnt marijuana . Does the smell of marijuana limit the search to the interior of the car ?

Using the smell of marijuana should always be contested in a automobile search. One can test the officer in several ways;

• What was his training in the odor of marijuana ?
• What was his experience ?
• Was there any other evidence of marijuana use found ?

Time and time again I see that there is no evidence recovered of burnt marijuana after the traffic stop. How do you combat the officer's testimony ? Get an independent witness to smell the car.. The Fourth Amendment is constantly being eroded and the smell is enough to search a car.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Once you see blue lights on a police car come on , you know someone is in trouble. The Tennessee Court of Criminal appeals reversed a lower court and dismissed a DUI conviction based  on a illegal  traffic stop. The court held that once the blue lights come on the driver is seized for Fourth Amendment purposes.Here is a portion of the court's ruling ;

the defendant’s encounter with the officer was not voluntary, but rather

occurred under a show of authority—the activation of the blue emergency

lights—from which a reasonable person would not have felt free to leave.

“Few, if any, reasonable citizens, while parked, would simply drive away and

assume that the police, in turning on the emergency flashers, would be

communicating something other than for them to remain.”

This case is a reminder that the primary defense in most drunk driving cases in Tennessee is to examine the reason the police pulled you over .Also , blue lights equal a seizure under the Fourth Amendment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

After court today  in Hickman County Tennessee , I stopped for lunch at Breece's Cafe  in Centerville , Tn, and picked up a copy of the Hickman County Times . By the way , Breece's is a must and try the blackberry pie . The article that grabbed my attention was a cocaine case .

A California man was sentenced to 15 years in jail last week. According to affidavits filed by the 21st Judicial Task Force , Mr.Jeff Bryant was stopped because he was following a tractor-trailer less than two vehicle lengths. Following too closely is a traffic offense under Tennessee law . After  Mr. Bryant was stopped , He consented to a search of his car .Over 27 ounces of cocaine , some marijuana , and a firearm were found in the car . It appears the main defense to the charge was that the traffic stop was illegal. The court denied the defendant's motion to suppress the evidence due to a bad traffic stop.

Mr. Bryant was sentenced to serve 15 years in prison. Possession , sell , delivery or manufacture of more than 300 grams of cocaine carries a 15 to 25 years in prison as a Range I offender .

It appears that Mr. Bryant was stopped by a drug interdiction unit that operates on Interstate 40.

The important lesson is that Mr. Bryant failed to exercise one of his basic constitutional rights . He could have refused the search. However , he consented to the search of his vehicle . Failing to exercise his constitutional rights cost him 15 years to be served at the Tennessee Department of Corrections .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It appears the exclusionary rule days may be numbered in Tennessee .The Tennessee House Judiciary Committee recommended a bill that would guarantee that evidence seized after the execution of a search warrant issued pursuant to Tennessee Code Annotated 40-6-101 or  under Rule 41 of The Tennessee Rules of Criminal Procedure would not be subject to suppression on account of a "good faith mistake or technical violation made by a law enforcement officer , court official , or the issuing magistrate . " The attorney general has found the bill constitutional . However , their opinion is not binding on the courts .

Under the exclusionary rule rule , evidence obtained in violation of the Fourth , Fifth , and Sixth amendment may not be introduced at trial to prove a defendant's guilt . The purpose of the exclusionary rule is to deter constitutional violations .

If the bill passes , it will be sad day in Tennessee for constitutional freedoms . Some members of the legislature speak about Tennessee 's Constitution and the need to strictly follow it . Yet , they intend to strike down years of Tennessee case law which holds that the Tennessee Constitution gives Tennesseans more rights than the U.S. Constitution .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Tennessee State Legislature is on the march to wipe out the exclusionary rule in this year's session . A hearing was held last week . A Nashville  Assistant District Attorney  General  testified during the committee meeting . The discussion centered on a technical error in the search warrant which was later held to be invalid .Criminal defense lawyers  are worried that the Legislature is going to wipe out the exclusionary rule .

The exclusionary rule is used to refer to the exclusion of evidence because it was obtained by law enforcement officials in violation of the Due Process Clause of the Fourteenth Amendment or some provision of the Bill of Rights. The exclusionary rule prohibits the state from using evidence obtained in violation of of four constitutional rights :

1. The right against unreasonable searches and seizures prohibited by the Fourteenth Amendment
2. The right against self incrimination as guaranteed by the Fifth Amendment
3. The right to counsel as guaranteed by the Sixth amendment
4. The right to Due Process of law guaranteed by the Fourteenth Amendment

Tennessee first recognized the the validity of excluding evidence in violation of the Tennessee Constitution as early as 1922 . Mapp v. Ohio  is the case where the U.S. Supreme Court applied the exclusionary rule for the first time.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As the use of new technology and gadgets increase daily, so does unlawful searches of those devices.Warrantless searches conducted outside the judicial process , without prior approval by a judge or magistrate are per se unreasonable.There are some well defined exceptions to the Fourth amendment's warrant requirement.One of those exceptions is a search incident to a lawful arrest.

Cell phones did not exist when the exclusionary rule came into criminal law jurisprudence.Now most people use a cell instead of a land line and smart phones have all sorts of data and uses. Cell phones may even have data of criminal activity.Recently, the Supreme Court of California in People v.Diaz have addressed the issue of a warrantless search of the text message folder of a cell phone.

The California Supreme Court applied the basic exception that a search incident to a lawful arrest is valid under the Fourth Amendment of the U.S.Constitution.The Court relied on a old case where the police found some heroin in a cigarette pack.It is entirely different to a cell phone.Phone numbers, emails,texts are now commonly stored in a cell phone.A smart phone has more computing power than the computers that ran the Apollo moon mission.The Court went further and found that the cell phone was immediately associated with the defendant's person.The Court got this one wrong.Right now , a  Michigan man is being prosecuted for hacking into his wife's email to discover her adultery.He is facing 5 years in prison.Please tell me the difference.Cell phones are private property.

In Tennessee, we might have a different result in that the Tennessee Constitution gives a broader protection under the search and seizure law.A few key points:

1. There may have been a different result if the cell phone had a password.
2. IPhones have a slide to unlock.Does the lock give greater expectation of privacy.

I predict this case is just the beginning of  aggressive searches of cell phones in Tennessee.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A traffic stop on a Tennessee interstate or highway may lead to the following questions being asked of you.

• You're not carrying any weapons , drugs or dead bodies are you ?
• You're not from around here are you ?
• You wouldn't mind if we searched your car , then would you ?

Can you refuse giving consent to search your car in Tennessee ? Yes.

What happens if you consent to a search and the police find drugs , money ,or guns.Then, you have some problems.

First,  mere questioning or a request for consent is neither a search or seizure , so the Fourth Amendment is not implicated. Secondly, the length of detention should last no longer than is necessary to effectuate the purpose of the traffic stop.

There are two ways to fight a consent search.

1. Was the consent to search given voluntarily ?
2. Did the search exceed the consent that was given.

The  Constitution is a powerful right given to all citizens.Please don't ignore it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Felix Booker had a body cavity search that tests the limits of search and seizure law.  Mr Booker was lying naked on a gurney, breathing out of a tube, and medically paralyzed while a medical doctor searched his rectum.  Mr. Booker was stopped in a routine traffic stop and arrested. Oak Ridge Police suspected cocaine was hidden in his body, so they took him to an emergency room for a body cavity search.  Dr. Michael LaPaglia ordered a cocktail of drugs to paralyze Mr. Booker.  He had to be placed on a breathing machine during the procedure.  The search revealed Mr. Booker had 10.2 grams of crack cocaine hidden in his rectum.  Mr.Booker was hauled off to jail once he woke up and is now facing federal drug charges in U.S. District Court.  Mr. Booker's lawyer, Bob Jolley, has asked the court to suppress the evidence from the body cavity search.

Here's the key point.  Tennessee has a specfic statute on body cavity searches.  The Oak Ridge Police might have requested a federal prosecution to avoid Tennessee's safeguards on body cavity searches.

Here is Tennessee's law on body cavity searches:

Chapter 7. Arrest

Part 1. General Provisions (Refs & Annos)

§ 40-7-121. Searches and seizures; body cavities

I hope the Judge enters an order suppressing the search.  Based upon what has been reported by the news media, it appears this seach of Mr. Booker's body is outside all bounds of the Fourth Amendment of the U.S. Constitution's prohibition against illegal searches.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Can you consent to a police search of your car or home under Tennessee law.The answer is yes.

Consent is a well recognized exception to the search warrant requirements of both Article I section 7 of the Tennessee Constitution and the Fourth Amendment of the United States Constitution. The key is a valid consent to search eliminates the police officer's need to obtain a search warrant and the need for probable cause.

The question then becomes was the consent voluntary.For a consent search to be valid , the consent must be unequivocal,specific,intelligently given and uncontaminated by duress or coercion.The burden of proof is on the government to show the consent was voluntarily given.

My gentile reminder is please do not consent to a search at anytime.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Your charged with a crime like possession of drugs or aggravated assault. You are put on probation and you think your problems are gone. Wrong. A new trend in Tennessee as it relates to probation cases is to include a condition of probation that waives your Fourth Amendment right of an illegal search and seizure. Paragraph 7 of the probation order of the Board of Probation and Parole provides as following:

I agree to a search, without a warrant, of my person, vehicle, property or place of residence by any probation/parole officer or law enforcement officer at any time.

When I first read this, I was shocked and was sure it was unconstitutional. However, the United States Supreme Court in United States v. Knights upheld a probation order search. Tennessee follows the Knights holding. The key difference in the Knights case is that the officers knew of the order. Does the probation order cure an illegal search if the officers were not aware of the order?

For now, citizens on probation in Tennessee have no Fourth Amendment protection.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 The federal courts are split over whether the police must obtain a search warrant before secretly attaching a Global Positiong System device under someone's car.  The issue is whether the Fourth Amendment of the U.S. Constitution's protection against unreasonable searches and seizures covers a device that records a suspect's movements for days, weeks, or months without any need for a police officer or drug task force agent to follow the suspect.  Traditionally, the courts have held that the Fourth amendment does not cover the trailing of a suspect because a citizen has no expectations of privacy for actions exposed to public view.

With the explosion of technology to track someone's movement by GPS or cell phone, how do the court's apply Fourth Amendment privacy rights in the 21st century?

The D.C. Circuit held on August 6 , 2010  that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. August 6, 2010): Thanks to the Fourth Amendment for this clip. Here is the full commenatary on this case.

• Email This
• Print
• Comments
• Trackbacks
• Share Link