State v. Talley

307 S.W.3d 723

STATE of Tennessee v. William Glenn TALLEY.

No. M2007-01905-SC-R11-CD.

Supreme Court of Tennessee, at Nashville.

February 11, 2010 Session.

March 19, 2010.

David Louis Raybin, Nashville, Tennessee, for the appellant, William Glenn Talley.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

GARY R. WADE, delivered the opinion of the Court, in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

After receiving information about illegal drug sales at the condominium residence of the defendant, detectives from the police department, which, among others, had been previously provided with the access code to the locked front entrance of the building, were permitted entry into the commonly owned interior hallway by an unknown individual. The detectives knocked at the defendant's unit, received consent to search from the girlfriend of the defendant, and observed what appeared to be drugs and drug paraphernalia. After search warrants were issued, first for the defendant's residence and then for his business, the police found drugs and child pornography; further, the defendant, upon questioning, made incriminatory statements. A grand jury indicted the defendant on six separate charges. The trial court denied a motion to suppress the evidence acquired by the police and then granted the defendant an interlocutory appeal. The Court of Criminal Appeals affirmed. We granted an application for permission to appeal in order to determine whether the defendant had a legitimate expectation of privacy in the locked, commonly shared interior hallway of the condominium. Because the totality of the circumstances establish that the defendant could not reasonably expect privacy in the hallway leading to his residential unit, the order denying the motion to suppress is affirmed and the cause is remanded for trial.

Factual and Procedural History

During the summer of 2005, William Glenn Talley (the "Defendant") resided in a condominium unit he owned on the second floor of Hedrick Place, located at 116 31st Avenue North in Nashville. Including the Defendant, there were twenty-one owners of units within the condominium building. Ownership of a unit included a parking space and an equal share in the common areas, such as the interior hallways, the stairway, and yard. The property did not display "no trespassing" signs. The front door entrance, accessible from the public sidewalk, was locked at all times, requiring visitors without an access code to make contact with a resident by use of an electronic keypad and the telephone system in order to gain entry. The unit resident permitting entry either provided the visitor with an access code via the telephone system or simply opened the front door manually. Any resident or guest could admit anyone, including the police, to the common areas of the building. Those entering the front door had access to all of the common areas. The police department, the fire department, the postal service, United Parcel Service, FedEx, facility cleaners, vendors, and perhaps others were provided with an access code to the front entrance. The dispatcher at the police department maintained the code on file so that officers could call in for access at any time.

On or about August 11, 2005, an individual who expressed the desire to remain anonymous reported to the Metropolitan Nashville Police Department through "244-DOPE-LINE" that the Defendant was selling illegal drugs at his condominium unit.¹ Five days later, at approximately 7:45 p.m., Detective Joseph Simonik, accompanied by Detectives Fox, Osborne, Stokes, and Gonzales, arrived at the condominium building and contacted the dispatcher in order to obtain the access code for the front door. The detectives, who had purposefully chosen not to alert the Defendant of their presence before they reached his unit, wore "raid jackets" clearly marked with a police patch and badge. While the officers waited for the dispatcher to provide the code, a casually dressed man, who was departing the premises, opened the door, greeted the officers, and allowed them entry. Detectives Simonik, Fox, and Osborne proceeded to the Defendant's second floor unit, and Detectives Stokes and Gonzales waited in the hallway. Within thirty to forty seconds after entering the building, Detective Simonik knocked at the door of the Defendant's unit. Kimberly Knight answered and informed the officers that the Defendant was not present. Detective Simonik asked permission to enter the unit in order to talk further, and Ms. Knight, who told the officers that she had shared the residence with the Defendant for approximately three weeks, agreed. As the detectives walked into the living room, they observed, in plain view, a glass smoking pipe and a knife containing white residue.

Shane Cathey, Ms. Knight's teenage brother, had been staying at the condominium and was present when the detectives arrived. When questioned by Detective Fox, Cathey admitted that he had possession of Xanax, which had been supplied by the Defendant. Drugs were in his pocket. Ms. Knight called the Defendant on her mobile phone and allowed Detective Simonik to speak directly to him. After explaining the purpose of the investigation, Detective Simonik asked the Defendant, a licensed pharmacist, to return to the condominium. When the Defendant arrived shortly thereafter, the detective asked for permission to search. At that point, the Defendant asked for the opportunity to speak to an attorney, made several telephone calls, and then walked upstairs in hopes of finding an attorney who resided in one of the other condominium units. Ultimately, he declined consent to search. Detective Simonik left to acquire a search warrant, and the other officers secured the area until his return. Meanwhile, the Defendant was informed that he was free to leave the premises.

After a search warrant was obtained, the officers conducted a search of the unit at approximately 10:15 p.m. They discovered more illegal drugs, drug paraphernalia, pornographic images of children, and three pornographic compact discs.² When Ms. Knight informed Detective Simonik that the Defendant had other drugs and a gun at his place of business, the officers applied for a search warrant at that location. The second warrant was issued at 2:59 a.m. on the following day. Two hours later, the officers found more illegal drugs, a gun, and a large number of pornographic images of children at the Defendant's place of business. When arrested, the Defendant admitted to having used cocaine since the prior September and acknowledged that he had provided illegal drugs to some of his friends in exchange for money, explaining that he did not consider this to be "selling." He also asserted that he had downloaded the images the detectives found on his computer only out of curiosity.

Based upon the results of the investigation, the Defendant was indicted by a grand jury on six counts: (1) exploitation of a minor by possessing more than fifty images of child pornography; (2) sexual exploitation of a minor by possessing more than one-hundred images of child pornography; (3) possession of dihydrocodeinone with intent to sell or deliver; (4) possession of alprazolam with intent to sell or deliver; (5) possession of clonazepan with intent to sell or deliver; and (6) possession of diphenoxylate with intent to sell or deliver. See Tenn.Code Ann. §§ 39-17-1003 & -417 (2003).

The Defendant filed a motion to suppress all of the incriminating evidence acquired by the police, contending that the condominium search was illegal and arguing that the search of the business and any of his incriminatory statements were unattenuated products of the wrongful search. Charles Reasor, Jr., an attorney and homeowners association board member who owned a unit at Hedrick Place, testified for the Defendant at the hearing on the motion. When asked whether he considered the access code given to various nonresidents an "emergency code" for the police, he answered yes. When asked whether the police had been allowed "free rein" into the building absent an emergency, Reasor answered, "No." On further questioning, however, he conceded that the police "could have access, if they wanted to know the code" and that they had been there in non-emergency situations, such as for the preparation of an automobile accident report and a burglary investigation. Further, Reasor acknowledged that the code had "just been registered with the police department, just like it has with the postal service," and the use of the code by the police was "at their discretion."

After concluding from this testimony that the Defendant had a reasonable expectation of privacy in the hallway leading to his condominium unit door, an area "protected from warrantless entry," and the officers had gained entry in order to conduct a "knock and talk," see United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir.2000), the trial court observed that the motion to suppress would have been granted absent the intervening consent to search by Kimberly Knight. See State v. Cothran, 115 S.W.3d 513, 521 (Tenn.Crim. App.2003) (upholding a "knock and talk" as a proper investigatory technique in a consensual encounter). The trial court refused to rule out the evidence after finding that the consent by Ms. Knight, as a lawful occupant of the unit, was not causally linked to the illegal intrusion. In the interlocutory appeal, the Court of Criminal Appeals affirmed, but on different grounds, concluding that the Defendant had no reasonable expectation to privacy in the common areas of the condominium complex. State v. Talley, No. M2007-01905-CCA-R9-CD, 2009 WL 1910949, at *6 (Tenn.Crim...