[ADOPTED IN CONVENTION AT NASHVILLE, FEBRUARY 23, 1870. PROCLAIMED AND IN EFFECT, MAY 5, 1870, AS AMENDED.]

PREAMBLE AND DECLARATION OF RIGHTS

Whereas, The people of the territory of the United States south of the river Ohio, having the right of admission into the General Government as a member State thereof, consistent with the Constitution of the United States, and the act of Cession of the State of North Carolina, recognizing the ordinance for the government of the territory—of the United States north west of the Ohio River, by their Delegates and Representatives in Convention assembled, did on the sixth day of February, in the year of our Lord one thousand seven hundred and ninety-six, ordain and establish a Constitution, or form of government, and mutually agreed with each other to form themselves into a free and independent State by the name of the State of Tennessee, and,

Whereas, The General Assembly of the said State of Tennessee, (pursuant to the third section of the tenth article of the Constitution,) by an act passed on the Twenty-seventh day of November, in the year of our Lord one thousand eight hundred and thirty-three, entitled, “An Act” to provide for the calling of a Convention, passed in obedience to the declared will of the voters of the State, as expressed at the general election of August, in the year of our Lord one thousand eight hundred and thirty-three, did authorize and provide for the election by the people of delegates and representatives, to meet at Nashville, in Davidson County, on the third Monday in May, in the year of our Lord one thousand eight hundred and thirty-four, for the purpose of revising and amending, or changing, the Constitution, and said Convention did accordingly meet and form a Constitution, which was submitted to the people, and was ratified by them, on the first Friday in March, in the year of our Lord one thousand eight hundred and thirty-five, and,

Whereas, The General Assembly of said State of Tennessee, under and in virtue of the first section of the first article of the Declaration of Rights, contained in and forming a part of the existing Constitution of the State, by an act passed on the fifteenth day of November, in the year of our Lord one thousand eight hundred and sixty-nine, did provide for the calling of a Convention by the people of the State, to meet at Nashville, on the second Monday in January, in the year of our Lord one thousand eight hundred and seventy, and for the election of delegates for the purpose of amending or revising the present Constitution, or forming and making a new Constitution; and,

Whereas, The people of the State, in the mode provided by said Act, have called said Convention, and elected Delegates to Represent them therein; Now, therefore,

We, the Delegates and Representatives of the people of the State of Tennessee, duly elected, and in Convention assembled, in pursuance of said Act of Assembly, have ordained and established the following Constitution and form of government for this State, which we recommend to the people of Tennessee for their ratification: That is to say—

Code Commission Notes.

Chapter 47 of the 1st Session of the Fourth Congress in 1796, as set forth in 1 Stat. 491 provides:

“An Act for the admission of the State of Tennessee into the Union.

Whereas by the acceptance of the deed of cession of the state of North Carolina, Congress are bound to lay out into one or more states, the territory thereby ceded to the United States:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled; That the whole of the territory ceded to the United States by the state of North Carolina, shall be one state, and the same is hereby declared to be one of the United States of America, on an equal footing with the original states, in all respects whatever, by the name and title of the State of Tennessee. That until the next general census, the said state of Tennessee shall be entitled to one Representative in the House of Representatives of the United States; and in all other respects, as far as they may be applicable, the laws of the United States shall extend to, and have force in the state of Tennessee, in the same manner, as if that state had originally been one of the United States.

Approved, June 1, 1796.”

Compiler's Notes. The Constitution of 1870 is in the very language of the engrossed instrument adopted and signed by the convention delegates, word for word and letter for letter, punctuation and spelling, whether correct or not, with exception of the bold face index line at the beginning of each section.

The first Constitution of Tennessee was adopted in convention February 6, 1796, and was effective when Tennessee was admitted to the Union June 1, 1796. The second Constitution was adopted in convention, which met in Nashville in 1834 and was submitted to the voters in 1835, becoming effective on proclamation of the governor on March 27, 1835. This Constitution is referred to in this publication as the Constitution of 1834.

The Constitutions of 1796 and 1834 are the same as the Constitution of 1870, except where differences are indicated and pointed out in Compiler's Notes under the sections.

The Preambles of the Constitutions of 1796 and 1846 read as follows:

Preamble of the Constitution of 1796. We, the people of the territory of the United States, south of the river Ohio, having the right of admission into the general government as a member state thereof, consistent with the constitution of the United States, and the act of cession of the State of North Carolina, recognizing the ordinance for the government of the territory of the United States northwest of the river Ohio, do ordain and establish the following constitution, or form of government, and do mutually agree with each other to form ourselves into a free and independent state, by the name of “The State of Tennessee.”

Preamble of the Constitution of 1834. Whereas, the people of the territory of the United States, south of the river Ohio, having the right of admission into the general government as a member state thereof, consistent with the constitution of the United States, and the act of cession of the State of North Carolina, recognizing the ordinance for the government of the territory of the United States northwest of the river Ohio, by their delegates and representatives in convention assembled, did, on the sixth day of February, in the year of our Lord one thousand seven hundred and ninety-six, ordain and establish a constitution, or form of government, and mutually agreed with each other to form themselves into a free and independent state, by the name of “The State of Tennessee;” and, whereas, the general assembly of said State of Tennessee (pursuant to the third section of the tenth article of the constitution), by an act passed on the twenty-seventh day of November, in the year of our Lord one thousand eight hundred and thirty-three, entitled, “An act to provide for the calling of a convention,” did authorize and provide for the election, by the people, of delegates and representatives, to meet at Nashville, in Davidson county, on the third Monday in May, in the year of our Lord one thousand eight hundred and thirty-four, “for the purpose of revising and amending (or changing) the Constitution:” We, therefore, the delegates and representatives of the people of the State of Tennessee, elected and in convention assembled, in pursuance of the said act of assembly, have ordained and established the following amended constitution and form of government for this state, which we recommend to the people of Tennessee for their ratification; that is to say:

Law Reviews.

Foreword: Interpreting the Tennessee Constitution (Richard S. Wirtz), 61 Tenn. L. Rev. 405 (1994).

State Constitutional Law: The Choice of Course (Jerry J. Phillips), 61 Tenn. L. Rev. 441 (1994).

The 1977 Limited Constitutional Convention (Lewis L. Laska), 61 Tenn. L. Rev. 485 (1994).

The Tennessee Constitution and the Dynamics of American Federalism (Otis H. Stephens Jr.), 61 Tenn. L. Rev. 707 (1994).

Article I

DECLARATION OF RIGHTS

Sec. 1. All power inherent in the people — Government under their control.

That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

Compiler's Notes. This article corresponds with the eleventh article in the Constitution of 1796.

Law Reviews.

Could Windsor Revive Federalism? The States' Right to Protect Citizens Following DOMA's Demise, 81 Tenn. L. Rev. 307 (2014).

Guns, Privacy, and Revolution, 68 Tenn. L. Rev. 635 (2001).

Justiciability in Tennessee, Part One: Principles and Limits (Barbara Kritchevsky), 15 Mem. St. U.L. Rev. 1 (1984).

Justiciability in Tennessee, Part Two: Standing (Barbara Kritchevsky), 15 Mem. St. U.L. Rev. 179 (1985).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

Speech, Service and Sex: The Limits of First Amendment Protection of Sexual Expression in the Military, 51 Vand. L. Rev. 1093 (1998).

Tennessee's Declaration of Independence (Sam Elliott), 44 Tenn. B.J. 25 (2008).

Attorney General Opinions. Separation of powers with regards to the regulation of the practice of law. OAG 10-24, 2010 Tenn. AG LEXIS 19 (3/1/10).

Referendum on deannexation. OAG 13-45, 2013 Tenn. AG LEXIS 47 (6/11/13).

NOTES TO DECISIONS

1. Substance Stated and Commented on.

The substance of Tenn. Const. art. I, § 1 is stated and commented on in Ridley v. Sherbrook, 43 Tenn. 569, 1866 Tenn. LEXIS 88 (1866); State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

2. Power of Government.

Every independent community or government has the right to regulate its own concerns, to make what laws it pleases; to abrogate and repeal existing laws previously made, and enact new ones respecting the same matter. This is declared by Tenn. Const. art. I, § 1 and by the preamble. Bashaw v. State, 9 Tenn. 176, 9 Tenn. 177, 1829 Tenn. LEXIS 36 (1829).

Under Tenn. Const. art. I, § 1 all power is inherent in the people and they have the right to alter, reform or abolish the government in such manner as they may think proper with the only limitation being the provisions of Tenn. Const. art. XI, § 3 relating to method of amendment. West v. Carr, 212 Tenn. 367, 370 S.W.2d 469, 1963 Tenn. LEXIS 430 (1963), dismissed, 378 U.S. 557, 84 S. Ct. 1908, 12 L. Ed. 2d 1034, 1964 U.S. LEXIS 843 (1964); Illustration Design Group, Inc. v. McCanless, 224 Tenn. 284, 454 S.W.2d 115, 1970 Tenn. LEXIS 325 (1970), overruled in part, Snow v. Memphis, 527 S.W.2d 55, 1975 Tenn. LEXIS 631, 1975 Tenn. LEXIS 632 (Tenn. 1975).

It is fundamental law of this state that the supreme authority rests in the people and it is their intent in adopting a constitutional provision that must prevail. Williams v. Carr, 218 Tenn. 564, 404 S.W.2d 522, 1966 Tenn. LEXIS 589 (1966).

3. Function of Legislature and the Judiciary.

If it be conceded that all power is inherent in the people, and their voice is heard through the legislature, their voice must be consistent with the constitution and that general law of the land which is made to reach all alike. The judicial power is an independent power, and, where it has jurisdiction, it is a sovereign power, just as much as the legislature itself. When one of the kings of England wished to confer with the judges touching a case to come before them, he was refused admittance. Whenever the judges of this country cannot stand up as firmly and independently before the people as the judges of England did before their sovereign, then there is an end of the administration of the law, and a reign of terror at hand. Fisher's Negroes v. Dabbs, 14 Tenn. 119, 1834 Tenn. LEXIS 59 (Tenn. Mar. 1834).

4. Legislative Authority under Constitution.

The power to alter, reform or abolish the constitution of Tennessee resides in the people, not in the legislature. The people are possessed with ultimate sovereignty and are the source of all state authority and they have the ultimate power to control and alter their constitution, subject only to such limitations and restraints as may be imposed by the constitution of the United States. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 1949 Tenn. LEXIS 411 (1949).

Acts 1949, ch. 49, providing for a special election to determine whether a convention should be called to specify amendments of constitution was not unconstitutional on the ground that the legislature could not limit the amendments to be passed on by convention since legislature was authorized by Tenn. Const. art. XI, § 3 to call a convention to “alter, reform or abolish the Constitution” and if people voted in favor of convention for purposes mentioned the people in effect limited the work of the convention. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 1949 Tenn. LEXIS 411 (1949).

5. Limitations upon Legislative Power.

Many limitations and restrictions upon the legislative power are carefully and emphatically prescribed and set forth in Tenn. Const. art. I, § 1. Louisville & N. R. Co. v. County Court of Davidson, 33 Tenn. 637, 1854 Tenn. LEXIS 81 (1854).

6. Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

The disclosure of adoption records in accord with T.C.A. § 36-1-127 does not violate the constitutional right to privacy; it does not impede a birth parent's freedom to determine whether to raise a family, nor does it disrupt both biological and adoptive families by releasing identifying information previously unavailable. Doe v. Sundquist, 2 S.W.3d 919, 1999 Tenn. LEXIS 429 (Tenn. 1999).

Although Tennessee's right of privacy incorporates some of the features of the right to privacy under the federal constitution, the Tennessee supreme court is free to extend greater protection in applying the state constitution. Doe v. Sundquist, 2 S.W.3d 919, 1999 Tenn. LEXIS 429 (Tenn. 1999).

7. Procreation.

The right of procreation is a vital part of an individual's right to privacy. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

8. State Interest.

The state's interest in the potential life of preembryos was not sufficient to justify any infringement upon the freedom of ex-spouses to make their own decisions as to whether to allow a process to continue that might have resulted in their becoming parents. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

9. Supervisory Power of Supreme Court.

Supreme court has supervisory power to insure that fairness and justice are afforded to defendants by the trial court in criminal cases. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 1959 Tenn. LEXIS 390 (1959).

10. Constitutional Convention.

Even if the evidence should show conclusively that legislative proposal for limited constitutional convention was not presented to the governor, court was unwilling at late date to invalidate the amendments to the constitution which were proposed by a convention called upon approval of the voters of the state who also gave final approval to the amendments, for judicial interference with the orderly framework of government as approved by the voters of the state is simply not justified by an omission which cannot be considered to have interfered with the free exercise of the rights of the people of the state to change the form of their government. Crenshaw v. Blanton, 606 S.W.2d 285, 1980 Tenn. App. LEXIS 327 (Tenn. Ct. App. 1980), appeal dismissed, 449 U.S. 914, 101 S. Ct. 310, 66 L. Ed. 2d 142, 1980 U.S. LEXIS 3561 (1980).

11. Annexation.

The provisions of Tenn. Const. art. I, § 1 and Tenn. Const. art. II, § 16 do not mean that individual citizens, members of a community, or inhabitants of an area to be annexed can thwart or avoid other provisions of the constitution because of their dissatisfaction with statutory authority directed or permitted under its terms. Vollmer v. Memphis, 792 S.W.2d 446, 1990 Tenn. LEXIS 208 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 269 (Tenn. July 2, 1990).

12. Woman's Right to Terminate Pregnancy.

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

13. Police Power.

Where a teacher alleged that the teacher's union's violations were “under color of state law,” the trial court erred when it dismissed the teacher's suit against the teacher's union for failure to state a claim; although the complaint that part of his union dues were being used in violation of, inter alia, his rights to free speech, free assembly and petition, and freedom of religion, was premised on state constitutional violations, when viewed under the Education Professional Negotiations Act (EPNA), T.C.A. § 49-5-601 — T.C.A. § 49-5-613, the complaint could also have been construed to have alleged other wrongs upon which relief could have been granted. The EPNA could have been interpreted to mean that a voluntary donation of a portion of the dues collected from the teachers exceeded the authority granted to the collective bargaining agent. Esquinance v. Polk County Educ. Ass'n, 195 S.W.3d 35, 2005 Tenn. App. LEXIS 446 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 31 (Tenn. 2006) .

Sec. 2. Doctrine of nonresistance condemned.

That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

Compiler's Notes. The word “of” after the word “destructive” was “to” in the Constitution of 1796.

Law Reviews.

Guns, Privacy, and Revolution, 68 Tenn. L. Rev. 635 (2001).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

Tennessee's Declaration of Independence (Sam Elliott), 44 Tenn. B.J. 25 (2008).

The Role of International Law As a Canon of Domestic Statutory Construction (Ralph G. Steinhardt), 43 Vand. L. Rev. 1103 (1990).

Attorney General Opinions. Separation of powers with regards to the regulation of the practice of law. OAG 10-24, 2010 Tenn. AG LEXIS 19 (3/1/10).

NOTES TO DECISIONS

1. Construction.

Tennessee Const. art. I, § 2 recognizes that our government serves at the will of the people of Tennessee, and expressly advocates active resistance against the government when government no longer functions to serve the people's needs. There is no better statement of the state constitution's concept of liberty than this audacious empowerment of Tennesseans to forcibly dissolve the very government established but one article later in the constitution. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

2. Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

Sec. 3. Freedom of worship.

That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship.

Compiler's Notes. The word “can” after the word “man” was placed after the word “right,” the second word next following, in the Constitution of 1834. The word “minister” was “ministry” in the Constitution of 1796. The words “establishment or mode” were plural, namely, “establishments or modes,” in the Constitution of 1796.

Cross-References. Religious and political freedom, U.S. Const. amend. 1.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 179.

Law Reviews.

Accommodation, Establishment, and Freedom of Religion, 67 Vand. L. Rev. En Banc 39 (2014).

Baptizing O'Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct, 68 Vand. L. Rev. 177 (2015).

Delimiting Title VII: Reverse Religious Discrimination and Proxy Claims in Employment Discrimination Litigation, 67 Vand. L. Rev. 239 (2014).

Family Law — Davis v. Davis: A Step Back for the Right to Procreate, 23 Mem. St. U.L. Rev. 399 (1993).

Hobby Lobby in Constitutional Waters: Two Life Rings and an Anchor, 67 Vand. L. Rev. En Banc 67 (2014).

Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause, 67 Vand. L. Rev. En Banc 51 (2014).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

Snakebit: Poisonous Serpents & Religious Expression in Tennessee, 50 Tenn. B.J. 14 (2014).

Spiritual-Treatment Exemptions to Child Neglect Statutes — State v. Crank: Vagueness and Establishment Clause Challenges to Selective Prosecution of Faith-Healing Parents, 46 U. Mem. L. Rev. 761 (2016).

The Costs of The Public Good of Religion Should Be Borne By The Public, 67 Vand. L. Rev. En Banc 185 (2014).

The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights, 43 U. Mem. L. Rev. 557 (2012).

The Intersection of CLS and Hosanna-Tabor: The Ministerial Exception Applied to Religious Student Organizations, 44 U. Mem. L. Rev. 141 (2013).

The Protection of Conscience: on ACA, RFRA and Free Exercise Guarantees, 82 Tenn. L. Rev. 345 (2015).

The Public Meaning of RFRA Versus Legislators' Understanding of RLPA: A Response to Professor Laycock, 67 Vand. L. Rev. En Banc 125 (2014).

The Role of International Law As a Canon of Domestic Statutory Construction (Ralph G. Steinhardt), 43 Vand. L. Rev. 1103 (1990).

Thou Shalt Opt Out: Reforming the Religious Conscience Exemption from Social Security and the Affordable Care Act Based on State Experience, 43 U. Mem. L. Rev. 659 (2013).

Whose Accommodation?, 67 Vand. L. Rev. En Banc 135 (2014).

Attorney General Opinions. A law requiring the issuance of a driver's certificate, rather than a driver's license, to any otherwise qualified applicant who has never been issued a social security number would not violate the free exercise clauses of the United States constitution or the Tennessee constitution because the law would be one of neutral and uniform application and would be a reasonable means of promoting the state's legitimate interest in preventing fraud in the issuance of such licenses and public safety and security, OAG 02-041, 2002 Tenn. AG LEXIS 472 (4/4/02).

A public school system may give a school holiday on a religious holiday, if it has a clearly secular purpose for the school, OAG 04-095, 2004 Tenn. AG LEXIS 104 (5/18/04).

Grants to churches and youth clubs with church affiliations, OAG 07-094, 2007 Tenn. AG LEXIS 94 (6/12/07).

Designating The Holy Bible as the official state book of Tennessee would violate the Establishment Clause of the First Amendment to the federal Constitution and Article I, § 3, of the Tennessee Constitution, which provides “that no preference shall ever be given, by law, to any religious establishment or mode of worship.” OAG 15-34, 2015 Tenn. AG LEXIS 34 (4/13/15).

Legislation that requires all vehicle registration plates to bear the language “In God We Trust” would be constitutionally suspect under the Establishment Clause, the Free Exercise Clause, and the Free Speech Clause of the First Amendment, as well as Tenn. Const. Article I, Sections 3 and 19. However, legislation that gives vehicle owners the option of selecting a vehicle registration plate bearing the language “In God We Trust” would be constitutionally defensible. OAG 17-21, 2017 Tenn. AG LEXIS 20 (3/23/2017).

A judge who impartially applies state anti-discrimination law, as written and enacted by the General Assembly, is fulfilling the judicial duty to “uphold and apply the law,” not manifesting bias or prejudice or engaging in harassment. Tenn. Sup. Ct. R. 10, Rule 2.3 does not, nor could it, prevent a judge from faithfully applying that law in a case before the court. Tenn. Sup. Ct. R. 10, Rule 3.6 does not establish a religious test that excludes from office members of any religious organization, including ones that disapprove of or condemn homosexuality. Rule 3.6 is inapplicable to membership in religious organizations. OAG 18-17, 2018 Tenn. AG LEXIS 16 (4/3/2018).

Proposed legislation, HB 600/SB 1250, 111th Tenn. Gen. Assem. (2019), which would provide a definition of “anti-Semitism” that institutions of higher education and local education agencies (LEAs) in Tennessee would be required to use when investigating and enforcing antidiscrimination laws and policies, does not regulate speech or religious activity directly. And if it becomes law, institutions of higher education and local education agencies in the State will be required to implement it in a manner consistent with the state and federal Constitutions. OAG 19-06, 2019 Tenn. AG LEXIS 6 (4/16/2019).

NOTES TO DECISIONS

1. Compared to Federal Constitution.

The language of Tenn. Const. art. 1, § 3, when compared to the guarantee of religious freedom contained in the federal constitution, is a stronger guarantee of religious freedom. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

The Tennessee supreme court has never held that Tenn. Const. art. I, § 3's protection of the right of conscience and free exercise of religion are more expansive than the free exercise clause of U.S. Const. amend. 1; the degree of protection that Tenn. Const. art. I, § 3 provided for the religious freedoms of Native Americans seeking to prevent the disturbance of a traditional burial ground was the same as that provided by the free exercise clause of U.S. Const. amend. 1. State ex rel. Comm'r of Transp. v. Medicine Bird, 63 S.W.3d 734, 2001 Tenn. App. LEXIS 485 (Tenn. Ct. App. 2001).

Where plaintiff alleged that Tenn. Const. art. I, § 3 and U.S. Const. amend. 1 were violated by a resolution that would appropriate city funds to renovate two churches that were claimed to have historical significance, a federal district court remanded the state claim to state court pursuant to the Pullman doctrine of abstention. No Tennessee court had passed upon whether Tenn. Const. art. I, § 3 prevented a city from expending funds collected through taxes to repair a place of worship that claimed historical significance, and a ruling that the city's resolution violated the state constitution would terminate the controversy. Entman v. City of Memphis, 341 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 25294 (W.D. Tenn. 2004).

Where plaintiff alleged that Tenn. Const. art. I, § 3 and U.S. Const. amend. 1 were violated by a resolution that would appropriate city funds to renovate two churches that were claimed to have historical significance, a federal district court remanded the state claim to state court pursuant to the Pullman doctrine of abstention. The contention that Tenn. Const. art. I, § 3 was parallel to U.S. Const. amend. 1 was rejected because the constitutional provisions contained markedly different language and the state courts had concluded that the prohibition against governmental establishment of religion contained Tenn. Const. art. I, § 3 provides broader protection than U.S. Const. amend. 1. Entman v. City of Memphis, 341 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 25294 (W.D. Tenn. 2004).

2. Right to Worship or Transact Church Business.

The right to worship God according to the dictates of conscience, given by Tenn. Const. art. I, § 3, is protected by many stringent statutes, broadly and liberally construed by the courts, and extended to a religious congregation or assembly engaged in public worship or business connected with their interests as a church. Hollingsworth v. State, 37 Tenn. 518, 1858 Tenn. LEXIS 53 (1858).

3. “Conscience” Defined.

Conscience is that moral sense in man which dictates to him right and wrong. Harden v. State, 188 Tenn. 17, 216 S.W.2d 708, 1948 Tenn. LEXIS 488 (1948).

4. Limitations on Right to Practice Religious Belief.

The right to practice a religious belief is limited by other recognized powers, equally precious to mankind. One of those rights equally precious is that of society's protection from a practice, religious or otherwise, which is dangerous to life and health. Harden v. State, 188 Tenn. 17, 216 S.W.2d 708, 1948 Tenn. LEXIS 488 (1948).

Conviction and sentencing to the penitentiary for manufacture and possession of marihuana of members of a group using marihuana in religious observances did not violate their rights to freedom of worship. Gaskin v. State, 490 S.W.2d 521, 1973 Tenn. LEXIS 524 (Tenn. 1973), appeal dismissed, Gaskin v. Tennessee, 414 U.S. 886, 94 S. Ct. 221, 38 L. Ed. 2d 133, 1973 U.S. LEXIS 937 (1973).

To be constitutionally protected under Tenn. Const. art. I, § 3 and U.S. Const. amend. 1, it is not necessary that a religious group be numerically large, conventional, or that its tenets and practices lie in accord with prevailing views, and any religious group has an absolute and unbridled right to pursue any practice of its own choosing; but, although the right to believe is absolute, the right to act is subject to reasonable regulation to protect a compelling state interest, reasonably enforced, and the free exercise of religion does not include the right to violate statutory law, commit or maintain a nuisance, or immunize against lawless conduct, and must give way where the state's interest is compelling and substantial and the danger clear, present and so grave as to endanger paramount public interests. State ex rel. Swann v. Pack, 527 S.W.2d 99, 1975 Tenn. LEXIS 640 (Tenn. 1975), cert. denied, Pack v. Tennessee, 424 U.S. 954, 96 S. Ct. 1429, 47 L. Ed. 2d 360, 1976 U.S. LEXIS 212 (1976).

The state has the right to reasonably restrict the religious practices of its representatives in the performance of their state duties. Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 1983 Tenn. App. LEXIS 710 (Tenn. Ct. App. 1983).

Excluding from capital case juries persons whose religious beliefs prevent or substantively impair their ability to be impartial does not violate the jurors' freedom of conscience. Wolf v. Sundquist, 955 S.W.2d 626, 1997 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1997).

5. Atheism No Cause for Challenge of Juror After Sworn.

The constitution, neither in Tenn. Const. art. I, § 3, nor in Tenn. Const. art. I, § 4, nor in Tenn. Const. art. IX, § 2 nor in any other part, has any particular or direct bearing on the subject of the disqualification of a juror on account of his being an atheist, and a juror cannot be challenged after he is sworn, because he is an atheist, though previously unknown to the prisoner, and this rule is true as to any cause, propter defectum. McClure v. State, 9 Tenn. 206, 1829 Tenn. LEXIS 43 (1829). See Tenn. Const. art. I, § 6.

6. Effect of Section on Trusts.

By Tenn. Const. art. I, § 3, the whole distinction existing in England between trusts, charitable and superstitious, is broken down; and the ground over which charitable trusts are to be spread is tremendously extended, if the English practice upon the subject be adopted. But it is held that a general indefinite charitable bequest, without trustees, cannot be sustained and enforced by the chancery court in this state, and the English practice is not adopted. Green v. Allen, 24 Tenn. 170, 1844 Tenn. LEXIS 52 (1844).

Church corporation charter stating as purpose of organization that it was to be a local church of the Presbyterian Church in the United States created an implied trust in favor of the general church of property conveyed to the corporation; accordingly, such property would go to the general church when the local church withdrew from the general organization. This decision of the court did not offend the constitution. Fairmount Presbyterian Church, Inc. v. Presbytery of Holston, 531 S.W.2d 301, 1975 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1975).

7. Schools.

The reading of a verse in the Bible without comment in the public schools, the same verse not to be repeated more often than every thirty days, the singing of some inspiring song, and the repeating of the Lord's Prayer, is not a violation of Tenn. Const. art. I, § 3. Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718, 1956 Tenn. LEXIS 368 (1956).

It is beyond the scope and authority of school boards and the teachers in the public schools to conduct a program of education in the Bible and to undertake to explain the meaning of any chapter or verse in either the Old or the New Testament. Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718, 1956 Tenn. LEXIS 368 (1956).

Awarding academic degrees is a secular activity; therefore, requirement that a theological school comply with the Postsecondary Education Authorization Act, title 49, ch. 7, part 20, or cease granting degrees resulted from a legitimate state function and not from any state regulation of the school's religious functions. State ex rel. McLemore v. Clarksville School of Theology, 636 S.W.2d 706, 1982 Tenn. LEXIS 426 (Tenn. 1982).

8. Health Regulations.

Regulation for county board of health requiring children to be immunized against paralytic polio did not violate Tenn. Const. art. I, § 3. Gamble v. State, 206 Tenn. 376, 333 S.W.2d 816, 1960 Tenn. LEXIS 373 (1960).

9. Blood Samples.

Sample of blood could be withdrawn from defendant in custody, for the purpose of determining whether defendant was infected with virus indicating AIDS, over alleged religious beliefs and convictions of defendant, where defendant stated he suffered from AIDS, the taking of the sample was not part of random blood sampling, and evidence showed the sheriff and public health officials had reasonable cause to carry out the test; alleged religious beliefs or convictions of defendant had to yield to concerns for public safety and welfare. Haywood County v. Hudson, 740 S.W.2d 718, 1987 Tenn. LEXIS 1015 (Tenn. 1987).

10. Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

Although Tennessee's right of privacy incorporates some of the features of the right to privacy under the federal constitution, the Tennessee supreme court is free to extend greater protection in applying the state constitution. Doe v. Sundquist, 2 S.W.3d 919, 1999 Tenn. LEXIS 429 (Tenn. 1999).

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

11. Driver's License.

Statute requiring a social security number for a driver's license application and renewal did not violate the free exercise clause of U.S. Const. amend. 1 or Tenn. Const. art. I, § 3. State v. Loudon, 857 S.W.2d 878, 1993 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. 1993).

12. Judicial Proceedings on Sunday.

The common law rule prohibiting judicial activities on Sunday was not based solely on religious grounds, nor could it be without violating Tenn. Const. art. I, § 3. State v. King, 40 S.W.3d 442, 2001 Tenn. LEXIS 56 (Tenn. 2001), rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 121 (Tenn. Feb. 20, 2001).

When determining whether to permit judicial proceedings on Sunday, the trial court, in its discretion, must respect and accommodate the genuinely-held religious view of any litigant, witness, juror or attorney. State v. King, 40 S.W.3d 442, 2001 Tenn. LEXIS 56 (Tenn. 2001), rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 121 (Tenn. Feb. 20, 2001).

13. Sunday Sales of Alcoholic Beverages.

City ordinance prohibiting the sale of beer on Sunday was not a religious preference that violated Tenn. Const. art. I, § 3. Martin v. Beer Bd., 908 S.W.2d 941, 1995 Tenn. App. LEXIS 271 (Tenn. Ct. App. 1995).

14. Establishment Clause.

Although the friendship bell erected in city park had secular significance in Japanese culture, it also carried strong Buddhist connotations; therefore, the bell qualified as a religious symbol for the purpose of establishment clause analysis. Brooks v. City of Oak Ridge, 222 F.3d 259, 2000 FED App. 243P, 2000 U.S. App. LEXIS 17510 (6th Cir. 2000), cert. denied, 531 U.S. 1152, 121 S. Ct. 1097, 148 L. Ed. 2d 970, 2001 U.S. LEXIS 1228 (2001).

City's display of the friendship bell did not violate the establishment clause of the United States constitution or Tenn. Const. art. I, § 3, where city's purpose in adopting the friendship bell was secular, the reasonable observer would not understand the bell to convey the message that the city government endorses Buddhism, and display of the bell did not entail impermissible entanglement with religion. Brooks v. City of Oak Ridge, 222 F.3d 259, 2000 FED App. 243P, 2000 U.S. App. LEXIS 17510 (6th Cir. 2000), cert. denied, 531 U.S. 1152, 121 S. Ct. 1097, 148 L. Ed. 2d 970, 2001 U.S. LEXIS 1228 (2001).

Where a teacher alleged that the teacher's union's violations were “under color of state law,” the trial court erred when it dismissed the teacher's suit against the teacher's union for failure to state a claim; although the complaint that part of his union dues were being used in violation of, inter alia, his rights to free speech, free assembly and petition, and freedom of religion, was premised on state constitutional violations, when viewed under the Education Professional Negotiations Act (EPNA), T.C.A. § 49-5-601 — T.C.A. § 49-5-613, the complaint could also have been construed to have alleged other wrongs upon which relief could have been granted. The EPNA could have been interpreted to mean that a voluntary donation of a portion of the dues collected from the teachers exceeded the authority granted to the collective bargaining agent. Esquinance v. Polk County Educ. Ass'n, 195 S.W.3d 35, 2005 Tenn. App. LEXIS 446 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 31 (Tenn. 2006) .

15. Defamation Actions.

Short time after pastor was terminated, certain church members or officers were alleged to have referred to the pastor as a “witch doctor,” a “voodoo preacher,” and a “dog”; whether or not the statements were justified, because the pastor's complaint alleged that said slanderous statements were made outside the confines of the church, and in front of other nonparty church members, local law enforcement, and members of the community, the trial court erred in finding the statements by said church members were too closely entangled with the decision to terminate the pastor's employment (ecclesiastical workings of the church), to treat them as a civil wrong, and to conclude that it lacked subject matter jurisdiction over the matter. Ausley v. Shaw, 193 S.W.3d 892, 2005 Tenn. App. LEXIS 709 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 351 (Tenn. 2006).

Sec. 4. No religious or political test.

That no political or religious test, other than an oath to support the Constitution of the United States and of this State, shall ever be required as a qualification to any office or public trust under this State.

Compiler's Notes. Constitutions of 1796, art. XI, § 4, and of 1834, art. I, § 4, read as follows:

“That no religious test shall ever be required as a qualification to any office or public trust under this state.”

The provisions against any political test for office were doubtless caused by Acts 1866-1867, ch. 26, §§ 3, 9, which was repealed by Acts 1870, ch. 10, §§ 1, 2, establishing a political test oath to be taken by candidates for office.

Cross-References. Disqualifications of public officials, Tenn. Const. art. IX.

Exclusion of right to vote from infamous criminals, Tenn. Const. art. IV, § 2.

Religious tests of federal officials prohibited, U.S. Const. art. 6, cl. (3).

Law Reviews.

A Unifying Theory for the Religion Clauses of the First Amendment (Thomas R. McCoy, Gary A. Kurtz), 39 Vand. L. Rev. 249 (1986).

Attorney General Opinions. Resolution requesting that the commissioner of the department of education answer questions concerning religion and creationism does not violate the establishment clause of the United States constitution or the Tennessee constitution, OAG 07-29, 2007 Tenn. AG LEXIS 30 (3/13/07).

A judge who impartially applies state anti-discrimination law, as written and enacted by the General Assembly, is fulfilling the judicial duty to “uphold and apply the law,” not manifesting bias or prejudice or engaging in harassment. Tenn. Sup. Ct. R. 10, Rule 2.3 does not, nor could it, prevent a judge from faithfully applying that law in a case before the court. Tenn. Sup. Ct. R. 10, Rule 3.6 does not establish a religious test that excludes from office members of any religious organization, including ones that disapprove of or condemn homosexuality. Rule 3.6 is inapplicable to membership in religious organizations. OAG 18-17, 2018 Tenn. AG LEXIS 16 (4/3/2018).

NOTES TO DECISIONS

1. Right to Question Validity of Statutes.

The persons appointed by the governor as members of the state board of elections under an original statute, Acts 1907, ch. 435, cannot, in proceedings to establish their right to the office as against the persons holding such office under an amendatory statute, Acts 1909, ch. 103, demand or call for a determination of the question as to the constitutionality of the third and fourth sections of such amendatory statute, which were assailed upon the ground that they impose a political test as a qualification for office in violation of Tenn. Const. art. I, § 4, prohibiting a political test, other than an oath to support the federal and state constitutions, as a qualification for office, where the alleged unconstitutionality of those sections, if conceded, would not render the whole amendatory act void, but only such sections as separable parts of the act; for such contesting parties are not interested in these particular amendments as taxpayers, because no burdens are imposed by them; nor as citizens, because they are not affected in any way not common to all the citizens of the state. Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, 1909 Tenn. LEXIS 32 (1910), on the last point in this note.

2. Validity of Particular Statutes.

3. —Provision for Body Members of Conflicting Politics.

A statute, the purpose of which is to secure the appointment of persons who are not all of the same political views, and thus provide for a representation in the body so appointed of different and probably conflicting interests, does not, because it carries such a purpose into execution, violate either the letter or the spirit of the constitution. Marshall v. Burke, 158 Tenn. 133, 11 S.W.2d 688, 1928 Tenn. LEXIS 133 (1928).

4. —Crime Commission — Excluding Public Officials.

Provisions of Acts 1937 (3rd E.S.), ch. 13 (repealed) creating a crime commission to examine crime situation did not violate Tenn. Const. art. I, § 4, although it excluded public officials from membership thereon. Joyner v. Priest, 173 Tenn. 320, 117 S.W.2d 9, 1937 Tenn. LEXIS 29 (1938).

Sec. 5. Elections to be free and equal — Right of suffrage.

The elections shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction.

Compiler's Notes. Constitutions of 1796, art. XI, § 5, and 1834, art. I, § 5, read as follows:

“That elections shall be free and equal.”

Acts 1865, ch. 16; 1865-1866, ch. 33; 1866-1867, ch. 26; and 1867-1868, chs. 51, 52, amendatory thereof (repealed by Acts 1870, ch. 10, § 1, 2), gave rise to this change in the Constitution.

Cross-References. Elections, Tenn. Const. art. IV.

Infamous crimes, § 40-20-112.

Right of citizens to vote, U.S. Const. amend. 15.

Law Reviews.

Constitutional Law — Suffrage and the State's Interest in Preventing Fraud — The Constitutionality of Tennessee's Photo Identification Requirement Under Strict Scrutiny, 81 Tenn. L. Rev. 929 (2014).

Fearing Fear Itself: Photo Identification Laws, Fear of Fraud, and the Fundamental Right to Vote (Joel A. Heller), 62 Vand. L. Rev. 1871 (2009).

Recent Developments, Constitutional Law (David R. Mantooth), 55 Tenn. L. Rev. 517 (1988).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

The Court in Action: A summary of key cases from the U.S. Supreme Court 2000-2001 (Perry A. Craft and Arshad (Paku) Khan), 37 No. 10 Tenn. B.J. 18 (2001).

The Origins and Constitutionality of State Unit Voting in the Electoral College, 54 Vand. L. Rev. 2099 (2001).

The Realities of Electoral Reform, 68 Vand. L. Rev. 761 (2015).

Voting Squared: Quadratic Voting in Democratic Politics, 68 Vand. L. Rev. 441 (2015).

NOTES TO DECISIONS

1. Construction.

Tenn. Const. art. I, § 5 and Tenn. Const. art. IV, § 1 must be read as in pari materia, and these two sections must be read in connection with Tenn. Const. art. II, § 29. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417, 1917 Tenn. LEXIS 54 (1917).

The declaration of the right of universal suffrage is self executing in that any citizen may rely upon it independently of any legislative enactment; however the exception to universal suffrage is expressly dependent upon legislative action. Crutchfield v. Collins, 607 S.W.2d 478, 1980 Tenn. App. LEXIS 387 (Tenn. Ct. App. 1980), superseded by statute as stated in, Taylor v. Neil, — S.W.2d —, 1993 Tenn. App. LEXIS 195 (Tenn. Ct. App. Mar. 17, 1993).

2. Meaning of Terms.

Tenn. Const. art. I, § 5 and various statutes show that the meaning of “conviction” as used in Tenn. Const. art. III, § 6, empowering the governor to pardon after conviction, means verdict of guilty and not judgment or sentence. State ex rel. Barnes v. Garrett, 135 Tenn. 617, 188 S.W. 58, 1915 Tenn. LEXIS 199, L.R.A. (n.s.) 1917B567 (1915).

Phrase previously ascertained and declared by law, relating to infamous crimes, proscribes the general assembly from retroactively disenfranchising convicted felons who have never been adjudged infamous, and provisions of §§ 2-2-139 and 2-19-143 attempting to do so are unconstitutional. Gaskin v. Collins, 661 S.W.2d 865, 1983 Tenn. LEXIS 751 (Tenn. 1983).

3. Right of Suffrage — Elections Covered.

The right of suffrage “hereinafter declared,” referred to in Tenn. Const. art. I, § 5, will be found in Tenn. Const. art. IV, and especially in the first section thereof. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

The compulsory primary election law (Acts 1909, ch. 102), establishing legalized compulsory primary elections for political nominations, did not provide for “elections” within the meaning of the suffrage and election provisions of Tenn. Const. art. I, § 5, and Tenn. Const. art. IV, § 1, and it is in the competency of the legislature to pass such an act, and it will be valid, if not in violation of other constitutional provisions; for the primary election is simply a substitution for the caucus or convention, and in reality is not an election, but merely a nominating device. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

But such statute was held to be unconstitutional upon other grounds. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

Tenn. Const. art. I, § 5 applies only to the class of elections stated in Tenn. Const. art. IV, § 1, providing that every male of certain qualifications may vote for members of the general assembly and other civil officers for the county or district in which he resides, and not to an election to determine whether a county shall issue bonds for highways. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417, 1917 Tenn. LEXIS 54 (1917).

The right of suffrage which this section declares shall be “free and equal” is the right it refers to as “hereinafter declared,” meaning as declared in Tenn. Const. art. IV, § 1, which does not mention elections to determine whether a county shall issue bonds for highways. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417, 1917 Tenn. LEXIS 54 (1917).

4. Extent of Legislative Control.

The legislature generally has the right to determine the qualifications of the voters and regulate the conduct of the election, but this right of control does not and cannot go beyond the limitation expressed in Tenn. Const. art. I, § 5 and applies only to the class of elections enumerated in Tenn. Const. art. IV, § 1. Trotter v. City of Maryville, 191 Tenn. 510, 235 S.W.2d 13, 1950 Tenn. LEXIS 465 (1950).

Registered voters without special vulnerability to COVID-19 were unlikely to succeed on their claims that the State's construction of T.C.A. § 2-6-201(5)(C) and (D) violated Tenn. Const. art. 1, § 5, where the burden on the right to vote was moderate given that the risk for in-person voting was significantly less than for those vulnerable to the virus, and when weighed against the State's interests in voter fraud prevention, fiscal responsibility, and feasibility, the moderate burden placed on the right to vote was justified. Fisher v. Hargett, — S.W.3d —, 2020 Tenn. LEXIS 283 (Tenn. Aug. 5, 2020).

5. Unconstitutional Statutory Restriction of Elective Franchise.

Acts 1866-1867, ch. 36, § 4, and Acts 1867-1868, ch. 52, to the extent of authorizing the governor to set aside the registration of voters in any county, “where it shall be made to appear, to the satisfaction of the governor, that frauds and irregularities have intervened in the registration of the voters of such county,” are repugnant to that portion of the constitution that is expressly ordained to secure to the people the right to elect the officers of the government. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

6. Woman Suffrage Law — Validity.

In an opinion enumerating and discussing the various suffrage clauses of the constitution, the Woman's Suffrage Law, Acts 1919, ch. 139, authorizing women to vote at certain designated elections, was upheld as valid. Vertrees v. State Board of Elections, 141 Tenn. 645, 214 S.W. 737, 1919 Tenn. LEXIS 17 (1919).

7. Exclusion of Criminals.

A state may constitutionally exclude some or all convicted felons from the franchise. Tate v. Collins, 496 F. Supp. 205, 1980 U.S. Dist. LEXIS 13354 (W.D. Tenn. 1980); Tate v. Collins, 622 F. Supp. 1409 (W.D. Tenn. 1985).

There is no authorization for deprivation of voting rights of any citizen convicted of an “infamous crime” since the 1972 amendment of § 40-20-112, which deleted a provision requiring disqualification from voting as part of certain judgments of conviction. Crutchfield v. Collins, 607 S.W.2d 478, 1980 Tenn. App. LEXIS 387 (Tenn. Ct. App. 1980), superseded by statute as stated in, Taylor v. Neil, — S.W.2d —, 1993 Tenn. App. LEXIS 195 (Tenn. Ct. App. Mar. 17, 1993).

Provisions of (former version of) § 2-6-102 expressly prohibiting incarcerated persons from utilizing the absentee ballot denied those incarcerated persons who had not been convicted of an infamous crime and who were otherwise entitled to vote equal protection of the laws guaranteed by U.S. Const. amend. 14. Tate v. Collins, 496 F. Supp. 205, 1980 U.S. Dist. LEXIS 13354 (W.D. Tenn. 1980); Tate v. Collins, 622 F. Supp. 1409 (W.D. Tenn. 1985).

Although there is a significantly higher number of blacks convicted of felonies than whites, the Tennessee Voting Rights Act, T.C.A. § 2-19-143, which disenfranchises felons, does not result in the unlawful dilution of the black vote in violation of the federal constitution or the federal Voting Rights Act, and Tennessee may disqualify convicted felons from the voting public without unlawfully interfering with the equal opportunity of blacks to participate in the political process and to elect representatives of their choice. Wesley v. Collins, 605 F. Supp. 802, 1985 U.S. Dist. LEXIS 22215 (M.D. Tenn. 1985), aff'd, 791 F.2d 1255, 1986 U.S. App. LEXIS 25759 (6th Cir. 1986).

Where homicide was not a crime of infamy at the time petitioner committed the offense, the trial court lacked statutory authority to declare petitioner infamous; the resulting disenfranchisement of petitioner under Tenn. Const. art. I, § 5 qualified as a restraint on liberty and therefore he was entitled to limited habeas corpus relief under Tenn. Const. art. I, § 15. May v. Carlton, 245 S.W.3d 340, 2008 Tenn. LEXIS 10 (Tenn. Jan. 18, 2008).

Sec. 6. Trial by jury — Qualifications of jurors.

That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.

Compiler's Notes. Constitutions of 1796, art. XI, § 6, and 1834, art. I, § 6, read as follows:

“That the right of trial by jury shall remain inviolate.”

The amendment to this constitution was caused by Acts 1866-1867, ch. 5, which made it a good ground of challenge for cause, in all civil and criminal cases, that the person offered as a juror was not a qualified voter of this state. This act was held to be unconstitutional in Gibbs v. State (1871), 50 Tenn. 71, and was repealed by Acts 1869-1870, chs. 4, 35, 117.

Cross-References. Trial by jury in civil cases, U.S. Const. amend. 7.

Trial by jury in criminal cases, U.S. Const. amend. 6.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 25.2.

Law Reviews.

Communication With Juries: Episodic Representational Structure In Cross-Examination, 67 Tenn. L. Rev. 599 (2000).

Criminal Asset Forfeiture and the Sixth Amendment After Southern Union and Alleyne: State-Level Ramifications, 68 Vand. L. Rev. 549 (2015).

Family Law — Alexander v. Inman: The Tennessee Court of Appeals Establishes Guidelines for Contingent Attorneys' Fees in Domestic Relation Cases, 26 U. Mem. L. Rev. 1575 (1996).

Judicial Notice in Tennessee (Robert Banks, Jr. and Elizabeth T. Collins), 21 Mem. St. U.L. Rev. 431 (1991).

Jury Trials: Lay Jurors, Pattern Jury Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701 (2000).

Picking a Jury: Who Are You Talking To? 67 Tenn. L. Rev. 517 (2000).

Prejudice, Confusion, and the Bifurcated Civil Jury Trial: Lessons From Tennessee, 67 Tenn. L. Rev. 653 (2000).

Reasonable and Other Doubts: The Problem of Jury Instructions, 66 Tenn. L. Rev. 45 (1999).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

Six-Member Juries: Does Size Really Matter? 67 Tenn. L. Rev. 743 (2000).

State Constitutional Issues Arising from Tort Reform (Andy D. Bennett), 40 No. 2 Tenn. B.J. 27(2004).

Symposium, Communicating With Juries, 67 Tenn. L. Rev. 517 (2000).

Technology and Opening Statements: A Bridge to the Virtual Trial of the Twenty-First Century? 67 Tenn. L. Rev. 523 (2000).

The Timing of Jury Instructions, 67 Tenn. L. Rev. 681 (2000).

The Timing of Opinion Formation By Jurors In Civil Cases: An Emperical Examination, 67 Tenn. L. Rev. 627 (2000).

Theology in the Jury Room: Religious Discussion as “Extra Material” in the Course of Capital Punishment Deliberations, 55 Vand. L. Rev. 127 (2002).

Trial Presentation Technology: A Practical Perspective, 67 Tenn. L. Rev. 587 (2000).

What Juries Want to Hear: Methods for Developing Persuasive Case Theory, 67 Tenn. L. Rev. 543 (2000).

Whipped By Whiplash? The Challenges of Jury Communication in Lawsuits Involving Connective Tissue Injury, 67 Tenn. L. Rev. 569 (2000).

Attorney General Opinions. Presumptions and jury exclusion in determining workers' compensation case management costs, OAG 98-084, 1998 Tenn. AG LEXIS 84 (4/14/98).

Revocation or denial of certain state licenses for violation of visitation orders, OAG 99-078, 1999 Tenn. AG LEXIS 78 (4/5/99).

State agency assessment of penalty without jury trial, OAG 99-123, 1999 Tenn. AG LEXIS 130 (6/18/99).

Judge's options when misdemeanor case is set for trial and prosecutor subsequently decides that defendant will not be given a bench trial but a preliminary hearing, OAG 99-197, 1999 Tenn. AG LEXIS 201 (10/6/99).

A defendant charged with a Class C misdemeanor has a constitutionally protected right to a jury trial that may be relinquished only by a valid written waiver, OAG 00-192, 2000 Tenn. AG LEXIS 196 (12/21/00).

Through insurance company providing uninsured motorist coverage, a John Doe may demand a jury trial and may waive that right, OAG 03-074, 2003 Tenn. AG LEXIS 92 (6/16/03).

NOTES TO DECISIONS

1. In General.

Any errors affecting the constitutional right to trial by jury will result in such prejudice to the judicial process that automatic reversal is required. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

2. Construction.

The same language as to right of trial by jury being used in the former constitutions, the meaning as to the nature of the right is to be gathered from the language used in the earliest constitution. State ex rel. Timothy v. Howse, 134 Tenn. 67, 183 S.W. 510, 1915 Tenn. LEXIS 147, L.R.A. (n.s.) 1916D1090 (1916).

3. Verification.

Lawyer's verification of his petition for writ of certiorari to appeal from a decision of the Disciplinary Board that stated “under oath or by affirmation that the facts in the preceding petition for certiorari are true and correct to the best of my knowledge, information and belief” clearly satisfied Tenn. Sup. Ct. R. 9, § 1.3, Tenn. Const. art. VI, § 10, and T.C.A. § 27-8-106, although the lawyer failed to recite that this was his first petition. Talley v. Bd. of Prof'l Responsibility, 358 S.W.3d 185, 2011 Tenn. LEXIS 971 (Tenn. Oct. 26, 2011).

4. Common Law Rights Preserved.

The right of trial by jury sanctioned and secured by Tenn. Const. art. I, § 6 is a right to trial by jury as it existed and was in force and use according to the course of the common law under the laws and constitution of North Carolina at the time of the formation and adoption of the Tennessee constitution in 1796. Garner v. State, 13 Tenn. 159, 13 Tenn. 160, 1833 Tenn. LEXIS 126 (1833); McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Trigally v. Memphis, 46 Tenn. 382, 1869 Tenn. LEXIS 71 (1869); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447, 1906 Tenn. LEXIS 44 (1906); Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 1968 Tenn. LEXIS 459 (1968); Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968).

Tenn. Const. art. I, § 6 protects the right of trial by jury only as it existed at common law. Marler v. Wear, 117 Tenn. 244, 96 S.W. 447, 1906 Tenn. LEXIS 44 (1906); State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908); Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

The constitutional guaranty to trial by jury refers to the right as it existed at common law at the time of the formation of the constitution and applies to common law actions but not to suits of an equitable nature. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957); Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986); but see Shook & Fletcher Supply Co. v. Nashville, 47 Tenn. App. 339, 338 S.W.2d 237, 1960 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1960); State v. Hartley, 790 S.W.2d 276, 1990 Tenn. LEXIS 215 (Tenn. 1990); Newport Housing Authority v. Ballard, 839 S.W.2d 86, 1992 Tenn. LEXIS 567 (Tenn. 1992).

Cases not triable by jury at the time of the formation of the constitution need not be made so now. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957); Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986); Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

5. Grade of Offenses Covered.

The terms “criminal charge,” “crimes,” and “infamous crimes” do not comprehend or apply to common misdemeanors not involving life or liberty so as to require, under the constitution, a jury trial upon a presentment or indictment previously found. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Hogan v. Mayor of Chattanooga, 2 Shan. 339 (1877). See U. S. Const. art. 3, § 2, cl. 3; U.S. Const. amends. 5, 7.

Misdemeanors not involving life or liberty may be tried under the constitution without a jury, because such misdemeanors were triable under the common law and statutes without a jury, before the constitution, and the constitution does not guarantee trial by jury, except where and as the right of trial by jury existed under the common law, and at the time of the adoption of the constitution. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Trigally v. Memphis, 46 Tenn. 382, 1869 Tenn. LEXIS 71 (1869); Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874); Hogan v. Mayor of Chattanooga, 2 Shan. 339 (1877); Foust v. State, 80 Tenn. 404, 1883 Tenn. LEXIS 189 (1883); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908).

The constitutional requirements of jury trial refer only to prosecutions of the grade of felony. Lebanon & Big Spring Tpk. Co. v. State, 141 Tenn. 675, 214 S.W. 819, 1919 Tenn. LEXIS 18 (1919).

Misdemeanors not involving life or liberty may be tried under the constitution without jury, because such misdemeanors were triable under the common law without a jury. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99, 1938 Tenn. LEXIS 133 (1938).

Statute authorizing misdemeanor offense not involving life or liberty to be tried by jury of six does not violate Tenn. Const. art. I, § 6. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99, 1938 Tenn. LEXIS 133 (1938).

Petty offenses punishable with fines up to fifty dollars are not embraced within this constitutional provision and a jury trial is not required. Capitol News Co. v. Metropolitan Government of Nashville & Davidson County, 562 S.W.2d 430, 1978 Tenn. LEXIS 590 (Tenn. 1978).

Tennessee courts have consistently held that persons charged with petty offenses and violation of city ordinances are not, as a matter of right, entitled to a trial by jury under the provisions of the state or federal constitutions. City of Gatlinburg v. Goans, 600 S.W.2d 735, 1980 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1980).

6. Particular Rights Under Section.

It is a constitutional right of a litigant to have all of the issues of fact submitted to the same jury at the same time and not to do so violates the litigant's constitutional right of trial by jury. Winters v. Floyd, 51 Tenn. App. 298, 367 S.W.2d 288, 1962 Tenn. App. LEXIS 109, 4 A.L.R.3d 450 (Tenn. Ct. App. 1962).

Where hospital defendant in malpractice action was granted a summary judgment prior to the hearing of evidence it was a violation of Tenn. Const. art. I, § 6 to grant a motion to add that hospital as a party defendant after the evidence had been presented, and the appeal of the rejection of that motion was frivolous. Guess v. Maury, 726 S.W.2d 906, 1986 Tenn. App. LEXIS 3257 (Tenn. Ct. App. 1986), overruled in part, Elliott v. Cobb, 320 S.W.3d 246, 2010 Tenn. LEXIS 875 (Tenn. Sept. 23, 2010).

There is no right to trial by jury in a proceeding conducted pursuant to T.C.A. § 44-17-120, which provides a summary procedure for the destruction of vicious or rabid dogs. State v. Hartley, 790 S.W.2d 276, 1990 Tenn. LEXIS 215 (Tenn. 1990).

The T.C.A. § 40-18-110(a) right of trial by jury is of constitutional dimension as evidenced by its embodiment in Tenn. Const. art. I, § 6; accordingly, this constitutional right is violated when the jury is not permitted to consider all lesser-included offenses supported by the evidence; constitutional and statutory recognition of a right afforded citizens in Tennessee are not mutually exclusive. State v. Ely, 48 S.W.3d 710, 2001 Tenn. LEXIS 600 (Tenn. 2001), cert. denied, Bowers v. Tennessee, 534 U.S. 979, 122 S. Ct. 408, 151 L. Ed. 2d 310, 2001 U.S. LEXIS 9880 (2001).

Defendant's convictions for first-degree murder, attempted first-degree murder, and aggravated arson were proper because the trial court did not err by replacing an ill juror with an alternate juror following the conclusion of the guilt phase but prior to the beginning of sentencing deliberations in his capital trial. The trial court's decision to replace an ill juror with a non-discharged alternate juror did not appear to constitute a plain error under T.C.A. § 39-13-204(a). State v. Hester, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010), cert. denied, Hester v. Tennessee, 179 L. Ed. 2d 896, 563 U.S. 939, 131 S. Ct. 2096, 2011 U.S. LEXIS 3140 (U.S. 2011), superseded by statute as stated in, State v. Wilson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 13, 2013).

7. —Issues of Fact to Be Decided by Jury.

Defendant had the constitutional right to have all issues of fact decided by a jury if the evidence was in conflict on the issues. Morgan v. Tennessee C. R. Co., 31 Tenn. App. 409, 216 S.W.2d 32, 1948 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1948).

Where several facts must be proved by a plaintiff to make out his case, and he relies upon the testimony of one witness to prove the facts, and that witness is contradicted by the evidence on one material issue, but it not contradicted on the other issues, the trial judge has no constitutional right to state to the jury that other facts about which there is no contradictory evidence are proved. Morgan v. Tennessee C. R. Co., 31 Tenn. App. 409, 216 S.W.2d 32, 1948 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1948).

Plaintiff in a personal injury suit for injuries resulting from a motor vehicle accident has the constitutional right to have all issues of fact decided by a jury if the evidence is in conflict on the issues. Finks v. Gillum, 38 Tenn. App. 304, 273 S.W.2d 722, 1954 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1954).

Where in action for wrongful death resulting from automobile accident the jury could have found that plaintiff's decedent was a guest in the car and was killed by the driver's negligence but under the instructions the jury was told that such decedent was presumed to be the owner of the car when in fact she was not and that she was driving the car when in fact she was not and that she was chargeable not only with her own negligence but also the driver's negligence, such instructions constituted reversible error as amounting to a misdirection of the jury depriving plaintiff of his constitutional right to trial by jury. Santi v. Duffey, 40 Tenn. App. 237, 290 S.W.2d 884, 1956 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1956).

Plaintiff has no constitutional right to submit statements of fact alleged in declaration to jury when such statements were admitted by defendants in a subsequent pleading, since admitted facts are not issues. Wilson v. Maury County Bd. of Education, 42 Tenn. App. 315, 302 S.W.2d 502, 1957 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1957).

It is error for trial court to inform jury of effect their answers to special issues or interrogatories put to jury may have on case. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

Plaintiff in action at law for personal injuries had constitutional right to have every issue of fact made by pleadings and evidence submitted to jury with proper instructions by judge upon hypothesis that such testimony could be found to be true. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

Although the right to trial by jury is guaranteed by Tenn. Const. art. I, § 6 determinative questions of fact are only entitled to be litigated by a jury once, and when the jury has decided these factual questions then it becomes a question of law for the court to determine. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 1963 Tenn. LEXIS 338 (1963).

The right to jury trial carries with it the right to have all issues determined at one time by one jury; however, this right is not violated where a jury neglects to consider immaterial issues. Hurt v. Earnhart, 539 S.W.2d 133, 1976 Tenn. App. LEXIS 248 (Tenn. Ct. App. 1976); State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

It is a part of defendant's constitutional right of trial by jury to have every issue made by the evidence tried and determined by the jury under a correct and complete charge of the law given by the judge. State v. Staggs, 554 S.W.2d 620, 1977 Tenn. LEXIS 644 (Tenn. 1977), overruled, State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998).

When the state presents proof reflecting the existence of more than one offense of the same type and the indictment is not specific as to the offense for which the accused is being tried, an election is required: (1) To enable the defendant to prepare for and make his defense to the specific charge; (2) To protect him from double jeopardy by individualization of the issue; and (3) And to insure that the jury's verdict may not be a matter of choice between offenses with some jurors convicting on one offense and others on another. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

The right of trial by jury under Tenn. Const. art. I, § 6 dictates that all issues of fact be tried and determined by 12 jurors; thus, it follows that a defendant has a right to a correct and complete charge of the law, so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions. State v. Garrison, 40 S.W.3d 426, 2000 Tenn. LEXIS 652 (Tenn. 2000).

Where defendant was retried for felony murder, the prosecution was not permitted to use collateral estoppel against the defendant to establish the underlying offense of aggravated burglary; this would violate defendant's right to trial by jury as to every element of the charged offense. State v. Scarbrough, 181 S.W.3d 650, 2005 Tenn. LEXIS 1044 (Tenn. 2005).

In a Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., case, instructing a jury sua sponte that the jury's finding of negligence per se barred apportioning fault to an employee based on contributory negligence erred because: (1) this was a purely legal issue; and (2) the jury had returned a complete, consistent, verdict based on the jury's instructions. Payne v. CSX Transp., Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 836 (Tenn. Ct. App. Dec. 27, 2013), aff'd in part and modified in part, 467 S.W.3d 413, 2015 Tenn. LEXIS 547 (Tenn. July 1, 2015).

8. —Number of Jurors.

Trial by jury composed of only 11 men renders the verdict defective and the judgment void, and is a nullity. M'Donald v. M'Donald, 13 Tenn. 306, 13 Tenn. 307, 1833 Tenn. LEXIS 178 (1833); Bowles v. State, 37 Tenn. 360, 1858 Tenn. LEXIS 16 (1858); Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

The right of trial by jury is the right guaranteed to every litigant in jury cases to have the facts tried and determined by 12 jurors. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99, 1938 Tenn. LEXIS 133 (1938); State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

Tenn. Const. art. I, § 6 means a trial by “twelve good and lawful men.” Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 1968 Tenn. LEXIS 459 (1968).

Conviction by a thirteen man jury was invalid. Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 1968 Tenn. LEXIS 459 (1968).

If the defendants could waive the jury entirely, it stands to reason that they could have consented to a trial by the remaining eleven jurors. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

9. —Juror Impartiality.

Impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. Teague v. State, 772 S.W.2d 915, 1988 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 45 (1989), appeal denied, — S.W.2d —, 1989 Tenn. LEXIS 292 (Tenn. June 5, 1989), overruled, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

A juror who cannot follow the law and instruction of the trial judge on capital punishment is not impartial to the state and the trial judge properly excused such a juror for cause. Teague v. State, 772 S.W.2d 915, 1988 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 45 (1989), appeal denied, — S.W.2d —, 1989 Tenn. LEXIS 292 (Tenn. June 5, 1989), overruled, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Defendant's right to an impartial jury was not violated when a defense witness had contact with a juror prior to jury selection because the juror and the witness had, at best, a professional acquaintance, had not seen each other in four years, and briefly exchanged pleasantries outside of the courtroom, and the juror denied meeting defendant and did not share her relationship with the other jurors; the jury was not sequestered. State v. Vales, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 507 (Tenn. June 11, 2015).

10. —Jury Selection.

Trial court's exclusion of jurors from service on the jury who were opposed to the death penalty on religious grounds did not amount to a religious test for jury service in violation of Tenn. Const. art. I, § 6. State v. Jones, 789 S.W.2d 545, 1990 Tenn. LEXIS 162 (Tenn. 1990), rehearing denied, 789 S.W.2d 545, 1990 Tenn. LEXIS 207 (Tenn. 1990), cert. denied, Jones v. Tennessee, 498 U.S. 908, 111 S. Ct. 280, 112 L. Ed. 2d 234, 1990 U.S. LEXIS 5145 (1990).

Where the prosecution exercised three preemptory challenges against prospective black jurors, but there was no pattern of strikes against black jurors, there was no indication of any discriminatory purpose in the strikes, and the state offered neutral reasons for the exercise of its challenges, the defendant failed to demonstrate purposeful racial discrimination in the jury selection. State v. Jones, 789 S.W.2d 545, 1990 Tenn. LEXIS 162 (Tenn. 1990), rehearing denied, 789 S.W.2d 545, 1990 Tenn. LEXIS 207 (Tenn. 1990), cert. denied, Jones v. Tennessee, 498 U.S. 908, 111 S. Ct. 280, 112 L. Ed. 2d 234, 1990 U.S. LEXIS 5145 (1990).

Questioning prospective jurors to determine whether their religious beliefs will prevent them from being impartial is not a prohibited religious test. Wolf v. Sundquist, 955 S.W.2d 626, 1997 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1997).

Second defendant's convictions for facilitation of first-degree murder and aggravated child abuse were appropriate because T.C.A. § 22-1-101's requirement that jurors be United States citizens does not violate the Tennessee Constitution. State v. Gomez, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Sept. 10, 2010), rev'd, 367 S.W.3d 237, 2012 Tenn. LEXIS 291 (Tenn. Apr. 24, 2012).

11. Duties Imposed by Section.

By Tenn. Const. art. I, § 6 the duty is imposed on the supreme court and upon all of the judges of the state to see to it that trial by jury shall remain inviolate. Turner v. State, 128 Tenn. 27, 157 S.W. 67, 1913 Tenn. LEXIS 21 (1913).

12. Rights Not to Be Impaired.

The right of trial by jury, unimpaired and without violation, guaranteed by Tenn. Const. art. I, § 6 to all litigants in jury cases, manifestly means that the right shall never be embarrassed or encumbered with conditions, which, in their practical operation, may impair or violate the free and full enjoyment of the right. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

A statute in effect making the clerk and other executive and ministerial officers of the court and the witnesses interested in a conviction by making their fees to be paid by the state or county dependent upon a conviction, but not applying to the jury, is not violative of the constitution, which requires the jury only, and not the officers and witnesses, to be impartial. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Gribble v. Wilson, 101 Tenn. 612, 49 S.W. 736, 1898 Tenn. LEXIS 111 (1898).

Statute construed to require supreme court to disregard an error in compelling the accused to accept competent jurors, after the exhaustion of his peremptory challenges on jurors erroneously held to be competent, is not unconstitutional. Mahon v. State, 127 Tenn. 535, 156 S.W. 458, 1913 Tenn. LEXIS 1 (1912).

Under the constitution, the right of trial by jury must be preserved inviolate as it existed at common law. The essentials of this right are that there shall be selected, in the presence of the trial judge, by the parties, under provisions giving each a fair opportunity for the selection, a jury of twelve good and lawful men; that they shall be duly sworn; that to them shall be submitted the issues between the parties, upon the competent material evidence offered by the respective parties; that the trial judge shall preside, and pass upon the competency of the evidence offered; that the jury shall be charged by the trial judge touching the principles of law applicable to the issues; that the jury, after having thus heard the evidence and received the charge of the judge, and considered them in relation to each other, shall render a unanimous verdict upon the issues; and that, if correct in form, it shall be received by the trial judge. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

The right to trial by jury guaranteed by constitution is the right as it was at common law with right of jury at their option to return a special verdict or general verdict but with privilege to decline to return any but a general verdict which general verdict is held to embrace every issue unless excepted to. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

Action of trial court in ordering separation of issues relating to defendant's plea of accord and satisfaction and plaintiff's replications thereto from issues arising under general issue in personal action violated plaintiff's constitutional right to have all issues of fact tried before same jury at same time. Winters v. Floyd, 51 Tenn. App. 298, 367 S.W.2d 288, 1962 Tenn. App. LEXIS 109, 4 A.L.R.3d 450 (Tenn. Ct. App. 1962).

Fact that court refused to allow complainant to prosecute suit as assignee did not amount to denial or right to trial by jury where cause of action was not assignable and bill did not state a cause of action. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Since additur is conditioned on the consent of the defendant, he could not be heard to complain, when the trial judge increased the amount awarded to plaintiff by jury, that his right to trial by jury had been abridged. McCall v. Waer, 487 S.W.2d 308, 1972 Tenn. LEXIS 324 (Tenn. 1972).

Where a fine of more than fifty dollars or any confinement of the accused may be imposed, the right to jury trial under the Tennessee constitution is well-established. State v. Dusina, 764 S.W.2d 766, 1989 Tenn. LEXIS 26 (Tenn. 1989), rehearing denied, 764 S.W.2d 766, 1989 Tenn. LEXIS 80 (Tenn. 1989).

Where the court discharged a juror, selected an alternate, and then reinstated the original discharged juror who had missed a portion of the trial, such plain error implicated the fundamental right to trial by jury under Tenn. Const. art. I, § 6 and constituted a defect in the trial mechanism that defied harmless error analysis. State v. Cleveland, 959 S.W.2d 548, 1997 Tenn. LEXIS 635 (Tenn. 1997).

While defendant showed that only one African-American had served as foreperson of a petit jury during a significant period of time, there was no evidence of how many total forepersons served during the period or what percentage of the total African-American population was in fact eligible to serve as grand jury foreperson during the years considered. Nor was any evidence presented in the form of testimony of any trial judge, court clerk, or former forepersons to shed light upon the process for selecting the foreperson. State v. Copeland, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Aug. 22, 2005), aff'd in part, rev'd in part, 226 S.W.3d 287, 2007 Tenn. LEXIS 502 (Tenn. May 23, 2007).

Exclusion of certain classes of persons from the jury under T.C.A. § 22-1-102(a) was not unconstitutional because there was no basis in governing law that recognized certain felons, persons of unsound mind, or habitual drunkards as distinctive groups for purposes of the cross-representation requirement, and defendant cited no authority that supported the claim. State v. Copeland, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Aug. 22, 2005), aff'd in part, rev'd in part, 226 S.W.3d 287, 2007 Tenn. LEXIS 502 (Tenn. May 23, 2007).

Trial court's “dynamite charge” to a deadlocked jury in a medical malpractice case was reversible error because it violated Kersey v. State, 525 S.W.2d 139, 1975 Tenn. LEXIS 654, and its progeny because a reasonable juror could have concluded that the court was intimating that the lone holdout juror should not prevent a verdict and the erroneous instruction was a material factor leading to the verdict subsequently rendered in favor of the surgeon. Waters v. Coker, — S.W.3d —, 2006 Tenn. App. LEXIS 443 (Tenn. Ct. App. June 29, 2006), rev'd, 229 S.W.3d 682, 2007 Tenn. LEXIS 575 (Tenn. June 29, 2007).

Defendant's convictions for first-degree murder, attempted first-degree murder, and aggravated arson were proper because, removing from a jury venire the names of persons who had died, who no longer lived in the county, or who were physically or mentally disabled so as to prevent jury service, was legally permissible. In the absence of any evidence that the jury commissioners removed persons from the jury venire for improper purposes or that defendant was prejudiced by the removal of the persons, the service of the jury commissioners, even if they were not qualified to serve, did not provide sufficient grounds to reverse and vacate defendant's convictions. State v. Hester, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010), cert. denied, Hester v. Tennessee, 179 L. Ed. 2d 896, 563 U.S. 939, 131 S. Ct. 2096, 2011 U.S. LEXIS 3140 (U.S. 2011), superseded by statute as stated in, State v. Wilson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 13, 2013).

13. —Challenge of Jurors.

Tenn. Const. art. I, § 6 protects the right to jury trial as it existed at common law. The constitutional guaranty of a fair and impartial trial before a fair and impartial jury does not mean blind adherence to useless forms no longer necessary. The right to challenge is not the right to select a juror, and if, from those remaining after the right of rejection has been exercised, an impartial jury is obtained, no right of accused is violated. Manning v. State, 155 Tenn. 266, 292 S.W. 451, 1926 Tenn. LEXIS 45 (1927), superseded by statute as stated in, State v. Johnson, 692 S.W.2d 412, 1985 Tenn. LEXIS 602 (Tenn. 1985).

14. —Separation of Jury.

In cases punishable by imprisonment in the penitentiary or by death, there can be no fair and impartial jury trial where the jury separates after being sworn, though the separation is with accused's consent, unless it appears that the verdict was unaffected by the separation. Long v. State, 132 Tenn. 649, 179 S.W. 315, 1915 Tenn. LEXIS 59 (1915).

15. —Trial upon Erroneous Theory of Law.

In an action to recover damages for false arrest plaintiffs were deprived of their constitutional right of trial by jury when the case was tried under an erroneous theory of the law, and the case will be reversed and remanded for new trial despite the provisions of § 27-117 (§ 27-1-117 (repealed)). Martin v. Castner-Knott Dry Goods Co., 27 Tenn. App. 421, 181 S.W.2d 638, 1944 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1944).

16. —Unanimity.

Jurors must be in substantial agreement as to just what a defendant did as a preliminary step to determining whether the defendant is guilty of the crime charged. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

The constitutional right to a jury necessarily entails a right that the jury be unanimous as to which offense constitutes the crime for which the defendant is convicted. The requirement of jury unanimity encompasses the requirement of unanimity regarding the specific act or acts which constitute that offense. Absent such certainty, the unanimity requirement would provide too little protection in too many instances. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

In cases involving evidence which shows a real potential that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, each of which separately showing the commission of an offense, the trial court must augment the general unanimity instruction to insure that the jury understands its duty to agree unanimously to a particular set of facts. The assessment of this potential would involve consideration of the allegations made and the statutory offense charged, as well as the actual evidence presented. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

Defendant's right to a unanimous jury verdict was not violated where he was charged with one particular offense and the trial judge instructed the jury on the elements of the offense and, because the evidence warranted it, on criminal responsibility for another, and for criminal responsibility relative to the elements of the offense. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

Election doctrine does not require the prosecution to identify a single incident in cases where the child victim testifies to repeated incidents of sexual contact occurring over a substantial period of time but is unable to furnish specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery; where a prosecution is based solely on such generic evidence, the election doctrine is satisfied by providing the jury with a modified unanimity instruction that allows a conviction only if the jury unanimously agrees the defendant committed all the acts described by the victim. The absence of such a modified unanimity instruction amounts to non-structural constitutional error. State v. Qualls, 482 S.W.3d 1, 2016 Tenn. LEXIS 50 (Tenn. Jan. 28, 2016).

Defendant did not argue prior to appeal that the State was required to make an election, which waived the issue, but in any event, he would not be able to show that his substantial rights were violated because he elected to proceed with a bench trial and thus he could not claim that his constitutional right to a unanimous jury verdict was violated. Furthermore, the State only offered proof of one rape, and no election was required, and the trial court clearly identified the factual bases for the two aggravated sexual battery convictions. State v. Haven, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. June 19, 2020).

17. —Receipt of Verdict.

Where at request of trial judge, verdict was received in his absence by member of the bar over the objections of the plaintiff, verdict was void since it omitted an indispensable requisite of constitutional trial by jury. Tennessee Gas Transmission Co. v. Vineyard, 191 Tenn. 331, 232 S.W.2d 403, 1950 Tenn. LEXIS 578, 20 A.L.R.2d 279 (1950).

Trial court erred in reassembling the jury and permitting the entry of guilty verdicts after the jury had reported not guilty verdicts and been discharged; although very little time had elapsed, the jurors had been verbally dismissed and had exited the courtroom and entered an area occupied by members of the public, and such circumstances demonstrate a separation of the jurors from the trial court to such a degree that outside contacts may have occurred. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

Although the double jeopardy clause was not implicated because the jury was not reassembled to determine guilt or innocence, but only to determine the facts relevant to sentencing, there was no separate jeopardy, the recall of the discharged jury violated defendant's due process rights under U.S. Const. amend. V, U.S. Const. amend. XIV, § 1, and Tenn. Const. art. I, §§ 6, 8, 9 because once a jury had returned a complete verdict, or the jurors had separated and passed from the control of the court, the jury could not be reassembled to act on the case for any purpose. Accordingly the case was remanded to the trial court to select a new jury in order to hold a new trial solely on the issue of whether defendant's conviction was his first, second, third, or fourth driving under the influence offense based on the evidence presented regarding prior convictions. State v. Nash, 294 S.W.3d 541, 2009 Tenn. LEXIS 652 (Tenn. Oct. 7, 2009).

18. —Fixing Punishment.

It is not essential that the jury assess the punishment upon the conviction of an offense, unless the statutes so direct, because the power to declare what shall be the appropriate punishment for an ascertained crime belongs solely to the legislature, which body may provide a minimum and a maximum punishment, and leave it to the discretion of the jury to fix a definite term, within those limits, or it may provide a single or definite term, leaving nothing for the jury, except to respond to the issue of guilty or not guilty. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

19. —Taxing Costs.

A statute taxing the losing party with the jury fees in all civil suits impairs or violates the free and full enjoyment of the right of trial by jury, and is unconstitutional, because, as soon as they are sworn and enter upon the trial of the cause, they become interested to the extent of their fees. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

The clause taxing the costs of a special jury to the losing party is unconstitutional and invalid as an unwarranted invasion of the right of trial by jury, as defined and preserved by the state and federal constitutions. Gribble v. Wilson, 101 Tenn. 612, 49 S.W. 736, 1898 Tenn. LEXIS 111 (1898); State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151, 1912 Tenn. LEXIS 28 (1912).

20. Substitution of Jurors.

The substitution of jurors after final submission of the case, coupled with the trial court's failure to instruct the jury to begin deliberations anew, violated each defendant's right to a trial by jury under Tenn. Const. art. I, § 6. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

21. Cases Triable Without Jury.

On a motion by a surety to recover money paid for the principal, the court, without a jury, cannot receive oral evidence that the motioner was a surety, where the suretyship does not appear in the instrument or upon the record. Love v. M'Cool, 1 Tenn. 335, 1808 Tenn. LEXIS 40 (1808). But see §§ 25-3-127, 25-3-132, 25-3-133.

Officers of court may be removed in summary proceedings without a jury. Evans v. Justices of Claibourne County, 4 Tenn. 26, 1816 Tenn. LEXIS 9 (1816); Hardin County Court v. Hardin, 7 Tenn. 291, 1823 Tenn. LEXIS 59 (1823); Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824); Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827). See notes under Tenn. Const. art. I, § 8 and Tenn. Const. art. VI, § 13.

Motions may be tried without the intervention of a jury, if such be the meaning and intent of the law. Tipton v. Harris, 7 Tenn. 414, 1824 Tenn. LEXIS 21 (1824).

Where the facts are not disputed, but are legally apparent, the judge, without the intervention of a jury, applies the law to the facts, and renders judgment thereon. Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824).

The cases in which the courts act without a trial by jury are innumerable and undefined, and where the proceedings are according to the law of the land, Tenn. Const. art. I, § 6 is not violated. Goddard v. State, 10 Tenn. 96, 1825 Tenn. LEXIS 3 (1825).

No jury in bastardy cases in the county court. Goddard v. State, 10 Tenn. 96, 1825 Tenn. LEXIS 3 (1825); Kirkpatrick v. State, 19 Tenn. 124, 1838 Tenn. LEXIS 32 (1838); Jackson, Morris & Co. v. Nimmo & Thornhill, 71 Tenn. 597, 1879 Tenn. LEXIS 120 (1879). But a jury to try such issues in the county court may not constitute reversible error, as, while the parties are not entitled to a jury, the court may have the aid of a jury. State v. Coatney, 16 Tenn. 210, 1835 Tenn. LEXIS 77 (1835); Kirkpatrick v. State, 19 Tenn. 124, 1838 Tenn. LEXIS 32 (1838). See Coffee v. Neely, 49 Tenn. 304, 1871 Tenn. LEXIS 10 (1871); Crowder v. Bradley, 1 Shan. 643 (1876); Coulter v. Davis, 81 Tenn. 451, 1884 Tenn. LEXIS 57 (1884).

Road cases are to be tried in the (former) county court, and on appeal in the circuit court, without a jury. McWhirter v. Cockrell, 39 Tenn. 9, 1858 Tenn. LEXIS 243 (1858); Evans v. Shields, 40 Tenn. 70, 1859 Tenn. LEXIS 22 (1859), overruled, Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890); Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

As to removal of officers, see notes under Tenn. Const. art. I, § 8 and Tenn. Const. art. VI, § 13.

No jury in disbarment proceedings against an attorney for misappropriating his client's funds. Davis v. State, 92 Tenn. 634, 23 S.W. 59, 1893 Tenn. LEXIS 20 (1893).

The question of the power of a railroad corporation under its charter to condemn land under the eminent domain laws is to be determined by the court from the charter, and not by a jury. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

Tenn. Const. art. I, § 6 has no application to a summary proceeding for return of intoxicating liquor seized by a sheriff. Caneperi v. State, 169 Tenn. 472, 89 S.W.2d 164, 1935 Tenn. LEXIS 72 (1936).

Defendant was not entitled to trial by jury in contempt proceeding in circuit court for violating injunction against illegal sale of intoxicating liquor. Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

The right to trial by jury does not extend to proceedings for disbarment of an attorney. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957).

The right to trial by jury does not extend to contempt proceedings for violation of an injunction. Taylor Implement Mfg. Co. v. United Steelworkers, 219 Tenn. 472, 410 S.W.2d 881, 1966 Tenn. LEXIS 633, rev'd, Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538, 1968 U.S. LEXIS 1632 (1968) (holding contemner entitled to jury trial except for “petty offense,” and punishment provided in § 23-903 (now § 29-9-103) made it a petty offense).

The general rule is that where a number of cases are consolidated for trial because they arise out of the same transaction it is permissible for the trial judge to submit one of such cases to the jury for its consideration and verdict before submitting the remaining cases to the jury and it is also the general rule that the verdict thus rendered in such “pilot case” is binding upon all parties to all the other cases tried simultaneously with such case. Chitwood v. Myers, 60 Tenn. App. 1, 443 S.W.2d 827, 1969 Tenn. App. LEXIS 303 (Tenn. Ct. App. 1969).

Where there is no genuine issue as to any material fact, summary judgment is appropriate in a will contest proceeding and does not amount to an improper denial of right to a jury trial. Union Planters Nat'l Bank v. Inman, 588 S.W.2d 757, 1979 Tenn. App. LEXIS 351 (Tenn. Ct. App. 1979).

Defendant has no statutory or common-law right to trial by jury and there is no constitutional breach in applying subsection 24-7-112(b)(1). Rooker v. Rimer, 776 S.W.2d 124, 1989 Tenn. App. LEXIS 321 (Tenn. Ct. App. 1989), cert. denied, 493 U.S. 1073, 110 S. Ct. 1120, 107 L. Ed. 2d 1027, 1990 U.S. LEXIS 962 (1990).

There is no right to a jury trial in Tennessee statutory proceedings involving the forfeiture of personal property. Helms v. Tennessee Dep't of Safety, 987 S.W.2d 545, 1999 Tenn. LEXIS 42 (Tenn. 1999), review or rehearing denied, — S.W.3d —, 987 S.W.2d 545, 1999 Tenn. LEXIS 229 (Tenn. 1999).

Because juvenile proceedings were statutory and did not exist under common law, Tenn. Const. art. I, § 6 was inapposite. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

Employee was not entitled to a jury trial on his retaliation claim because such claims were not “brought under” the Governmental Tort Liability Act, but were brought under the Tennessee Public Protection Act, an independent statute that established its own rights and remedies, no similar statute of general application afforded the employee a right to trial by jury, the civil procedure rule was merely descriptive of the constitutional right to a jury trial and did not itself confer an independent right to trial by jury, and the employee was not entitled to a jury trial under the state constitution on his claim where the claim did not exist at common law. Young v. City of Lafollette, 479 S.W.3d 785, 2015 Tenn. LEXIS 695 (Tenn. Aug. 26, 2015).

22. —Equitable Proceedings.

There is no absolute right to a trial by jury in a suit of which the chancery court has inherent equitable jurisdiction, but the submission of facts to a jury is a matter within the discretion of the chancellor. Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199, 1920 Tenn. LEXIS 36 (1920).

Tenn. Const. art. I, § 6 as to jury trials refers not to suits brought in chancery, but alone to actions triable at common law. Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199, 1920 Tenn. LEXIS 36 (1920); Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

Tenn. Const. art. I, § 6 that the right of trial by jury shall remain inviolate, does not guarantee the right of trial by jury in any cause of which the chancery court has jurisdiction, which is exercised according to the forms by which such courts are accustomed to administer remedies. Exum v. Griffis Newbern Co., 144 Tenn. 239, 230 S.W. 601, 1921 Tenn. LEXIS 33 (1921).

In a chancery suit for accounting, the question as to right of a party to a jury trial is for the determination by the chancellor, from the pleadings, as to whether the case involves complicated accounting; and, if it does, the party has no absolute right to a trial by jury. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

Right to trial by jury under the constitution does not apply to equitable proceedings. Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666, 1934 Tenn. LEXIS 102 (1935).

The general rule is that a constitutional guaranty of jury trial does not apply to contempt proceedings whether in a court of law or a court of equity. Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

The constitutional guaranty of trial by jury refers to common law actions and not to suits of an equitable nature. State ex rel. Balsinger v. Madisonville, 222 Tenn. 272, 435 S.W.2d 803, 1968 Tenn. LEXIS 431 (1968).

There is no constitutional right to a trial by jury in a matter inherently equitable. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

There is no right under Tenn. Const. art. I, § 6 to a jury trial in an action that is equitable in nature unless it was triable by jury when the constitution was adopted. Smyrna v. Ridley, 730 S.W.2d 318, 1987 Tenn. LEXIS 905 (Tenn. 1987).

Tennessee Constitution does not preserve the right to jury trials in inherently equitable matters. In re Estate of Hillis, — S.W.3d —, 2016 Tenn. App. LEXIS 148 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 479 (Tenn. June 23, 2016).

23. —Divorce Actions.

The right to a jury in an equitable matter exists only to the extent provided by statute. The jury does not try the whole case or render a verdict for one party or the other and these rules apply in a divorce action where a jury has been demanded under § 36-4-113. Wright v. Quillen, 909 S.W.2d 804, 1995 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1995).

24. —Order of Protection.

There is no right to a jury trial prior to the issuance of an order of protection issued under the Domestic Abuse Act, § 36-3-601 et seq. Clark v. Crow, 37 S.W.3d 919, 2000 Tenn. App. LEXIS 492 (Tenn. Ct. App. 2000).

25. Construction of Statutes to Award Jury Trial.

That the construction of an act to award jury trial might render the act useless will not deter the court in so construing it where, under the constitution, the parties are entitled to a trial by jury. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

Under drainage act giving right to jury trial on appeal to circuit court according to the law of the land, property owners have right to jury trial as to advisability of establishing district and of including certain lands, the questions being of purely legal cognizance. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

In an action under the Motor Vehicle Habitual Offender Act, defendant had no right to a trial by jury where he admitted to three convictions within a five-year period, and there were no factual disputes. State v. Malady, 952 S.W.2d 440, 1996 Tenn. Crim. App. LEXIS 449 (Tenn. Crim. App. 1996).

26. Validity of Particular Statutes.

A statute stating that certain acts shall be deemed a commission of the offense of manufacturing whisky does not impair the right of trial by jury contrary to Tenn. Const. art. I, § 6. Hall v. State, 151 Tenn. 416, 270 S.W. 84, 1924 Tenn. LEXIS 74 (1925).

The additur statute as applied to a nonconsenting plaintiff does not violate the right to trial by jury unless the jury verdict is so low as to evince prejudice, passion, or caprice, since the plaintiff is entitled to only one fair trial not two; accordingly, where the evidence was such as could reasonably have led the jury to disbelieve plaintiff's special damages, denial of new trial conditioned upon additur did not violate plaintiff's rights. Kaiser v. Cannon, 529 S.W.2d 235, 1975 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1975).

The procedural and enforcement provisions of title 4, ch. 21, part 3, concerning human rights, do not violate the principle of separation of powers, the constitutional guarantee of the right to trial by jury, or the constitutional provisions pertaining to the election of state judges. Plasti-Line, Inc. v. Tennessee Human Rights Com., 746 S.W.2d 691, 1988 Tenn. LEXIS 65 (Tenn. 1988).

Administrative forfeiture statutes do not violate the right to a jury trial under the state constitution. Jones v. Greene, 946 S.W.2d 817, 1996 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1996).

The waiver provision of T.C.A. § 40-18-110(c), waiving a lesser included offense instruction when a defendant fails to request one, is an unconstitutional abrogation of a criminal defendant's constitutional right to have the jury charged on all offenses included within the indicted offense and supported by the proof adduced at trial. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Punitive damages bar set forth in T.C.A. § 29-39-104 violated individual right to trial by jury set forth in Tennessee Constitution. Lindenberg v. Jackson Nat'l Life Ins. Co., 2018 FED App. 0280P (6th Cir.), — F.3d —, 2018 U.S. App. LEXIS 36097 (6th Cir. Dec. 21, 2018).

Statutory cap on noneconomic damages does not violate the right to trial by jury under the Tennessee Constitution because the right to trial by jury under the Tennessee Constitution is satisfied when an unbiased and impartial jury makes a factual determination regarding the amount of noneconomic damages, if any, sustained by the plaintiff; that right is not violated when a judge then applies, as a matter of law, the statutory cap on noneconomic damages. McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 2020 Tenn. LEXIS 84 (Tenn. Feb. 26, 2020).

27. —Statutes Making Facts Prima Facie Evidence.

The provision in a statute that the proof of certain enumerated facts shall constitute prima facie evidence of fraudulent intent does not impair the right of trial by jury. State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910); Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911); Mahon v. State, 127 Tenn. 535, 156 S.W. 458, 1913 Tenn. LEXIS 1 (1912).

Statutes declaring an internal revenue special tax payment or the possession of a federal liquor license prima facie evidence that the party is in the liquor business and that he has made unlawful sales of intoxicating liquors, and making certified copies of such license admissible as competent evidence, are not unconstitutional as impairing the right of trial by an impartial jury; for the jury is not bound to convict upon such evidence, but such evidence shifts upon the accused the duty to explain the same. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910); Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911).

Statutes making certain facts absolute or conclusive proof of guilt are unconstitutional, while those making certain facts prima facie evidence only are constitutional. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910).

28. —Increasing Chancery Jurisdiction.

The statute increasing the chancery jurisdiction is not unconstitutional as an impairment of the right of trial by jury as guaranteed by Tenn. Const. art. I, § 6, because this provision does not apply to the administration of law in the chancery court, and if it does, the parties may at their option have a trial by jury in the chancery court. Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827); Jackson, Morris & Co. v. Nimmo, 71 Tenn. 597, 1879 Tenn. LEXIS 120 (1879). But see Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831).

29. —Jurisdiction of Justices of the Peace.

Statutes conferring jurisdiction upon justices of the peace to try jury cases of a civil nature involving more than $20.00, without a jury, are not unconstitutional, where a jury may be obtained by appeal. Thompson v. Gibson, 2 Tenn. 235, 1814 Tenn. LEXIS 7 (1814); Morford v. Barnes, 16 Tenn. 444, 1835 Tenn. LEXIS 104 (1835); Pryor v. Hays, 17 Tenn. 416, 1836 Tenn. LEXIS 74 (1836). See U. S. Const. art. 3, § 2, cl. 3; U.S. Const. amends. 5, 7.

A statute, providing for the trial of offenders before justices and authorizing the imposition of fines by justices, with right of appeal, does not violate the constitutional right of trial by jury, and is valid and constitutional. State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908).

30. —Special Courts.

A statute creating a special court for the trial of jury cases of a civil nature, without a jury and without appeal, is unconstitutional. Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831).

31. Consolidated Cases.

In consolidated cases arising out of same automobile accident trial court could properly single out one particular case to be determined before the others where such case was pivotal and involved a determination of all the facts required to render a judgment in all the cases. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 1963 Tenn. LEXIS 338 (1963).

In consolidated cases arising out of same transaction where decision as to factual questions is made by the jury in a pivotal case, it is not necessary for the same determination to again be made in the related cases. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 1963 Tenn. LEXIS 338 (1963).

The award of prejudgment interest is a matter of equity, and as such does not implicate the constitutional right to trial by jury. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 1998 Tenn. LEXIS 293 (Tenn. 1998), superseded by statute as stated in, Davidoff v. Progressive Haw. Ins. Co., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 3114 (M.D. Tenn. Jan. 9, 2013), superseded by statute as stated in, Westfield Ins. Co. v. RLP Partners, LLC, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 75673 (M.D. Tenn. May 30, 2013), superseded by statute as stated in, Price's Collision Ctr., LLC v. Progressive Haw. Ins. Corp., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 154225 (M.D. Tenn. Oct. 28, 2013), superseded by statute as stated in, Lindenberg v. Jackson Nat'l Life Ins. Co., — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 184081 (W.D. Tenn. Dec. 9, 2014), superseded by statute as stated in, Am. Nat'l Property & Cas. Co. v. Stutte, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 48726 (E.D. Tenn. Apr. 14, 2015).

32. Demand for Jury.

Statutes requiring litigants to demand a jury, if one is desired, at a particular stage of the litigation, and prescribing the manner in which the demand shall be made, are constitutional, because the right of trial by jury in all jury cases is secured to everyone who does not waive it by failure to demand it as required. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, 1879 Tenn. LEXIS 222 (1879); Coulter v. Weed Sewing Machine Co., 71 Tenn. 115, 1878 Tenn. LEXIS 1 (1878); Travis v. L. & N. R. R. Co., 77 Tenn. 231, 1882 Tenn. LEXIS 42 (1882); McGuire v. North Carolina & S. L. Ry., 95 Tenn. 707, 33 S.W. 724 (1896); Warren v. Scudder-Gale Grocery Co., 96 Tenn. 574, 36 S.W. 383, 1896 Tenn. LEXIS 10 (1896); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

33. Voir Dire.

In proceedings against former governor and two associates involving massive publicity, voir dire examination of jurors produced an impartial jury and a fundamentally fair trial where voir dire of 90 jurors was conducted en masse with no individual questioning of jurors out of the presence of the entire venire when: (1) There was extensive questioning concerning prior media impact and juror associations, coupled with many dismissals based on even hints of possible prejudice; (2) Very substantial increases in the number of peremptory challenges were available to each defendant; and (3) Reliance on defendants' use of detailed questionnaires concerning all potential jurors was coupled with sensitive responses by the court to any of defendants' challenges arising from such use. United States v. Blanton, 719 F.2d 815, 1983 U.S. App. LEXIS 16468 (6th Cir. Tenn. 1983), cert. denied, 465 U.S. 1099, 104 S. Ct. 1592, 80 L. Ed. 2d 125, 1984 U.S. LEXIS 1456 (1984).

34. —After Jury Empaneled.

In a personal injury action arising out of an automobile collision where, after the jury was empaneled, a juror was involved in an accident similar to that suffered by the plaintiff, it was reversible error for the trial court not to inquire into whether the juror could weigh the evidence impartially. Ricketts v. Carter, 918 S.W.2d 419, 1996 Tenn. LEXIS 190 (Tenn. 1996).

35. Instructions.

In a second degree murder case, the trial court's failure to charge the jury on the lesser-included offense of facilitation of second degree murder violated defendant's right to a jury trial, as defendant's failure to request the instruction did not waive his right to have the jury so instructed, and evidence existed that reasonable minds could accept as to facilitation of second degree murder, because there was no proof establishing which of four men involved in the beating death of the victim struck the fatal blow. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Defendant's conviction for premeditated first-degree murder was appropriate because the disappearance of interview notes could have been attributed to simple negligence, as distinguished from gross negligence; because the primary accusation was a more general claim that the state lost pieces of evidence over time, and there was no indication that any specific piece of missing evidence had any exculpatory value or could have been expected to play a significant role in defendant's defense, defendant failed to establish entitlement to jury instruction regarding lost evidence. State v. Gilley, 297 S.W.3d 739, 2008 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Aug. 13, 2008).

Trial court's instructions during the penalty phase provided a correct statement of the law because the court clearly and repeatedly instructed the jury that it could consider any mitigating circumstance raised by the evidence, but only those aggravating circumstances proven beyond a reasonable doubt. Additionally, the court made it clear that jury unanimity was not required with regard to the mitigating circumstances in sentencing defendant to life without the possibility of parole. State v. Hancock, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1115 (Tenn. Crim. App. Dec. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 392 (Tenn. May 15, 2015).

Defendant failed to prove by clear and convincing evidence that trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser-included offense of sale and delivery of a Schedule I controlled substance within 1,000 feet of a school; there was no evidence from which a reasonable jury could conclude that defendant merely facilitated the drug sales because he set the price for the drugs, acquired the drugs, accepted payment for the drugs, and delivered the drugs. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Trial court did not err in declining to instruct the jury on the lesser-included offense of simple causal exchange because the evidence reflected nothing less than the sale of cocaine; the record was lacking in evidence reflecting anything other than a pecuniary motive for the transfer of the cocaine because the amount of cocaine, the price, and the meeting places were clearly established prior to each transaction. State v. Lyles, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 5, 2015).

Trial court did not plainly err by failing to instruct the jury on facilitation as a lesser-included offense of burglary and theft where there was no proof to establish a nexus between defendants and another unknown individual who participated in the commission of the offense, as the evidence established that two individuals matching the descriptions of defendants entered the jewelry store and stole $140,000 worth of jewelry and one defendant was positively identified in the surveillance video by police officers as one of the perpetrators. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

In a case where defendant was convicted of rape, statutory rape by an authority figure, and sexual battery by an authority figure, because the jury instructions provided by the trial court were a complete and accurate statement of the law, as it followed the language of the statute defining “sexual penetration” and the pattern jury instruction on the definition of cunnilingus, and defendant's requested jury instruction was not an accurate statement of law, the trial court did not err by refusing to provide defendant's requested jury instruction. State v. Falcon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 608 (Tenn. Crim. App. Aug. 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 952 (Tenn. Dec. 14, 2016).

Record failed to include a transcript of the instructions as read to the jury, although it contained what purported to be a written copy of the trial court's charge; in any event, the criminal responsibility instruction provided in the written copy of the charge was fairly raised by the evidence, tracked the language of the pattern jury instruction, and was a correct statement of the law, and thus the inclusion of the instruction was not error. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Erroneous jury instructions concerning the ability of the decedent's adult stepchild to sign a will or deed on behalf the decedent were harmless errors because the appellate court was unable to conclude that the errors more probably than not affected the outcome of the verdict and thus did not deny the constitutional guarantee of a right to trial by jury, which included the right to a complete and correct charge of the law, so that each issue of fact raised by the evidence was submitted to the jury on proper instructions. Johnson-Murray v. Burns, 525 S.W.3d 625, 2017 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 14, 2017).

Jury was properly instructed in defendant's trial because no lesser-included offense instructions were required as (1) the statute of limitations had expired as to the offenses and nothing showed defendant waived the statute of limitations, and (2) the jury's verdict showed the jury rejected any basis for the lesser-included offenses instead of the charged offenses. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Jury instruction on possessing a firearm with intent to go armed during commission of a dangerous felony was plain error because (1) the record showed what occurred at trial, (2) the instruction breached an unequivocal rule of law by stating defendant could be guilty for acting knowingly or recklessly, when the mens rea was intentionally, (3) defendant's substantial right was adversely affected by lessening the State's burden of proof, violating defendant's rights to a fair trial and a jury trial, (4) defendant did not tactically waive the issue, and (5) it was necessary to consider the error to do substantial justice, as the error likely changed the trial's outcome. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 5, 2017).

Trial court did not err by denying defendant's request for a special jury instruction on the right of parents and guardians to use corporal punishment when disciplining children because the instructions provided by the trial court contained a complete and correct statement of the law and the evidence adduced at trial did not support the giving of a special instruction on a parent's right to use corporal punishment. State v. Cooke, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. July 23, 2018).

Trial court properly instructed the jury on the law of criminal responsibility because the evidence adduced at trial established that defendant assumed the role of the victim's father; defendant's name was listed in the father's portion of the victim's school enrollment form, defendant was present for school drop off and pick up, and he undertook the discipline of the victim by spanking him. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

36. Directed Verdict.

A judge cannot, of his own volition, dismiss a case without trial, or direct and order a nonsuit without the plaintiff's consent; for the plaintiff is entitled to a trial and to have his evidence passed upon by a jury. Littlejohn v. Fowler, 45 Tenn. 284, 1868 Tenn. LEXIS 10 (1868). But the defendant may demur to the plaintiff's evidence, and obtain the judgment of the trial judge, as upon a special verdict, whether, as a matter of law, any recovery can be had, or liability fixed, against him upon the undisputed facts, and this is not a violation of the constitutional guaranty of trial by jury. Hopkins v. Railroad, 96 Tenn. 409, 34 S.W. 1029, 1895 Tenn. LEXIS 42, 32 L.R.A. 354 (1895); Nashville, C. & S. L. R. Co. v. Sansom, 113 Tenn. 683, 84 S.W. 615, 1904 Tenn. LEXIS 58 (1904); King v. Cox, 126 Tenn. 553, 151 S.W. 58, 1912 Tenn. LEXIS 77 (1912).

The direction of a verdict should be made upon a consideration of the entire evidence, and not upon any detached portion of it. Greenlaw v. Louisville & N.R.R., 114 Tenn. 187, 86 S.W. 1072, 1904 Tenn. LEXIS 81 (1904); Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

Verdict should not be directed upon undisputed facts testified to by one witness, where other facts are testified to by other witnesses; but there will be no reversal for direction of verdict, where the merits have been reached. Greenlaw v. Louisville & N.R.R., 114 Tenn. 187, 86 S.W. 1072, 1904 Tenn. LEXIS 81 (1904); Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 92 S.W. 1116, 1906 Tenn. LEXIS 7 (1906); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

A verdict may be directed by the trial judge where the facts are uncontroverted, and there is no doubt as to the conclusions to be drawn therefrom. Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Kansas City, M. & B.R.R. v. Williford, 115 Tenn. 108, 88 S.W. 178, 1905 Tenn. LEXIS 48 (1905), overruled in part, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S.W. 319, 1905 Tenn. LEXIS 66 (1905).

The trial judge has no power to direct a verdict, where there is a dispute as to any material determinative question. Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 92 S.W. 1116, 1906 Tenn. LEXIS 7 (1906); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

Where the material facts are uncontroverted and undisputed, there is nothing for the jury to find, and the question is then solely one of law for the trial judge who may instruct the jury to return a verdict in accordance with his view of the law applicable to such facts; for where there is no dispute as to the facts, the question is one of law for the court. Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 92 S.W. 1116, 1906 Tenn. LEXIS 7 (1906); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

The motion for peremptory instructions to the jury to return a certain verdict is not addressed to the court's discretion, but presents a question of law. Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S.W. 319, 1905 Tenn. LEXIS 66 (1905); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

Concurrent motions of both parties for peremptory instructions for a verdict, and the denial thereof, will not operate to withdraw the case from the jury and to submit the question of fact to the trial judge. Virginia-Tennessee Hdwe. Co. v. Hodges, 126 Tenn. 370, 149 S.W. 1056, 1912 Tenn. LEXIS 62 (1912); King v. Cox, 126 Tenn. 553, 151 S.W. 58, 1912 Tenn. LEXIS 77 (1912).

A motion for peremptory instructions, even where made by both parties to the suit, does not operate to withdraw the case from the jury, for such motion simply has the effect of calling upon the trial judge to determine whether there is any substantial conflict in the evidence, and, if he decides there is no substantial conflict, he then directs the jury to return a verdict in accordance with the law as applied to the undisputed facts; but if the trial judge should be of the opinion that there is substantial conflict in the evidence, the motion is overruled, and the case goes to the jury to be decided by it on the evidence and the charge of the court. Brackin v. McGannon, 137 Tenn. 207, 192 S.W. 922, 1916 Tenn. LEXIS 72 (1916).

In earlier cases, Tenn. Const. art. I, § 6 was, perhaps, more strictly construed, but later the practice of demurring to the evidence was approved, and still later it was held that verdicts might be directed by the trial judge where the facts were uncontroverted and there was no doubt as to the conclusions to be drawn therefrom; but there cannot be a directed verdict where there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence. Brenizer v. Nashville, C. & S. L. Ry, 156 Tenn. 479, 3 S.W.2d 1053, 1927 Tenn. LEXIS 144 (1928).

Taking a case from the jury by the judge and deciding the case himself goes deeper than an adjudication of property rights, as the constitutional guaranty of Tenn. Const. art. I, § 6 is involved. McGinniss v. Brown, 30 Tenn. App. 178, 204 S.W.2d 334, 1947 Tenn. App. LEXIS 76 (1947).

The trial judge's duty in passing on controverted issues of fact is to weigh the evidence and independently determine if he is satisfied with jury's verdict, and where he is dissatisfied, it is his duty to grant new trial, but he cannot go further and direct verdict for defendant because he does not believe plaintiff's story. McCulley v. Cherokee Ins. Co., 49 Tenn. App. 713, 359 S.W.2d 561, 1962 Tenn. App. LEXIS 138 (Tenn. Ct. App. 1962).

Even though proof of guilt is conclusive, the issue of guilt should be submitted to the jury on a plea of not guilty; there is no provision in this state or any other jurisdiction for the trial judge to order a verdict of conviction. State v. Davis, 637 S.W.2d 471, 1982 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 1982).

37. Additur.

When the trial court grants a motion for an additur, it is acting in its capacity as “thirteenth juror,” and the right to jury trial clauses of the federal and state constitutions, which require that the jury be allowed to determine all disputed issues of fact, mandate that the trial court obtain the consent of the party against whom the additur is to be entered. If that party does not accept the additur, the trial court must order a new trial. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

38. Right of Review.

Where an indictment remains undisposed of because of an order of the court retiring the case, over objection and exception of defendant, such proceeding was not reviewable on theory that he was denied the right of a speedy trial, since nothing was adjudicated which can be reviewed on appeal. Mason v. State, 169 Tenn. 52, 82 S.W.2d 862, 1935 Tenn. LEXIS 14 (1935).

39. —Scope of Right on Review.

In reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 1978 Tenn. LEXIS 686 (Tenn. 1978).

A presumption of unanimity may be made if the case involves one event-one crime evidence, but such a presumption is unwarranted if the evidence shows several events with each, if true, constituting the offense charged under circumstances reflecting a real potential for a composite jury verdict. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

There was ample material evidence on which the jury could base its award of both non-economic and economic damages to the driver, including the verdict for loss of enjoyment of life and loss of consortium, although the insurer claimed that the award was excessive and the trial court should have granted a remittitur, and the damages were affirmed given the material evidence standard. Monypeny v. Kheiv, — S.W.3d —, 2015 Tenn. App. LEXIS 187 (Tenn. Ct. App. Apr. 1, 2015).

Automobile accident victim was entitled to a new trial on damages because there was no material evidence to support the jury's award of no damages in that the victim's surgeon testified that the automobile collision, however minor, aggravated the victim's physical infirmities and that, if not for the accident, the victim would not have experienced the difficulties that ultimately required surgery, but the motorist offered no proof to refute the surgeon's expert medical opinion. Kempson v. Casey, — S.W.3d —, 2016 Tenn. App. LEXIS 828 (Tenn. Ct. App. Nov. 2, 2016).

40. Waiver.

In all (except small) criminal offenses, the right to a trial by jury may be relinquished only by a valid written waiver. State v. Morgan, 598 S.W.2d 796, 1979 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1979).

Plaintiff, who requested trial by jury in original and amended pleadings, but went through seven years of trial without a jury, could not complain on appeal for first time of the lack of a jury. Albin v. Union Planters Nat'l Bank., 660 S.W.2d 784, 1983 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1983).

Without formal compliance with T.R. Crim. P. 23, the record should clearly show a voluntary relinquishment of the rights to be tried by a common law jury. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

A civil defendant waived his right to a jury trial by failing to appear at trial. Davis v. Ballard, 946 S.W.2d 816, 1996 Tenn. App. LEXIS 726 (Tenn. Ct. App. 1996).

Where the trial court did not address defendant as to his right to a jury trial, nor did defendant personally forgo this right, defendant did not relinquish his right to a jury trial by the acquiescence of his trial attorney. State v. Ellis, 953 S.W.2d 216, 1997 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. 1997).

Where defendant had not waived his right to a trial by jury in writing in the general sessions court, he still did not waive his right to a jury trial by his failure to demand a jury trial at the time of his appeal to the criminal court. State v. Jarnigan, 958 S.W.2d 135, 1997 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. 1997).

Appearance and objection of counsel for uninsured motorist carrier after a jury trial had been waived by all counsel present when the trial began came too late to prevent carrier's implied waiver of the right to a jury trial. Beal v. Doe, 987 S.W.2d 41, 1998 Tenn. App. LEXIS 700 (Tenn. Ct. App. 1998).

Borrower's pre-dispute contractual waiver of the right to a jury trial was permissible and not prohibited under Tenn. Const. art. 1, § 6 or Tenn. R. Civ. P. 39.01 where the lender presented three separate contracts containing jury-waiver provisions and where there were no allegations of fraud, overreaching, or unconscionability. Poole v. Union Planters Bank, N.A., 337 S.W.3d 771, 2010 Tenn. App. LEXIS 259 (Tenn. Ct. App. Apr. 8, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 942 (Tenn. Sept. 23, 2010).

41. Anonymous Jury.

Trial court did not abuse its discretion in empanelling an anonymous jury in defendant's trial for first-degree pre-meditated murder because there were strong reasons to protect the jury inasmuch as the trial court found that an apparent motive in committing the charged offense included defendant's desire to prevent the victim from going to police, and defendant had escaped once. Therefore, defendant's rights under U.S. Const. amends. 5, 6, and 14 and Tenn. Const. art. I, § 6 were not violated. State v. Ivy, 188 S.W.3d 132, 2006 Tenn. LEXIS 137 (Tenn. 2006), cert. denied, Ivy v. Tennessee, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200, 2006 U.S. LEXIS 6153 (2006).

Anonymous juries may be impaneled under Tennessee law. State v. Ivy, 188 S.W.3d 132, 2006 Tenn. LEXIS 137 (Tenn. 2006), cert. denied, Ivy v. Tennessee, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200, 2006 U.S. LEXIS 6153 (2006).

42. Late Night Deliberations.

Trial court erred in allowing jury deliberations to continue into the late-night hours, and because defense counsel protested and the record did not indicate that any unusual circumstances were present, a new trial was warranted. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

Sec. 7. Unreasonable searches and seizures — General warrants.

That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.

Cross-References. Search warrants, title 40, ch. 6, part 1.

Unreasonable searches and seizures, U.S. Const. amend. 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 12.13, 18.2, 18.7, 19.6, 20.5.

Law Reviews.

Asset Forfeiture in Practice: Legislative Reform and Financial Considerations (Patricia S. Wall and Lee Sarver), 37 No. 4 Tenn. B.J. 24 (2001).

Checked In: Decreasing Fourth Amendment Protection Against Real-time Geolocation Surveillance, 45 U. Mem. L. Rev. 561 (2015).

Constitutional Law — Fourth Amendment — Investigatory Stops Based on Unprovoked Flight in a High Crime Area, 68 Tenn. L. Rev. 157 (2000).

Constitutional Law — Fourth Amendment Search and Seizure — Government Surveillance, Developing Technology, and Constitutional Protection, 80 Tenn. L. Rev. 211 (2012).

Constitutional Law — Fourth Amendment — Police Dog Sniffs and “Completing the Mission”: Rodriguez v. United States, 135 S. Ct. 1609 (2015), 83 Tenn. L. Rev. 689 (2016).

Constitutional Law — Fourth Amendment — Using an Informant as the Basis of a Search of Seizure, 66 Tenn. L. Rev. 531 (1999).

Constitutional Law — Searches, Seizures, and Confessions — Constitutional Protections for Students in Public Schools (Bryan C. Hathorn), 76 Tenn. L. Rev. 211 (2008).

Constitutional Law — State v. Downey: Sobriety Roadblocks Under Article I, § 7 of the Tennessee Constitution, 29 U. Mem. L. Rev. 485 (1999).

Constitutional Trespass, 81 Tenn. L. Rev. 877 (2014).

Crime & Punishment: Defining and Limiting the “Community Caretaking” Exception in Tennessee or “I'm From the Government, and I'm Here to Help”, 52 Tenn. B.J. 27 (2016).

Family Law — Davis v. Davis: A Step Back for the Right to Procreate, 23 Mem. St. U.L. Rev. 399 (1993).

Life on Streets and Trails: Fourth Amendment Rights for the Homeless and the Homeward Bound, 66 Vand. L. Rev. 933 (2013).

Looking For Trouble: An Exploration of How to Regulate Digital Searches, 66 Vand. L. Rev. 685 (2013).

Reasonable Expectations of Privacy: Searches, Seizures, and the Concept of Fourth Amendment Standing, 27 U. Mem. L. Rev. 907 (1997).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

The Emergency Aid Doctrine and 911 Hang-ups: The Modern General Warrant, 68 Vand. L. Rev. 919 (2015).

The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015).

The Fourth Amendment's National Security Exception: Its History and Limits, 66 Vand. L. Rev. 1343 (2013).

The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016).

Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J. L. & Pol'y 215 (2015).

The Illusory Constitutional Protection of “No Trespassing Signs in Tennessee, State v. Christensen, 517 S.W.3d 60 (Tenn. 2017), 12 Tenn. J. L. & Pol’y 287 (2018)

Fourth Amendment and No Trespassing Signs - State v. Christensen: An Unreasonable, Reasonable Expectation, 49 U. Mem. L. Rev. 617 (Winter 2018).

Attorney General Opinions. Mandatory medical testing of persons committed to jail, OAG 96-101, 1996 Tenn. AG LEXIS 106 (7/31/96).

If a private person or a security guard searches a person that he or she has arrested, the constitution is not implicated; however, the private person who performs a search does so at his or her own risk, OAG 03-018, 2003 Tenn. AG LEXIS 23 (2/19/03).

There is no federal or state constitutional violation in compelling motorist to submit to blood alcohol test, provided there is probable cause that the motorist is intoxicated, exigent circumstances exist to forego the warrant requirement, the test to determine alcohol content is reasonable, and the test is performed in a reasonable manner, OAG 03-047, 2003 Tenn. AG LEXIS 23 (4/22/03).

County that experiences increased traffic resulting from entertainment event in adjacent county may increase law enforcement activity and personnel solely because of increased need, OAG 04-097, 2004 Tenn. AG LEXIS 105 (6/04/04).

A court officer serving civil papers may ask a person to voluntarily identify himself; however, the court officer has no authority to compel the person to comply with the request unless the officer has a reasonable suspicion that the person is engaged in criminal wrongdoing, OAG 04-148, 2004 Tenn. AG LEXIS 160 (9/07/04).

Requiring a criminal defendant who is released on bail to submit to drug testing as a condition of release does not violate the state and federal constitutions, OAG 04-155, 2004 Tenn. AG LEXIS 167 (10/13/04).

Constitutionality of proposed legislation requiring arrested persons to provide a biological specimen for DNA analysis, OAG 06-070, 2006 Tenn. AG LEXIS 79 (4/17/06).

School districts must comply with T.C.A. § 49-6-4213(a) and may not conduct random drug testing, OAG 07-096, 2008 Tenn. AG LEXIS 109 (7/2/07).

A blanket random drug testing policy for all county employees and elected officials would violate the Fourth Amendment of the United States Constitution, as well as Tenn. Const. Article I, Section 7. OAG 17-23, 2017 Tenn. AG LEXIS 23 (3/31/2017).

If a law enforcement officer enters the license plate number of a moving vehicle into the insurance verification program and the program returns an “unconfirmed” result, the officer does not automatically have reasonable suspicion that the vehicle is uninsured. Whether reasonable suspicion exists is a highly fact-dependent inquiry, and the operation and details of the insurance verification system at the time of the reading would determine whether an “unconfirmed” result constituted reasonable suspicion in any given case. Furthermore, driving an uninsured vehicle is not a stand-alone crime in Tennessee, and, therefore, under current Sixth Circuit precedent, reasonable suspicion that a moving vehicle is uninsured is not legally sufficient justification to stop the vehicle. Because the failure to insure the vehicle is only a civil violation punishable by a civil fee, the law enforcement officer would need to have probable cause — not just reasonable suspicion — that the vehicle was uninsured in order lawfully to stop the vehicle, OAG 20-08, 2020 Tenn. AG LEXIS 7 (4/27/2020).

NOTES TO DECISIONS

1. Construction.

This constitutional guaranty must be liberally construed in favor of the individual. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

Tenn. Const. art. I, § 7, relating to unreasonable searches and seizures, is identical in intent and purpose with U.S. Const. amend. 4 so that Tennessee supreme court will not limit the state provision more stringently than the federal cases limit the federal provision and will regard such federal cases as particularly persuasive. Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 1968 Tenn. LEXIS 512 (1968); State v. Meadows, 745 S.W.2d 886, 1987 Tenn. Crim. App. LEXIS 2751 (Tenn. Crim. App. 1987).

The federal and state provisions against unreasonable searches and seizures are identical in purpose and therefore it is erroneous to conclude that Tenn. Const. art. I, § 7 is broader than U.S. Const. amend. 4, because it covers “possessions” while U.S. Const. amend. 4 covers only “effects.” State v. Wert, 550 S.W.2d 1, 1977 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. 1977).

The substance of these provisions is that an officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit a felony. Key v. State, 591 S.W.2d 793, 1979 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1979).

While this court has held that Tenn. Const. art. I, § 7 is identical in intent and purpose with U.S. Const. amend 4 and that “we should not limit it more stringently than federal cases limit the Fourth Amendment,” the fact remains that there are pronounced linguistic differences in the two provisions. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

The appropriate inquiry for a federal court considering a motion to suppress evidence seized by state police officers is whether the arrest, search, or seizure violated U.S. Const. amend. 4. The fact that the arrest, search or seizure may have violated state law is irrelevant as long as the standards developed under the federal constitution were not offended. This rule promotes uniformity in federal prosecutions and avoids the strange results of federal prosecutions, depending on the fortuity of the defendant's being arrested in one state or another. United States v. Wright, 16 F.3d 1429, 1994 FED App. 49P, 1994 U.S. App. LEXIS 2361 (6th Cir. 1994), cert. denied, 512 U.S. 1243, 114 S. Ct. 2759, 129 L. Ed. 2d 874, 1994 U.S. LEXIS 5027 (1994).

Because Tenn. Const. art. I, § 7 is identical in intent and purpose with U.S. Const. amend. 4, under both the federal and state constitutions, a brief investigatory stop simply must be based upon reasonable suspicion which is supported by specific and articulable facts. State v. Yeargan, 958 S.W.2d 626, 1997 Tenn. LEXIS 574 (Tenn. 1997).

The Tennessee constitution affords no more extensive protection with respect to pretextual stops than does the federal constitution. State v. Baker, 966 S.W.2d 429, 1997 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 1997).

Tenn. Const. art. I, § 7 is identical in intent and purpose with U.S. Const. amend. 4; thus, these constitutional protections are implicated only when a police officer's interaction with a citizen impermissibly intrudes upon the privacy or personal security of the citizen. State v. Daniel, 12 S.W.3d 420, 2000 Tenn. LEXIS 52 (Tenn. 2000).

2. Fundamental Nature.

At the very foundation of our state is the right of the people to be secure in their persons, houses, papers, and possessions. Infringement of such individual rights cannot be tolerated until we tire of democracy and are ready for communism or a despotism. The enforcement of no statute is of sufficient importance to justify indifference to the basic principles of our government. Cravens v. State, 148 Tenn. 517, 256 S.W. 431, 1923 Tenn. LEXIS 41 (1923); Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

3. Scope and Application.

Tenn. Const. art. I, § 7 against unreasonable searches and seizures, contemplates only searches and seizures made through governmental agencies, and under statutes attempting to authorize it and has no bearing upon the unauthorized acts of private persons, or of petty officers of the law, and the evidence secured by the unlawful acts and trespasses of such persons is admissible against the accused. Cohn v. State, 120 Tenn. 61, 109 S.W. 1149, 1907 Tenn. LEXIS 39, 17 L.R.A. (n.s.) 451, 15 Ann. Cas. 1201 (1907); Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Assurance of Tenn. Const. art. I, § 7 against unreasonable searches and seizures is not involved in a public inquiry into official conduct and examination of official records. Rushing v. Tennessee Crime Comm'n, 173 Tenn. 308, 117 S.W.2d 4, 1938 Tenn. LEXIS 18 (1938).

Tenn. Const. art. I, § 7 is not addressed alone to the legislature, but to every officer of the jurisdiction including the judiciary. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

Tenn. Const. art. I, § 7 only prohibits unreasonable searches. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

The prohibition against searches is against the occupied premises of another without a warrant. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

Where defendant was not a registered occupant of a motel room which was searched he lacked standing to attack the search. Nolan v. State, 588 S.W.2d 777, 1979 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1979), overruled, State v. Ronewicz, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1085 (Tenn. Crim. App. Dec. 26, 2012).

Merger of defendant's convictions for two counts of first-degree premeditated murder and two counts of first-degree felony murder, and his convictions for especially aggravated robbery and two counts of abuse of a corpse were appropriate because a deputy had probable cause to order a felony stop of the vehicle driven by defendant in order to effectuate an arrest of his co-defendant, the father of one of the victims. There was nothing unreasonable about police officers being apprehensive concerning the risks that were inherent in apprehending a murder suspect believed to have been armed. State v. Grogger, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. Nov. 17, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 365 (Tenn. Apr. 14, 2010), cert. denied, Grogger v. Tennessee, 562 U.S. 928, 131 S. Ct. 317, 178 L. Ed. 2d 207, 2010 U.S. LEXIS 7146 (U.S. 2010), dismissed, Grogger v. Johnson, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 46029 (M.D. Tenn. Apr. 5, 2016).

When a decedent's estate's trustee sued the decedent's nephew to recover funds the nephew transferred from the decedent's revocable living trust account, an order requiring an inventory of the nephew's storage unit did not violate the nephew's right to be free from unreasonable searches or seizures because no search by a government official was ordered. Johnston v. Johnston, — S.W.3d —, 2014 Tenn. App. LEXIS 124 (Tenn. Ct. App. Mar. 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 506 (Tenn. June 20, 2014), cert. denied, 190 L. Ed. 2d 365, 135 S. Ct. 482, — U.S. —, 2014 U.S. LEXIS 7451 (U.S. 2014).

4. “Possessions” — Meaning.

The word “possessions,” as here used, refers to property, real or personal, actually possessed or occupied. It does not include unoccupied lands such as wild or waste lands, but it does include the space of ground adjoining the dwelling house and the building thereon, within the same common fence, in daily use in connection with the conduct of family affairs. Welch v. State, 154 Tenn. 60, 289 S.W. 510, 1926 Tenn. LEXIS 103 (1926).

The word “possessions,” as used in Tenn. Const. art. I, § 7, includes more than the “curtilage.” It includes buildings in daily use in connection with and as a necessary part of farming operations. Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

Where the land on which evidence is found is not possessed as a part of the curtilage or used in the daily operation of the premises, the constitutional provisions against unreasonable searches and seizures do not apply. Chico v. State, 217 Tenn. 19, 394 S.W.2d 648, 1965 Tenn. LEXIS 515 (1965).

5. Warrants.

Second search of defendant's premises for whisky on the basis of search warrant used on first search was illegal and constituted unreasonable search and seizure even though second search was made within five days after date of warrant. McDonald v. State, 195 Tenn. 282, 259 S.W.2d 524, 1953 Tenn. LEXIS 335 (1953).

6. —In General.

Tenn. Const. art. I, § 7 specifically denounces “general warrants” permitting searches “without evidence of the fact committed” and personal seizures where “offences are not particularly described and supported by evidence” and obviously contemplates evidentiary support for the issuance of search warrants. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

Where a search warrant authorizes a quest for unneeded and unnecessary documents, not per se criminal, and during its execution other objects, in plain view, are seized — with or without any nexus — the result is a search pursuant to a general warrant. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

Trial court properly granted defendants' motion to suppress drugs and drug paraphernalia seized from their homes pursuant to search warrants because the warrants were invalid under the Fourth Amendment, as the district circuit court judge who issued the search warrants lacked jurisdiction to issue search warrants for defendants' residences that were located in a different judicial district. Nothing in the record established that the issuing judge obtained jurisdiction to issue the search warrants by interchange, designation, appointment, or other lawful means. State v. Frazier, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

6.5 —Execution.

Police officer's failure to abide by the terms of the search warrant during its execution rendered the blood draw unconstitutional where the search warrant required that the blood draw take place in the first county, but the officer transported defendant to a second county where the blood draw occurred, and the nurse who drew defendant's blood was not qualified to draw blood in the first county. State v. Nunnery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. July 13, 2017).

Legality of the initial entry into defendant's motel room was not dispositive of the suppression issue because law enforcement subsequently obtained a warrant to search the room and because defendant did not challenge the validity of the search warrant on appeal. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

Trial court did not err by denying defendant's motion to suppress a hammer that was found while executing a search warrant because the search did not exceed the scope of the warrant, as after the officers found the clothing that defendant had just washed hanging to dry, they continued to search a closet where they found the hammer, which the court found to be reasonable since the officers had gone to defendant's residence to search for his clothing and shoes. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

7. —Motion to Suppress.

Judgment granting defendant's motion to suppress was affirmed because: (1) Although the agent stated that he was aware of certain facts about drug traffickers' tendency to keep business records and cash on hand, he did not state that his observations and law enforcement experience led him to believe that drug trafficking was taking place at defendant's residence; and (2) Tennessee had not adopted the good faith exception. State v. Bearden, 326 S.W.3d 184, 2010 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 11, 2010).

Trial court did not err in denying appellant's motion to suppress evidence seized as a result of the searches of the residence and the storage unit where appellant failed to established the existence of a constitutional or statutory defect in the search warrant and appellant failed to make a substantial preliminary showing that the omission of the information regarding the consent search was deliberate or reckless. State v. Willis, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 13, 2015), aff'd, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016).

Trial court did not err in denying defendant's motion to suppress as the search of defendant's recreational vehicle (RV) was valid because, although the RV was not parked on the premises described in the search warrant, the RV belonged to defendant; it was parked in a private area immediately adjacent to the premises described in the search warrant, which belonged to defendant; and it was further associated with the premises described in the search warrant through the use of an electrical cord tethering the RV to the home; thus, by attaching the RV to the residence, defendant created a place, which was appurtenant to the described building in the search warrant and under the control of persons named in the search warrant. State v. Thompson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. Apr. 15, 2015).

Defendant's motion to suppress was improperly granted because the absence of defendant's name as an occupant of the premises in either the affidavit or the search warrant was not fatal to the search as the name of the occupant of a premises was not a constitutional requirement of a warrant to search a particular location; defendant's belongings were subject to be searched under the authority of a warrant directed at the entire residence; and the search of defendant's computer, which shared the other occupant's internet service and was connected to the same internet protocol address, was authorized by the search warrant particularly describing the place to be searched and the things to be seized, including computers. State v. Coblentz, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. June 10, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 756 (Tenn. Oct. 20, 2016).

In a case in which “process” had to be issued upon the application of the district attorney general of the district, defendant's motion to suppress was properly denied because the legislature intended the issuance of “process” in this statute to refer to the Tennessee Protection of Children Against Sexual Exploitation Act's injunction and forfeiture provisions, and, thus, “process” did not include a search warrant; and, if “process” included search warrants, the “except as otherwise provided” language of this statute would allow law enforcement to apply for a search warrant otherwise because law enforcement officers were authorized to request a search warrant under the rules of criminal procedure. State v. Miller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. July 3, 2017).

Trial court properly denied defendant's motion to suppress evidence a fellow dispatcher discovered because there was no Fourth Amendment violation in the discovery of images on defendant's cell phone, and thus, the subsequent searches and seizures of his phone and computer were not tainted by any illegality; the dispatcher was not acting with the government's knowledge or acquiescence and was motivated solely by his own private intent to play a joke on defendant when he discovered the images. State v. Spray, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 874 (Tenn. Crim. App. Sept. 26, 2017).

When officers entered the curtilage of defendant's home and retrieved trash bags from the trash can, they entered a constitutionally protected area and gathered evidence through an unlicensed physical intrusion, such that the trash pull was an unconstitutional, warrantless search; as the information remaining in the affidavit after the information relating to the trash pull was redacted was insufficient to establish probable cause, the trial court properly granted defendant's motion to suppress. State v. Weatherly, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. May 17, 2018).

Defendant's motion to suppress was properly denied because an occupant of the residence with defendant accepted a package containing narcotics addressed to defendant being placed on the front porch, although she denied being the recipient of the package, and offered to take the package back to the delivery company; and her actions constituted constructive possession and the necessary triggering event to allow the search warrant to be executed as she had the ability to exercise control over the package. State v. Bronson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. May 2, 2019).

Trial court did not err by denying defendant's motion to suppress, even though the officers' knock and talk at the motel room door went beyond a consensual encounter, because the officers had a warrant for the co-defendant's arrest and they had reason to believe that he was in the motel room due to tips they were given. State v. Jones, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 27, 2020).

8. —Choice of Law.

Where the affidavit supporting a Kentucky search warrant came from an agent of the Tennessee Bureau of Investigation, and the evidence to be seized was used in a crime occurring in Tennessee, and was specifically obtained for the purpose of turning it over to Tennessee officials for use in a Tennessee prosecution, there is little doubt that the warrant was obtained at the request of Tennessee officials, and was required to comply with Tennessee law. State v. Cauley, 863 S.W.2d 411, 1993 Tenn. LEXIS 354 (Tenn. 1993).

Tennessee law enforcement personnel may introduce extrinsic evidence in support of a search warrant issued in another state in a suppression hearing in Tennessee, in order to demonstrate that the search warrant complies with Tennessee law. This rule applies only when Tennessee law enforcement personnel have acted in good faith in obtaining and executing the search warrant in the foreign state. State v. Cauley, 863 S.W.2d 411, 1993 Tenn. LEXIS 354 (Tenn. 1993).

9. —Probable Cause.

Affidavit containing evidence from which a cautious magistrate exercising independent and neutral judgment could find probable cause for the issuance of the warrant was not insufficient as a matter of law. State v. Taylor, 763 S.W.2d 756, 1988 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. 1988).

Information upon which search warrant was based was not too stale to have provided adequate probable cause for the issuance of the warrant. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Detective's affidavit, which was based on information from a confidential informant, sufficiently established the probable cause necessary for the issuance of the resulting search warrant. State v. Ballard, 836 S.W.2d 560, 1992 Tenn. LEXIS 513 (Tenn. 1992).

Affidavit failed to reflect that informant was credible or that his information was reliable; therefore, search warrant was not issued upon probable cause and any evidence obtained as a result of the search pursuant to the warrant should have been suppressed. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Probable cause to support the issuance of a search warrant must appear in an affidavit, and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Police officer's knowledge of suspect's reputation is not alone enough to constitute probable cause to arrest. State v. Bridges, 963 S.W.2d 487, 1997 Tenn. LEXIS 642 (Tenn. 1997).

In an animal cruelty case, because of the nature of the complaints to a police sergeant and the fact there was no evidence that the sergeant intentionally or recklessly misled the judge to obtain a search warrant, probable cause for the search warrant resulted from the sergeant's affidavit without the necessity of additional investigation. State v. Webb, 130 S.W.3d 799, 2003 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1233 (Tenn. Dec. 15, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 119 (Tenn. Feb. 2, 2004).

Affidavit established probable cause for a search warrant where it showed the basis of the affiant's firsthand knowledge that the defendant possessed cocaine and marijuana, it established the information's reliability given that the affiant shared the residence where the drugs were found and had a key that she used to allow the officers to execute the warrant, and the information was corroborated by an investigator's knowledge of the defendant's drug-related conviction. State v. Williams, 193 S.W.3d 502, 2006 Tenn. LEXIS 436 (Tenn. 2006).

Evidence presented at trial establishes that the officers had probable cause when they arrested defendant because before defendant was arrested, one of the victim's identified him to the police as the perpetrator and, as a victim in the case, the victim was a citizen informant whose statement was presumed to be reliable. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

Affidavit filed in support of the application for a search warrant was sufficient to support a finding of probable cause, as the investigator detailed his extensive training and experience in investigating internet crimes against children, provided detail in the area of child pornography and file sharing, and indicated that images were found on a computer at defendant's address through the use a file sharing program, refuting any claim defendant had an expectation of privacy in the files viewed. State v. Aguilar, 437 S.W.3d 889, 2013 Tenn. Crim. App. LEXIS 1101 (Tenn. Crim. App. Dec. 18, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 436 (Tenn. May 16, 2014).

Trial court properly found that the search warrant affidavit established probable cause to believe that tracking the co-conspirator's cell phone would result in evidence of a crime where it alleged that the phone was being used to further the sale, delivery, and conspiracy to sell or deliver cocaine and marijuana, investigators had intercepted a call from the target phone to defendant's bat-phone revealing that they were about to meet, and investigators believed that the co-conspirator was driving defendant's truck that had been linked to the conspiracy. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Trial court did not err by granting defendant's motion to suppress drug evidence because, under the totality of the circumstances test, the search warrant affidavit failed to establish ongoing criminal activity in the residence and therefore failed to establish probable cause, as the affidavit failed to provide any basis of knowledge and veracity for the cooperating individual's reliability. In addition, law enforcement conducted only one controlled drug-buy from the residence, and the conversation the affiant heard during the drug buy contained no information regarding past of future transactions. State v. Braden, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. May 2, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 612 (Tenn. Sept. 21, 2017).

Evidence recovered from a motel room was admissible because it was obtained pursuant to a warrant not at issue on appeal; it appeared there was probable cause to support the search pursuant to the search warrant because the affidavit alleged that officers smelled marijuana emanating from defendant's room. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

Defendant's motion to suppress was properly denied as probable cause existed for a search warrant because the facts in the affidavit created a sufficient nexus between defendant's cell phone and the victim's homicide as the affiant explained that a cell phone was recovered from defendant when he was arrested, that the cell phone had communications regarding the homicide, and that defendant had his cell phone at the time of the homicide. State v. Almahmmody, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 515 (Tenn. Crim. App. Aug. 23, 2019).

Trial court did not err by determining that the information in the search warrant affidavit was not stale and that probable cause existed for the issuance of the warrant, even though seven months passed between the officer's receipt of the relevant information and the issuance of the search warrant, because the specified IP address was used for downloading and sharing child pornography, and the IP address was assigned to defendant, who was the internet service subscriber at the location to be searched. State v. Owens, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 9, 2020).

10. —Informants.

Magistrate could have reasonably concluded that confidential informant had first-hand knowledge that defendant had cocaine at his residence where informant had been on defendant's property within 10 days prior to his signing the affidavit, had observed “a large quantity of cocaine,” and heard defendant refer to it as “coke,” and where the informant swore that he knew cocaine when he saw it and stated why. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Before a search warrant may be issued based upon an informant's information, an affiant must make sufficient disclosure of the events, activities, or allegations which have been corroborated in order that a magistrate may make a neutral and detached determination that an informant is credible or that his information is reliable. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

An affidavit stating that the affiant's belief was based upon information received from a “reputable and reliable” person failed to satisfy constitutional requirements since it provided no facts upon which the magistrate could determine the reliability of the informant. State v. Valentine, 911 S.W.2d 328, 1995 Tenn. LEXIS 652 (Tenn. 1995).

Motel clerk who called police at the request of the motel security officer to report a driver who appeared to be driving under the influence, and who gave her name and her status as a clerk at the motel, gave sufficient information about her relationship to the events to qualify as a known citizen informant for the presumption of reliability. State v. Luke, 995 S.W.2d 630, 1998 Tenn. Crim. App. LEXIS 1327 (Tenn. Crim. App. 1998).

Although informant, who was present in house where methamphetamine was being manufactured, was not a “citizen informant,” the affidavit established probable cause for the issuance of the search warrant because the informant had witnessed the process and equipment used to manufacture methamphetamine on the premises, and a field test identified finished product in the informant's possession sufficiently to demonstrate the reliability of the information. State v. Stevens, 989 S.W.2d 290, 1999 Tenn. LEXIS 62 (Tenn. 1999).

If the arresting officers rely in part on information from an informant in the criminal milieu, they must be able to demonstrate that the informant: (1) Has a basis of knowledge; and (2) Is credible. On the other hand, if the information contributing to the existence of probable cause has been gathered from an ordinary citizen, no showing of the informant's basis of knowledge and veracity is required. State v. Lewis, 36 S.W.3d 88, 2000 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 2000).

Denial of defendant's motion to suppress was affirmed; while a statement by defendant's girlfriend as she was being arrested for domestic violence at defendant's house that there were drugs in defendant's house was likely motivated by revenge, the affidavit for the search warrant was sufficient to qualify her as a citizen informant as the affidavit specifically identified her by name, it provided a particularized explanation for why she was in the residence and how she happened upon her information about the drugs, and it contained the corroborating information by the officer that he was aware of defendant having recently pled guilty to the sale or possession of cocaine. State v. Williams, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 8, 2005), aff'd, 193 S.W.3d 502, 2006 Tenn. LEXIS 436 (Tenn. 2006).

Trial court properly concluded that an affiant's information was not presumptively reliable as a citizen informant where the affidavit stated that she had told the officers about the defendant's cocaine possession only when she was in the midst of a domestic disturbance that led to her arrest and the defendant's arrest. State v. Williams, 193 S.W.3d 502, 2006 Tenn. LEXIS 436 (Tenn. 2006).

Defendant's convictions for animal cruelty were proper because the record supported the determination of the trial court that a kennel worker was a citizen informant and thus presumed to have been reliable; the record supported the determination of the trial court as to the validity of the search warrant. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Suppression motion was properly denied under Tenn. Const. art. I, § 7 where: (1) The search warrant affidavit under T.C.A. § 40-6-103 and Tenn. R. Crim. P. 41(c) met the Aguilar-Spinelli/Jacumin test by stating that a confidential informant (CI) had given information on narcotics trafficking resulting in several seizures of cocaine and marijuana and several felony narcotics arrests for cocaine and marijuana; (2) A specific number of seizures and arrests was not required; and (3) A specific number requirement for establishing the CI's credibility would have constituted a hyper-technical application of the Aguilar-Spinelli test. State v. Sales, 393 S.W.3d 236, 2012 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 17, 2012).

Wiretap application established that the confidential informant had personal knowledge about the drug operation where it provided that he learned information about defendant's involvement in the operation through his personal acquaintance with two co-conspirators. The applicable also established the informant's reliability where it provided that his information was consistent with information received from other confidential informants and had been corroborated by investigators. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Probable cause did not exist to support the issuance of a search warrant under the United States and Tennessee Constitutions because an affidavit provided no basis for a confidential informant's reliability or credibility; a detective did not corroborate any information provided by the informant until after he executed the search warrant, and a check of a pseudoephedrine database confirmed only that the informant had purchased pseudoephedrine, not that he purchased it for defendant. However, the affidavit was not found to be misleading. State v. Mosley, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 26, 2016).

Defendants' motions to suppress were properly denied as, under the totality of the circumstances, the affidavit submitted in support of the search warrant was sufficient because the affidavit indicated the informant had been to the residence within the past 48 hours and witnessed methamphetamine being weighed by the second defendant; the second defendant identified the substance as methamphetamine; the informant had purchased the narcotic from the second defendant on prior occasions; an investigator stated that the informant had given true and correct information in prior investigations, and had given information leading to an arrest and conviction in a marijuana case; and a detective corroborated the informant's tip. State v. Alford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. May 17, 2017).

Defendant's motion to suppress was properly denied because, while a search warrant affidavit provided no basis of knowledge for an informant's information, thus failing the Aguilar-Spinelli test, the affidavit satisfied the applicable totality-of-the-circumstances test by stating sufficient police corroboration to cure the informant's unreliability, thus providing sufficient probable cause. State v. Ferguson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Feb. 26, 2018).

Trial court properly determined that the information as to the credibility and veracity of the confidential informant (CI) in the affidavit supporting the search warrant was correct because the CI had been used on prior occasions, the police independently corroborated much of the information that the CI provided to the police, and nothing indicated that the CI was under the influence of heroin when he bought heroin from the seller. State v. Haithcote, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. Aug. 11, 2020).

11. —Affidavits.

In concluding that the court of criminal appeals erred in finding a search warrant affidavit insufficient to establish probable cause, the Supreme Court overruled State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989), and adopted the totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for issuance of a warrant under Tenn. Const. art. I, § 7. State v. Tuttle, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

A search warrant's affidavit may be impeached only when: (1) A false statement was made with the intent to deceive the court, whether material or immaterial to the issue of probable cause; or (2) A false statement, essential to the establishment of probable cause, was recklessly made. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Neither U.S. Const. amend. 4 nor Tenn. Const. art. I, § 7 were violated by consideration of the two affidavits in this case to determine probable cause to issue the second warrant. State v. Smith, 836 S.W.2d 137, 1992 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1992).

In determining the sufficiency of the description of the items to be seized, the description given in the warrant is not the only one to be considered: by the express reference to and incorporation of the affidavit, the warrant may be validated by the description of the items to be seized contained in the affidavit. State v. Meeks, 867 S.W.2d 361, 1993 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. 1993), cert. denied, Meeks v. Tennessee, 510 U.S. 1168, 114 S. Ct. 1200, 127 L. Ed. 2d 548, 1994 U.S. LEXIS 1998 (1994).

Affidavit of search warrant properly referred to defendant's criminal record and results of an earlier search of his residence. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

An affidavit containing hearsay information supplied by a confidential informant cannot support a finding of probable cause unless it also contains factual information concerning the informant's basis of knowledge and credibility. State v. Henning, 975 S.W.2d 290, 1998 Tenn. LEXIS 370 (Tenn. 1998).

Search warrant failed for lack of probable cause where the warrant affidavit set forth only conclusory statements that did not explain why the observed activity indicated an illegal act. State v. Norris, 47 S.W.3d 457, 2000 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. 2000).

Affidavit provided the following facts: (1) Upon receiving an anonymous tip that someone was manufacturing methamphetamine at the defendants' residence, one deputy smelled ether coming from the area of defendants' residence; (2) As the deputy approached defendants' residence, he smelled both ether and anhydrous ammonia coming from inside of the residence; (3) The deputy also heard people running inside of the residence; and (4) Based upon his prior experience, the deputy associated his observations with the operation of a methamphetamine laboratory. Those facts in combination provided more than sufficient independent police corroboration to compensate for deficiencies in meeting the two-prong test under State v. Jacumin, 778 S.W.2d 430, 432, 1989 Tenn. LEXIS 455 (Tenn. 1989); therefore, the information provided in the affidavit was sufficient to establish probable cause for the issuance of a search warrant. State v. Carter, 160 S.W.3d 526, 2005 Tenn. LEXIS 224 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 365 (Tenn. Apr. 18, 2005), cert. denied, Carter v. Tennessee , 547 U.S. 1081, 126 S. Ct. 1797, 164 L. Ed. 2d 536, 2006 U.S. LEXIS 3098 (2006).

Search warrant affidavit did not contain sufficient facts to establish probable cause to believe that drugs would be found inside defendant's home; the affidavit contained no facts regarding the location of drugs inside defendant's residence and only an inference from a police detective that drug sales were associated with defendant's residence. State v. Saine, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 4, 2008), aff'd in part, rev'd in part, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Granting of defendant's motion to suppress the evidence against him in his criminal trial was proper because the search warrant was defective. Although the affidavit contained information establishing a nexus between defendant's apartment and criminal activity, it contained no information tending to establish how long that nexus would persist; thus, the information in the affidavit became stale as soon as enough time had passed for such a one-time seller to leave the apartment. State v. Archibald, 334 S.W.3d 212, 2010 Tenn. Crim. App. LEXIS 125 (Tenn. Crim. App. Feb. 12, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 750 (Tenn. Aug. 25, 2010).

Even though the trial court erred by denying defendant's motion to suppress evidence obtained as a result of the search warrant, as the court could not conclude that the information contained in the affidavit provided sufficient probable cause where it failed to indicate the basis of the codefendant's credibility or the reliability of his information, the error was harmless because there was substantial other evidence upon which the jury could find defendant guilty. State v. Pierce, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 643 (Tenn. Aug. 13, 2015).

Search warrant for defendant's property was not issued upon probable cause, as there was nothing in the affidavit connecting the drug conspiracy concerning defendant's son to defendant or his residence. In addition, the affidavit contained false statements that were recklessly made concerning people offloading marijuana at defendant's property, which were material, as one was made in connection with the only criminal activity alleged to have occurred at defendant's residence. State v. Tuttle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 8, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 5, 2015), aff'd in part, rev'd in part, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

Face of the search warrant affidavit, which stated that the address was a residence of defendant's mother and that defendant visited and resided at the address, taken together with defendant's oral assertion of standing, were sufficient to preclude the trial court from relying on lack of standing to deny a hearing on defendant's motion to challenge the search. State v. Willis, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016), cert. denied, Willis v. Tennessee, 197 L. Ed. 2d 466, 137 S. Ct. 1224, — U.S. —, 2017 U.S. LEXIS 1710 (U.S. Mar. 6, 2017).

Trial court did not err in granting defendant's motion to suppress the drugs found in the residence on the basis that the affidavit in support of the search warrant failed to establish ongoing criminal activity at the home and, therefore, failed to establish probable cause because the affidavit failed to provide any basis of knowledge and veracity for the cooperating individual's claim that the residents were conducting ongoing drug sales from the home and, therefore, was not reliable; and the affidavit failed to show how long the nexus between the drug dealing and the residence would exist. State v. Braden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 551 (Tenn. Crim. App. July 27, 2016).

Trial court erred by granting defendant's motion to suppress the blood test results because a clerical error in the search warrant affidavit did not invalidate the warrant, as the one instance of an inconsistent name in the affidavit when there were five other correct references to defendant by name did not void the warrant. State v. Szabo, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Oct. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 141 (Tenn. Feb. 21, 2017).

Search warrant affidavit was sufficient because facts in the affidavit established a substantial basis on which a magistrate could conclude proof of defendant's involvement in a victim's disappearance or death would be found at defendant's home, so a search warrant for defendant's residence was supported by probable cause. State v. Hollingsworth, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 352 (Tenn. May 24, 2017).

Defendant's motion to suppress was improperly granted because the affidavit in support of the search warrant gave rise to probable cause as it established the informant's veracity and basis of knowledge because the affidavit indicated that the informant had been to a residence and had purchased synthetic cannabinoids from defendant; officers staked out defendant's residence and observed a car pull up, they stopped the car and searched it, they found marijuana in the car, and defendant's girlfriend, who was in the car, told police that defendant sold synthetic cannabinoids; and defendant's sister-in-law told officers that she and defendant's brother had gotten synthetic cannabinoids from defendant. State v. Starnes, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Nov. 29, 2017).

Denial of defendant's motion to suppress was appropriate because the search warrant at issue was valid as the affidavit of an investigator detailed that a confidential informant entered defendant's home and bought drugs from defendant and that the investigator monitored the transaction over audio. While the investigator was imprecise in the investigator's language, the investigator's statement was not a misrepresentation, and defendant failed to establish that the investigator recklessly included false information in the affidavit. State v. Hartsfield, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 118 (Tenn. Crim. App. Feb. 20, 2018).

Trial court properly denied defendant's motion to suppress the results of his blood draw because the affidavit in support of the search warrant contained sufficient information to establish probable cause for the search; a second officer corroborated a deputy's account of defendant's having lost his balance when he first exited his vehicle and of the alcohol smell in the vehicle and in a cup, which contents had spilled onto the floorboard of the vehicle. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Mar. 27, 2018).

Defendant's petition for post-conviction relief was properly denied because, although counsel was deficient for failing to file a motion to suppress evidence of methamphetamine manufacturing based on the methamphetamine and ion scan obtained from the July 13 search of defendant's home as the information in the affidavit did not establish probable cause to believe that evidence of manufacturing methamphetamine would still be in the home at the time of the search, she failed to show that suppression of that evidence would have changed the outcome of her trial. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant was not entitled to suppress the statement which defendant made to a police officer during a search of defendant's home because probable cause exited for a magistrate to issue a search warrant in that the information in the affidavit supporting the search was not stale and defendant failed to establish any prejudice as a result of a police investigator's testimony at the suppression hearing. State v. Boykin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. Feb. 21, 2019).

Information in the affidavit established a nexus between defendant's cell phone and the criminal activity, as well as probable cause to believe that defendant's cell phone was used in the perpetration of the offense and that evidence of the offense would be on the cell phone because the affidavit identified the cell phone as belonging to defendant and stated that, according to one of the victims, defendant utilized the cell phone to contact the victim's brother during the victim's abduction. The brother confirmed that after he received a call from the victim reporting the abduction, he received a call from a private number and spoke to an unknown male, who threatened to harm the victim if he did not pay $30,000. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

Trial court had probable cause to issue the search warrant for defendant's DNA because the affidavit stated that defendant, by his own admission, went to the victim's home on the day of the murder to check on her, he said she did not answer, so he then went back home, and immediately washed his clothing and shoes, and defendant's girlfriend saw what appeared to be blood on his arm. Defendant told two separate witnesses about a dream in which the victim was murdered by a suspect beating her with a hammer, he told his girlfriend that the police confiscated the “wrong” hammer, police took fingernail scrapings from underneath the victim's fingernails and DNA testing showed two profiles: one male and the other the victims. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

Trial court did not err in its determination that the information contained in the affidavit was sufficient to establish probable cause for the issuance of a search warrant because the affidavit established the confidential informant's basis of knowledge in that he knew defendant sold methamphetamine, he had been at defendant's residence within the last 72 hours, and while at the residence had seen methamphetamine in defendant's possession, which was enough to establish a sufficient nexus between the criminal activity, the place to be searched, and the items to be seized. State v. Borden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 515 (Tenn. Crim. App. July 27, 2020).

Nexus of activity at the seller's home and the conduct of the confidential informant (CI) were not too remote to establish probable cause to obtain a search warrant and an arrest warrant of defendant because the drug sale, during which defendant provided heroin to the seller who sold it to the CI, was closely monitored and the search warrant was issued the same day as the sale. State v. Haithcote, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. Aug. 11, 2020).

Trial court erred in denying defendant's motion to suppress evidence obtained pursuant to a search warrant for the contents of defendant's cell phone because the warrant lacked the required particularity as the affidavit sought an unfettered search of all data on the cell phone and did not specify the specific types of data which had relevance to the investigation or the factual basis for the affiant's belief that the data existed. The error was harmless beyond a reasonable doubt as the proof at trial of defendant's guilt was overwhelming. State v. McLawhorn, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 686 (Tenn. Crim. App. Oct. 20, 2020).

12. —Descriptions.

Stolen property to be seized must not only be described as “stolen” but referred to with specificity, e.g., “stereo tapes or players;” similarly, a search warrant must describe those items as contraband when they are illegal by virtue of the nature of the use. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Use of the term “drugs,” instead of more specific description such as “marijuana,” was an insufficient basis for the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Even though a more particular description of stolen property could have been obtained from victims and should have been included in warrant to search defendant's house, the search warrant was partially valid in that the description of the victims' checkbooks was sufficient, since it focused the executing officer upon a search for checkbooks designated for the victims' account or accounts and including their names. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

Where directions stated in a warrant were essentially accurate, defendant was named therein and the affidavit stated that defendant resided in, occupied, or possessed property to be searched, the possibility of any ambiguity in the location of defendant's residence which might have arisen in the execution of the warrant was negated by officer's actual knowledge that the property was located, in fact, as described in the warrant. State v. Bostic, 898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 93 (Tenn. Mar. 6, 1995); State v. Conatser, 958 S.W.2d 357, 1997 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1997).

In a double first-degree murder and especially aggravated robbery case where the purpose of the search was not to find specific property, but to find property of a specific character (i.e., items that may have been taken from the restaurants and the victims, murder weapons, and financial records), the warrants described the character of the property with sufficient particularity to enable the searcher to reasonably ascertain and identify the items subject to seizure; therefore, these descriptions satisfied the particularity requirement. State v. Reid, 91 S.W.3d 247, 2002 Tenn. LEXIS 550 (Tenn. 2002), cert. denied, Reid v. Tennessee, 540 U.S. 828, 124 S. Ct. 56, 157 L. Ed. 2d 52, 2003 U.S. LEXIS 6131 (2003).

Prosecution for attempted aggravated rape was properly and timely commenced with in the eight-year statute of limitations for attempted aggravated rape, T.C.A. § 40-2-101(b)(1)-(2), by the filing of the “John Doe” arrest warrant because The “John Doe” designation in the warrant, coupled with the detailed DNA profile of the assailant, identified defendant with “reasonable certainty” as required by the Fourth Amendment, Tenn. Const. art. I, § 7, T.C.A. § 40-6-208, and Tenn. R. Crim. P. 4(c)(1)(B). State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile; a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and Tenn. Const. art. I, § 7. State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Search warrant for defendant's home was not unconstitutionally broad where the items introduced into evidence at trial were described with sufficient particularity in the warrant as it provided a long list of items including and relating to the use and sale of controlled substances State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Search warrants for defendants' residences were valid where the trial court reasoned that given the time period between the commission of the burglary and the small size of the items of jewelry it was reasonable to infer that the items would be stored in defendants' residences, and the warrants described the property sought as “$140,000 worth of jewelry” stolen from the jewelry store. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

13. —Necessity.

When one desires to search the occupied premises of another, he must procure a search warrant in the manner prescribed by statute. Welch v. State, 154 Tenn. 60, 289 S.W. 510, 1926 Tenn. LEXIS 103 (1926). See Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

Though the statutes authorize search only by search warrant, or by order of the magistrate and in his presence, searches are allowable at common law in all cases where a person is lawfully arrested, for the purpose of taking from him dangerous weapons or articles which may be lawfully used in evidence against him, and are not violative of Tenn. Const. art. I, § 7. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Ordinarily officers searching occupied, fenced, private property must first obtain consent or a warrant, otherwise they proceed at the risk that evidence obtained may be suppressed and when a warrantless search is challenged, an exception to the search warrant requirement must be shown. State v. Lakin, 588 S.W.2d 544, 1979 Tenn. LEXIS 498 (Tenn. 1979).

The validity of a search warrant is of no consequence if the search is justified on other grounds. State v. Doelman, 620 S.W.2d 96, 1981 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. 1981).

Portion of defendants' farm which was primarily wild and unoccupied land was not protected from warrantless search by either the federal or state constitution. State v. Doelman, 620 S.W.2d 96, 1981 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. 1981).

Defendant's convictions for selling and conspiring to sell cocaine were improper because he was not under arrest at the time of the search of his person and therefore, the warrantless search was invalid. State v. Ingram, 331 S.W.3d 746, 2011 Tenn. LEXIS 4 (Tenn. Jan. 21, 2011).

14. —Requisites.

Tenn. Const. art. I, § 7 was intended to protect all men's homes. The legislature directed the procedure under Tenn. Const. art. I, § 7: and the search warrant must conform to both the constitutional and statutory requirements. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Because general warrants are forbidden, the place to be searched must be sufficiently described to the magistrate to enable him so to describe it in the warrant that the officer will have no discretion as to where he may search. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where warrant was issued on the affidavit of a police officer and affidavit stated that informant observed the activity “in the past 72 hours” there was a sufficient showing of the time of the observation to determine probable cause without stating the exact date. State v. McCormick, 584 S.W.2d 821, 1979 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1979).

An affidavit showing probable cause may be based on hearsay information and need not reflect the direct personal observations of the affiant; however, where the affiant relies on hearsay information from a confidential informant the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed … was credible or his information reliable. State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989).

The standard by which probable cause will be measured to see if the issuance of a search warrant is proper under Tenn. Const. art. I, § 7 is the two-pronged “basis of knowledge” and “veracity” test (not to be applied hypertechnically) of Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 1964 U.S. LEXIS 994 (1964) and Spinelli v. United States , 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, 1969 U.S. LEXIS 2701 (1969) rather than the “totality of the circumstances” test voiced in Illinois v. Gates , 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 1983 U.S. LEXIS 54 (1983). State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989).

Defendant's motion to suppress the evidence of defendant's blood alcohol concentration level obtained pursuant to a search warrant was properly granted because, based upon the court's discrediting the testimony from the magistrate and the officer, the inconsistent testimony of each witness, and the absence of a definitive explanation for the time of issuance discrepancies during the suppression hearing, the record did not preponderate against the trial court's determination that the discrepancies were not mere technical violations or good faith mistakes. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

15. —Validity.

Where liquor is the object of search, a general description, “intoxicating liquors,” would be sufficient description, but where the affidavit charges “making, handling, or transporting whisky,” a warrant directing search for “said articles” is insufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

A search warrant based upon an affidavit of the sheriff made on the information and belief of that officer that probable cause existed to justify the writ is insufficient and void where the character of his information is not disclosed; and convictions for violation of the liquor laws is not supported by evidence so procured. Cravens v. State, 148 Tenn. 517, 256 S.W. 431, 1923 Tenn. LEXIS 41 (1923).

If the language of the warrant is sufficient to enable the officer executing it to identify the property with reasonable certainty and will enable a prudent officer to locate the property from the face of the warrant, it is sufficient. Bowling v. State, 219 Tenn. 224, 408 S.W.2d 660, 1966 Tenn. LEXIS 519 (1966).

Search warrant which identified automobile by license number was sufficient even though it described the vehicle by a different model year and color. Bowling v. State, 219 Tenn. 224, 408 S.W.2d 660, 1966 Tenn. LEXIS 519 (1966).

Where bank and personal documents were seized in order to establish proof of possession of the premises and ultimately the drugs, and drug paraphernalia were seized to prove that drugs were kept on the premises, seizures of these items were lawful, even though they were not specifically described in the search warrant. Armstrong v. State, 548 S.W.2d 334, 1976 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1976).

A fraudulent misrepresentation of a material fact will invalidate a search warrant. State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

A search warrant directed against a multi-unit dwelling is invalid unless it describes the subunit intended to be searched with sufficient definiteness to exclude the search of an unintended subunit. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

In cases where the police are understandably misled into believing that a house was a single dwelling unit, the courts have recognized an exception to the rule that evidence must be suppressed if the search warrant did not specifically signify the subunit to be searched. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

Search warrant did not fail to allege a crime where it provided that “marijuana plants were growing on the described property”; rather the search warrant properly alleged an illegal activity. State v. Smith, 867 S.W.2d 343, 1993 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1993).

A facially valid search warrant may only come under attack when the defense establishes that the search warrant was procured by officers through perjury or coercion. State v. Yeomans, 10 S.W.3d 293, 1999 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. 1999).

Allegations of negligence of innocent mistakes are insufficient to invalidate a search warrant. State v. Yeomans, 10 S.W.3d 293, 1999 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. 1999).

In order to be entitled to relief from an invalid search warrant, a defendant must show that a witness' reckless statements were necessary to the finding of probable cause. State v. Yeomans, 10 S.W.3d 293, 1999 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. 1999).

Absence of a specific date in the warrant as to when the crimes occurred did not make the warrant invalid, as the affidavit accompanying the search warrant contained information that “for some months defendant had been engaging in” illegal activity that was of a continuing nature and was described in the affidavit, such that a specific date as to when the illegal activity was observed was not necessary. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

Since there was ongoing criminal activity, the information in the search warrant affidavit was not stale. There was continuous contact and references to illegal drug activity between another individual and defendant from April 20, 2005, until September 1, 2005; the search warrant was issued on September 12, 2005; and several of those references to illegal activity occurred after the transaction at defendant's residence on July 11, 2005. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Defendant's drug convictions were improper because the warrant did not comply with the requirements of Tenn. R. Crim. P. 41. The judge's error in inadvertently writing “p.m.” instead of “a.m.” on the original and defendant's copy of the search warrant rendered the warrant invalid because it failed to comply with the mandatory requirements the rule; therefore, the resulting search was illegal, and the evidence seized pursuant to the search warrant was required to be suppressed. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Appellate court lack jurisdiction to consider defendant's appeal because the certified question of law regarding the legality of the warrantless entry into defendant's home and the seizure of defendant from his doorway was not dispositive of the case where, even if a police officer detained defendant in a manner that exceeded constitutional limits, the search warrant—based on anonymous tips and the smell of marijuana all of which were known before the officer placed his foot inside the residence and physically seized defendant—remained valid and the police obtained no information or evidence to secure the warrant as a result of seizing and detaining defendant before execution of the search warrant. State v. Snider, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1069 (Tenn. Dec. 14, 2015).

Because the holding that the execution of search warrants was unconstitutional was based on a violation of the United States and Tennessee Constitutions, the Exclusionary Reform Act, T.C.A. § 40-6-108, did not apply. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

Magistrate did not have authority to issue search warrants for defendants' homes because the magistrate issued the warrants for property located outside his judicial district; because the magistrate, who was a circuit court judge, did not have the authority to issue the search warrants for defendants' homes located outside of his district, the search warrants were void ab initio, and the searches of defendants' homes were unconstitutional. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

16. —Premises Covered.

The search of an automobile on the same premises as a building specifically designated for search was not an unreasonable search even though only the building was indicated in the warrant. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

A warrant authorizing the search of a dwelling house “including all of the buildings, outhouses and vehicles found thereon” authorized the search of a millshed not within the fence which enclosed the dwelling but located about 220 feet from the residence and across a public road. Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

Search warrant drawn in a general manner so as to enable the officers to search multiple premises, some of which were in possession and occupied by strangers to the process, was invalid. Johnson v. State, 208 Tenn. 620, 348 S.W.2d 295, 1961 Tenn. LEXIS 331 (1961); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Search warrant authorizing search of premises of named individuals at specified address including outbuildings and automobiles on the premises did not authorize search of automobile of another person found on the premises as such third person was a stranger to the process. State v. Sircy, 215 Tenn. 1, 383 S.W.2d 37, 1964 Tenn. LEXIS 534 (1964).

Where a defendant claimed to have moved out of the apartment described in the search warrant, but he continued to spend time there regularly, and at the time the search warrant was served he was in exclusive possession and control of the premises, the court held that the warrant was not defective and that marihuana seized from the premises was admissible in defendant's trial for possession. Finger v. State, 515 S.W.2d 897, 1974 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. 1974).

Search warrant authorizing police to search premises of defendant did not authorize police to seize purse of visitor where the officers executing the warrant knew or should have known: (1) That the visitor rather than the defendant owned the purse; and (2) That, under the circumstances, there was no opportunity for anyone to have hidden the cocaine suspected to be on the premises. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

To determine the proper scope of a premises warrant, the court applied the following rule set forth in People v. McCabe, 144 Cal. App.3d 827, 1983 Cal. App. LEXIS 1875, 192 Cal. Rptr. 635 (1983): the police may, while executing a premises search warrant, lawfully search the personal effects of a visitor, on the proper assumption that all personal property belongs to the resident of the premises, under specific conditions: (1) If the visitor's personal items might serve as a plausible repository of the object of the search, it may nonetheless be seized unless officers know the property belongs to the visitor; (2) If officers know the property belongs to the visitor, they may not rely on the authority conferred by the search warrant even though it is a plausible repository for the contraband; and (3) If someone within the premises has had the opportunity to conceal the contraband within the personal effects of the visitor immediately prior to the execution of the search warrant, officers may nonetheless conduct the search. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Search of defendant's house was unreasonable where Franklin County investigator, though not involved with either of the robberies specifically mentioned in the affidavit, accompanied agent to the defendant's home, participated in the search, and directed the Grundy County officers to seize objects for him, and items were seized which were irrelevant to the specific crime suggested by the warrant. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

Search warrant that identified the church's address in the warrant, along with defendant's office at the church as the area to be searched, met the particularity requirement; while several buildings were located at the street address contained in the search warrant, all of the buildings comprised the church and did not qualify as premises “occupied by strangers.” State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

General rule is that a search warrant for a given location authorizes the search of items belonging to an owner or occupant of the premises, even if that person is not named in the warrant. State v. Coblentz, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. June 10, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 756 (Tenn. Oct. 20, 2016).

17. —Knock and Announce.

Compliance with the “knock and announce” doctrine is not required if the officers have a reasonable suspicion that knocking and announcing would be dangerous, futile or allow the destruction of evidence. State v. Stepherson, 15 S.W.3d 898, 1999 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. 1999).

Trial court erred in concluding that a residential search and seizure were illegal under U.S. Const. amend. 4 and Tenn. Const. art. I, § 7, based on an officer's lack of reasonable suspicion to justify the officer's presence on the premises; the court recognized the validity of the “knock and announce” procedure, found that the officer had valid consent to enter after being told to come inside, and there was no requirement that the officer give the officer's identification at the time of knocking. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Exigent circumstances existed which justified the issuance of a “no knock” warrant because defendant had drugs inside his house, the residence was equipped with a surveillance system, and any evidence could be destroyed quickly due to defendant's ability to monitor the activity outside the residence. State v. Perry, 178 S.W.3d 739, 2005 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 717 (Tenn. Aug. 22, 2005).

18. Search and Seizure.

Tenn. Const. art. I, § 7 had no application even though officers found illegal area outside area described in search warrant where area in which whiskey was found was not part of curtilage or used in daily operation of defendant's premises. Norton v. State, 207 Tenn. 656, 343 S.W.2d 361, 1960 Tenn. LEXIS 506 (1960); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

There is no definite formula for determination of reasonableness or unreasonableness of a search, but each case is bottomed on its facts. Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925, 1963 Tenn. LEXIS 353 (1963); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

A “search” as applied under Tenn. Const. art. I, § 7 means searches and seizures by an examination of a person's home, buildings, premises, his person or the like with a view of discovering contraband, illicit stolen property or some evidence of guilt to be used in a criminal prosecution against him and implies invasion and quest which in turn implies some sort of force, actual or constructive, much or little. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, 1965 Tenn. LEXIS 606 (1965), cert. denied, Lester v. Tennessee, 383 U.S. 952, 86 S. Ct. 1214, 16 L. Ed. 2d 214, 1966 U.S. LEXIS 2090 (1966).

No search was involved where officer looked into station wagon and wrote down serial number of television set which he observed without touching or entering vehicle. Chadwick v. State, 1 Tenn. Crim. App. 72, 429 S.W.2d 135, 1968 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. 1968).

Where a warrantless search was made of defendant's trash dumpster and the record was not sufficient to justify treating the dumpster as the receptacle of abandoned property, the search was unreasonable and the evidence seized should have been excluded. Bolen v. State, 544 S.W.2d 918, 1976 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1976).

The constitutional provision forbidding the government and its officers to invade private property inures to the protection of the person in possession and does not extend to third persons. Daniels v. State, 550 S.W.2d 958, 1976 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. 1976).

The five basic exceptions to the requirement for a search warrant are consent; incident to a lawful arrest; probable cause to search with exigent circumstances; in hot pursuit; and a stop and frisk situation. Taylor v. State, 551 S.W.2d 331, 1976 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1976).

Inserting and turning a key to determine whether it fits a lock is not an unlawful search and seizure. Cole v. State, 858 S.W.2d 915, 1993 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. 1993).

No constitutional right was violated when police officer merely inserted a key, found at a crime scene, into an apartment door accessible from a common hallway and determined only that the key, lawfully acquired, could turn the tumbler. Cole v. State, 858 S.W.2d 915, 1993 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. 1993).

Police officer's actions of getting on his hands and knees with his head very near to the ground, and looking into the garage, constituted a warrantless search in violation of defendant's constitutional rights. State v. Bowling, 867 S.W.2d 338, 1993 Tenn. Crim. App. LEXIS 42 (Tenn. Crim. App. 1993).

A vehicle search conducted as part of an effort to prevent visitors from smuggling drugs into prison was reasonable despite the absence of a warrant, probable cause, or reasonable suspicion. State v. Putt, 955 S.W.2d 640, 1997 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1997).

Where initial contact between officer and suspect is not accompanied by physical force or show of authority, there is no seizure. State v. Wilhoit, 962 S.W.2d 482, 1997 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. 1997).

Warrantless search or seizure is presumed unreasonable, and evidence discovered as a result suppressed, unless state demonstrates search or seizure was conducted pursuant to one of the narrowly defined exceptions. State v. Bridges, 963 S.W.2d 487, 1997 Tenn. LEXIS 642 (Tenn. 1997).

A “seizure” implicating constitutional concerns occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. State v. Daniel, 12 S.W.3d 420, 2000 Tenn. LEXIS 52 (Tenn. 2000).

Where transportation regulations T.C.A. § 65-15-111(a) and (b) limited the scope of the search of defendant's commercial motor carrier but did not limit the discretion of the officer in the field of when to conduct a search, the decision to perform a safety inspection was arbitrary and unpredictable; the regulatory scheme was not a constitutionally adequate substitute for a warrant and the trial court did not abuse its discretion by granting defendant's motion to suppress. State v. McClure, 74 S.W.3d 362, 2001 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. 2001).

Warrantless search of defendant's residence, made pursuant to a written condition of her parole, was reasonable under the U.S. Const. amend. IV and Tenn. Const. art. I, § 7, even if made without any reasonable, individualized, or particularized suspicion; under the totality of the circumstances, the police officer's decision to search defendant's residence was not unreasonable. There was no proof that the officer acted for any reason other than the furtherance of legitimate law enforcement concerns as defendant had been convicted of drug offenses in two states and the officer had information from an informant that she was involved in selling crack cocaine; he verified defendant's parole status and the warrantless search condition before he searched her residence and neither the search of defendant's vehicle nor that of her residence was unreasonably lengthy. That the total time of defendant's detention might have been at most two hours and included a short trip by defendant in her own vehicle did not so prolong the detention as to make the search unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

Parole condition requiring that the parolee submit to warrantless searches is reasonable in light of the parolee's significantly diminished privacy interests, the goals sought to be attained by early release, and society's legitimate interest in protecting itself against recidivism; therefore, the Tennessee Constitution permits a parolee to be searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers. Importantly, such searches may be undertaken only if the searching officer has prior knowledge of the parolee's status as subject to such searches; the totality of the circumstances surrounding a warrantless, suspicionless search of a parolee must be examined to determine whether the search is constitutionally unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

Trial court did not err in denying defendant's motion to suppress because the officer's warrantless search of the vehicle was permissible based on the automobile exception and the officer's reasonable belief that the vehicle contained marijuana due to an odor emanating from vehicle and the plain view exception based on his observation of what he believed was marijuana in a cup on the floor of the vehicle. State v. Gill, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 91 (Tenn. Crim. App. Feb. 11, 2019).

In defendants trial for aggravated rape and aggravated sexual battery, the trial court erred in denying defendant's motion to suppress evidence seized during the search of defendant's cell phone, but the error was harmless because the record was replete with additional, significant evidence supporting defendant's convictions, including his own testimony that other videos showed him squeezing a water bottle inserted into the victim's anus. State v. Banks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. Oct. 4, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 181 (Tenn. Mar. 26, 2020).

19. —In General.

The issue in each case is whether or not a particular search or seizure was reasonable under all the facts and circumstances. State v. Lakin, 588 S.W.2d 544, 1979 Tenn. LEXIS 498 (Tenn. 1979).

When the car was parked on a public street and accomplices could have removed the vehicle or the stolen items had they been permitted to remain undisturbed, the officer did not need to obtain a warrant to search the car at the scene. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

Thermal imaging is not an unconstitutional search. State v. Norris, 47 S.W.3d 457, 2000 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. 2000).

The standard set forth in California v. Hodari D. , 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690, 1991 U.S. LEXIS 2397 (1991), holding that a person is “seized” for purposes of U.S. Const. amend. 4 only where an officer uses physical force to detain a person or where a person submits or yields to a show of authority by the officer, is rejected under Tenn. Const. art. I, § 7; instead, a totality of the circumstances analysis and the standard of whether a reasonable person would have believed that the person was not free to leave is adhered to. State v. Randolph, 74 S.W.3d 330, 2002 Tenn. LEXIS 195 (Tenn. 2002).

Trial court erred in suppressing evidence found during a frisk of defendant; based on the officer's detection of the smell of marijuana in the residence and his actions in quickly placing an object in his pocket, the officer had reasonable suspicion that defendant possessed a weapon and thus was justified in frisking defendant for safety purposes. The officer legally seized the metal pipe found on defendant for these reasons and also based on the “plain feel” doctrine of U.S. Const. amend. IV and Tenn. Const. art. I, § 7. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Trial court erred in suppressing evidence during a search of defendant at the police station because the search was a valid inventory search under U.S. Const. amend. IV and Tenn. Const. art. I, § 7. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Application of the reasonable parole condition that defendant had to agree to a search without a warrant of her person, vehicle, property, or residence by an officer at any time became unreasonable as a result of the lengthy seizure of defendant; thus, her motion to suppress was properly granted. State v. Turner, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. Apr. 29, 2008), rev'd, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

After defendant was lawfully arrested, the officer had a duty to tow defendant's car, which was illegally parked, and prior to the car being towed, the officer had a right to inventory the car; because these items were seized during a lawful inventory search, the trial court properly found that they were admissible. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Defendant abandoned papers when he tried to kick them under the car, and at that point, he no longer had a reasonable expectation of privacy in the papers, and because he had been legally seized at the time he abandoned his property, the officer could seize this evidence and the trial court properly denied defendant's motion to suppress. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

20. — Standing

Defendants did not have standing the challenge the search of the vehicle and the seizure of the items found inside where the vehicle they drove on the night of the jewelry store robbery was owned by one defendant's girlfriend and was found on the premises of an apartment complex where a relative of the girlfriend resided. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

Defendant did not have standing to challenge the search of his associate's cell phone and had no reasonable expectation of privacy in the corresponding data because he had no reasonable expectation of privacy in another person's cell phone data and records. State v. Hawthorne, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. Sept. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 145 (Tenn. Feb. 23, 2017).

Trial court properly denied defendant's motion to suppress weapons seized during an accident investigation, as defendant told the officer that the backpack in which the weapons were found did not belong to him and thus, he lacked standing to challenge the search. State v. Lagrone, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 751 (Tenn. Crim. App. Sept. 30, 2016).

21. —Stop and Frisk.

Defendant's conviction for misdemeanor possession of cocaine was inappropriate because the seizure became unconstitutional when it went beyond what was necessary for a Terry search; thus, the search leading to the discovery of the narcotics was unconstitutional. State v. Richards, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 111 (Tenn. Crim. App. Feb. 6, 2008), aff'd, 286 S.W.3d 873, 2009 Tenn. LEXIS 336 (Tenn. 2009).

Denial of a motion so suppress evidence obtained as a result of a search of a taped package found within defendant's vehicle during a traffic stop was affirmed because the scope of the detention following a traffic stop for speeding was not exceeded by a police officer, without reasonable suspicion or probable cause, in violation of defendant's rights under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV, and defendant consented to the search of his vehicle and such consent was knowing, intelligent, and voluntary under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV. State v. Brown, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Under the totality of the circumstances, the police had reasonable suspicion to detain defendant and a Terry search was proper under Tenn. Const. art. I, § 7, even though an anonymous tip directed the police officers to the area, as: (1) Officers responded to a 911 call of an armed subject at a motel known for criminal activity; (2) An officer was told that there was an armed robbery in progress; and (3) Defendant was identified as the armed individual. State v. Williamson, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. Aug. 19, 2011), rev'd, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Officer did not have reasonable suspicion to initiate the stop of defendant's vehicle for violating this section, and therefore the trial court erred by denying defendant's motion to suppress, because the officer conceded that he did not observe the light pole or any damage to it prior to stopping defendant. The sole basis for the stop, the noise the officer said he heard, was not enough to generate reasonable suspicion. State v. Yacks, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 13, 2015).

Trooper had reasonable suspicion that defendant had committed a crime when he asked her to step out of her car and perform field sobriety tests because the trooper was informed that defendant's vehicle was irregularly parked and she had moved around and fallen back in her car, and the trooper testified when he approached defendant she appeared to be intoxicated, he smelled alcohol on her person, her speech was slurred, and she admitted drinking. State v. Irwin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. Nov. 8, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 144 (Tenn. Feb. 23, 2017).

Subsequent traffic stop and search of defendant two's person was too attenuated from the search of her house, and because the stop and seizure was based completely on the evidence found during the search of the house, the evidence seized from her person was also properly suppressed. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

22. —Probable Cause.

Where highway patrol officers following a car with license plates from another state became suspicious as result of occupants of car staring at them and they decided to investigate, and to accomplish purpose stopped car and demanded to see license of driver and saw box of whisky in car, the evidence obtained by search and statements of parties following search was not admissible on trial for unlawful transportation of alcoholic beverages. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

Where officer stopped defendant's automobile to investigate conduct of occupants and subsequently determined from defendant's appearance and conduct that he was intoxicated and arrested him for driving while intoxicated, the arrest did not violate constitutional guarantee against unreasonable searches and seizures and evidence of defendant's physical appearance and conduct would be admissible even if arrest were illegal. Satterfield v. State, 196 Tenn. 573, 269 S.W.2d 607, 1954 Tenn. LEXIS 422 (1954).

Where officer picked up package of drugs which was thrown from automobile after it was stopped by officers such action did not involve a search or seizure or violate defendant's rights in this respect. Williams v. State, 506 S.W.2d 193, 1973 Tenn. Crim. App. LEXIS 234 (Tenn. Crim. App. 1973).

Where officers observed defendant run a red light, stopped him, and after questioning him at the scene arrested him for drunken driving, driving without a license and carrying a pistol, and a subsequent search of his car revealed marihuana which was introduced in evidence at his trial for possession of marihuana, there was no violation of his constitutional rights against unreasonable search and seizure. Hill v. State, 516 S.W.2d 361, 1974 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. 1974).

Where an officer by reason of training and experience detected the odor of marijuana coming from defendant's automobile, he had probable cause to believe the vehicle contained contraband marijuana. State v. Hughes, 544 S.W.2d 99, 1976 Tenn. LEXIS 513 (Tenn. 1976), rev'd, 588 S.W.2d 296, 1979 Tenn. LEXIS 519 (Tenn. 1979).

An officer of the law may search an automobile without a warrant if he has probable cause to believe that it contains contraband and if the circumstances existing are such that the vehicle will probably escape before a search warrant can be obtained. State v. Hughes, 544 S.W.2d 99, 1976 Tenn. LEXIS 513 (Tenn. 1976), rev'd, 588 S.W.2d 296, 1979 Tenn. LEXIS 519 (Tenn. 1979).

Where the officers were present in a helicopter at 1,800 feet above the terrain, within the navigable air space of the United States, a place they had a perfect legal right to be and from their vantage point they observed unharvested marijuana in the field, and as they approached, they saw defendants tending their crop, having observed a felony being committed in their presence, the officers clearly were justified in descending to the ground to arrest the defendants. State v. Layne, 623 S.W.2d 629, 1981 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1981), overruled, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984).

An officer may stop an individual to investigate a reliable report of a misdemeanor. State v. Blankenship, 757 S.W.2d 354, 1988 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1988).

A police officer may make an investigatory stop based upon information contained in a police radio broadcast, bulletin or flyer issued by another law enforcement agency; however, the prosecution has the burden of establishing by a preponderance of the evidence that the police officer or agency responsible for the broadcast, bulletin or flyer had a reasonable suspicion, supported by specific and articulable facts, that a criminal offense had been, or was about to be, committed before the acts of the officer relying upon the information can be considered to be legal. State v. Moore, 775 S.W.2d 372, 1989 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. 1989).

State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989), which rejected the “totality of the circumstances” test for probable cause, and held that the proper standard by which probable cause will be measured under Tennessee law is the two-pronged “reliability-basis of knowledge” test, announced a new constitutional rule for analyzing probable cause; however, this new rule should not be applied retroactively because it does not materially enhance the integrity and reliability of the fact-finding process at trial. Meadows v. State, 849 S.W.2d 748, 1993 Tenn. LEXIS 49 (Tenn. 1993), rehearing denied, 849 S.W.2d 748, 1993 Tenn. LEXIS 134 (Tenn. 1993).

Affidavits concerning defendant's prior arrests for robbery and stolen property found in his automobile taken as a whole, reasonably indicated that other evidence of the robberies mentioned in the affidavit might still be present at his residence, and were sufficient to establish probable cause to search the residence. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

Where an officer saw defendant riding a bicycle in the officer's direction approximately four blocks away from a reported burglary in process and, based merely on a hunch, the officer decided to stop the defendant, defendant was seized when the officer activated the blue lights on patrol car, ordered defendant to stop, and pursued the defendant for several blocks; because the officer lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from defendant was properly suppressed by the trial court. State v. Randolph, 74 S.W.3d 330, 2002 Tenn. LEXIS 195 (Tenn. 2002).

Deputies' warrantless entry into defendants' residence was unlawful because the deputies created the exigent circumstances by approaching the residence and alerting defendants to their presence. However, the unlawful entry and detention did not taint the evidence seized pursuant to the subsequent search warrant, because one deputy's observations as he approached defendants' residence and stood at the front door (the smell of anhydrous ammonia associated with the manufacture of methamphetamine and the sound of persons running), were not unlawful with respect to an expectation of privacy; further, the affidavit supporting the issuance of the warrant was supported by probable cause because the confidential informant's hearsay information (that defendants were manufacturing methamphetamine), was corroborated by the independent observations of the deputies. State v. Carter, 160 S.W.3d 526, 2005 Tenn. LEXIS 224 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 365 (Tenn. Apr. 18, 2005), cert. denied, Carter v. Tennessee , 547 U.S. 1081, 126 S. Ct. 1797, 164 L. Ed. 2d 536, 2006 U.S. LEXIS 3098 (2006).

Probable cause determination of a neutral and detached magistrate was entitled to great deference by a reviewing court, and applying that standard of review, the facts contained in the application for the search warrant established a substantial basis on which the magistrate could have concluded that evidence of defendant's drug trafficking would be found inside his residence. Therefore, the search warrant for defendant's residence was supported by probable cause and the trial court's suppression of the evidence obtained during that search was reversed. State v. Saine, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Trial court did not err in denying defendant's motion to suppress as the officer had probable cause to initiate a traffic stop of defendant because the officer witnessed defendant driving on a road without headlights at approximately 3:00 a.m., in violation of the traffic laws. State v. Sowell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. Sept. 21, 2016).

Police officer had reasonable suspicion to seize defendant because, based upon the officer's observations, the officer had reasonable suspicion that defendant was urinating in public and thus committing the offense of public indecency. The officer observed defendant in an empty parking lot of a public business, standing next to a vehicle and facing away from the street, holding defendant's hands in front of defendant's groin area with shoulders bent over, and saw fluid flowing from the location where defendant had been standing. State v. Fuqua, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 181 (Tenn. Crim. App. Mar. 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 454 (Tenn. July 25, 2017).

Trial court did not err by denying defendant's motion to suppress because the officer did not seize defendant by activating the patrol car's lights when he saw defendant walking by the side of the road as the officer did so for safety reasons, having come upon two stopped vehicles with flashing hazard lights and a person on foot on a four-lane highway. During his encounter with defendant the officer smelled alcohol giving him reasonable suspicion that defendant had driven under the influence, and during the subsequent detention, defendant offered inconsistent versions of the evening's events and performed poorly of field sobriety tests, giving the officer probable cause to arrest defendant for DUI. State v. Cooke, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 61 (Tenn. Crim. App. Jan. 31, 2019).

23. — —Informants.

There is no unreasonable search and seizure where officers, upon information that defendant was unlawfully selling liquor at his place of business, procured search warrant and seized bottles of whisky that defendant attempted to make way with at the latter's place of business. Baker v. State, 147 Tenn. 421, 248 S.W. 548, 1922 Tenn. LEXIS 55 (1923).

Informant told police exactly how much marihuana would be in defendant's car and where it would be located. Shortly after that police saw defendant's car weaving all over the road. Their search of the car was legal, as they had reasonable cause to believe the car contained objects subject to seizure and the car could easily have been moved out of their jurisdiction. Whether or not defendant was committing a felony was immaterial. State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 650 (Tenn. 1975).

Where vice squad officers received information from reliable informant at 5:15 p.m. that defendant would leave his home between 5:30 p.m. and 7:30 p.m. to make delivery of cocaine, officers acted properly in searching defendant and his car when he left his home and stopped his car and got out in the vicinity where the delivery was to be made, without first obtaining a search warrant. State v. Shaw, 603 S.W.2d 741, 1980 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. 1980).

Because citizen/bystander witness was not a criminal informant, information provided by the witness was presumed to be reliable, and the prosecution did not have to establish either the credibility of the informant or the reliability of his information to show probable cause for the issuance of a search warrant. State v. Cauley, 863 S.W.2d 411, 1993 Tenn. LEXIS 354 (Tenn. 1993).

Reasonable suspicion and probable cause existed for the traffic stop of defendant's car because, at the time a deputy activated the blue lights on the deputy's police car, a confidential informant had provided information that a car matching the description of the car defendant was driving and driven by an African-American man was expected to drive to a particular house at a particular time, and that the driver would have at least one-half pound of marijuana to sell the informant. State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017).

24. —Aerial Overflights.

Aerial overflights did not constitute a search within the meaning of the U.S. Const. amend. 4, or Tenn. Const. art. I, § 7. State v. Roode, 643 S.W.2d 651, 1982 Tenn. LEXIS 441 (Tenn. 1982).

25. —Automobiles.

A state officer cannot intercept, search, and arrest persons upon the highway except in the manner prescribed by Tenn. Const. art. I, § 7 and the statutory provisions; therefore he has no power to search vehicles upon probable cause for believing they bear contraband. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

Warrantless search of a vehicle parked in a public place, after a recent crime, providing probable cause to believe the vehicle contains contraband, without any actual likelihood that the risk of delay to obtain a warrant is high, is legal. State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

Where, in connection with a search of the premises described in the warrant, an automobile parked near the building and on the premises described is searched and liquor seized, it is not an unreasonable search and seizure which Tenn. Const. art. I, § 7 provides against. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

Where, in stopping defendant's car and asking for his driver's license, highway patrolmen were primarily actuated by a desire to see if they could detect any evidence of intoxicating liquor being transported, and they had no concern whatever about his driver's license, the effect of defendant's apprehension was to require him to give evidence against himself, and therefore violated his constitutional rights. Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 1944 Tenn. LEXIS 378, 154 A.L.R. 809 (1944).

Unlawful seizure of defendant's automobile does not prevent its forfeiture for violation of the drug control laws nor affect the jurisdiction of the court to decree the forfeiture. Fuqua v. Armour, 543 S.W.2d 64, 1976 Tenn. LEXIS 476 (Tenn. 1976).

Although state courts interpreting state constitutional provisions may take a more protective view of the rights to be afforded a criminal defendant than federal constitutional standards mandate, in the area of automobile searches the Tennessee courts have relied on existing federal constitutional interpretation. Mathis v. State, 566 S.W.2d 285, 1977 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. 1977).

When probable cause exists, an automobile may be searched or seized without a warrant when it is halted while moving along the public street or highway, because of the impracticability of obtaining a warrant before the vehicle may be moved out of the jurisdiction. Fuqua v. Armour, 543 S.W.2d 64, 1976 Tenn. LEXIS 476 (Tenn. 1976).

Where officers had a period of 21 days within which to obtain a warrant, the warrantless seizure of defendant's parked automobile was unconstitutional, as extraordinary circumstances were not present. Fuqua v. Armour, 543 S.W.2d 64, 1976 Tenn. LEXIS 476 (Tenn. 1976).

If the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979).

A search of an automobile pursuant to police impoundment was an unreasonable search when the defendant was arrested for driving while intoxicated and was sufficiently competent to authorize a companion to take custody of the automobile as an alternative to police impoundment. Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979).

Just cause to arrest the driver is not enough alone; there must also be reasonable cause to take his vehicle into custody. Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979).

Where defendant was arrested for being drunk and disorderly, and police were asked by assistant motel manager to look in another room not registered to defendant, but for which he had earlier requested the key, and in such room they found defendant's billfold, a set of keys to defendant's automobile and a television set presumed to be stolen, a search without a warrant of the automobile which was in the parking lot was unconstitutional. Nolan v. State, 588 S.W.2d 777, 1979 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1979), overruled, State v. Ronewicz, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1085 (Tenn. Crim. App. Dec. 26, 2012).

Where defendant and companion stopped at combination grocery store and restaurant and companion went into store while defendant drove off, and after eating, companion wandered around store and proprietor became suspicious and called police, and police officer asked such companion to step outside and into his patrol car, and later when defendant returned in his car officer asked that he roll down his window and show him his driver's license and when defendant rolled down his car window the officer smelled marijuana, searched the car and found marijuana, both the detention of defendant's companion and the request that defendant roll down the car window amounted to a violation of Tenn. Const. art. I, § 7 which invalidated the search and seizure. Hughes v. State, 588 S.W.2d 296, 1979 Tenn. LEXIS 519 (Tenn. 1979).

Where state is offering evidence disclosed by arresting officer's “inventory search” of vehicle and admissibility of evidence depends upon the legality of the impoundment, the burden is upon the state to justify the impoundment by demonstrating compliance with the rule of reasonable necessity set out in Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979), and other case law. State v. Lunsford, 655 S.W.2d 921, 1983 Tenn. LEXIS 785 (Tenn. 1983).

Merely stopping a vehicle on reasonable suspicion to investigate a crime does not necessarily constitute an arrest. State v. Blankenship, 757 S.W.2d 354, 1988 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1988).

Warrantless search of a vehicle parked in a public place, after a recent crime, providing probable cause to believe the vehicle contains contraband, without any actual likelihood that the risk of delay to obtain a warrant is high, is legal. State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

Where an officer stopped a vehicle for speeding and, while removing an open can of beer therefrom, noticed a bag containing marijuana, the plain view doctrine applied to such discovery and the officer had probable cause to search the vehicle. State v. Dougherty, 930 S.W.2d 85, 1996 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 1996).

A sobriety roadblock which is established and operated in accordance with predetermined guidelines and supervisory authority that minimize the risk of arbitrary intrusions on individuals and limit the discretion of law enforcement officers at the scene is valid under the Tennessee constitution. State v. Downey, 945 S.W.2d 102, 1997 Tenn. LEXIS 257, 74 A.L.R.5th 729 (Tenn. 1997).

The fact that the police officers who stopped the defendant may have had a subjective belief that she had contraband in her possession did not render the stop pretextual and require suppression of the contraband where the police had observed the defendant fail to stop for two stop signs and, therefore, had probable cause to stop her. State v. Baker, 966 S.W.2d 429, 1997 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 1997).

While detention for sobriety test at traffic checkpoint may have been warranted, police officer had no articulate basis to frisk the defendant for weapons, and thus the marijuana seized from defendant's pocket should have been suppressed. State v. Winn, 974 S.W.2d 700, 1998 Tenn. Crim. App. LEXIS 236 (Tenn. Crim. App. 1998).

Where defendant moved laterally at times within his lane, but the movement was not pronounced, police officer did not have reasonable suspicion to stop defendant for driving while under the influence of an intoxicant. State v. Binette, 33 S.W.3d 215, 2000 Tenn. LEXIS 605 (Tenn. 2000).

The facts of the case supported the application of the “automobile exception” to the warrant requirement. State v. McCrary, 45 S.W.3d 36, 2000 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 2000).

When a police officer issues a traffic citation or warning and returns a driver's license and registration, a traffic stop ceases to be a seizure for purposes of Tenn. Const. art. I, § 7 and U.S. Const. amend. IV. State v. McCrary, 45 S.W.3d 36, 2000 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 2000).

Trial court erred by denying defendant's motion to suppress evidence gathered at a drivers' license checkpoint where it constituted an unreasonable seizure because the state failed to prove a compelling state interest for roadblock, and it was constitutionally unreasonable given the lack of advance public notice, the failure to have signs or traffic cones, and the testimony suggesting the roadblock was a subterfuge for unlawful detentions. State v. Levitt, 73 S.W.3d 159, 2001 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. 2001).

In a DUI case, a court erred by denying defendant's motion to suppress, because a roadblock set up to detect DUI, aggressive driving, and speeding did not pass constitutional muster, where a roadblock is a singularly ineffective means by which to detect aggressive drivers and speeders; unlike driving while intoxicated, a bodily condition that the driver was helpless to change by a sheer act of will, a speeding or aggressive driver could cease the unlawful behavior within seconds of being notified of the danger of apprehension. Additionally, the decisions about establishing the roadblock were made by the same men who were actually conducting it at the scene. State v. Varner, 160 S.W.3d 535, 2004 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. 2004).

In a minor in possession of alcohol case, a court erred by granting defendant's motion to suppress: (1) The housing authority checkpoint where he was stopped was constitutional, as the housing authority's mission was to provide safe housing for its residents; (2) The purpose of the entry checkpoints was to provide a measure of security for those who lived within the development; (3) The identification checkpoint was an efficient means of determining that persons entering the housing development were residents or visitors with a legitimate business or social reason for being there; and (4) The intended level of intrusion to motorists or pedestrians was minimal. State v. Hayes, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 997 (Tenn. Crim. App. Nov. 9, 2004), rev'd, 188 S.W.3d 505, 2006 Tenn. LEXIS 312 (Tenn. Apr. 20, 2006).

Defendant's detention constituted de facto arrest where record was devoid of any evidence of reasonable suspicion of criminal activity and no Miranda warnings were provided to defendant, consent immediately followed the illegal seizure, and no intervening event occurred; thus, search of defendant's vehicle and seizure of cocaine found in the vehicle was unreasonable under constitutional protections. State v. Hayes, 190 S.W.3d 665, 2005 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. 2005).

When a police officer activated the blue lights on his patrol car behind the defendant's vehicle which was already stopped and idling in the street, a seizure occurred within the meaning of U.S. Const. amend. 4 and Tenn. Const. art. I, § 7; the officer did not have reasonable suspicion to seize the defendant, and therefore, all of the evidence obtained from the stop was suppressed. State v. Williams, 185 S.W.3d 311, 2006 Tenn. LEXIS 181 (Tenn. 2006).

On appeal of the trial court's decision granting defendant's motion to suppress 300 grams of cocaine that an officer found in his vehicle following a traffic stop, the court held that even though the initial stop of defendant's vehicle was constitutionally permissible, as he was speeding, the officer's frisking defendant and placing him in the patrol car was not, and therefore the motion was properly granted: the officer had no suspicion that defendant was armed or dangerous, and he did not check the validity of defendant's driver's license or vehicle registration before frisking him or placing him in the patrol car; the record established that the officer placed defendant in the patrol car primarily to determine whether he became more nervous, and the officer's record showed that he conducted “frisks and sits” in other instances regardless of the weather or the time of day, and thus defendant's consent to the search of his vehicle was not sufficiently attenuated from the violation of his constitutional rights. State v. Berrios, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

Law enforcement officer signaled by anonymous citizen-driver in a manner obviously intended to invite the officer's intervention as to a third party, but without any indication as to the nature of the citizen's concern or any other information, does not have reasonable suspicion adequate to stop and seize the third party. State v. Day, 263 S.W.3d 891, 2008 Tenn. LEXIS 615 (Tenn. Sept. 22, 2008).

Officer did not have reasonable suspicion to stop defendant's vehicle under the fourth amendment and Tenn. Const. art. I, § 7 because it was not reasonable for the officer to infer from unknown motorist's tip that defendant had engaged in criminal behavior; officer relied solely on unknown tip and observed no criminal activity by defendant before stopping him, and motorist's actions did not communicate any specific information and could have been just as indicative of noncriminal behavior as criminal behavior. State v. Day, 263 S.W.3d 891, 2008 Tenn. LEXIS 615 (Tenn. Sept. 22, 2008).

Although defendant's vehicle was subject to a search following a proper canine sweep, the contraband found on defendant's person should have been suppressed under the fourth amendment because defendant, who was the driver, left the vehicle before the police acquired any indication that the vehicle contained contraband, and the dog did not react to any substances on defendant's person; in addition, a passenger in the vehicle occupied the seat near the door where the dog reacted. State v. Harris, 280 S.W.3d 832, 2008 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 6, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 629 (Tenn. Aug. 25, 2008).

Warrantless search of defendant's car was justified by exigent circumstances; although defendant argued that the police created the exigent circumstances by setting up a controlled sale of drugs and that the subsequent search of his car was unconstitutional, defendant, activated by his own decision, left his residence in his car to drive to a prearranged meeting place in order to sell drugs to a confidential informant. State v. Saine, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 4, 2008), aff'd in part, rev'd in part, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Evidence supporting charges of which defendant was found guilty was gathered not as a result of an allegedly invalid stop of his vehicle, but as a result of defendant's intervening, illegal conduct, which superceded the initial stop and gave the police an independent and constitutionally sound basis for arresting defendant; accordingly, trial court properly denied defendant's motion to suppress. State v. Nelson, 275 S.W.3d 851, 2008 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 24, 2008).

Officers were aware of the search warrant for defendant's residence and the controlled buy that was set to occur shortly after defendant left his residence, and those facts were sufficient to provide the officers with probable cause to believe that defendant was driving to the controlled buy with narcotics in his vehicle; moreover, suppression of the evidence was not required because the officer stopped defendant for speeding as a pretext to afford an opportunity to search defendant's vehicle for narcotics since when a law enforcement officer had probable cause to believe that a traffic violation occurred, the stop of the vehicle was considered constitutionally reasonable irrespective of the subjective motivations of the officer making the stop. Therefore, the search of defendant's vehicle was justified by the automobile exception to the warrant requirement. State v. Saine, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Officer had reasonable and articulable suspicion to believe that defendant had committed a criminal offense which permitted the officer to conduct an investigatory stop where the victim gave him a description and the license plate of the car involved in the shooting, the officer saw a car matching the description, and the license plate matched except for one number. State v. Volpe, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Sept. 3, 2015).

Petitioner failed to show that trial counsel and co-counsel were deficient when they failed to file a motion to suppress evidence found during an inventory search of petitioner's vehicle; petitioner needed other witnesses, such as a police detective and a police captain, to establish the factual circumstances of petitioner's arrest and the inventory search of his vehicle, and without such evidence, petitioner could not establish that a motion to suppress would have been successful. Fisher v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 2, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 156 (Tenn. Feb. 18, 2016).

In a case where defendant was convicted of four counts of rape of a child, defendant's motion to suppress evidence recovered from a warrantless search of his car under the automobile exception was properly denied because defendant's argument that his car was not readily mobile within the meaning of the automobile exception was without merit as it was the characteristic mobility of all automobiles, not the relative mobility of a car in a given case, which allowed for warrantless searches when probable cause existed; and probable cause existed justifying the warrantless search of defendant's car for a laptop, which a detective believed contained child pornography and possibly evidence of defendant's sexual abuse of local victims. State v. Alberts, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 485 (Tenn. June 23, 2016).

Incriminating nature of the comic books was immediately apparent, and the detective's observation of the comic books in plain view gave him probable cause to believe that defendant's vehicle contained stolen property, and thus, the seizure of the vehicle pursuant to the automobile exception was justified. State v. Carter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Mar. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 478 (Tenn. June 23, 2016).

Deputy's detention of defendant did not exceed the scope of the stop where the deputy questioned defendant for two and a half minutes before he admitted to having marijuana in his vehicle and the duration of the stop was slightly over 12 minutes prior to the discovery of additional contraband in the trunk of the vehicle. State v. Mansfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. June 22, 2016).

Officer had reasonable suspicion to stop defendant's vehicle where the deputy testified that defendant simultaneously activated his turn signal and merged into the right lane without checking if the right lane of traffic was clear in violation of T.C.A. § 55-8-143(a), (c), causing the deputy to push his brakes to avoid coming too close to defendant's vehicle. State v. Mansfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. June 22, 2016).

Trooper had reasonable suspicion that defendant had violated T.C.A. § 55-8-123(1) and therefore the trial court did not err by denying his motion to suppress where the video confirmed the trooper's testimony that defendant's right tires crossed the lane divider and the fog line, and his travel within his own lane included multiple drifts toward either side followed by a jerky or quick movement for correction. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 547 (Tenn. Crim. App. July 26, 2016).

Warrantless search of the victim's vehicle was proper because the officers had probable cause to believe that evidence related to the victim's attack would be found in the vehicle, as a detective testified he observed a significant amount of blood at the crime scene, the victim's car was missing, defendant had been involved in an accident that morning in a vehicle that was the same make and model as the victim's, and upon entering defendant's jail cell the first thing the officer's noticed was blood on the bottom of his sock. State v. Peden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 699 (Tenn. Crim. App. Sept. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 976 (Tenn. Dec. 14, 2016).

Trial court did not err in denying defendant's motion to suppress as there was probable cause to search defendant's vehicle because defendant referenced a condom and sexual items in a text message to the minor victim; there was a reasonable probability that the vehicle contained additional condoms, the referenced sexual items, or other evidence of criminal activity with regards to the solicitation of a minor charge which would have been relevant to the prosecution; and law enforcement could have relied on defendant's inexplicable evasiveness regarding the location of his vehicle as one factor in the totality of the circumstances when determining that there was probable cause for the search of defendant's vehicle. State v. Thornton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 10, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 245 (Tenn. Apr. 13, 2017).

Officer had reasonable suspicion to stop defendant's vehicle for speeding because a detective had told the officer that defendant was speeding. State v. Kelley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Aug. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 866 (Tenn. Dec. 6, 2017).

Officer had reasonable suspicion to stop defendant's vehicle because a detective had reasonable suspicion that defendant possessed marijuana and then directed the officer to act by stopping defendant, as a reliable informant told a detective that defendant used his home as a “stash house” for marijuana trafficking and the detective used a GPS device to track defendant leaving his home. State v. Kelley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Aug. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 866 (Tenn. Dec. 6, 2017).

Trial court erred by refusing to suppress the evidence obtained from the warrantless search of defendant's vehicle because the police officers – acting on an anonymous tip that defendant was selling drugs from a parked car outside of a particular store – did not have reasonable suspicion to support their brief, investigatory stop and defendant's resulting illegal seizure before a dog search of the vehicle. State v. Dibrell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 224 (Tenn. Crim. App. Mar. 26, 2018).

Trial court did not err by denying defendant's motion to suppress items found during a search of her vehicle because deputies had probable cause to stop her for violating the speed limit, and upon smelling marijuana in the vehicle, the deputies had probable cause to search it pursuant to the exigent circumstances relating to the inherent mobility of automobiles. State v. Long, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. Oct. 3, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 611 (Tenn. Sept. 17, 2018).

Officer had reasonable suspicion to stop defendant for a violation of T.C.A. § 55-8-149(d), after observing defendant's vehicle fail to obey a stop sign at an intersection, and thus, the evidence obtained as a result of the stop was admissible. State v. Harris, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 535 (Tenn. Crim. App. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to file a motion to suppress the temperature study done on defendant's car as the victims died of hyperthermia in the car; officers could seize a vehicle that was the instrumentality of the crime; a subsequent inspection of the vehicle was not an unlawful search; and officers routinely and properly conducted testing of items taken into evidence. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Officer did not have reasonable suspicion to stop defendant's vehicle, and therefore the trial court erred by denying defendant's motion to suppress, because defendant was seized when the officer activated his patrol car's blue lights, and at that time the officer had not witnessed any evidence of criminal activity, but rather stopped defendant because he pulled in front of and stopped at a known crack house. State v. Hogan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 98 (Tenn. Crim. App. Feb. 19, 2019).

Evidence did not preponderate against the trial court's findings that defendant knowingly and voluntarily consented to the search of his truck. Accordingly, the trial court did not err in denying defendant's motion to suppress. State v. Hunley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 26, 2019).

Defendant was not entitled to suppress evidence found in a search of defendant's car when it was parked for a fee in the overnight camping area of a music festival because while defendant had a reasonable expectation of privacy in defendant's sleeping tent, the reasonableness of the privacy expectation did not encompass the whole campsite. Additionally, the search of the car fell with the automobile exception to the warrant requirement and there was probable cause given a police dog's alert to believe that contraband was located inside the car. State v. Wiley, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 21, 2020).

Trial court did not err by denying defendant's motion to suppress because the officer was permitted to ask the vehicle's passengers for identification, given that one passenger was moving around in the backseat, they acted nervously, and all of the occupants were breathing heavily. The officer was permitted to ask one passenger to step out of the vehicle because he had received inconsistent answers about their destination. State v. Austin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Oct. 27, 2020).

25.5 — —Dog sniff.

Trial court erred in denying defendant's motion to suppress the evidence obtained during the search of defendant's car, because the K-9 handler could not testify that the dog gave his final response of barking, biting or scratching, but only that the dog's body language changed in a way that was consistent with changes he had observed during training. State v. Bowden, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 10, 2018).

Trial court did not err by denying defendant's motion to suppress because the officer had reasonable suspicion that defendant violated T.C.A. § 55-8-123(1), as the dash camera video showed that defendant crossed the center line dividing the highway and straddled the center line for approximately six seconds, and that defendant touched the fog line prior to crossing the center line. The officer also had reasonable suspicion that defendant violated T.C.A. § 55-8-143 because he did not initially use his left turn signal before moving into the second southbound lane and therefore the officer was justified in stopping defendant to investigate the reason for his lane departure. State v. Thomas, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 592 (Tenn. Crim. App. Aug. 8, 2018).

Dog sniff did not prolong the deputy's traffic stop of defendant, and therefore the trial court should have denied defendant's motion to suppress on that basis, because the deputy, who had been writing the warning citation for only three minutes when he interrupted his writing to get the dog out of his patrol car, would have been unable to complete the citation during the subsequent two-minute dog sniff, and would not have been able to complete the stop before the dog altered to the marijuana in the car. State v. Eliazar, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. Aug. 29, 2018).

Trial court did not err by denying defendant's motion to suppress because the initial stop of defendant's vehicle for a traffic violation was justified, the officer found that defendant did not have a valid driver's license, the officers' asking defendant to step out of the vehicle and frisking defendant was not unreasonable, the amount of time that elapsed from the initial stop to a police drug dog's alert on defendant's car was not unreasonable, and the search of defendant's person when nothing was found in the car was not unreasonable. State v. Carero, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. Feb. 3, 2020).

26. —Consent.

Defendant validly consented the taking of his blood and subsequent DNA testing while incarcerated because: (1) Defendant was verbally informed that he could refuse to consent to the blood draw; (2) Defendant was provided with a written form on which he could indicate his consent or refusal to consent; and (3) Defendant admitted that he was aware that T.C.A. § 40-35-321 did not apply to him as he had not been convicted of any of the predicate offenses. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

In a drug case, a court properly suppressed evidence where, although defendant's consent to search was given voluntarily, the consent was not sufficiently attenuated from the unlawful detention. Although there was no reasonable suspicion that defendant was carrying on any criminal activity other than the speeding offense, the deputy confined defendant in the back of the patrol car, kept defendant's license, and subjected him to several minutes of “fishing-expedition” type questions before seeking consent to search; in addition, the deputy never issued defendant either a warning or citation ticket for speeding. State v. Berrios, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 3, 2006), aff'd, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

Defendant's consent to search extended to the inside of the vehicle and containers located therein because the trooper testified that he was trained in drug interdiction, and during the consensual search, the trooper discovered the package in the front passenger floorboard of the vehicle; the trooper testified that simply by feeling the package the contents of the package were inherently recognizable as a brick of cocaine. State v. Brown, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Mar. 31, 2008), aff'd, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Defendant gave consent to a search because defendant responded “okay” to the trooper's request to search; although the exact language used was difficult to discern, it was clear from the inflection of defendant's voice that he gave assent. State v. Brown, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Mar. 31, 2008), aff'd, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Denial of a motion so suppress evidence obtained as a result of a search of a taped package found within defendant's vehicle during a traffic stop was affirmed because the scope of the detention following a traffic stop for speeding was not exceeded by a police officer, without reasonable suspicion or probable cause, in violation of defendant's rights under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV, and defendant consented to the search of his vehicle and such consent was knowing, intelligent, and voluntary under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV. State v. Brown, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Trial court did not err by denying defendant's motion to suppress drug evidence found in vehicle following a traffic stop because officer testified that defendant consented to having his vehicle searched and trial court found officer to be a reliable witness; evidence showed that defendant was cooperative from the start of the traffic stop and that he gave his consent without hesitation. State v. Davis, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 23, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 407 (Tenn. June 15, 2009), cert. denied, Davis v. Tennessee, 558 U.S. 961, 130 S. Ct. 432, 175 L. Ed. 2d 296, 2009 U.S. LEXIS 7179 (U.S. 2009).

Traffic stop of defendant's vehicle was not longer than necessary because officer asked only once to search the vehicle as he was writing the citation and defendant immediately responded in the affirmative. State v. Davis, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 23, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 407 (Tenn. June 15, 2009), cert. denied, Davis v. Tennessee, 558 U.S. 961, 130 S. Ct. 432, 175 L. Ed. 2d 296, 2009 U.S. LEXIS 7179 (U.S. 2009).

Defendant's convictions for possession with intent to sell or deliver over 0.5 grams of cocaine and simple possession of dihydrocodeinone were appropriate because the jury could have reasonably inferred that defendant had dominion and control over the items in his residence and that he was in constructive possession of the items. Defendant was the only one who lived at the residence, he had left shortly before the search after having been inside the home for several hours, and defendant was a parolee who had consented to warrantless searches as a condition of parole. State v. Johnson, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 18, 2010), dismissed, Johnson v. Lester, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 11627 (M.D. Tenn. Jan. 30, 2014), writ denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Nov. 4, 2014).

Defendant's convictions for possession of marijuana and possession of unlawful drug paraphernalia were appropriate because the warrantless search of his residence was proper since he consented to the search and the consent was not the product of the previous illegal search of his person. State v. Ingram, 331 S.W.3d 746, 2011 Tenn. LEXIS 4 (Tenn. Jan. 21, 2011).

Search of a vehicle following a lawful stop was valid, even if there had been some question about the validity of defendant's consent, because there was no relevant evidence put forth by defendant which overcame the evidence demonstrated by the state that the vehicle's passenger and registered owner gave valid oral and written consent to search the vehicle. State v. Martinez, 372 S.W.3d 598, 2011 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Oct. 27, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 188 (Tenn. Mar. 9, 2012).

Defendant did not actually consent to a blood draw because (1) defendant was injured, had impaired hearing, had limited interaction with an arresting officer, and was medicated for injuries, and (2) nothing showed defendant adequately understood a request for consent. State v. Reynolds, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Nov. 12, 2014), aff'd, 504 S.W.3d 283, 2016 Tenn. LEXIS 821 (Tenn. Nov. 3, 2016).

It was error to find the results of tests of defendant's blood draw were inadmissible because (1) defendant impliedly consented to a blood draw, since an officer had probable cause to believe defendant drove under the influence, as the officer knew defendant drove a car involved in an accident, had an odor of alcohol, admitted drinking, and performed poorly on a horizontal gaze nystagmus test, and (2) defendant did not refuse the draw. State v. Reynolds, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Nov. 12, 2014), aff'd, 504 S.W.3d 283, 2016 Tenn. LEXIS 821 (Tenn. Nov. 3, 2016).

Evidence did not preponderate against the trial court's finding that defendant voluntarily consented to a blood draw. The record did not establish that defendant's consent was rendered involuntary by the threat of a mandatory blood draw. State v. Mitchell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. May 22, 2015).

Trial court erred by granting defendant's motion to suppress because his consent to the mandatory blood draw was voluntary where the officer testified that he informed defendant that he was subject to the mandatory blood draw because of his prior DUI conviction, that he read defendant the implied consent form, and that defendant consented and cooperated with the blood draw, and defendant agreed that submitted to the blood draw without protest. The fact that defendant believed that he had no choice but to submit to the testing did not render his consent involuntary. State v. Smith, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1007 (Tenn. Crim. App. Dec. 15, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 890 (Tenn. Nov. 22, 2016).

Evidence obtained following a traffic stop of the vehicle in which defendant was a passenger was admissible because the totality of the circumstances supported a finding that defendant's consent to search was voluntarily and intelligently given as the entire detention lasted only twenty minutes by the officer's estimation, defendant was asked only once, and there was no evidence of badgering or harassment by the officer. State v. Bryant, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 5, 2016).

Trial court properly granted defendant's motion to suppress evidence obtained during a warrantless blood draw because defendant did not freely and voluntarily consent to the blood draw, and the totality of the circumstances did not show that exigent circumstances created an exception to the warrant requirement; the implied consent law does not, by itself, operate as an exception to the warrant requirement. State v. Carter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. May 20, 2016).

Trial court properly denied defendant's motion to suppress, because codefendant, defendant's wife, freely consented to the search of her purse and her vehicle. State v. Wells, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 540 (Tenn. Crim. App. July 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 861 (Tenn. Nov. 17, 2016).

Trial court properly denied defendant's motion to suppress the cell phone seized from the vehicle he was driving during a traffic stop, as the vehicle's owner gave consent for the search and defendant gave an investigator consent to search the cell phone. State v. Lagrone, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 751 (Tenn. Crim. App. Sept. 30, 2016).

Trial court did not violate defendant's rights under the Fourth Amendment or Tenn. Const. art. I, § 7, by denying his motion to suppress, as defendant's initial interaction with the deputies was consensual, he voluntarily consented to the search of his person and vehicle, and he was not seized until a deputy found him in possession of drug paraphernalia. State v. Bargery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Oct. 6, 2017).

Evidence did not preponderate against the trial court's finding that defendant had the capacity to and did consent to the blood draw; while he hit his head and was bleeding from his eye and mouth areas, the emergency medical technician and officer at the scene testified that defendant was alert, knew what happened and where he was located, was able to describe his activities before the accident, and even asked about his dog that was with him at the time of the accident. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 420 (Tenn. July 18, 2018).

Defendant's motion to suppress was properly denied as he consented to a search of his home because a detective testified that only one police car was parked in defendant's driveway and that the police dog was in the car while a police officer and the probation officer spoke with defendant; the probation officer testified that, when the police officers approached defendant's home, none of the officers had their weapons drawn and that the blue lights were not activated on their police cars; the probation officer said that defendant consented to the search; and the detective testified that defendant did not withdraw his consent to the search. State v. Washington, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 713 (Tenn. Crim. App. Sept. 21, 2018).

Defendant's motion to suppress the evidence obtained from a warrantless search of his motel room was properly denied because defendant consented to the search of his motel room, and defendant did not revoke his consent. State v. Savage, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Sept. 19, 2019).

Officer's search of defendant was not unconstitutional because the officer was permitted to ask defendant, a passenger, to step out of the vehicle following a traffic stop, the officer testified that as defendant got out of the vehicle he asked defendant if he could search defendant, defendant responded yes, during the patdown search of defendant the officer felt what he thought was a glass crack cocaine pipe, when the officer defendant what it was, defendant stated it was a glass crack cocaine pipe, and the officer arrested defendant. State v. Joyner, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 24, 2020).

27. —Blood Samples.

Requirement that defendant submit to a blood test rather than a breath test did not constitute unreasonable search and seizure. State v. Greene, 929 S.W.2d 376, 1995 Tenn. Crim. App. LEXIS 815 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 233 (Tenn. Apr. 1, 1996).

In light of the substantial interests of the state, the diminished privacy interests of convicted felons, and the minimal intrusion caused by the taking of blood samples, the collection and maintenance of DNA samples pursuant to Tennessee's DNA statute, T.C.A. § 40-35-321, was reasonable; the statute was constitutional as once a person was convicted of a crime, his or her identity had become a matter of state interest and he or she had lost any legitimate expectation of privacy in the identifying information derived from body sampling. State v. Transou, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. May 13, 2005), aff'd, State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Evidence did not preponderate against the trial court's determination that defendant's 1999 and 2002 consents to blood samples were valid; defendant consented to provide a blood sample in 1999 after being advised of the procedure and his right to consent or refuse, and defendant's two signatures reflected that he consented to the blood collection and that he had read the entire form and understood its contents. State v. Transou, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. June 30, 2005), aff'd, State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Taking of a blood sample from a convicted and incarcerated felon pursuant to T.C.A. § 40-35-321 is a search, but it does not violate U.S. Const. amend. 4 or Tenn. Const. art. 1, § 7 when it is reasonable under the totality of the circumstances. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

T.C.A. § 40-35-321 was constitutional as applied to defendant, and therefore the trial court did not err by denying his motion to suppress, because the blood draw and its subsequent analysis were reasonable under all of the circumstances, which included the facts that: (1) The gravity of the public concern served by the searches was significant, given that DNA more accurately identified those who committed and were convicted of felonies; and (2) T.C.A. § 40-35-321 clearly and unambiguously specified who was subject to the searches. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

In defendant's aggravated rape case, the court did not err when it denied his motion to suppress the warrantless taking of his blood while in custody on an unrelated offense and the identification of his DNA profile from the DNA databank because defendant fell within the parameters of T.C.A. § 40-35-321(d) in that he was convicted of a felony on December 8, 2000, and the blood draw from defendant, and its subsequent analysis, were reasonable under all of the circumstances. State v. Cannon, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 27, 2006), aff'd in part, rev'd in part, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Where defendant submitted to blood draw and signed a consent form while imprisoned on an attempted theft charge, and a report indicated a DNA match between defendant and DNA evidence collected in an aggravated rape case, trial court properly denied his motion to suppress; warrantless taking of defendant's blood pursuant to T.C.A. § 40-35-321 while in custody for an unrelated offense did not violate his rights against search and seizures under Tenn. Const. art. I, § 7. State v. Cannon, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Proof that the police officers sought a warrant was not necessary before the court found exigent circumstances for the blood draw existed. State v. Lands, 377 S.W.3d 678, 2012 Tenn. Crim. App. LEXIS 203 (Tenn. Crim. App. Mar. 29, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 534 (Tenn. Aug. 15, 2012).

Warrantless blood draw was not justified by exigent circumstances because, while an officer testified that it was necessary for all of the responding officers to remain on the scene to investigate, at least two officers were directed to obtain blood samples from defendant; the State failed to explain why one of those officers could not have started the warrant process while defendant was being transported to the hospital. State v. Cates, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. Sept. 28, 2015).

Defendant knowingly and voluntarily consented to having defendant's blood drawn because, when a state trooper read the implied consent form, defendant, who had been convicted of driving under the influence on prior occasions, twice interrupted, even before the trooper read the section regarding the mandatory blood draw, to express defendant's willingness to have a blood test. Furthermore, defendant, once fully informed of the consequences of refusing the test, again eagerly expressed a willingness to have defendant's blood drawn. State v. Richter, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. Dec. 22, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 844 (Tenn. Nov. 16, 2016).

Trial court erred in denying defendant's motion to suppress the results of his blood alcohol test, as defendant did not consent, there were no exigent circumstances, and the trial court erred in applying the good faith exception to the warrant requirement. State v. Wilson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. Apr. 21, 2016).

Trial court erred in denying defendant's motion to suppress the results of his blood alcohol test, as defendant did not consent, there were no exigent circumstances, and the trial court erred in applying the good faith exception to the warrant requirement. State v. Wilson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. Apr. 21, 2016).

Defendant's cooperation with the blood draw, after the officer explained to defendant that he had to give a blood sample because he had a prior DUI, did not imply actual consent and the trial court did not err in concluding that defendant's consent was not unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Sprawling, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 480 (Tenn. Crim. App. July 5, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 847 (Tenn. Nov. 22, 2016).

State failed to establish exigent circumstances justifying the blood draw without a valid search warrant, as the search warrant allowed the blood draw to take place in the first county, because the officer did not attempt to obtain a search warrant in the second county and there was some evidence that defendant was consuming alcohol shortly before he was stopped, reducing the risk that the alcohol in his blood would dissipate before a warrant was obtained. State v. Nunnery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. July 13, 2017).

Results of defendant's blood test were admissible because at the time of the warrantless blood draw, such a draw was authorized due to a per se exigency, and because the deputy strictly complied with this practice, the good faith exception to the exclusionary rule applied. The deputy had probable cause to believe that defendant had been driving under the influence of alcohol because he testified that after the single-car crash, he saw defendant laying in the road with an open leg fracture, he smelled alcohol around the car and defendant, and defendant was confused; the deputy also testified he was concerned about the nature dissipation of alcohol in defendant's bloodstream. State v. Cates, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 885 (Tenn. Dec. 6, 2017).

Trial court did not err by suppressing the results of the warrantless blood draw performed on defendant because the State failed to show that defendant's blood was drawn pursuant to a recognized exception to the warrant requirement, as the good-faith exception did not apply because no officer followed the proper procedure of reading the implied consent form to defendant. State v. Henry, 539 S.W.3d 223, 2017 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Sept. 14, 2017).

Defendant voluntarily consented to having defendant's blood drawn, because, after defendant initially agreed to a blood draw and then decided not to agree to a blood draw, a police officer correctly told defendant, who had a prior driving under the influence conviction, that a new misdemeanor charge would be added. Defendant then did not protest the blood draw and willingly went into a hospital for a blood draw. State v. Henry, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Oct. 23, 2018).

Trial court erred by denying defendant's motion to suppress the results of a warrantless blood draw following a fatal automobile accident because an exigent circumstance did not exist as the officers did not attempt to obtain a search warrant because they believed it was not legally necessary to obtain a warrant, an officer's speculation about treatment that defendant may have required did not give rise to an exigent circumstance, and no attempt was made to secure a warrant prior to an officer learning of defendant's imminent need for surgery. State v. Oaks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 93 (Tenn. Crim. App. Feb. 12, 2019).

No credible argument can be made that the statutory implied consent actually supplies the type of voluntary consent sufficient to create an exception to the warrant requirement. State v. Hafer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 26, 2020).

Defendant voluntarily consented to the blood draw before the officer read the implied consent form to her; the officer advised that should she refuse the blood draw, she could be convicted of violating the implied consent law and lose her license but it could not be said that this extracted defendant's consent on pain of committing a criminal offense. Nothing suggested her will was overborne or her capacity was critically impaired. The trial court erred by granting defendant's motion to suppress. State v. Hafer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 26, 2020).

28. —Conversations.

Defendants had no reasonable expectation that they could conduct a private conversation in the back of a police cruiser; thus, introduction of a tape recording of their conversation was not error. State v. Morgan, 929 S.W.2d 380, 1996 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. 1996).

The recording of conversations between a confidential informant and an accused does not violate the federal or Tennessee constitution and information received by deputy sheriff monitoring and recording conversations between the defendant and the confidential informants was not the result of an unreasonable search and seizure and could be used to establish probable cause for the issuance of a search warrant. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

Secretly videotaped conversations between a suspect and that suspect's parents that were made while they were alone in a police interrogation room were inadmissible since the suspect had a reasonable expectation of privacy; however, the trial court's denial of a motion to suppress the videotapes was harmless error during the guilt phase of trial. State v. Munn, 56 S.W.3d 486, 2001 Tenn. LEXIS 630 (Tenn. 2001).

Denial of defendant's motion to suppress calls made while in pretrial incarceration was proper because he had neither an actual, subjective expectation of privacy nor an objective expectation of privacy in the recorded conversations. Given primarily that defendant was told explicitly and on more than one occasion that his calls were being monitored and recorded by jail officials, the appellate court was unable to see how defendant could have credibly argued that he possessed a reasonable and legitimate expectation that the calls would remain private. State v. Hill, 333 S.W.3d 106, 2010 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. May 12, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 953 (Tenn. Oct. 12, 2010).

29. —Investigative Stops.

An officer, when in reasonable fear of his or other's safety, has authority to conduct a carefully limited search in an attempt to discover weapons which might be used to assault him while conducting an investigative stop based upon reasonable suspicion supported by specific and articulable facts, even absent probable cause for arrest. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

A police officer, investigating two urgent, anonymous radio reports of a man threatening people with a shotgun, acted reasonably under the U.S. Const. amend. 14 and Tenn. Const. art. 1, § 7, by briefly stopping the defendant, whom the officer spotted in a moving vehicle matching the description in the radio reports, to investigate the reports. State v. Pulley, 863 S.W.2d 29, 1993 Tenn. LEXIS 309 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 344 (Tenn. Sept. 27, 1993).

Because defendant's car had begun to move, and thus, rather than approach a parked car, the officer turned on his blue lights to stop the defendant, clearly initiated a stop; thus defendant was not free to leave the scene but, rather, had been “seized” within the meaning of the Terry decision. State v. Pulley, 863 S.W.2d 29, 1993 Tenn. LEXIS 309 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 344 (Tenn. Sept. 27, 1993).

A police officer could rely on N.C.I.C. information as to registration of a vehicle in making an investigative stop, and the stop was not invalidated even though the information was wrong. State v. Rhymer, 915 S.W.2d 465, 1995 Tenn. Crim. App. LEXIS 838 (Tenn. Crim. App. 1995).

Officer did not have a reasonable suspicion to stop defendant's vehicle solely on the basis of its presence in “high crime area” late at night. State v. Lawson, 929 S.W.2d 406, 1996 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. 1996).

Under Tenn. Const. art. I, § 7, a stop based upon probable cause is valid irrespective of the subjective motivations of the police officer making the stop; Tenn. Const. art. I, § 7 is coextensive with the protection afforded by U.S. Const. amend. 4. State v. Vineyard, 958 S.W.2d 730, 1997 Tenn. LEXIS 634 (Tenn. 1997), rehearing denied, — S.W.2d — 1998 Tenn. LEXIS 58 (Tenn. Feb. 17, 1998).

Corroboration of anonymous tip, indicating eye-witness basis of knowledge, combined with informant's demonstrated past credibility and police officer's independent corroboration, are specific and articulable facts sufficient to support finding of reasonable suspicion justifying investigatory stop. State v. Bridges, 963 S.W.2d 487, 1997 Tenn. LEXIS 642 (Tenn. 1997).

Defendant's rights were violated where officer lacked the specific, articulable facts necessary to create a reasonable suspicion that would warrant an investigatory stop; thus, the evidence obtained as a result of the stop should have been suppressed. State v. Harper, 31 S.W.3d 267, 2000 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. 2000).

The test of the constitutionality of roadblocks examines: (1) The gravity of the public concerns served by the roadblock; (2) The degree to which the roadblock advances the public interest; and (3) The severity of the roadblock's interference with an individual's liberty or privacy. State v. Hicks, 55 S.W.3d 515, 2001 Tenn. LEXIS 658 (Tenn. 2001).

A roadblock will necessarily fail constitutional examination if it lacks a sufficiently compelling state interest, and the presence of such interest is necessary before an examination of the other aspects of a roadblock may proceed. State v. Hicks, 55 S.W.3d 515, 2001 Tenn. LEXIS 658 (Tenn. 2001).

The most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field, and two facts critical to finding that those officers' discretion was properly limited are: (1) The decision to set up the roadblock in the first instance cannot have been made by the officers actually establishing the checkpoint; and (2) The officers on the scene cannot decide for themselves the procedures to be used in operating the roadblock. State v. Hicks, 55 S.W.3d 515, 2001 Tenn. LEXIS 658 (Tenn. 2001).

A stop based upon probable cause to believe the traffic code has been violated is constitutionally permissible, regardless of the subjective motivation of the police officer making the stop. State v. Harton, 108 S.W.3d 253, 2002 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. 2002).

Defendant's traffic stop was not based upon reasonable suspicion, as there was no evidence of pronounced weaving or hard swerving. The evidence in the case had to be suppressed, because defendant's consent to search his vehicle was not sufficiently attenuated from his unlawful detention, as the lapse of time between the illegal detention and defendant's consent was negligible; because the officer immediately began questioning defendant after telling him he was free to leave; and because the officer had no reasonable basis to detain defendant once her suspicion that he was intoxicated was quelled two minutes into the traffic stop. State v. Garcia, 123 S.W.3d 335, 2003 Tenn. LEXIS 856 (Tenn. 2003), cert. denied, Tennessee v. Garcia, 541 U.S. 974, 124 S. Ct. 1883, 158 L. Ed. 2d 469, 2004 U.S. LEXIS 2592 (2004).

Where defendant's vehicle was stopped on a street blocking a lane of travel and the engine was idling, the officer was permitted to approach the car as part of his public safety function, and defendant was charged with driving under the influence; the trial court erred by granting his motion to surpress the evidence obtained from the traffic stop. State v. Williams, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. Apr. 5, 2005), rev'd, 185 S.W.3d 311, 2006 Tenn. LEXIS 181 (Tenn. 2006).

Officer did not have reasonable suspicion to stop defendant's vehicle because, prior to pulling over defendant's vehicle, the only communication between the officer and another driver consisted of the driver's flashing lights at the officer and gesturing toward defendant's vehicle; the officer knew nothing about either driver or the nature of the citizen's concern regarding defendant, and without speaking to the unknown citizen, the officer was unable to assess the citizen's reliability or the basis for knowledge of defendant's supposed offense — or if the other driver even knew anything about defendant. State v. Day, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 212 (Tenn. Crim. App. Mar. 7, 2007), aff'd, 263 S.W.3d 891, 2008 Tenn. LEXIS 615 (Tenn. Sept. 22, 2008).

In a possession of controlled substances case where defendants were arrested following a traffic stop for violating the impeding traffic statute, trial court erred by granting defendants' motion to suppress evidence because a driver of a slow-moving automobile impedes traffic when reduced speed interrupts normal and reasonable movement of traffic by blocking or backing up traffic; furthermore, trial court halted the suppression hearing before arresting officer finished testifying and did not consider the state's alternative arguments that officer was justified in stopping defendants' vehicle to ascertain whether the driver was suffering from a medical emergency. State v. Hannah, 259 S.W.3d 716, 2008 Tenn. LEXIS 417 (Tenn. June 23, 2008).

Trooper's pat-down of defendant was reasonable because after lawfully stopping defendant for speeding, the trooper stated that when defendant stepped out of the vehicle, he saw a bulge in defendant's pocket; in order to determine that defendant did not have a weapon, the trooper patted down defendant. State v. Brown, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Mar. 31, 2008), aff'd, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Police officer's warrantless questioning and detention of defendant did not violate Tenn. Const. art. I, § 7 because: (1) Officer's use of blue lights when driving down a highway exit ramp in the wrong direction toward defendant's truck was a proper exercise of his community caretaking function and was not initially directed at any particular individual; and (2) Officer had reasonable suspicion that defendant's truck was the one that a caller had identified as driving recklessly. State v. Hanning, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. Apr. 29, 2008), aff'd, 296 S.W.3d 44, 2009 Tenn. LEXIS 682 (Tenn. Oct. 20, 2009).

Defendant's conviction for driving under the influence was appropriate because his rights under U.S. Const. amend. IV and Tenn. Const. art. I, § 7 were not violated. A citizen's anonymous tip reporting reckless driving indicated a sufficiently high risk of imminent injury or death to members of the public to warrant immediate intervention by law enforcement officials and justified the brief investigatory stop; the report further indicated that the caller was witnessing an ongoing offense and it also provided a detailed description of the truck and its direction of travel and location. State v. Hanning, 296 S.W.3d 44, 2009 Tenn. LEXIS 682 (Tenn. Oct. 20, 2009).

Under T.C.A. § 55-4-110, Tennessee did not require a single vehicle to have a light to illuminate the license plate, and as such, the deputy did not have reasonable suspicion to stop defendant; the record failed to reflect that the officer had reasonable suspicion defendant had committed or was about to commit a crime, and the trial court erred in denying the motion to suppress. State v. Hunt, 302 S.W.3d 859, 2009 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 17, 2009), superseded by statute as stated in, United States v. Melton, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 204080 (E.D. Tenn. Dec. 12, 2017).

Defendant's conviction for driving under the influence, fourth or greater offense, was improper because the officer did not have a reasonable suspicion of criminal activity to justify the seizure. The officer was not performing a community caretaking function because there was no indication that defendant needed assistance, nor was there any other evidence that she needed to activate the lights for safety reasons. State v. Moats, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. Nov. 8, 2011), aff'd, 403 S.W.3d 170, 2013 Tenn. LEXIS 311 (Tenn. Mar. 22, 2013).

Court of criminal appeals erred in affirming an order sustaining defendant's motion to suppress cocaine a police officer observed in his vehicle when he ordered defendant out of the vehicle to sign the citation pursuant to T.C.A. § 55-10-207 because the officer was entitled to remove defendant from the vehicle for a short period of time after making the traffic stop, and The traffic stop had not been completed at the time defendant was asked to step out of his vehicle; an officer, after making a lawful stop for a traffic violation, may routinely direct the driver outside of the vehicle. State v. Donaldson, 380 S.W.3d 86, 2012 Tenn. LEXIS 582 (Tenn. Aug. 24, 2012).

Court of criminal appeals' finding that at the time of the seizure, the officer lacked a reasonable suspicion based upon specific and articulable facts that defendant had either committed a criminal offense or was about to do so was affirmed where the court of criminal appeals considered the totality of the circumstances, reviewed the officer's testimony and observations, and concluded that there existed no reasonable suspicion of illegal activity at the time of the stop. Moreover, the officer was unable to offer specific and articulable facts sufficient to qualify as reasonable suspicion that defendant had committed or was about to commit a criminal offense, and she conceded that she did not see defendant drive the truck, engage in a drug transaction, or otherwise do anything illegal before activating her blue lights and approaching the truck; further, the early morning hour and a general request for officers to be on the lookout for suspected illegal drug activity did not, without more, rise to the level of reasonable suspicion, and an inchoate and unparticularized suspicion or hunch did not meet the standard required for an investigatory stop. State v. Moats, 403 S.W.3d 170, 2013 Tenn. LEXIS 311 (Tenn. Mar. 22, 2013).

Although the activation of blue lights on a police vehicle ordinarily triggered a stop or seizure, thereby implicating constitutional protections, the totality of the circumstances had to be considered to determine whether the police officer was acting within a community caretaking role, which was a concept separate and distinct from the investigation of possible criminal activity. As a general rule, if the activation of blue lights was not used as a show of authority directed at a particular person, the officer was acting within the community caretaking function and need not support his or her actions with reasonable suspicion or probable cause; therefore, because the circumstances demonstrated that the officer was not acting within a community caretaking role and did not have reasonable suspicion or probable cause to seize defendant, the judgment of the court of criminal appeals that defendant was seized without probable cause or reasonable suspicion was affirmed. State v. Moats, 403 S.W.3d 170, 2013 Tenn. LEXIS 311 (Tenn. Mar. 22, 2013).

As officers responding to a dispatch report of domestic violence at a specific location encountered defendant running away from police through brush to the rear of residential homes, and defendant refused to follow police commands, at the very least officers had reasonable suspicion to conduct an investigatory stop. State v. Smith, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Aug. 13, 2014), aff'd in part, rev'd in part, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Fact that the residence from which defendant fled had an extensive history of narcotics and gang activity, the officer had personally witnessed criminal activity at the residence on multiple occasions, and the officer observed several individuals standing on the porch, a known pattern of criminal activity, provided the officer with reasonable suspicion that defendant was engaged in narcotics related criminal activity or was attempting to flee arrest pursuant to a warrant. State v. Nelson, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Aug. 18, 2014), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 65 (Tenn. Jan. 21, 2016).

Evidence did not preponderate against the trial court's ruling that the officer had reasonable suspicion to stop defendant's vehicle based upon the officer's observation of an inoperable headlight and the fact that the headlight was functioning properly approximately two months before the suppression hearing did not render the stop illegal nor did it prove that the headlight was functioning properly on the night in question. State v. Mullican, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Mar. 4, 2015).

In a driving under the influence case, a motion to suppress was improperly granted because the proper inquiry was not whether there was evidence beyond a reasonable doubt that defendant violated the statute relating to driving on roadways with laned traffic, but whether a trooper's observations supported a reasonable suspicion that defendant committed a traffic offense; the video evidence showed defendant touching and crossing the center line. An offensive hand gesture was not a specific and articulable fact upon which reasonable suspicion of any crime could have been based. State v. Aaron, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. July 10, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 164 (Tenn. Feb. 19, 2016).

At the time he initiated the traffic stop, the officer knew that defendant, a known burglar, was identified as a possible suspect for a series of burglaries, the officer had a description of defendant's car and tag number, and the officer clearly had reasonable suspicion to conduct an investigatory stop of defendant's car; contrary to defendant's assertion that he was placed under arrest when the officer asked him to step out of the car, the officer made the request for reasons of officer safety. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Consensual encounter became an investigatory stop when the officer told defendant to turn off the car after observing that the car had been running with both the driver and the passenger slumped over and unconscious, defendant's eyes were bloodshot, the officer had to shake defendant to wake him, and the officer found defendant's speed to be slurred. State v. Gormsen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Oct. 6, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 387 (Tenn. June 23, 2016).

Investigatory stop was justified, because the totality of the circumstances surrounding the traffic stop, including the fact that it was 3:00 a.m., defendant was driving on dry roads, and defendant was driving on a highway with clearly marked lanes, established a reasonable suspicion, supported by specific and articulable facts that defendant violated T.C.A. § 55-8-123(1) when she crossed the fog line and failed to remain entirely within her lane of travel. State v. Smith, 484 S.W.3d 393, 2016 Tenn. LEXIS 92 (Tenn. Feb. 11, 2016).

Trial court did not err in denying defendant's motion to suppress as the information provided by a known citizen informant was sufficient to meet the threshold of specific and articulable facts necessary to establish reasonable suspicion to stop defendant's vehicle because the informant stated that one of his neighbor's drug dealers arrived at her house with his drug pouch in his hand; and the informant described defendant's truck and the license plate number to the dispatcher, and the time that defendant departed from his neighbor's residence. State v. Foster, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 446 (Tenn. June 23, 2016).

In a driving under the influence case, a motion to suppress was improperly granted because there was no violation of the United States and Tennessee Constitutions since an officer had a reasonable suspicion to make an investigatory stop for speeding. The officer testified that he observed the defendant driving at a high rate of speed and about defendant's behavior; moreover, a lay witness was able to estimate speed. State v. Neumann, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. May 4, 2016).

Trial court erred in denying defendant's motion to suppress because there was no probable cause, reasonable suspicion of criminal activity, or consensual encounter as required by the state and federal constitutions where the information provided by an anonymous caller to a police dispatcher was merely a description of a truck and its general location, there were no details showing how the caller knew that the driver was impaired, and the investigating officer's one-minute interaction with defendant prior to seizing her did not remedy the defect where the officer only observed that defendant had “watery eyes” and did not suspect defendant of being impaired when he took her driver's license. State v. Wascher, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 414 (Tenn. Crim. App. June 6, 2016).

Trial court did not err in denying defendant's motion to suppress, because the officer had probable cause for the stop after observing defendant's vehicle crossing the yellow line into the oncoming lane of traffic. State v. Bell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. July 25, 2016).

Evidence of defendant's intoxication was admissible at defendant's trial for driving under the influence because a police officer's warrantless detention of defendant and defendant's vehicle was valid as it was supported by reasonable suspicion that defendant was obstructing a roadway. The officer testified that defendant's vehicle was stopped in the middle of the roadway in the early morning hours, the engine was running, the vehicle's lights were on, a door was open, and somebody other than defendant was standing up outside of the car. State v. Christopher, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 6, 2016).

Trial court erred by finding that the initial encounter between the trooper and defendant was not consensual because the trooper did not block defendant's car or activate his emergency lights and defendant opened her car door to speak with the trooper as he approached. State v. Irwin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. Nov. 8, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 144 (Tenn. Feb. 23, 2017).

Trial court properly denied defendant's motion to suppress as the officers had reasonable suspicion to justify the investigatory stop of defendant because he was in a high-crime area; an officer stated that he saw an individual hand money to defendant and that he saw defendant hand something to the individual; and defendant had told an officer on multiple occasions that he sold drugs, and the officer had arrested people around defendant for drugs; furthermore, the officer had probable cause to arrest defendant because, during that stop, the officer saw baggies containing what appeared to be crack cocaine in defendant's mouth. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Dec. 12, 2017).

Trial court did not err in denying defendant's motion to suppress evidence obtained following a traffic stop because a trooper's investigatory stop of defendant's vehicle was reasonable; the fact that a video did not show that defendant ran a stop sign was not a sufficient basis to discount the trooper's sworn testimony that after reviewing his report and the video, he recalled observing defendant's vehicle fail to come to a stop at the stop sign. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 364 (Tenn. June 6, 2018).

Trial court did not err in granting defendant's motion to suppress the evidence obtained after a trooper's traffic stop of defendant based on defendant's alleged violations of the reckless driving statute, the Due Care law, and the failure to maintain the lane of travel statute because, although the trial court did not explicitly discredit the trooper's testimony, the trial court found that the video recording did not sufficiently corroborate his testimony that defendant swerved in her lane of traffic or crossed over the center dividing line; and, as such, the stop and subsequent seizure of defendant was not supported by reasonable suspicion or probable cause. State v. Gadzo, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. July 19, 2018).

Trial court properly denied defendant's motion to suppress because the first officer had probable cause to justify the traffic stop after the second officer saw that defendant was not wearing a seat belt; the second officer saw defendant making furtive movements in the car; the second officer stated that he had defendant get out of the car primarily as he had been seen going out of the room at a motel room that contained a possible methamphetamine lab and for officer safety; and, immediately upon defendant's exit, the second officer saw the methamphetamine lab in the floorboard of the front passenger's seat. State v. Mathis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 9, 2018).

Investigatory stop of defendant's vehicle did not violate defendant's rights, as the officer had reasonable suspicion that defendant was committing the crime of driving under the influence when he stopper her, based on information given to him from a witness that defendant erratically parked one vehicle, fell multiple times, appeared to have vomited, reentered a different vehicle, and began driving. State v. Van De Gejuchte, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 834 (Tenn. Crim. App. Nov. 9, 2018).

Trial court erred in granting defendant's motion to suppress because the trial court erred in not allowing the State to present its alternative theory that defendant's crossing of the fog line provided probable cause or a reasonable suspicion to justify the traffic stop; and, in doing so, the trial court did not make any factual findings or conclusions of law on that theory, and the parties were prevented from addressing important factual issues regarding that theory, such as whether the officer activated his blue lights before or after observing defendant cross the fog line; thus, the case was remanded for a new suppression hearing. State v. Harrison, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 47 (Tenn. Crim. App. Jan. 23, 2019).

Evidence did not preponderate against the trial court's findings that a police officer had reasonable suspicion that developed during the duration of the traffic stop sufficient to permit the prolonging of the traffic stop to inquire into other matters, specifically whether a passenger in defendant's vehicle had an outstanding warrant for his arrest and later the odor of marijuana. State v. Cole, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. Sept. 6, 2019).

Investigatory detention of defendant was justified because, when police officers arrived at defendant's apartment, they only knew that the one-year-old victim had been badly injured while in defendant's care and had subsequently died. The court therefore did not err in denying defendant's motions to suppress statements which defendant voluntarily made to a police detective during an interview after being taken to a police station because neither the detective, nor any other officer, was coercive or threatening while interacting with defendant. State v. Batiz, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Nov. 1, 2019).

Denial of defendant's motion to suppress video recording of defendant's traffic stop, blood test results, and results of defendant's field sobriety tests was appropriate because there was reasonable suspicion for an officer to conduct an investigatory stop of defendant in that defendant left the scene of a motor vehicle accident when the officer approached and people at the accident scene identified the fleeing car as being involved in the accident. The officer smelled alcohol and defendant performed unsatisfactorily on field sobriety tests. State v. Cameron, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 15, 2020).

Trial court did not err by denying defendant's motion to suppress because the initial stop of defendant's vehicle for a traffic violation was justified, the officer found that defendant did not have a valid driver's license, the officers' asking defendant to step out of the vehicle and frisking defendant was not unreasonable, the amount of time that elapsed from the initial stop to a police drug dog's alert on defendant's car was not unreasonable, and the search of defendant's person when nothing was found in the car was not unreasonable. State v. Carero, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. Feb. 3, 2020).

Officer had reasonable suspicion to conduct an investigation before defendant turned to flee because the sergeant saw defendant at 2:30 a.m. in a high crime area, he saw defendant engaged in a hand-to-hand transaction, defendant turned and shielded his body from the sergeant's view while doing something at his waistband, and when defendant saw the sergeant he turned to flee and fell. Because the investigation showed that defendant was trespassing and possessed crack cocaine, the officers had probable cause to arrest him, and the trial court did not err by denying defendant's motion to suppress. State v. Davis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 20, 2020).

Officer's pacing of defendant's vehicle was sufficient to give him probable cause evidence to stop defendant for speeding because the officer testified that he followed defendant's vehicle at a consistent distance and based on his speedometer, both vehicles were traveling 65 miles per hour in a 55 mile per hour speed zone. The officer stated he was trained in pacing, there was a certification of calibration on his vehicle's dash, and the distance from which he returned to the interstate to where he stopped defendant was approximately two miles. State v. Byrd, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. June 2, 2020).

Officer's activation of his emergency lights constituted a seizure and the officer's observations that the occupants of the van did not appear to have been wearing seat belts was a basis of establishing probable cause or reasonable suspicion to initiate a stop, which was not challenged by second and third defendants and thus, defendants were not entitled to relief from the denial of the motion to suppress. State v. Morales, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Sept. 18, 2020).

Because defendant was prohibited from making a U-turn by municipal ordinance and the ordinance was not in conflict with state law, defendant's violation of that ordinance resulted in a constitutional stop based on the officer's reasonable suspicion that a traffic violation had occurred and the trial court did not err in granting defendant's motion to suppress. State v. Love, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 659 (Tenn. Crim. App. Oct. 8, 2020).

30. —Mandatory Drug Testing.

Even assuming construction contractor employed by government to service nuclear weapons plant was a government actor, such contractor's conducting of random, mandatory drug tests did not constitute unreasonable searches as risks to national security and safety were high, employees were forewarned, and tests were unobserved, confidential and not repeated unnecessarily. Ensor v. Rust Eng'g Co., 704 F. Supp. 808, 1989 U.S. Dist. LEXIS 849 (E.D. Tenn. 1989), aff'd without opinion, Ensor v. Rust Engineering Co., 935 F.2d 269, 1991 U.S. App. LEXIS 18001 (6th Cir. Tenn. 1991).

The state constitutional guarantee of privacy is not a source of public policy which restricts the right of private employers to discharge terminable-at-will employees who test positive on random drug tests. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 1997 Tenn. LEXIS 283 (Tenn. 1997).

Defendant was not entitled in a criminal action to suppress drug screen results from when defendant was ordered by a juvenile court judge in a dependent and neglect proceeding to submit to drug screening because the drug screening ordered by the juvenile court, after a finding of probable cause to believe that defendant's children were dependent and neglected—specifically referring to the methamphetamine usage by the children's parents, qualified for the special needs exception to the warrant requirement. State v. Patterson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 5, 2020).

31. —Premises.

Even though officers were legally on defendant's property to serve civil process, they were not authorized to make a warrantless search of the property and the seizure of marijuana plants as a result of that search was unconstitutional. State v. Harris, 919 S.W.2d 619, 1995 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. 1995).

Defendant had no reasonable expectation of privacy in the house or in the materials because defendant knowingly exposed the illicit materials to anyone entering the house, including city officials who entered the house upon legal process. The viewing of the images on various video items was proper because he abandoned them. State v. Ledford, 438 S.W.3d 543, 2014 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 13, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 372 (Tenn. May 14, 2014).

Tip which initiated the parolee search came from an unidentified informant whose reliability and basis of knowledge was not established, any potential exigent circumstances that prompted the officers to break-in to the home no longer existed once they realized no one was home destroying evidence, and once the house was cleared, the subsequent extensive search without the parolee's presence did not further any legitimate law enforcement concerns, and thus the trial court correctly suppressed the evidence against defendant one as the search was constitutionally unreasonable. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

Suppression of evidence found in a warrantless search of defendants' residence was appropriate because officers' knocking on the front door for minutes while announcing their badge of authority rendered the encounter with one defendant who answered non-consensual and the knock and talk investigation unlawful so that the subsequent warrantless entry of the residence violated the prohibition against unreasonable searches and seizure. The subsequent consent to search was not voluntary and resulted from an exploitation of the prior illegality. State v. Hilliard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 774 (Tenn. Crim. App. Aug. 29, 2017).

31.5. —Parolee.

Because the officer knew about defendant one's parole status and defendant one was aware that he was subject to warrantless and suspicionless searches at any time as a condition of his parole, officers did not err in searching certain areas of his residence; there was no evidence that the search was unreasonable in a constitutional sense, and the trial court erred in suppressing the evidence. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

Even when faced with objections by non-parolees, officers may still enter a residence but may only search the areas that are under the control of the parolee, such as the parolee's bedroom or other areas over which the parolee shares common control or authority; law enforcement officers may not search areas that are under the non-parolee's exclusive control, such as the non-parolee's bedroom, simply because the non-parolee resides with someone on conditional release status. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

Because the parole search of the residence was proper, it was therefore permissible for officers to enter defendant three's bedroom to clear it for officer safety, and having cleared the residence, there was no longer an exigency as it related to defendant three's bedroom; the parole search was valid as it pertained to the common areas of the residence and the bedroom of defendants one and two, but it did not extend to defendant three's private quarters. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

Supreme Court of Tennessee expressly adopts the doctrine of common authority as it applies to parole searches of areas of a residence over which a parolee has common authority; in this case, defendants one and two shared a bedroom in the residence, and by virtue of the doctrine of common authority, officers did not err in searching and seizing all items of contraband found in the shared bedroom, and thus the trial court erred in suppressing the evidence against defendant two. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

32. —Probable Cause.

Even considering a motorist's successful performance on a battery of field sobriety tests, a police officer had probable cause to arrest the motorist, without a warrant, for driving under the influence of an intoxicant because the motorist was driving on the wrong side of a divided highway late at night, smelled of alcohol, and admitted to having imbibed more than he should have. State v. Bell, 429 S.W.3d 524, 2014 Tenn. LEXIS 121 (Tenn. Feb. 20, 2014).

Traffic stop was supported by probable cause because a police officer's observations gave rise to specific, articulable grounds for reasonable suspicion that defendant was driving while under the influence; the officer observed defendant turning slowly and stopping short of a stop sign, which indicated impairment, and he also testified, and the police cruiser video recording reflected, that defendant failed to drive upon the right half of the roadway, which was a traffic violation. State v. Headla, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1061 (Tenn. Crim. App. Dec. 30, 2015).

Officer had probable cause and reasonable suspicion to initiate a traffic stop and search the automobile in which defendant was a passenger because the officer received information from a reliable confidential informant that the driver and another individual were selling drugs in a particular location; the officer observed a vehicle matching the informant's description, and once he stopped the vehicle, he found a substance that appeared to be methamphetamine in the vehicle. State v. Madden, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 429 (Tenn. Crim. App. June 5, 2018).

32.5. —Probationer.

Trial court did not err by denying defendant's motion to suppress because, when defendant signed a probation order, defendant agreed to unconditional warrantless searches of defendant's person, vehicle, and home so that the police only needed to establish reasonable suspicion to justify the searches of defendant's car and bedroom. Moreover, a police officer possessed articulable reasonable suspicion to believe that defendant, who was serving a sentence on probation for methamphetamine-related offenses, was engaged in unlawful drug activity. State v. Summers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Aug. 8, 2017).

Based on defendant's agreeing to abide by the rules of his Behavior Contract Agreement as part of his probation, the police were not required to establish probable cause and obtain a search warrant before searching his residence, and such failure was not a violation of the Fourth Amendment, U.S. Const. art. IV, or Tenn. Const. art. I, § 7. State v. Ward, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Aug. 30, 2018).

33. —Consent.

One accused of illegal possession of whisky does not place himself beyond the guaranty against unlawful search contained in Tenn. Const. art. I, § 7 by voluntarily showing the whisky when confronted by officers with a warrant and told of the purpose to search if the whisky was not shown, the conduct being one of necessity rather than volition. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

For search without warrant to be valid, entry must be without coercion. Simmons v. State, 210 Tenn. 443, 360 S.W.2d 10, 1962 Tenn. LEXIS 305 (1962); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Evidence obtained as result of search and arrest was not incompetent where officers were invited into room by one of the defendants and such defendant voluntarily opened box containing burglary tools at request of one of the officers. Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Defendant who only consented to search of his automobile upon being informed that officers had search warrant did not waive his rights against illegal search, such act being one of necessity rather than volition. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

Persons having equal rights to use and occupation of the premises may consent to a search of them and such search will be binding on the co-occupants. McGee v. State, 2 Tenn. Crim. App. 100, 451 S.W.2d 709, 1969 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. 1969).

Where defendant, a college student who was not formally placed under arrest, voluntarily accompanied officers to his apartment and, after they declined his request to leave the apartment for a few minutes, signed a written consent to search form, the court held he had voluntarily and understandingly waived his constitutional rights against unreasonable search and seizure and could not subsequently object to the use of the fruits of the warrantless search in evidence against him. Nix v. State, 530 S.W.2d 524, 1975 Tenn. Crim. App. LEXIS 279 (Tenn. Crim. App. 1975), cert. denied, Nix v. Tennessee, 423 U.S. 913, 96 S. Ct. 218, 46 L. Ed. 2d 142, 1975 U.S. LEXIS 3052 (1975).

To justify a warrantless search of premises owned or occupied by a citizen as a residence, he must give his consent, or such consent must be given by someone authorized by him, or having a common possessory interest or right, or there must exist a clear right to search under the exigent circumstances exemption. Rippy v. State, 550 S.W.2d 636, 1977 Tenn. LEXIS 536 (Tenn. 1977).

The warrantless search was unconstitutional where the police only had permission to search from the sister of the overseer of the apartment who herself had no possession interest. Rippy v. State, 550 S.W.2d 636, 1977 Tenn. LEXIS 536 (Tenn. 1977).

Search of defendant's car and person, which resulted in the seizure of contraband, was based on the defendant's voluntary consent where the defendant, in response to police questioning, stated, “You can look all you want.” State v. Simpson, 968 S.W.2d 776, 1998 Tenn. LEXIS 71 (Tenn. 1998).

To pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Ashworth, 3 S.W.3d 25, 1999 Tenn. Crim. App. LEXIS 262 (Tenn. Ct. Crim. App. 1999).

When a traffic stop ceases to be a detention and the driver voluntarily consents to additional questioning, no further seizure occurs. Thus, police officer did not continue to detain defendant by merely asking him a question about whether he was transporting contraband. State v. Ashworth, 3 S.W.3d 25, 1999 Tenn. Crim. App. LEXIS 262 (Tenn. Ct. Crim. App. 1999).

The subjective intentions of a police officer that are unknown to the consenting party at the time of consent do not implicate the voluntariness of the consent. State v. McCrary, 45 S.W.3d 36, 2000 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 2000).

Where, after defendant was issued a warning citation for speeding, the defendant consented to an officer's request to search for “any weapons in the vehicle,” the officer's search of the undercarriage and gas tank of the vehicle was unconstitutional because it exceeded the scope of defendant's consent and resulted in prolonged and unreasonable detention. State v. Troxell, 78 S.W.3d 866, 2002 Tenn. LEXIS 264 (Tenn. 2002).

Evidence did not show deaf murder defendant's compliance with officer's request to accompany the officer for questioning, following the officer's illegal entry into defendant's home, was consensual because it was not sufficiently clear that defendant knew of the right to decline the officer's request. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

Defendant's consent to a search of her motel room was voluntary where the officer had probable cause to stop defendant for her failing to use her turn signal, although he determined not to cite her for that infraction, the detention was thereafter justified by the discrepancy in the status of the vehicle license registration, she had a presumptive familiarity with the criminal justice system due to her previous felony conviction, the officer did not draw his weapon, and after she agreed to a search, the officer returned her driver's license and permitted her to drive her own vehicle to the motel. State v. Cox, 171 S.W.3d 174, 2005 Tenn. LEXIS 683 (Tenn. 2005).

In a drug case, a court properly suppressed evidence where, although defendant's consent to search was given voluntarily, the consent was not sufficiently attenuated from the unlawful detention. Although there was no reasonable suspicion that defendant was carrying on any criminal activity other than the speeding offense, the deputy confined defendant in the back of the patrol car, kept defendant's license, and subjected him to several minutes of “fishing-expedition” type questions before seeking consent to search; in addition, the deputy never issued defendant either a warning or citation ticket for speeding. State v. Berrios, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 3, 2006), aff'd, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

Denying defendant's motion to suppress was not error where his initial consent to the search of his person was voluntary, his suspicious movements and behavior during the search provided reasonable suspicion for the searching officer to believe that defendant possessed a weapon, and thus, the search did not violate U.S. Const. amend. IV or Tenn. Const. art. I, § 7. State v. Cuddy, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 940 (Tenn. Crim. App. Nov. 23, 2015).

Trial court did not err by denying defendant's motion to suppress the results of a blood test because defendant knowingly, voluntarily, and intelligently consented to the blood test; a police officer requested that defendant submit to a blood test and did not require her to submit to a blood test, defendant sounded eager to give blood, she arguably asked for a blood alcohol test during the field sobriety tests, and she signed the implied consent form even though she was not under arrest. State v. Riddle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1044 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 322 (Tenn. May 5, 2016).

Trial court did not err by denying defendant's motion to suppress where the evidence did not preponderate against the trial court's finding that defendant consented to the search where the detectives testified that they asked defendant for consent to search twice, first in the school library and again when they and defendant arrived at the home. State v. Hernandez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Sept. 27, 2016).

Defendant's consent for the searches was not physically and psychologically coerced where he acknowledged at the suppression hearing that he consented to both searches and signed both consent to search forms, and the Mississippi officers' promise of leniency had no bearing on the agreement between defendant and the Tennessee officers. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. May 4, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 647 (Tenn. Oct. 4, 2017).

trial court did not err by finding that defendant consented to the search of his truck because he had previously been convicted of possession of marijuana, nothing in the record suggested that the officers pressured or coerced defendant into consenting, and when the officer asked defendant if he would mind if the officer tried to open the locked toolbox with defendant's keys, defendant told the officer to go ahead. State v. Kelley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Aug. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 866 (Tenn. Dec. 6, 2017).

34. — —Third-party Consent.

The consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared; overruling the “angry wife exception” set forth in Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545, 1946 Tenn. LEXIS 273 (1946). State v. Bartram, 925 S.W.2d 227, 1996 Tenn. LEXIS 419 (Tenn. 1996).

Where detectives went to a controlled access condominium building after receiving a tip that defendant was selling drugs from his condominium, he did not have a reasonable expectation in the building's common areas; therefore, his rights under Tenn. Const. art. I, § 7 were not violated when another man exited the building and let the detectives inside. Defendant was not entitled to suppress evidence of drugs or his incriminating statement obtained after a female occupant of defendant's unit gave detectives consent to search where they found drug paraphernalia; the officers found additional admissible evidence of drugs and pornography after they obtained a warrant to search defendant's condominium and his place of business. State v. Talley, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. July 1, 2009), aff'd, 307 S.W.3d 723, 2010 Tenn. LEXIS 147 (Tenn. Mar. 19, 2010).

Access by third parties alone does not necessarily negate a reasonable expectation of privacy in a locked apartment building's common areas. State v. Talley, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. July 1, 2009), aff'd, 307 S.W.3d 723, 2010 Tenn. LEXIS 147 (Tenn. Mar. 19, 2010).

Motion to suppress was properly denied because defendant did not have a reasonable expectation of privacy in the commonly shared, interior hallway of a condominium complex that ran from the front entrance to his unit's doorway and his live-in girlfriend's consent to enter the apartment unit was valid. State v. Talley, 307 S.W.3d 723, 2010 Tenn. LEXIS 147 (Tenn. Mar. 19, 2010), cert. denied, Talley v. Tennessee, 562 U.S. 839, 131 S. Ct. 187, 178 L. Ed. 2d 43, 2010 U.S. LEXIS 5795 (U.S. 2010).

Deputies conducted a valid warrantless search of the home pursuant to valid consent by defendant's relative; although the officers were armed, no firearms were pointed at any of the home's occupants, defendant's use of the bedroom was the result of a familial relationship and all occupants had access to all areas of the home, the relative retained joint access and control of the bedroom in which defendant resided, and defendant's occupancy of the bedroom was not so exclusive as to have deprived the relative of authority to consent to a cursory search of the home. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

Trial court did not err when it found that defendant's mother voluntarily consented to the search of defendant's bedroom, after the officer went over the form in detail with the mother, and that her consent was sufficiently attenuated from defendant's illegal seizure the day before. State v. Bryant, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 22 (Tenn. Jan. 19, 2017).

Only fact presented and relied upon by the State to establish common authority was that defendant three's bedroom door was open, but this alone was not enough to establish that defendants one or two possessed common authority or that searching officers would have reasonably believed that defendant one had authority over defendant three's bedroom, and the motion to suppress was properly granted. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

Trial court properly denied defendant's motion to suppress evidence obtained during the search of an apartment shared by defendant and his girlfriend because after a police officer completed an initial search of the apartment for suspects, the girlfriend had returned home and consented to a subsequent search of the apartment; none of the evidence used to convict defendant was seized until after the girlfriend consented to a warrantless search of the apartment she shared with defendant. State v. Reed, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 129 (Tenn. Crim. App. Feb. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 460 (Tenn. July 18, 2018).

35. —Incident to Lawful Arrest.

Where defendants were arrested by officers during flight after commission of grand larceny and one of defendants attempted to dispose of claim check for automobile in parking lot, search of the automobile was not an unreasonable search. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 1956 Tenn. LEXIS 326 (1956); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

If search is not incidental to arrest, then the search is illegal. Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925, 1963 Tenn. LEXIS 353 (1963); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where persons were arrested for disorderly conduct and while in custody, the officers having received information of a robbery, and without obtaining a search warrant, searched their automobile and their motel room where they found evidence connecting them with the robbery, the search was illegal. Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925, 1963 Tenn. LEXIS 353 (1963); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where officer properly made arrest of persons suspected of burglary of telephone booths without warrants upon reasonable cause of belief of commission of felony by such persons but search of automobile of one of such persons was not made until two hours later such search was not incident to the arrest. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

If one is lawfully arrested he may be searched on his person or premises provided that such search is incidental to his arrest. West v. State, 221 Tenn. 178, 425 S.W.2d 602, 1968 Tenn. LEXIS 517 (1968).

Where defendant was arrested outside his motel room, a routine search, without a warrant, through closed and concealed areas of the room was unreasonable. Taylor v. State, 551 S.W.2d 331, 1976 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1976).

The warrantless seizure of an individual's clothing may be considered as a reasonable, hence constitutional, search when made while he is in custody following his arrest. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

The U.S. Const. amend. 4 and Tenn. Const. art. I, § 7 strictly limit search without a warrant incident to lawful arrest to search of the body of the person being arrested and the area within his immediate control. State v. Harrison, 756 S.W.2d 716, 1988 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1988).

The area within which the arrestee might gain possession of a weapon or destructible evidence, the “grab area,” which may be searched without a search warrant incident to a lawful arrest, does not extend to closed or concealed areas of the room in which the arrest is made. State v. Harrison, 756 S.W.2d 716, 1988 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1988).

When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. State v. Watkins, 827 S.W.2d 293, 1992 Tenn. LEXIS 223 (Tenn. 1992).

A police officer may conduct a search of the passenger compartment of an automobile incident to an arrest even when the arrested person is neutralized in the back seat of a squad car. State v. Watkins, 827 S.W.2d 293, 1992 Tenn. LEXIS 223 (Tenn. 1992).

Stereo equalizer and marijuana were discovered by police officers, in the passenger compartment of the car defendant had been driving, in the course of conducting a valid search incident to the defendant's lawful arrest; and the fact that one of the officers said that he and his partner began “inventorying” the defendant's vehicle after his arrest, did not invalidate the search. State v. Watkins, 827 S.W.2d 293, 1992 Tenn. LEXIS 223 (Tenn. 1992).

Warrantless search of a wrecked motorcycle by police after the driver was taken away by ambulance was not a search incident to arrest, even though the police intended to and had probable cause to arrest the defendant at the scene of the accident, because the police did not arrest the defendant due to his injuries, told the defendant he was being taken for medical treatment, and did not take him into custody until he was released from the medical center. State v. Crutcher, 989 S.W.2d 295, 1999 Tenn. LEXIS 228 (Tenn. 1999).

Trial court erred in suppressing evidence found during a frisk of defendant pursuant to U.S. Const. amend. IV and Tenn. Const. art. I, § 7, because the search was a valid search incident to a lawful arrest. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Where drug sniffing dog reacted to the passenger side of defendant's vehicle, the presence of a passenger where the dog reacted created an equipoise: Had the contraband been placed in defendant driver's vehicle — and thus probably possessed by defendant — or possessed by the passenger without the defendant's knowledge? Under the unique facts of the case, the dog's reaction did not result in probable cause to arrest defendant. State v. Harris, 280 S.W.3d 832, 2008 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 6, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 629 (Tenn. Aug. 25, 2008).

Because the warrantless search of defendant's person by a police officer was justified under the search incident to arrest and the inventory search of all personal effects in an arrestee's possession exceptions to the warrant requirement, the officer's warrantless search of defendant and the seizure of the jewelry were valid. State v. Morris, 469 S.W.3d 577, 2014 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. May 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 838 (Tenn. Oct. 15, 2014).

Trial court erred in denying defendant's motion to suppress the marijuana found in defendant's pocket during a search incident to defendant's arrest for public intoxication because the officers lacked probable cause to arrest defendant for public intoxication. State v. Pippen, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 57 (Tenn. Crim. App. Jan. 28, 2016).

Trial court properly denied defendant's motion to suppress as defendant was searched incident to his arrest because, after the vehicle defendant was riding in was stopped on the basis of a traffic violation, defendant complied with the officers' request that he exit the vehicle; one of the officers then asked defendant if he had anything on his person, and defendant admitted that he possessed marijuana and was arrested; defendant was searched in conjunction with his arrest; and the search resulted in the discovery of the marijuana, heroin, and currency used in a drug transaction. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 30, 2018).

Defendant's motion to suppress the evidence obtained from a warrantless search of his motel room was properly denied because, even if defendant did not consent to the search, the officers had a right to search the room incident to his arrest as the officers identified defendant as the person on the Michigan arrest warrant and arrested him; as a precautionary measure, the officers performed a sweep of the room to ensure their safety; and, during that sweep, an officer saw a clear plastic bag on the table that appeared to be for packaging drugs and found a black bag that contained heroin, pills, plastic bags, and a money transfer receipt with defendant's name. State v. Savage, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Sept. 19, 2019).

Defendant's truck was properly searched incident to his arrest for possession of illegal drug paraphernalia because the methamphetamine pipe in defendant's pocket gave the agent an independent basis on which to arrest him, and defendant's standing in the open truck door, when combined with the pipe and the officers' collective knowledge of defendant's history of selling methamphetamine, was sufficient to create a reasonable belief that further evidence relevant to the crime might be found inside the truck. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 646 (Tenn. Crim. App. Oct. 11, 2019).

36. — Sobriety Checkpoints.

Notice of the sobriety checkpoint was in compliance with Tennessee Highway Patrol General Order 410-1, as notice was provided to local news outlets 17 days prior to the date of the roadblock; defendant pointed to no authority requiring that notice of the roadblock include a specific date, and the proof supported a determination that the sobriety checkpoint in this case was conducted with appropriate supervisory authority and that individual officer discretion in the field was extremely limited, and thus the sobriety checkpoint was constitutional. State v. Mitchell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. Dec. 3, 2015).

Although the checkpoint related to the State's interest in detecting impaired drivers, it violated the Fourth Amendment and Tenn. Const. art. I, § 7, because of the lack of advance notice of the checkpoint to the public, the officers' exercise of substantial discretion at the scene in determining which vehicles to stop, and the substantial deviations from the order, which required every car be stopped, severely interfered with defendant's privacy and liberty. State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 640 (Tenn. Crim. App. Aug. 21, 2018).

37. —Plain View.

Evidence obtained by officers while they were in lane extending over defendant's land, and used by defendant and others in getting to and from public road, was not obtained as result of a trespass upon private property. Cope v. State, 157 Tenn. 199, 7 S.W.2d 805, 1928 Tenn. LEXIS 189 (1928).

Where rifle used in armed robbery was plainly visible when officers walked up to defendant's automobile, seizure of rifle without search warrant did not amount to unlawful search and seizure and rifle was admissible in evidence against defendant. Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 1968 Tenn. LEXIS 512 (1968).

Obtaining evidence by means of the eye where no trespass has been committed in aid thereof does not constitute an unlawful search. Chadwick v. State, 1 Tenn. Crim. App. 72, 429 S.W.2d 135, 1968 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. 1968).

Where police observed defendant's activities relating to the cultivation of marihuana, from within the boundaries of defendant's farm without a warrant, they violated his right of privacy, despite the fact that the marihuana was growing in the open fields. State v. Wert, 550 S.W.2d 1, 1977 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. 1977).

Where a police officer was summoned after an airline agent had searched a package and discovered contraband, the fact that the contraband was in plain view when the officer arrived removed the officer from participation in the search, and his subsequent seizure of some of the contraband was not in violation of the search and seizure provisions of the constitution. State v. Johnson, 569 S.W.2d 808, 1978 Tenn. LEXIS 630 (Tenn. 1978).

The formula used by the Tennessee courts with regard to plain view searches is that: (1) The object must be in “plain view”; (2) The viewer must have the right to be in position for the view; (3) The seized object must be discovered inadvertently; and (4) The incriminating nature of the object must be apparent on its face. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

When law enforcement officers are in a place where they have a right to be and as a result thereof observe criminal activity, clearly recognizable as such, on the property of a defendant, the “open view” exception to the warrant requirement arises. State v. Layne, 623 S.W.2d 629, 1981 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1981), overruled, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984), overruled on other grounds, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984).

No warrant is necessary to enter upon open farmland where officers have lawfully observed contraband growing thereon, either from an aerial overflight or from lawful ground observation. State v. Jennette, 706 S.W.2d 614, 1986 Tenn. LEXIS 824 (Tenn. 1986).

An officer was entitled to make the seizure of a knife that was plainly in view as it lay on the driver's side of the backseat floorboard when the officer had a legitimate reason for opening the car door, as a safety measure to watch two occupants make their exit. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

Trial court erred in suppressing evidence seized inside a residence under U.S. Const. amend. IV and Tenn. Const. art. I, § 7, because the items were properly seized under the plain view doctrine; even if the items were not in plain view and thus not properly seized under the plain view doctrine, the items would have inevitably been discovered during the officer's consensual search of the residence. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Defendant's motion to suppress was properly denied as evidence other than the active methamphetamine lab was properly seized because the majority of the seized evidence was in plain view; and the seizure of inactive labs concealed in a freezer, which were not in plain view, was proper based on exigent circumstances and the necessity of finding any and all active labs, and based on defendant particularly mentioning the freezer. State v. Christensen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 14, 2015), aff'd, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017).

Officers' warrantless search of defendant's home did not violate his rights because the officer's initial entry was justified by exigent circumstances, as upon his arrival he was met by three extremely agitated men who yelled that the suspect was inside, and evidence in plain view in the home could be examined and seized without a warrant. State v. Hutchinson, 482 S.W.3d 893, 2016 Tenn. LEXIS 83 (Tenn. Feb. 5, 2016).

Defendant's wounds from his attempted suicide was sufficient to create exigent circumstances justifying the officers' warrantless entry into his apartment for the limited purpose of securing the scene and rendering aid, and the officers found an apparent suicide note and photo of the victim in defendant's lap when then entered the apartment in plain view. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 775 (Tenn. Nov. 16, 2017).

Knife was properly seized from defendant's vehicle under the plain view doctrine, as the officer discovered the knife after he arrested defendant pursuant to a warrant and returned to defendant's vehicle to secure it, finding the knife and other items on the driver's seat. State v. Stanley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 207 (Tenn. Crim. App. Mar. 20, 2018).

Trial court did not err by denying defendant's motion to suppress because based on the arrest warrant, the presence of specific color and model of a vehicle defendant was known to drive, and a tip indicating the specific motel room in which defendant was staying, the officers had the authority to enter the motel room, and once defendant opened the door and an officer recognized him to be the subject of the arrest warrant, the officers were justified in entering the room to apprehend him. The officers were therefore legally in the room when they saw in plain view a plate and razor blade with a white powdery substance. State v. Brandon, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 31, 2020).

38. —Detention.

Evidence obtained following a traffic stop of the vehicle in which defendant was a passenger was admissible because defendant's detention, after the driver fled, was lawful based on the police officer's reasonable suspicion that defendant, whom the officer knew had been involved in the production of methamphetamine with the driver, was involved in criminal activity. State v. Bryant, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 5, 2016).

Evidence preponderated against the trial court's finding that the encounter was consensual, and it established that defendant was seized without a warrant, when he gave a statement, as defendant was taken to the police station by officers, placed in an interview room that was locked from the outside, and questioned about the victim's homicide. State v. Hawkins, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017).

39. —Civil Investigative Demands.

The compulsory taking of testimony and production of documents under the civil investigative demand statutes, title 8, ch. 6, part 4, is not violative of Tenn. Const. art. I, § 7 or U.S. Const. amend. 4, because they do not authorize an immediate intrusion into a protected zone of privacy, but rather authorize the taking of testimony and production of documents at a time subsequent to service of the demand with provision for a judicial determination of the reasonableness of the subpoena demand prior to enforcement of the demand by compulsory compliance or sanctions. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

Tennessee Const. art. I, § 7 as well as due process requirements will deter unreasonable civil investigative demands or subpoenas from being arbitrarily issued by the executive department. State, Dep't of Revenue v. Moore, 722 S.W.2d 367, 1986 Tenn. LEXIS 846 (Tenn. 1986).

39.5 —Reasonable suspicion.

Officers had reasonable suspicion to justify seizing defendant based on their observation of an associate of defendant purchasing a substance used to cut cocaine, personal knowledge of defendant's prior drug charges, and their observation of defendant engaging in what they believed to be several hand-to-hand drug transactions. State v. Hogan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 67 (Tenn. Crim. App. Feb. 1, 2019).

Sergeant had reasonable suspicion that defendant had violated the statute, as he saw defendant straddle the fog line and veer off the roadway without any observable justification, all nine of the passenger-side tires were on the rumble strips, and defendant was driving at night when fatigue was an issue; the sergeant was justified in stopping defendant to investigate the reason for his lane departure. State v. Hampton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 12, 2019).

Trial court erred by granting defendant's motion to suppress because defendant's seizure was supported by reasonable suspicion, as the informant was a known, citizen informant and the information he provided to police via the 9-1-1 dispatcher could be presumed reliable and the officer corroborated the information provided by the tip. Within one minute of receiving the information about the possibility of a female DUI driver, the officer located the potential vehicle and he confirmed his findings with dispatch. State v. Moore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 574 (Tenn. Crim. App. Aug. 25, 2020).

40. Warrantless Arrest.

The constitutional validity of the search and seizure is wholly dependent upon the legality of the warrantless arrest, which, in turn, must be bottomed upon probable cause. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

In a driving under the influence case, a court erred by failing to suspend defendant's license under the implied consent law, because he was under arrest when he was read the implied consent form; the officers entered defendant's hospital room, both armed and in uniform, they stood between defendant's bed and the door, and although the officers did not take defendant to a detention facility, that fact was not sufficiently significant. State v. Nidiffer, 173 S.W.3d 62, 2004 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 239 (Tenn. Mar. 7, 2005).

In a driving under the influence case, a court erred by failing to suspend defendant's license under the implied consent law because the evidence indicated he was under arrest when he was read the implied consent form; the officers entered defendant's hospital room armed and in uniform, stood between defendant's bed and the door, and the fact that the officers did not take defendant to a detention facility was not sufficiently significant to refute the fact that defendant was under arrest when read the implied consent form. State v. Nidiffer, 173 S.W.3d 62, 2004 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 239 (Tenn. Mar. 7, 2005).

Petitioner failed to present facts establishing that he did not come to the door voluntarily and that he had an expectation of privacy where he was arrested; rather, the police officers arrested petitioner in a public place, and no warrant was required. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

41. —Probable Cause.

Where incriminating evidence was in plain view in the automobile in which defendant was a passenger, and defendant fit the specific description of the robber, there was probable cause to arrest defendant. State v. Goad, 549 S.W.2d 377, 1977 Tenn. LEXIS 598 (Tenn. 1977).

An arrest of a suspect for robbery with a deadly weapon was based upon probable cause where the officer knew defendant before the holdup by seeing him on the streets, received a description of the suspect as having small, slanted, oriental type eyes, and saw the defendant two days later recalling the unusual eyes. Chapple v. State, 528 S.W.2d 62, 1975 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1975).

The determination of whether probable cause to arrest exists depends upon whether at that moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Police officer's placement of defendant in a patrol car after defendant's wife was found beaten to death in their bedroom constituted an illegal seizure because, although the officer testified that defendant was not under arrest and was placed in the patrol car for his safety because of the large number of people that had gathered at the scene, defendant was frisked, read his Miranda rights, and placed into the rear of the patrol car, the doors of which could only be opened from the outside. State v. Brock, 327 S.W.3d 645, 2009 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. June 29, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 56 (Tenn. Jan. 25, 2010), cert. denied, Brock v. Tennessee, , 562 U.S. 850, 131 S. Ct. 101, 178 L. Ed. 2d 64, 2010 U.S. LEXIS 5883 (U.S. 2010).

As the trial court, which viewed a videotape of a traffic stop, found that defendant passed all six field sobriety tests the officer administered, it did not err in finding that the officer lacked probable cause to arrest defendant for driving under the influence (T.C.A. § 55-10-401) and properly suppressed the evidence obtained after the arrest. State v. Bell, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Aug. 31, 2012), rehearing denied, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Oct. 10, 2012), rev'd, 429 S.W.3d 524, 2014 Tenn. LEXIS 121 (Tenn. Feb. 20, 2014).

Citizen informant's description of defendant and of his statement that he shot someone at the parking lot where the victim was killed was sufficient to provide probable cause to arrest him; therefore, the post-arrest statements he made after waiving his Miranda rights were properly admitted at trial. State v. Echols, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Police officers had probable cause to arrest defendant because the officers had sufficient independent information to corroborate codefendant's statement implicating codefendant and defendant in the shooting of the victim. The testimony at the suppression hearing of the case coordinator for the police department confirmed that the police knew all the facts, except the identity of the accomplice, when codefendant gave a statement and codefendant's identification of defendant as the accomplice was suitably credible to endow the police with probable cause to arrest defendant. State v. Bishop, 431 S.W.3d 22, 2014 Tenn. LEXIS 189 (Tenn. Mar. 6, 2014), cert. denied, Bishop v. Tennessee, 190 L. Ed. 2d 92, 135 S. Ct. 120, — U.S. —, 2014 U.S. LEXIS 6666 (U.S. 2014).

Defendant's warrantless arrest was supported by probable cause because at the time of defendant's arrest, the police knew that a citizen informant, who was also an eyewitness to and victim of the crime, as well as a nephew of defendant, had identified defendant as the perpetrator of the homicides and assaults; the murders and assaults were accomplished with weapons found inside the home; and defendant, a close relative of three of the six murder victims and three of the assault victims, had spent time in the home and was familiar with it. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Officer had probable cause to arrest defendant because he smelled a strong odor of intoxicant almost immediately upon talking to defendant, defendant's eyes were glassy and blood-shot, and his speech was slurred and almost unintelligible. State v. Puckett, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1050 (Tenn. Crim. App. Nov. 20, 2014).

Police officer validly arrested defendant for criminal trespass because an exception to the cite and release statute applied, as a reasonable likelihood existed that the offense by defendant would have continued or resumed, with the result that the arresting officer was authorized to arrest defendant for the misdemeanor committed in the officer's presence. State v. Hardin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. June 12, 2015), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 850 (Tenn. Oct. 15, 2015).

Officer was authorized to arrest defendant for noted traffic violations and for driving under the influence, as he saw defendant's vehicle stray from its lane and his eyes were bloodshot and he smelled of alcohol; the officer had probable cause to believe that defendant had been driving under the influence while the officer had observed defendant in one city, and thus the officer was authorized to arrest defendant in another city, and the officer's subjective belief that he was acting as a police officer in one city rather than as a private citizen was immaterial. State v. Wilburn, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Aug. 21, 2015).

Upon investigating papers defendant had abandoned, the officer found them to contain a list of addresses and notes as to whether each address had cars in the driveway, newspapers piled by the door or mailbox, and packages at the door, and dispatch informed the officer that two of the addresses on the list had been burglarized, and thus the officer had probable cause to arrest defendant for burglary. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Police department regularly employed a method of investigatory detentions that was unconstitutional, unless the detention was otherwise supported by probable cause, but it mattered not whether the arresting officers themselves believed that probable cause existed, as the record supported the determined that when defendant was arrested on a 48-hour investigative hold, there existed probable cause to arrest him. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Defendant was not entitled to plain error relief on his claim that his arrest was not supported by probable cause where the record showed that two eyewitnesses described defendant's erratic driving behavior, they told the officers they believed he was intoxicated, an officer observed that defendant appeared to be under the influence because he smelled of alcohol, his speech was slurred, his eyes were bloodshot and watery, and he was unsteady on his feet, and he admitted he was driving his truck at the time of the incident and he had consumed alcohol earlier in the day. State v. Wells, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 919 (Tenn. Crim. App. Nov. 16, 2015).

Trial court erred by granting defendant's motion to suppress because the officer had probable cause to arrest him without a warrant for operating a motor vehicle while under the influence of an intoxicant, even though defendant performed all field sobriety tests successfully. The record indicated that the officer observed defendant's vehicle speeding, when he approached defendant he smelled alcohol, he had bloodshot and watery eyes, and he told the officer he had consumed three beers. State v. Silva, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Mar. 3, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 481 (Tenn. June 23, 2016).Record supported the determination that the sergeant had probable cause to arrest defendant without a warrant and that delays in the interview process were insufficient to overcome the defendant's will; there was no evidence that the defendant's statement was the fruit of an illegal arrest or was not voluntarily and knowingly made, defendant's claim of a violation of his constitutional rights was rejected, and the trial court properly denied defendant's motion to suppress his statement to police. State v. Thomas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 16, 2016).

Law enforcement had probable cause to arrest defendant, and therefore the trial court did not err by denying his motion to suppress, where the cocaine was discovered next to the center console of the vehicle that the driver and passenger shared, the cocaine appeared to be packaged for individual resale, neither occupant claimed ownership of the drugs, and law enforcement could have inferred that defendant was engaged in a common criminal enterprise with the driver and that he and the driver jointly possessed the drugs. State v. Alderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Sept. 29, 2016).

Because probable cause existed for defendant's arrest, the trial court's grant of the motion to suppress was reversed; the confidential informant (CI) had a basis of knowledge, and the independent observations of the investigator, coupled with the information supplied by the CI, gave probable cause for the arrest. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2017).

Officer had probable cause to arrest defendant without a warrant, and the stolen televisions were lawfully recovered in a search incident to arrest, because the officer was aware of the burglary of the victim's vehicle in which the victim saw defendant retrieve his stolen property from nearby bushes, the victim saw defendant's vehicle and noted its license plate, prior to pulling defendant over the officer confirmed that the vehicle defendant was driving was the same as the one observed by the victim, and the officer saw defendant covering up what appeared to be televisions in the backseat of the vehicle. State v. Rembert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 16, 2018).

Police had probable cause to arrest to defendant at the scene of the shooting because after the shooting he returned to the scene and attempt to reenter the crime scene, he left after a confrontation with an officer but returned later, he was identified as the shooter by witnesses who provided his photograph to the police, and there were shotgun shells inside defendant's girlfriend's vehicle. State v. Watison, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. Aug. 30, 2019).

42. —Informants.

The critical issues of the existence of an informer, the extent of the information he furnished the police officer, the credibility of the informer, and the good faith of the police officer go to the heart of the probable cause issue and, therefore, bear directly upon the legality of the arrest and the constitutionality of the searches and seizures. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Defendant was arrested without probable cause, the resulting searches and seizures were constitutionally infirm under U.S. Const. amends. 4 and 14 and under Tenn. Const. art. I, §§ 7 and 8, where there was no proof in the record of the reliability of the informant or the credibility of his information. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

To justify a warrantless arrest based upon the testimony of an informant, he must be reliable and his information must be credible. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Information within police officers' knowledge at time of anonymous informant's telephone call, and later obtained in their investigation of drug sales, provided sufficient corroboration of informant's veracity to give officers probable cause to make warrantless arrest of defendant and seize and search pill bottle found in defendant's pocket. State v. Marshall, 870 S.W.2d 532, 1993 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 29, 1993). But see State v. Smith, 996 S.W.2d 845, 1999 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. 1999).

43. —Detentions.

Although defendants were arrested illegally and subjected to lengthy and illegal incarceration, the casual and spontaneous circumstances under which the defendants made self-incriminating responses to the police officers purge the taint of the illegal arrests and detention. State v. Chandler, 547 S.W.2d 918, 1977 Tenn. LEXIS 571 (Tenn. 1977).

Where the detective had a specific description of the robber which fit defendant, there was sufficient information to stop the car in which defendant was known to be a passenger in order to detain defendant briefly as part of the routine police investigation of the robbery. State v. Goad, 549 S.W.2d 377, 1977 Tenn. LEXIS 598 (Tenn. 1977).

Where the initial intrusion, by a second officer coming to the assistance of the first officer, upon the liberty of this defendant, was based upon the objective fact of the first officer's request for assistance, and that request was based upon a reliable mechanical device and his own experience as he chased the defendant's car at high speeds, the second officer's reliance on the broadcast over official radio frequencies was reasonable. State v. Bryant, 678 S.W.2d 480, 1984 Tenn. Crim. App. LEXIS 2528 (Tenn. Crim. App. 1984).

An officer can conduct investigatory stops of vehicles and order a suspect from a car after a lawful detention. The detention, in these instances, must be brief absent the discovery of any offense within the scope of the limited search. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

If an officer smells alcohol on a defendant and subjects him, as the driver of the vehicle, to a field sobriety test, the fact that the defendant is able to pass the field test and does not appear to be intoxicated does not render the detention unlawful. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

44. Standing.

When neither the area searched nor the articles found were the property of the defendant, nor in his possession, he lacks standing to challenge the validity of a search conducted on the premises. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

Abandonment of premises by tenant, by itself, would not cause tenant's privacy interest to shift automatically to owner like some reversionary property interest for purposes of challenging warrantless searches of the building. State v. Smith, 656 S.W.2d 882, 1983 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1983).

Merely being the owner of the property and maintaining an active effort to collect insurance proceeds on account of the fire did not create a reasonable expectation of privacy in the house for purposes of challenging a warrantless search. State v. Smith, 656 S.W.2d 882, 1983 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1983).

Where the police conduct a warrantless search, the burden is upon the public prosecutor, to show the circumstances met the fourth amendment proscription against unreasonable searches and seizures. Until that has been accomplished to the satisfaction of the hearing judge, the defendant is not required to establish he has standing to object to the search. State v. Harmon, 775 S.W.2d 583, 1989 Tenn. LEXIS 345 (Tenn. 1989), rehearing denied, 775 S.W.2d 583, 1989 Tenn. LEXIS 410 (Tenn. 1989), cert. denied, Harmon v. Tennessee, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed. 2d 1043, 1990 U.S. LEXIS 981 (1990).

Seven factors applicable to the standing inquiry: (1) Property ownership; (2) Defendant's possessory interest in the thing seized; (3) Defendant's possessory interest in the place searched; (4) His right to exclude others from that place; (5) His expectation that the place would remain free from governmental invasion; (6) His precautions to maintain his privacy; and (7) Whether he was legitimately on the premises. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

One who challenges the reasonableness of a search or seizure has the initial burden of establishing a legitimate expectation of privacy in the place where property is searched. One may have a legitimate expectation of privacy even if the property belonged to another. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

Because defendants did not have a reasonable expectation of privacy in a vehicle that was searched, defendants lacked standing the challenge the search under U.S. Const. amend. 4 and Tenn. Const. art. I, § 7. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Defendant maintained a reasonable expectation of privacy in a residence at the time of a search and thus had standing to challenge the search warrant, as nothing in the record evinced defendant's intent to abandon the residence at the time a warrant was executed; although not present inside the residence at the time of the search, he had been away for less than 48 hours when the search warrant was executed, and his property was still located in the residence at the time of the search. State v. Davidson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 10, 2015), aff'd, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016).

In a case in which defendant reserved two certified questions of law with regard to the trial court's denial of his motion to suppress evidence obtained during a warrantless search of a residence, defendant was without standing to complain about the search because, when defendant spoke to a detective, he replied he could not give permission to search as it was not his residence; by disclaiming his interest in the residence, defendant effectively gave the authorities the green light to proceed insofar as his own Fourth Amendment rights were concerned; and the fact that the detective initially chose to conduct a knock and talk at the residence did not negate defendant's subsequent disclaimer of his interest in the property. State v. Sutton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 421 (Tenn. Crim. App. May 19, 2017).Defendant lacked standing to challenge the journal's entry, given that he did not own the journal seized, he did not have a possessory interest in the journal, he had no possessory interest in the place searched, he had taken no precautions to maintain his privacy at that place, and he was not even on the premises at the time the journal was taken. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

45. Exigent Circumstances.

Undisputed facts clearly established exigent circumstances justifying officers' warrantless entry into defendants' hotel room where officers knew that an actively operating methamphetamine lab posed a serious danger to the persons in the room and to all persons in the immediate vicinity; distinct odor surrounding the room, intensity and strength of the odor, fumes emanating from the room, and effects of the fumes of the inhabitants of the next room proved the officers with enough facts to believe that defendants were manufacturing methamphetamine. State v. Meeks, 262 S.W.3d 710, 2008 Tenn. LEXIS 575 (Tenn. Sept. 2, 2008).

In a case where police arrived on the scene of a three-car accident to find defendant lying under a tree, the state trooper had probable cause to suspect that the defendant caused the accident while under the influence of alcohol; exigent circumstances existed which precluded the police from obtaining a warrant before taking a sample of defendant's blood because a magistrate was not available in the evening and police needed to obtain a blood sample from the defendant before the alcohol metabolized, and thus defendant's rights under Tenn. Const. art. I, § 7 were not violated by the warrantless blood draw. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Police officers' entry into a murder victim's home was an exigent circumstance because the victim's father telephoned the 911 operator to summon help to the victim's home. When defendant admitted that his killed his wife in the home, his father-in-law's 911 call gave the officers a reasonable belief that a person inside the home was in need of immediate aid; subsequent entries by additional law enforcement personnel were lawful because they were closely connected in time to the initial entry. State v. Brock, 327 S.W.3d 645, 2009 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. June 29, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 56 (Tenn. Jan. 25, 2010), cert. denied, Brock v. Tennessee, , 562 U.S. 850, 131 S. Ct. 101, 178 L. Ed. 2d 64, 2010 U.S. LEXIS 5883 (U.S. 2010).

Although defendant was correct that the police, due to their surveillance dispositions, did not witness any suspect fleeing or destroying evidence, they had, only minutes before the search, intercepted a compelling telephone call between defendant and another individual who advised defendant that his visitors should jump the fence and keep on going; this comment justifiably caused an officer's concern that the suspects would flee and, because it indicated that the suspects had a reason to flee, tended to establish the presence of a drug shipment that might be destroyed. Further, the task force did not create the exigency. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

While the trial court allowed the state to present an offer of proof with regard to probable cause and exigent circumstances, pursuant to U.S. Const. amend. IV and Tenn. Const. art. I, § 7, it should have considered the state's alternative theory to determine if a search was a valid as a warrantless search. State v. Alberts, 354 S.W.3d 320, 2011 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. June 21, 2011).

Because the officer did not smell the methamphetamine until he had already entered the curtilage and walked onto the rear deck of the residence, the officer created the exigency and such was not a basis for a warrantless search State v. Womack, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 5, 2014), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 363 (Tenn. Apr. 21, 2015).

Defendant's motion to suppress was properly denied because exigent circumstances justified the warrantless entry into defendant's residence as the investigators smelled methamphetamine as they approached the residence, and they testified about the dangers of unattended active labs. State v. Christensen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 14, 2015), aff'd, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017).

Evidence did not preponderate against the finding that the agent smelled the odor of methamphetamine emanating from defendant's residence, the agent had significant experience in the area of hazardous materials including methamphetamine, and the number of residences close to defendant's gave the agent additional cause to quickly dismantle the methamphetamine lab; the trial court did not err in finding that the agent had probable cause to enter the residence without a search warrant pursuant to the exigent circumstances exception. State v. Meadows, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 211 (Tenn. Mar. 22, 2016).

Trial court did not err by denying defendant's motion to suppress evidence seized after the officer seized defendant because the officer's actions were justified under the community caretaking doctrine, given that defendant was asleep in the running vehicle. State v. Conkin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Sept. 7, 2016).

Exclusionary rule did not require suppression of evidence derived from testing of defendant's blood following a traffic stop because, although defendant did not actually or impliedly consent to the blood draw as police officers informed defendant that officers would hold defendant down and take a blood sample by force if defendant refused to consent, the officers obtained a blood sample without a warrant in objectively reasonable good-faith reliance on binding precedent at the time of blood alcohol dissipation being an exigent circumstance. State v. Carter, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. Apr. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 871 (Tenn. Dec. 6, 2017).

Defendant's wounds from his attempted suicide was sufficient to create exigent circumstances justifying the officers' warrantless entry into his apartment for the limited purpose of securing the scene and rendering aid; defendant did not specify what items of evidence he challenged, and the issue was waived under T.R.A.P. 36, plus items found were clearly in plain view when the officers entered and thus were within the scope of the exigent circumstances search. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 368 (Tenn. Crim. App. May 11, 2017).

Although probable cause supported a search of defendant during a traffic stop when the credited testimony of police investigators reflected that they smelled marijuana coming from defendant, defendant was entitled to suppress the marijuana found upon defendant's person in a warrantless search because the State of Tennessee failed to prove the existence of exigent circumstances as the risk of defendant escaping or destroying evidence before a warrant could have been obtained was very low, if not non-existent. State v. Morgan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. July 25, 2019).

46. Extent of Officers' Authority.

When there is an intent to make a search and a seizure, no officer may, under the provisions of Tenn. Const. art. I, § 7, make any search of the person or effects or properties of a citizen except a search of the persons following a lawful arrest, unless he have a valid search warrant. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

Officers of highway patrol are authorized to require drivers to exhibit their licenses, but such authority cannot be used merely as a pretext in order to spy on contents of car. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

Courts have recognized three types of police-citizen interactions: (1) A full scale arrest which must be supported by probable cause; (2) A brief investigatory detention which must be supported by reasonable suspicion; and (3) Brief police-citizen encounters which require no objective justification. State v. Daniel, 12 S.W.3d 420, 2000 Tenn. LEXIS 52 (Tenn. 2000).

Officer's warrantless entry into the home of a deaf suspect, who was asleep, awakening the suspect by tapping the suspect on the shoulder, and giving the suspect a written note asking the suspect to accompany the officer, violated the suspect's Tenn. Const. art. I, § 7 rights, because the officer showed no exigent circumstances preventing the officer from obtaining a warrant or waiting until the suspect awoke and seeking consent to enter the home. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

As there was no basis for a police officer to have defendant exit his vehicle or to perform a search of the vehicle after it was lawfully stopped where the officer's paperwork was already completed at the time, drugs seized from the vehicle were properly suppressed under U.S. Const. amend. IV and Tenn. Const. art. I, § 7. State v. Donaldson, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 717 (Tenn. Crim. App. Sept. 15, 2011), rev'd, 380 S.W.3d 86, 2012 Tenn. LEXIS 582 (Tenn. Aug. 24, 2012).

Based upon the temporal proximity of defendant's illegal detention and defendant's statement, the lack of any intervening factors to mitigate the taint of the illegal arrest, and the flagrancy and purpose of the officers' illegal conduct, the court erred by failing to suppress defendant's statement. Officers admitted seizing defendant with less than probable cause because they believed it permissible to do so as long as they did not detain him longer than 48 hours; the unconstitutional 48-hour hold utilized was the product of a police policy, condemned in the past. State v. Bishop, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 14, 2012), rev'd, 431 S.W.3d 22, 2014 Tenn. LEXIS 189 (Tenn. Mar. 6, 2014).

Tennessee Supreme Court agrees with the overwhelming majority of jurisdictions that signs admonishing “No Trespassing,” in and of themselves, are rarely going to be sufficient to revoke the implied license allowing persons to approach a front door and knock; the sign is simply making explicit that persons entering onto another's land must have a legitimate reason or risk being held liable for trespass, and a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several “No Trespassing” signs. State v. Christensen, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017), cert. denied, Christensen v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 662 (U.S. Jan. 16, 2018).

Defendant's “No Trespassing” signs posted near his unobstructed driveway were not sufficient to revoke the implied license of the investigators to approach his front door and knock. State v. Christensen, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017), cert. denied, Christensen v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 662 (U.S. Jan. 16, 2018).

47. Discovery.

Since the federal and state constitutions do not prohibit an otherwise lawful physical or mental examination during discovery proceedings, it follows that they do not protect a defendant's financial condition from discovery. Breault v. Friedli, 610 S.W.2d 134, 1980 Tenn. App. LEXIS 391 (Tenn. Ct. App. 1980).

48. Waiver of Rights.

A defendant may waive his rights relative to searches and seizures under the constitutions of Tennessee and the United States. Simmons v. State, 210 Tenn. 443, 360 S.W.2d 10, 1962 Tenn. LEXIS 305 (1962); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977); Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

Where defendant offered evidence to explain condition of coat allegedly worn on night of robbery he waived right to contend coat was obtained by unlawful search and seizure. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, 1965 Tenn. LEXIS 606 (1965), cert. denied, Lester v. Tennessee, 383 U.S. 952, 86 S. Ct. 1214, 16 L. Ed. 2d 214, 1966 U.S. LEXIS 2090 (1966).

Where defendant's wife invited police officers into house and upon being informed of purpose of visit voluntarily gave officers requested information and turned over defendant's coat which was allegedly worn on night of robbery to the officers, wife waived any right of defendant to prohibitions against search and seizure without warrant. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, 1965 Tenn. LEXIS 606 (1965), cert. denied, Lester v. Tennessee, 383 U.S. 952, 86 S. Ct. 1214, 16 L. Ed. 2d 214, 1966 U.S. LEXIS 2090 (1966).

Where a defendant charged with possession of heroin for resale denied ownership, possession or any interest in narcotics seized in his rented motel room under a search warrant, he waived any valid objection to the admission of the evidence obtained in the search. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Where defendant denied any connection with an automobile he lacked standing to object to a search of such automobile even though he was the true owner of the automobile. Miller v. State, 520 S.W.2d 729, 1975 Tenn. LEXIS 704 (Tenn. 1975), cert. denied, Miller v. Tennessee, 423 U.S. 849, 96 S. Ct. 91, 46 L. Ed. 2d 72, 1975 U.S. LEXIS 2575 (1975).

49. —Failure to Object.

It would have been manifestly unjust to apply the rule that failure to object, upon trial, to the legality of an arrest waives the right to rely upon it on appeal where the defendant, in advance of trial, fairly apprised the trial court of the substance of his objection to testimony involved and where on motion for a new trial the court was again apprised of the defendant's contentions. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Generally, a failure to object, upon trial, to the legality of an arrest, waives the right to rely upon it on appeal. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Where officers, during search of premises under a valid search warrant, discovered other property which they knew to have been stolen although not listed in the search warrant, the evidence of such findings could be shown in a trial for the theft of such items. Gerchman v. State, 206 Tenn. 109, 332 S.W.2d 182, 1960 Tenn. LEXIS 349 (1960); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where defendant was arrested for driving while intoxicated, and after arrest his car was searched for intoxicating liquor, and in the process of such search tools were found which connected him with burglary, such tools were found during a legal search and properly admissible as evidence. Church v. State, 206 Tenn. 336, 333 S.W.2d 799, 1960 Tenn. LEXIS 370 (1960); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Evidence obtained as result of illegal search of automobile was not admissible against defendant who was owner and possessor of automobile but was admissible of his codefendant. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

The question of whether there has been a waiver of constitutional protection against unreasonable search and a consent to such search is one for the trial judge in the first instance. Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where trial judge passed on validity of search as a preliminary question out of presence of jury there was not error in action of judge in also submitting the question to the jury. Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

50. Admissibility of Evidence.

Where agents or officers of the state procure evidence against the accused by an unreasonable search and seizure, contrary to Tenn. Const. art. I, § 7, the state will not be permitted, in a prosecution of the accused, to use such evidence against him. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

The provisions of the federal and state constitutions against unreasonable searches and seizures protect the citizens only against action by the federal or state governmental agencies, respectively, and do not make inadmissible evidence unlawfully obtained from the accused by private individuals. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Highway patrolmen who were dressed in uniforms, armed with pistols and axes and who were proceeding with what they conceived to be their duty as officers and agents of the state under instructions from the governor were acting in their official capacity and not as individuals so that evidence procured without a search warrant during a raid on a private club was inadmissible under Tenn. Const. art. I, § 7 as against the operators upon trial for operating a gaming house. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

Where highway patrolman's claim that stoppage of defendant's car was for the purpose of learning whether he had a driver's license or registration receipt was a subterfuge, objection was properly made to his testimony on the ground that his stopping of the automobile and arrest of its occupants were unlawful and his testimony therefore was inadmissible. Smith v. State, 182 Tenn. 158, 184 S.W.2d 390, 1945 Tenn. LEXIS 206 (1945).

Assuming, that the seizure and detention of the articles taken from defendant amounted to a violation of his constitutional rights, U.S. Const. amend. 4 does not require suppression of evidence initially taken by illegal means where there is a subsequent independent source for its admission, untainted by the initial illegality. State v. Harmon, 775 S.W.2d 583, 1989 Tenn. LEXIS 345 (Tenn. 1989), rehearing denied, 775 S.W.2d 583, 1989 Tenn. LEXIS 410 (Tenn. 1989), cert. denied, Harmon v. Tennessee, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed. 2d 1043, 1990 U.S. LEXIS 981 (1990).

The defendant had no expectation of privacy with respect to marijuana she threw out of a car window while being pursued by the police; since the marijuana had been abandoned by the defendant before she was stopped, it was not the fruit of an illegal seizure. State v. Baker, 966 S.W.2d 429, 1997 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 1997).

Deaf murder defendant's confession obtained after a violation of Tenn. Const. art. I, § 7 rights was not subject to suppression because the police had probable cause to arrest the defendant. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

In a minor in possession of alcohol case, a court erred by granting defendant's motion to suppress because the housing authority checkpoint where he was stopped was constitutional since the housing authority's mission was to provide safe housing for its residents, the purpose of the entry checkpoints was to provide a measure of security for those who lived within the development, the identification checkpoint was an efficient means of determining that persons entering the housing development were residents or visitors with a legitimate business or social reason for being there, and the intended level of intrusion to motorists or pedestrians was minimal. State v. Hayes, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 997 (Tenn. Crim. App. Nov. 9, 2004), rev'd, 188 S.W.3d 505, 2006 Tenn. LEXIS 312 (Tenn. Apr. 20, 2006).

Because a student was not subjected to a custodial interrogation and his statements were admissible, any evidence obtained therefrom was not fruit of the poisonous tree; moreover, the marijuana was found not as a result of any statements made by the student, but as a result of the appearance of and statements made by another person, and none of the student's incriminating statements were made until after the deputy found the marijuana. R.D.S. v. State, 245 S.W.3d 356, 2008 Tenn. LEXIS 28 (Tenn. Feb. 6, 2008).

Defendant's right against unreasonable search and seizures was not violated when she was compelled to give fingerprint and handwriting samples because the constitutional protections did not apply to compelled production of physical characteristics that are repeatedly exposed to the public. State v. Brown, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 20, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 648 (Tenn. Sept. 28, 2009), dismissed, Brown v. Freeman, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 150493 (M.D. Tenn. Oct. 28, 2016).

Defendant's conviction for first-degree felony murder committed during the perpetration of robbery was proper because, although the trial court should have suppressed defendant's confession to an investigator, the trial court's error was harmless under T.R.A.P. 36(a) because it was cumulative to an inmate's testimony and did not change the outcome of the trial. Additionally, the evidence showed that defendant voluntarily waived his Miranda rights. State v. Echols, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 14, 2011), aff'd, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Trial court did not err in denying defendant's motion to suppress a statement made to police detectives at a police station because, although defendant had been developed as a suspect in a shooting incident, defendant arrived at the homicide bureau voluntarily with his mother at approximately 1:30 p.m., was advised of defendant's Miranda rights, and voluntarily gave the statement several hours later after being advised that defendant's alibi witness was not able to confirm defendant's alibi. State v. Brown, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Sept. 5, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 83 (Tenn. Jan. 15, 2015).

Denial of defendant's motion to suppress was improper because the warrantless use of the GPS device constituted an illegal search, and the evidence obtained, including the arrest and statements to police. The use of the device was a search, the good faith exception did not apply, and defendant's confession was not sufficiently attenuated from the illegal search. State v. Phifer, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 903 (Tenn. Crim. App. Sept. 23, 2014).

Evidence from defendant's cell phone was admissible, as the seizure proper, having occurred at the time of defendant's arrest and the contents were not searched until a warrant was obtained. State v. Wade, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. July 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 689 (Tenn. Nov. 15, 2018).

Denial of defendant's motion to suppress defendant's statement to the police was appropriate because a police officer had probable cause to arrest defendant as the officer went to a rape crisis center to speak with the minor victim soon after the alleged sex crimes, interviewed the victim's parent, reviewed the nurse examiner's report, and observed the victim's interview with a forensic interviewer. Further, the victim consistently told both the examiner and the interviewer that defendant had sexual contact with the victim. State v. Gonzales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 783 (Tenn. Crim. App. Oct. 18, 2018).

51. Exclusionary Rule.

Supreme Court of Tennessee has decided that the “legitimate independent motivation” test recognized in State v. Burroughs should be confined to unreasonable search and seizure claims based on the Fourth Amendment or this section. In cases that involve suspects making confessions to friends, relatives, and other associates, the law need not be concerned with whether that confidant could properly be labeled as a private citizen or an agent of the State. State v. Sanders, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

Defendant's statement made on the return to the jail was a spontaneous utterance and the inculpatory statements that followed during further interrogation were made voluntarily with full Miranda warnings; the evidence obtained, the search of the apartment, defendant's spontaneous statements and offer of further discussion, and the voluntariness of the statements established intervening circumstances sufficient to purge the primary taint of the initial illegal detention. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Even if a warrantless blood draw performed at a hospital following an auto accident violated defendant's federal and state constitutional right to be free from unreasonable searches and seizures, pursuant to a good-faith exception to the exclusionary rule, any evidence derived from testing defendant's blood did not have to be suppressed because the blood draw was obtained in objectively reasonable good-faith reliance on binding precedent. State v. Reynolds, 504 S.W.3d 283, 2016 Tenn. LEXIS 821 (Tenn. Nov. 3, 2016).

51.5 —Good Faith Exception.

Officer's actions in obtaining defendant's blood without a warrant was in objectively reasonable good faith reliance on Tennessee's broad interpretation of Schmerber v. California, which specifically authorized that police practice, and the good-faith exception adopted in State v. Reynolds applied and the trial court's suppression of defendant's test results was not required. State v. Brown, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 995 (Tenn. Crim. App. Dec. 1, 2017).

Neither of defendant's warrantless arrests for trespassing on housing authority property fell within the good faith exception to the exclusionary rule, and therefore the trial court did not err by suppressing marijuana found on defendant when he was arrested, because the record was devoid of any evidence that the error was a result of a good-faith mistake, as defendant's name was mistakenly on the list of persons who were banned from housing authority property, and the error was not caught until after defendant had been arrested twice and met with a lieutenant to point out the error. State v. McElrath, — S.W.3d —, 2019 Tenn. LEXIS 100 (Tenn. Mar. 12, 2019).

Tennessee Supreme Court adopted the good-faith exception to the exclusionary rule set forth in Herring and held that when police mistakes are the result of negligence rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its” way. State v. McElrath, — S.W.3d —, 2019 Tenn. LEXIS 100 (Tenn. Mar. 12, 2019).

52. —Inevitable Discovery.

Inevitable discovery doctrine did not apply where: (1) Defendant was subjected to an improper stop and frisk; (2) A revolver was found on defendant's person; and (3) The officers did not become aware of defendant's intoxication, which would have made defendant's carrying of the gun unlawful under T.C.A. § 39-17-1321(a), until after the frisk. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Even if there was no probable cause for defendant's arrest, the items located in his pocket would have been inevitably discovered after his companion gave written consent to search the vehicle in which defendant was riding. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2017).

53. Duty of Trial Court.

Determination of legality of arrest and seizure is a mixed question of law and fact for the trial judge, and his refusal to hear evidence to rebut officer's testimony is reversible error. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

The court will not permit an evasion of the requirements of the law with regard to search warrants through the device, pretext, or subterfuge of a pretended examination of a driver's license. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

The trial judge's finding of probable cause to make an arrest is to be given the weight of a jury verdict and is conclusive in this court unless the evidence preponderates against this finding. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Although it is better to move to suppress testimony regarding the legality of an arrest or to object to the testimony when offered at trial, the supreme court cannot say that the illegality of an arrest and an ensuing search may not be asserted by appropriate motions made in advance of trial. The test must be whether the issue was fairly raised, or phrasing it another way, whether the trial judge was fairly apprised of petitioner's objection or given a reasonable opportunity to consider the matter. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

When a question as to the reliability and credibility of an informant or his information is fairly raised, it is incumbent upon the trial judge to conduct an evidentiary hearing for the purpose of satisfying himself not only that the informant was reliable but that the law enforcement officer was justified in accepting and acting upon the information so conveyed. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

The privilege to withhold disclosure of the identity of an informant must yield and the identity of the informant must be disclosed when his identity or the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause or when the informant is a participant in the crime; or when he has knowledge favorable to an accused. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

In granting defendant's motion to suppress evidence seized as a result of a traffic stop after concluding that alleged brake light offense did not support the stop, the trial court erred by not considering the State's alternative theory attempting to establish that the stop was supported by reasonable suspicion of a seatbelt violation because the deputy testified that when he first encountered defendant it appeared that he was not wearing a seatbelt, the possible seatbelt offense was the only reason why he initially became interested in defendant, and that he absolutely would have stopped defendant regardless of the non-functioning brake light to see if defendant was in fact wearing his seatbelt. State v. Sherrill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 27, 2020).

54. Appellate Review.

Based on the facts and issue presented on appeal, the Tennessee supreme court held that when a trial court's findings of fact at a suppression hearing are based on evidence that does not involve issues of credibility, a reviewing court must examine the record de novo without a presumption of correctness; however, the court expressly reserved comment on the issue of the proper standard of appellate review of a videotaped trial record until that issue is squarely presented. State v. Binette, 33 S.W.3d 215, 2000 Tenn. LEXIS 605 (Tenn. 2000).

Where defendants reserved identical certified questions of law as to whether the search warrant and accompanying affidavit issued for their home violated the United States and Tennessee constitutions, as well as Tenn. R. Crim. P. 41(c), the appellate court could not consider defendants' claims on appeal, because the search warrant was not introduced as evidence at the suppression hearing; therefore, it was not properly made a part of the record on appeal. State v. Bobadilla, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 589 (Tenn. Crim. App. July 6, 2004), rev'd, 181 S.W.3d 641, 2005 Tenn. LEXIS 1043 (Tenn. 2005).

Because the affidavit was not part of the record and because defendant included no argument regarding the validity of the search warrant, any challenge to the search conducted pursuant to the search warrant was waived. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

Because the search pursuant to the search warrant was not under review, defendant did not demonstrated that he was entitled to the suppression of the evidence; the results of the search pursuant to the subsequently obtained warrant were not challenged on appeal. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

55. Reasonable Suspicion.

Trooper had reasonable suspicion to initiate a traffic stop after observing what the trooper believed to be a broken taillight on defendant's automobile; the automobile was being operated with a broken taillight that had been repaired with taillight repair tape that was itself in disrepair, in violation of T.C.A. § 55-9-402(b)(1), (2), (c). State v. Brotherton, 323 S.W.3d 866, 2010 Tenn. LEXIS 878 (Tenn. Sept. 27, 2010).

Suppression of evidence was inappropriate because a police detective had reasonable suspicion, supported by specific and articulable facts, to conduct an investigatory stop of a vehicle in which defendant was a passenger. The detective received a dispatch concerning a carjacking which occurred the night before; the dispatch provided information concerning the stolen vehicle as well of a general description of the suspects based on the victim's statement; a vehicle with the same license tag number as provided in the dispatch was found soon thereafter, and the victim identified the vehicle as the victim's vehicle; a short time later, the detective observed a white vehicle with two male African-American occupants meeting the general description provided in the dispatch begin to turn into the parking lot in which the victim's vehicle was parked; the detective noticed the startled expression on the passenger's face; and the driver of the vehicle abruptly turned the vehicle to avoid the detective. State v. Davis, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. Aug. 19, 2010), aff'd, 354 S.W.3d 718, 2011 Tenn. LEXIS 962 (Tenn. Oct. 17, 2011).

Defendant's convictions for aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, and attempt to commit first degree murder were appropriate because reasonable suspicion existed to permit the officers to conduct a brief investigatory stop of the car in which defendant was a passenger. In pat, making a turn when noticing a police presence often meant that they did not want the police to take notice of them; moreover, the vehicle and occupants met the general description of the suspects provided in a BOLO dispatch. State v. Davis, 354 S.W.3d 718, 2011 Tenn. LEXIS 962 (Tenn. Oct. 17, 2011).

Officer had reasonable suspicion based on specific and articulable facts to initiate an investigatory stop of defendant based on his personal observation of defendant exiting the parking lot of a bar and then crossing the fog line twice and crossing into the opposing lane of traffic in a two-lane highway. State v. Watson, 354 S.W.3d 324, 2011 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. June 8, 2011).

Unidentified bystander who informed an officer that defendant was carrying a gun did not sufficiently corroborate an anonymous tip as the bystander did not provide any information to show that defendant's possession of a handgun was unlawful. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Anonymous tip to the police did not provide reasonable suspicion for defendant's stop and frisk where: (1) The unidentified 911 caller's complaint contained only an allegation that an armed individual was outside a particular room at the motel; (2) There was no description of the suspect, or predictive information that would have allowed the police to test the informant's knowledge or credibility; (3) The only link between the tip and defendant was his proximity to the room; and (4) There were no articulable facts indicating that defendant unlawfully possessed a gun. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Trial court properly denied defendant's motion to suppress as the stop of defendant's vehicle was based on reasonable suspicion and the evidence obtained during the stop was not obtained in violation of Tenn. Const. art. I, § 7, in that, during a traffic stop of the vehicle because of a broken taillight, officers smelled marijuana coming from the vehicle, observed a partially smoked marijuana cigarette and digital scales inside the vehicle, and found a large amount of cash in another defendant's shoe. Moreover, based on the officer's observations, the story given by defendants as to their planned destination was false. State v. Long, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 642 (Tenn. Crim. App. Aug. 22, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 55 (Tenn. Jan. 10, 2013), appeal denied, State v. Williams, — S.W.3d —, 2016 Tenn. LEXIS 492 (Tenn. June 23, 2016).

Officer's credibility as to his testimony that the database sent him incorrect information was not attacked, there was no independent proof that what was contained on the database was inconsistent with his testimony, and there was no evidence of database errors that tended to show the information was not reliable; the degree of reliability of the source of the information possessed by the officer was sufficient to support reasonable suspicion that defendant was committing a violation of the law regarding vehicle registration tags, and the stop was therefore not in violation of the constitutions. State v. Meadows, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 10, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 863 (Tenn. Nov. 17, 2016).

Police officers had reasonable suspicion to detain defendant and his friend for further investigation because, inter alia, an officer knew that a robbery involving a weapon had just been committed, the friend's physical description and clothing matched that of the robber, and defendant and his friend were in close proximity to the scene of the robbery and a stolen item. State v. Sykes, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 25, 2015).

Trial court did not abuse its discretion by denying defendant's motion to suppress because a police officer had reasonable suspicion supported by specific and articulable facts that the windshield tint in the car defendant was driving exceeded the legal limit. State v. McNair, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 431 (Tenn. May 15, 2015).

When the sergeant noticed the open container of beer and the smell of alcohol on defendant, he had reasonable suspicion to ask defendant to get out and perform field sobriety tests, and the trial court properly denied defendant's motion to suppress. State v. McCormick, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 2, 2015).

Officer had a duty to investigate the domestic assault, and when defendant refused to cooperate, the officer had a reasonable suspicion of wrongdoing that justified an investigative detention, and the totality of the information possessed by the officer justified the seizure of defendant so that the officer could investigate possible criminal activity; defendant withdrew his wrist, made a fist, and then struggled to avoid having his hands cuffed, and the evidence was sufficient to support defendant's conviction for resisting arrest. State v. Parvin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. May 6, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 666 (Tenn. Aug. 13, 2015).

Officer was unable to articulate a reason for seizing defendant, whose car was parked legally on private property and no traffic infraction had been committed; while a situation where someone is in a parked car turned off but with a turn signal activated might lead an officer to wonder if the occupants of the car might need help, and thus could authorize an officer's community caretaking role, it does not without more provide reasonable suspicion necessary to authorize a seizure, and because the officer lacked reasonable suspicion to seize defendant, all evidence obtained attendant to the seizure should have been suppressed. State v. Latham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 3, 2015).

Trial court erred in denying defendant's motion to suppress evidence found during a search of her house. The State failed to elicit testimony from officers about any facts upon which they formed a reasonable suspicion that a codefendant had engaged or was engaging in criminal activity justifying a search of the house. State v. Carman-Thacker, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. Sept. 8, 2015).

In a driving under the influence case, the observations of an officer did not give rise to reasonable suspicion to justify the stop of defendant's vehicle in the context of the United States and Tennessee Constitutions; defendant's vehicle did not cross any dividing lines, and his weaving was not pronounced or exaggerated. State v. Seagraves, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 888 (Tenn. Crim. App. Nov. 5, 2015).

Trooper had reasonable suspicion for a traffic stop of defendant's vehicle, as the trooper saw the vehicle drift within its lane, change lanes in front of another vehicle without signaling, and cross half-way over the fog line marking the outer right lane boundary of the interstate, well in advance of the exit ramp, plus defendant continued to drive up the exit ramp over the fog line; there was nothing that might have necessitated defendant leaving his lane of travel, and these facts gave the trooper a sufficient basis to suspect at least that defendant was violating the statute. State v. Samples, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 16, 2016).

Defendant's motion to suppress was properly denied as the officer had reasonable suspicion to initiate the traffic stop in order to further investigate defendant's activity because the officer testified that he saw defendant driving without headlights on at 3:00 a.m., at a time when the bars in the area closed for the night; and he followed defendant for about 50 feet, during which she still failed to turn on her headlights, in violation of the traffic laws. State v. Sowell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. Sept. 21, 2016).

There was no reasonable suspicion to support the search and defendant two's probation agreement did not provide the sweeping consent that the State contended it did; the officer never knew about defendant two's probation status at any point before or during the search, nothing showed that the officers had any suspicion that defendant two was engaging in criminal activity, and the trial court correctly suppressed the evidence. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

Trial court properly denied defendant's motion to suppress, given that the totality of the circumstances supported reasonable suspicion to conduct an investigatory stop; the truck matched the description of the vehicle subject to the be on the lookout alert (BOLO), the truck was near where the BOLO said it would be, the officer viewed the truck within minutes of receiving the BOLO, and a robbery had recently occurred. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Defendant's motion to suppress was properly denied as her observed infraction of crossing over into the turning lane as she proceeded around the bend in the road provided the officer with the reasonable suspicion necessary to stop her vehicle because, although it was not entirely clear on the video recording whether defendant's vehicle crossed over the lane-dividing line, the officer, whose testimony the trial court credited, specifically identified in the video recording where he determined a traffic violation had occurred; nothing in the video contradicted his observation or testimony; and the video recording corroborated the officer's testimony that defendant was also speeding and later crossed a lane-dividing line with her vehicle. State v. Sanford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 963 (Tenn. Crim. App. Nov. 14, 2017).

Stop of defendant's vehicle was supported by reasonable suspicion. Because there was no initial taint of unconstitutional police conduct, the fruit of the poisonous tree doctrine did not apply. State v. Myrick, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. July 16, 2018).

Deputy had reasonable suspicion of criminal activity for the dog sniff based on his mistaken belief that defendant could not have driven from Knoxville in just two hours, he properly considered defendant's excessive speed, and defendant was nervous. State v. Eliazar, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. Aug. 29, 2018).

Warrantless seizure of defendant was justified by reasonable suspicion and the trial court did not err in denying defendant's motion to suppress; defendant's act of backing his car out of the parking space after the deputy told him to stop, viewed with the anonymous caller's reliable reports of his reckless driving and the contemporaneous identification of his vehicle, was a sufficiently unusual circumstance to arouse the officer's suspicion that defendant was engaged in criminal activity. State v. Crepack, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Oct. 12, 2018).

Stop of defendant was constitutionally permissible, and defendant's motion to dismiss was properly denied because an officer had probable cause to stop defendant based on his observation that defendant did not have two “red” taillights and two “red” stoplights on the rear of the vehicle, and that defendant's right taillight was not in good condition and operational in violation of a traffic law; and, although an attempt to repair the broken taillight was made with taillight repair tape, that repair failed to allow for sufficient illumination, which provided the officer with an articulable and reasonable suspicion that defendant's taillight violated a traffic law. State v. Rivera, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 481 (Tenn. Crim. App. July 15, 2020).

56. Expectation of Privacy.

Investigator's actions in looking at the jewelry seized by an officer after he arrested and booked defendant did not violate any actual, subjective expectation of privacy held by defendant, and a warrant was not required to examine the jewelry after it had been placed in the county jail's property room. State v. Morris, 469 S.W.3d 577, 2014 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. May 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 838 (Tenn. Oct. 15, 2014).

Defendant's motion to suppress a bag of crack cocaine which a police officer found lying in the grass near where defendant had made a throwing motion when the officer approached defendant in a housing project parking lot was properly denied because defendant was without standing to challenge the actions of the officer as defendant did not have a reasonable expectation of privacy in the parking lot of the housing project. State v. McAlpin, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 923 (Tenn. Crim. App. Oct. 2, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 53 (Tenn. Jan. 16, 2015).

The deputies violated the mandates of the Fourth Amendment and Tenn. Const. art. I, § 7, when they intruded upon the back yard of defendant's home, which was not an area open to the general public. State v. Womack, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 5, 2014), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 363 (Tenn. Apr. 21, 2015).

Defendant's motion to suppress was properly denied because the small no trespassing sign posted in a field next to defendant's driveway was not sufficient to revoke the implied invitation of the front door, and the investigators could approach defendant's front door to talk to him. State v. Christensen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 14, 2015), aff'd, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017).

Trial counsel was not ineffective for failing to challenge a search warrant because defendant did not present any evidence that he had a reasonable expectation of privacy in the room that was searched in his mother's house; the proof at trial showed that defendant sometimes visited his mother's house but had only spent one night there more than a month before the search, and he did not have a key to the house and had been prohibited by his mother from entering the house without a key.[ State v. Cox, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 803 (Tenn. Oct. 17, 2016).

Even if defendant had an actual, subjective expectation that his “No Trespassing” signs would keep all persons from entering his property, a reasonable member of society would view the signs as simply forbidding any unauthorized or illegitimate entry; defendant failed to demonstrate that he had a reasonable expectation that ordinary citizens would not occasionally enter his property and approach his front door to talk with him, and the investigators did not violate his federal or state constitutional rights when they drove up his driveway and approached his front door. State v. Christensen, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017), cert. denied, Christensen v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 662 (U.S. Jan. 16, 2018).

Record supported a conclusion that defendant did not affirmatively and expressly disclaim or relinquish his privacy interest in his girlfriend's home, even though defendant said he did not live there. Because defendant did not disclaim his privacy interest in his girlfriend's home, and because the parties did not challenge the trial court's determinations regarding the deputies' exceeding the scope of a valid levy by entering the curtilage, the trial court did not err by granting defendant's motion to suppress and by dismissing the case. State v. Watson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Apr. 10, 2017).

Defendant had no reasonable expectation of privacy inside the tent, and therefore the trial court did not err by determining that he lacked standing to challenge the search of the tent, because the record showed that defendant and the others happened upon the tent and began using it without determining who owned it and without the owner's consent, and the property on which the tent was located at visible no trespassing signs. State v. Cool, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 12, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 58 (Tenn. Jan. 18, 2019).

Defendant's motion to suppress the evidence obtained from a warrantless search of his motel room was properly denied because defendant did not have an expectation of privacy regarding the black bag and its contents, which included heroin, pills, plastic bags, and a money transfer receipt with defendant's name, as he disclaimed ownership of the bag. State v. Savage, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Sept. 19, 2019).

By using a cell phone, defendant willingly exposed identifying information to defendant's wireless provider, thereby assuming the risk that this information might be revealed to the government and rendering defendant's expectation of privacy in this information unreasonable. Thus, trial counsel's decision not to file a non-meritorious motion to suppress the cell phone records allegedly linking defendant to charged crimes that were obtained in a warrantless seizure was not deficient performance. Howell v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Dec. 19, 2019).

Trial court erred in denying defendant's motion to suppress and dismiss the indictments against him because defendant had a legitimate expectation of privacy and standing to challenge the search where the sole justification for the traffic stop was the fact that defendant was speeding, defendant's history of drug offenses was not sufficient to prolong a traffic stop in order to turn it into a drug investigation, and defendant was driving the vehicle with the owner's permission, took normal precautions to maintain privacy, and established a right to exclude others from his property by securing his backpack in the trunk and objecting to the search. State v. Flood, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Apr. 16, 2020).

57. Seizure of Person.

Defendant reasonably believed he was seized under the Fourth Amendment, U.S. Const. amend. IV, and Tenn. Const. art. I, § 7 when an officer drew his service weapon, pointed it in defendant's direction, and frisked another guest. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Defendant was “seized” within the meaning of the Fourth Amendment and Tenn. Const. art. I, § 7, at the moment the officer began to pursue defendant. State v. Nelson, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Aug. 18, 2014), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 65 (Tenn. Jan. 21, 2016).

Officer testified that, because of the placement of his patrol car, it would have been impossible for defendant to move his vehicle and terminate the encounter, and thus defendant was seized at the time that the officer parked his patrol car behind defendant's vehicle. State v. Latham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 3, 2015).

Defendant was clearly seized when the officer turned on the patrol car's blue lights, signaling defendant to stop his vehicle. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Whether defendant was characterized by investigators as either a witness or a suspect, he was seized and detained at the time investigators activated their blue lights to stop him, and because this was done when he was only a witness and not a suspect, this was an illegal seizure. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Defendant was not illegally transported from Mississippi to Tennessee, and therefore the trial court did not err by denying defendant's motion to suppress, because extradition proceedings were not necessary as defendant voluntarily agreed to be transported to Tennessee to surrender the drugs in his motel room and work as a confidential informant. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. May 4, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 647 (Tenn. Oct. 4, 2017).

Defendant's motion to suppress was properly denied because defendant was not seized or detained when a police detective approached defendant in defendant's parked car in a shopping mall parking lot and asked defendant what defendant was doing in the area. Furthermore, the detective had probable cause to arrest defendant upon hearing another nearby police detective state that the detective just saw a person with whom defendant had met in another parked car swallow a pill and that the detective saw another pill in plain view in the car. State v. Ashford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Sept. 1, 2017).

Deputy's actions in parking beside defendant's vehicle and exiting his patrol car did not constitute a seizure, but when the deputy told defendant to stop after defendant began backing out of his parking space, the deputy seized defendant. State v. Crepack, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Oct. 12, 2018).

58. Length of Detention.

State failed to meet its burden of establishing that it was reasonable for the deputy to detain defendant for 10 to 15 minutes without investigating the possible trespassing or the suspected driving under the influence (DUI). Upon detecting the odor of alcohol and observing that defendant had slurred speech and watery eyes, the deputy, who was trained in DUI enforcement, should have conducted a field sobriety test rather than detain defendant while waiting for another deputy to arrive. State v. Montgomery, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 12, 2014), rev'd, 462 S.W.3d 482, 2015 Tenn. LEXIS 271 (Mar. 27, 2015).

Defendant was not entitled to suppress his statement to police and evidence obtained pursuant to his arrest because the 15 minutes that elapsed after an officer put defendant and his friend into the back of patrol cars was a reasonable time for the officers to detain defendant and the friend to investigate the circumstances of a robbery; although the friend's physical description and clothing matched that of the robber, the officers learned that defendant and his friend had switched clothes. State v. Sykes, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 25, 2015).

59. Independent Source.

Trial court properly admitted the evidence found on defendant's person, because it was obtained pursuant to an independent, valid warrant for defendant's arrest for passing worthless checks. State v. Womack, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 5, 2014), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 363 (Tenn. Apr. 21, 2015).

While the warrantless entry into defendants' home was unlawful, the evidence was properly seized as a result of a valid warrant based on evidence developed independently of any information gained from the warrantless entry. State v. Welch, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. Oct. 13, 2016).

60. Community Caretaking.

Sergeant did not effect a seizure with the activation of his emergency lights, given that at 2:45 a.m., he noticed a running car partially blocking a drive and the car's rear tire extended into the roadway, and the sergeant activated his rear lights, knocked on the window, and it took a minute to get a response from defendant, who was slumped over at the wheel; the sergeant's actions were proper under the community caretaking doctrine, which does not require reasonable suspicion. State v. McCormick, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 2, 2015).

Officer's subjective thought or guess as to which of several circumstances might in fact exist is not, and should not be, an exception to the warrant requirement; case law does not foreclose an officer's ability to engage in the community caretaking function, it merely strikes a balance between an officer's role in that respect and a citizen's right to be free from warrantless search or seizure. State v. Latham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 3, 2015).

Officers actions in parking on the roadway behind defendant's vehicle with his lights activated and opening the door to the car and attempting to rouse defendant after taps on the window failed to rouse him were well within the community caretaking exception to the warrant requirement, after the officer noticed defendant's vehicle parked in the roadway in front of a closed store with defendant slumped over the steering wheel of the running vehicle. State v. McCormick, 494 S.W.3d 673, 2016 Tenn. LEXIS 318 (Tenn. May 10, 2016).

Trial court properly granted defendant's motion to suppress evidence obtained during “a welfare check” because the community caretaking exception did not apply where a police officer did not see defendant driving her vehicle before observing the other driver outside of his truck, had no opportunity to view how closely defendant followed the truck before both drivers' stopped, or to observe any measures that defendant might have taken to avoid colliding with the truck, assuming that she did, in fact, strike it, nothing in the record suggested that either driver was in need of the officer's assistance, and there was no risk of danger or threat to public safety had the officer not to intervened. State v. Weston, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. Aug. 2, 2016).

Community caretaking function was needed to assist defendant, who appeared to be asleep or unconscious behind the wheel of a running car parked in a public place; she was unresponsive when the officer knocked and addressed her, and when she remained unresponsive, he opened the driver's door and then smelled alcohol, and then she mumbled incoherently and had trouble retrieving her license as requested. At this point, the officer had reasonable suspicion that defendant was under the influence, warranting further investigation. State v. Tucker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 565 (Tenn. Crim. App. July 27, 2018).

Police officers' initial detention of defendant was justified by community caretaking exception to the warrant requirement because the officers, who were responding to a call about a person passed out in a car behind a liquor store, found defendant and an officer noticed an odor of alcohol, defendant's slurred speech, and beer cans on the passenger seat. Therefore, the officer had reasonable suspicion that defendant had committed or was about to commit DUI when the officer had defendant get out of the car and perform field sobriety tests. State v. Henry, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Oct. 23, 2018).

61. Agent of State.

Witness did not go to his mother's house for the purpose of searching for the journal in question, and instead, he saw the journal in plain view in the kitchen; the evidence supported the conclusion that the witness was not acting as an agent of the State when he discovered the journal. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

Sec. 8. No man to be disturbed but by law.

That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.

Compiler's Notes. In the Constitution of 1796, art. XI, § 8, and in the Constitution of 1834, art. I, § 8, the word “freeman” was used where the word “man” is used here.

Cross-References. Due process of law, Tenn. Const. art. I, § 17; U.S. Const. amend. 5.

Forfeitures and remedies, Tenn. Const. art. I, § 12.

Special or class laws prohibited, Tenn. Const. art. XI, § 8.

Taking private property for public use, Tenn. Const. art. I, § 21.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 19.6, 20.5.

Law Reviews.

A Survey of Tennessee Supreme Court Death Penalty Cases in the 1990s (Penny J. White), 61 Tenn. L. Rev. 733 (1994).

An Unhurried View of Private Ordering in Information Transactions, 53 Vand. L. Rev. 2081 (2000).

Analyze This: A Law and Economics Agenda for the Patent System, 53 Vand. L. Rev. 2099 (2000).

Constitutional Law — Blair v. Badenhope: Parent v. Parent or Parent v. Non-Parent — The Tennessee Supreme Court's New “One Size Fits All” Standard for Modification of Valid Custody Orders, 34 U. Mem. L. Rev. 199 (2003).

Constitutional Law — Tennessee Small School Systems v. McWherter: Opening the Door for Education Reform (Karen V. Martin), 24 Mem. St. U.L. Rev. 393 (1994).

Constitutional Limitations on Punitive Damages: Ambiguous Effects and Inconsistent Justifications, 66 Vand. L. Rev. 961 (2013).

Copyright and Democracy: A Cautionary Note, 53 Vand. L. Rev. 1933 (2000).

Copyright and the Perfect Curve, 53 Vand. L. Rev. 1799 (2000).

Could Windsor Revive Federalism? The States' Right to Protect Citizens Following DOMA's Demise, 81 Tenn. L. Rev. 307 (2014).

Current Issues in Drug Enforcement Law, 43 Vand. L. Rev. 1255 (1990).

Does Tennessee's Constitution Require Permitting Same-Gender Marriages? (J. Ammon Smartt), 36 U. Mem. L. Rev. 413 (2006).

Due Process Tolling of the Post-Conviction Statute Of Limitations in Tennessee After Whitehead v. State, 10 Tenn. J. L. & Pol'y 8 (2014).

Electronic Impulses, Digital Signals, and Federal Jurisdiction: Congress's Commerce Clause Power in the Twenty-First Century, 56 Vand. L. Rev. 277 (2003).

Family Law — Davis v. Davis: A Step Back for the Right to Procreate, 23 Mem. St. U.L. Rev. 399 (1993).

Family Law — Hawk v. Hawk: Grandparent Visitation Rights — Court Protects Parental Privacy Rights Over “Child's Best Interests” (Alicia C. Klyman), 24 Mem. St. U.L. Rev. 413 (1994).

Games Economists Play, 53 Vand. L. Rev. 1821 (2000).

Give Me Back My Big Gulp! The Constitutionality of Obesity Regulations Under The Due Process Clause, 80 Tenn. L. Rev. 847 (2013).

Intellectual Property Law — Copyright Law — Applicability of “First Sale” Doctrine To Copies Of Copyrighted Works Lawfully Produced Abroad: Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013), see 81 Tenn. L. Rev. 187 (2013).

Kindly Remove My Child From the Bubble Wrap — Analyzing Childress v. Madison County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers, 11 Tenn. J. L. & Pol'y 8 (2016).

Market Hierarchy and Copyright in Our System of Free Expression, 53 Vand. L. Rev. 1879 (2000).

Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation, 53 Vand. L. Rev. 1743 (2000).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

Safe Haven Conundrum: The Use of Special Bailments To Keep Pets Out of Violent Households, 12 Tenn. J. L. & Pol'y 79 (2017).

Shaping Competition on the internet: Who Owns Product and Pricing Information? 53 Vand. L. Rev. 1965 (2000).

Strategic Disclosure in the Patent System, 53 Vand. L. Rev. 2175 (2000).

Symposium, Taking Stock: The Law and Economics of Intellectual Property Rights, 53 Vand. L. Rev. 1727 (2000).

Taking the Protection-Access Tradeoff Seriously, 53 Vand. L. Rev. 1831 (2000).

The Competency Conundrum: Problems Courts Have Faced in Applying Different Standards for Competency to be Executed, 54 Vand. L. Rev. 2441 (2001).

The Constitutional Limits of Bankruptcy (Thomas E. Plank), 63 Tenn. L. Rev. 487 (1996).

The Last Line of Defense: The Tennessee Constitution and the Right to Privacy (Catherine Albisa), 25 U. Mem. L. Rev. 3 (1994).

The Wages of Taking Bakke Seriously: The Untenable Denial of the Primacy of the Individual, see 67 Tenn. L. Rev. 949 (2000).

Attorney General Opinions. Chiropractic license renewal, OAG 95-006, 1995 Tenn. AG LEXIS 7 (2/8/95).

Constitutionality of proposed law to revoking driving privileges of certain persons convicted of substance abuse, OAG 96-070, 1996 Tenn. AG LEXIS 75 (4/15/96).

Constitutionality of amendment to Cosmetology Act to include “natural hair styling,” OAG 96-145, 1996 Tenn. AG LEXIS 159 (12/11/96).

Constitutionality of private act authorizing county's regulation and taxation of rafting operations, OAG 96-140, 1996 Tenn. AG LEXIS 165 (11/26/96).

Constitutionality of population bracket exemption in § 54-7-104, OAG 97-034, 1997 Tenn. AG LEXIS 33 (3/31/97).

Constitutionality of population exemption under Tennessee Mineral Surface Mining Law, OAG 97-046, 1997 Tenn. AG LEXIS 45 (4/14/97).

Constitutionality of private act requiring utility district commissioner candidates to be customers, OAG 98-003, 1998 Tenn. AG LEXIS 3 (1/5/98).

Identification and notice requirement for access to public information under § 2-10-111, OAG 98-040, 1998 Tenn. AG LEXIS 40 (2/9/98).

Incorporation by municipalities which held elections under voided (unconstitutional) Small Cities Act, 98-052, 1998 Tenn. AG LEXIS 52 (3/2/98).

Residency requirement for transplant coverage of uninsurable TennCare enrollees, OAG 98-075, 1998 Tenn. AG LEXIS 75 (4/1/98).

Suspension of ban of fireworks sales in a single municipality, OAG 98-076, 1998 Tenn. AG LEXIS 76 (4/6/98).

Presumptions in determining reasonableness of workers' compensation case management costs, OAG 98-084, 1998 Tenn. AG LEXIS 84 (4/14/98).

County approval requirement for non-residential methadone treatment program, OAG 98-087, 1998 Tenn. AG LEXIS 87 (4/15/98).

Municipality must offer new grade levels to all eligible children, OAG 98-090 (4/15/98); OAG 98-0132, 1998 Tenn. AG LEXIS 132 (7/28/98).

Provisions allowing certain small cities right to reincorporate, OAG 98-0146, 1998 Tenn. AG LEXIS 146 (8/12/98).

Teacher transfer generally does not trigger due process requirements, OAG 98-0164, 1998 Tenn. AG LEXIS 164 (8/24/98).

Constitutionality of assignment of child support obligor's income, OAG 99-008, 1999 Tenn. AG LEXIS 6 (1/25/99).

Constitutionality of tax exemption for certain size health clubs, OAG 99-019, 1999 Tenn. AG LEXIS 32 (2/2/99).

Constitutionality of proposed tax on privilege of doing business in Tennessee, OAG 99-060, 1999 Tenn. AG LEXIS 39 (3/10/99).

Constitutionality of mandatory retirement for firefighters and law enforcement officers, OAG 99-082, 1999 Tenn. AG LEXIS 82 (4/5/99).

Revocation or denial of certain state licenses for violation of visitation orders, OAG 99-078, 1999 Tenn. AG LEXIS 78 (4/5/99).

Constitutionality of excluding public libraries from exemption for possession of certain obscene materials, OAG 99-108, 1999 Tenn. AG LEXIS 108 (5/10/99).

Constitutionality of proposed classification of intrastate natural gas pipeline corporations, OAG 99-117, 1999 Tenn. AG LEXIS 117 (5/14/99).

Constitutionality of statute governing distribution of fines for criminal violations, OAG 99-114, 1999 Tenn. AG LEXIS 114 (5/14/99).

General sessions judge's legal authority, OAG 00-001, 2000 Tenn. AG LEXIS 4 (1/4/00).

Neither the civil penalty provisions nor the lien provisions of T.C.A. § 36-5-120, which provides for assessment of a civil penalty by the commissioner of the department for repeated violations of the requirement to provide identifying information on child support payments and for a lien against an employer or other payer of income's property for any civil penalties assessed that are not paid within 15 days after the mailing date of the final determination, violates the due process clause of either the United States constitution or the constitution of Tennessee as the process created by the statute provides both notice and an opportunity for a hearing, OAG 00-125, 2000 Tenn. AG LEXIS 126 (8/7/00).

The residency requirement for persons employed by the board of regents of the state university and community college system and the board of trustees of the University of Tennessee as president emeritus did not violate the commerce clause, the privileges and immunities clause, or the equal protection clause of the federal constitution or the equal protection clause of the state constitution, OAG 01-007, 2001 Tenn. AG LEXIS 9 (1/17/01).

The publication of names and photographs of those convicted of prostitution-related offenses would not violate either the right to privacy or the right to due process under either the United States constitution or the Tennessee constitution, OAG 01-127, 2001 Tenn. AG LEXIS 118 (8/9/01).

Because proposed legislation to create a special school district would suspend the general education law prohibiting the formation of special school districts in favor of a very limited group, defined by a specific population, and did so without any rational basis, it would violate the state constitution, OAG 02-020, 2002 Tenn. AG LEXIS 21 (2/26/02).

A law conditioning issuance of a driver's license upon provision of a social security number would not violate the equal protection clause of the United States constitution or the equal protection clauses of the Tennessee constitution, because the law would be one of neutral and uniform application and would be a reasonable means of promoting the state's legitimate interest in preventing fraud in the issuance of such licenses and promoting public safety and security, OAG 02-041, 2002 Tenn. AG LEXIS 47 (4/4/02).

A law requiring the issuance of a driver's certificate, rather than a driver's license, to any otherwise qualified applicant who has never been issued a social security number would not violate the free exercise clauses of the United States constitution or the Tennessee constitution, because the law would be one of neutral and uniform application and would be a reasonable means of promoting the state's legitimate interest in preventing fraud in the issuance of such licenses and public safety and security, OAG 02-041, 2002 Tenn. AG LEXIS 47 (4/4/02).

A proposed bill, which would provide for the forfeiture of motor vehicles used in the commission of a person's second or subsequent violation for promoting prostitution or patronizing prostitution, would not violate the due process provisions of either the United States or Tennessee constitutions, OAG 02-055, 2002 Tenn. AG LEXIS 56 (4/30/02).

A proposed amendment to T.C.A. § 63-1-120, which would add a new subdivision regarding health care professionals who fail to comply either with any federal or state direct or guaranteed loan or with service requirements of any federal or state loan allowing forgiveness of debt in exchange for a period of service, would not violate the equal protection clauses of the United States or Tennessee constitutions, OAG 02-059, 2002 Tenn. AG LEXIS 64 (5/6/02).

T.C.A. § 45-6-213(b), by authorizing a law enforcement officer to seize and dispose of property in a pawnbroker's possession without any prior notice and opportunity for the pawnbroker to defend its ownership of the property, violates the due process requirements of the Tennessee and United States constitutions, OAG 02-090, 2002 Tenn. AG LEXIS 96 (8/27/02).

Proposed lottery scholarship qualifying criteria with regard to home schooled students do not violate constitution's equal access clause, OAG 03-065, 2003 Tenn. AG LEXIS 83 (5/20/03).

Constitutionality of proposed amendment creating exception for county from the additional fee for marriage licenses if both applicants are not Tennessee residents, OAG 04-062, 2004 Tenn. AG LEXIS 65 (4/13/04).

Proposed amendment to legislation establishing the TennCare Fraud and Abuse Reform Act of 2004 that would criminalize a willful failure to report a reasonable belief of fraud by another would not violate state and federal constitutional due process, OAG 04-079, 2004 Tenn. AG LEXIS 79 (4/28/04).

Proposed local act that would repeal a private act prohibiting the sale of fireworks in a county and would substitute an act allowing certain fire departments within the county to sell fireworks would not violate Tenn. Const. art. I, § 8, OAG 04-080, 2004 Tenn. AG LEXIS 81 (4/29/04).

Constitutionality of proposed legislation pertaining to admissibility of prior convictions of an accused who is on trial for a sexual offense against a child under the age of thirteen, OAG 04-089, 2004 Tenn. AG LEXIS 100 (5/10/04).

Constitutionality of proposed private act to provide for county adequate facilities tax on new development, OAG 05-055, 2005 Tenn. AG LEXIS 55 (4/20/05).

Whether a private or public act may constitutionally authorize a city to establish an environmental court with injunctive powers and power to imprison, OAG 07-147, 2007 Tenn. AG LEXIS 147 (10/19/07).

Constitutionality of criminal penalties for unauthorized sale, possession and use of fireworks. OAG 10-10, 2010 Tenn. AG LEXIS 10 (1/27/10).

The Tennessee teacher-employment statutes governing permanent employment, layoffs, and dismissal or suspension of teachers do not violate a student's constitutional right to a free education. OAG 14-99, 2014 Tenn. AG LEXIS 102 (10/30/14).

Senate Bill 925/House Bill 700, 109th Gen. Assem. (2015-16), does not violate equal protection guarantees because the State’s interests in preserving the fiscal integrity of its publicly funded health care programs and preventing broader societal costs provide a reasonable basis for the legislative distinction between adult motorcyclists with medical or health insurance other than insurance provided through TennCare and adult motorcyclists who are uninsured or who are insured through TennCare. OAG 15-70, 2015 Tenn. AG LEXIS 71 (10/12/2015).

The statutory provisions that prohibit retail sales by Tennessee liquor stores on Sundays and holidays but permit Tennessee distilleries to make retail sales on Sundays and holidays do not violate the Commerce Clause or equal protection guarantees. OAG 16-08, 2016 Tenn. AG LEXIS 8 (3/1/2016).

The durational citizenship/residency requirement imposed by 2015 Tenn. Pub. Acts, Chapter 29 for the issuance of a beer permit is unlikely to pass constitutional muster. OAG 16-09, 2016 Tenn. AG LEXIS 9 (3/4/2016).

The citizenship requirements for licensure under T.C.A. §§ 47-26-804 and 47-26-1004 likely violate the equal protection guarantees of the Tennessee and U.S. Constitutions. The Commissioner of Agriculture may issue a certified public weigher license or a public weighmaster license to an applicant who is not a citizen of the United State, provided the applicant is otherwise qualified and provided that issuing the license does not violate any applicable federal law. OAG 16-46, 2016 Tenn. AG LEXIS 45 (12/22/2016).

Senate Bill 1062/House Bill 1114, 110th Gen. Assem. (2017) would establish state-law requirements related to the inspection, licensure, and operation of motorboats carrying passengers for hire in tourist resort counties, including boats operating on the French Broad River. Certain applications of the inspection and licensure requirements in the proposed legislation would likely be preempted by the comprehensive federal statutory and regulatory scheme governing vessels operating on the navigable waters of the United States. But the restrictions in the draft legislation on the time and manner of the operation of motorboats carrying passengers for hire would not be preempted. The proposed legislation does not violate the equal protection guarantees of the Tennessee Constitution or the U.S. Constitution by treating vessels that carry passengers for hire in tourist resort counties differently than the same vessels in other counties and differently than recreational vehicles in tourist resort counties. OAG 17-45, 2017 Tenn. AG LEXIS 45 (10/9/2017).

Legislation that (1) required an individual who had been convicted of driving under the influence (DUI) to bear a driver’s license with a marker denoting the DUI conviction and (2) imposed a misdemeanor penalty on any establishment that sold alcohol to an individual bearing this type of license would be subject to deferential review, but it would raise constitutional concerns due to its breadth and categorical operation. OAG 18-02, 2018 Tenn. AG LEXIS 2 (1/11/2018).

Proposed legislation would establish a continued-use provision for short-term rental units, which would prohibit local governments from applying regulations and restrictions to short-term rental units that were in operation before the enactment of those regulations and restrictions. The legislation would not apply, however, to regulations and restrictions enacted by a local government before January 1, 2014. By allowing some local governments to enforce their rules governing short-term rental units uniformly but preventing other local governments–namely those that enacted rules after January 1, 2014–from doing so, the proposed legislation does not constitute impermissible class legislation. However, a provision which would allow some local governments to continue to prohibit short-term rentals but would prevent local governments that did not enact such laws prior to August 1, 2017, from doing so would, constitute impermissible class legislation. The proposed legislation would also prevent a local government from considering the leasing of a residential dwelling as a short-term rental for purposes of determining land use or utility rates. This provision does not violate article II, section 28 of the Tennessee Constitution. Furthermore, the proposed legislation does not otherwise violate the U.S. Constitution or Tennessee Constitution, including by effectively limiting the ability of a single county to restrict short-term rentals or by employing terms such as “effectively prohibit” and “reasonable compliance” that might be deemed too vague to provide meaningful guidance to local governments. OAG 18-10, 2018 Tenn. AG LEXIS 11 (3/14/2018).

Proposed Affordable Rental Property Act, H.B. 1987, 110th Gen. Assem., 2d Reg. Sess. (Tenn. 2018), is constitutional. It articulates a rational basis for creating a property tax classification for affordable rental housing and, thus, satisfies equal protection principles. Moreover, it complies with uniform taxation and valuation principles under the rationale stated in Marion County v. State Board of Equalization, 710 S.W.2d 521 (Tenn. Ct. App. 1986). OAG 18-16, 2018 Tenn. AG LEXIS 13 (4/2/2018).

Proposed legislation intended to exempt Obion County from the operation of T.C.A. § 67-4-1425 by means of a narrow population bracket would raise significant constitutional concerns. OAG 18-18, 2018 Tenn. AG LEXIS 17 (4/4/2018).

Proposed legislation that would reduce the drug-free school zones from 1000 feet to 500 feet in counties having a population of 300,000 or more is likely to be deemed constitutional if the population bracket differences relate to a matter in respect of which a difference in population could furnish a rational basis for diversity of laws. OAG 19-05, 2019 Tenn. AG LEXIS 5 (4/5/2019).

2019 Tenn. Pub. Acts, ch. 350, which applies only to Madison County by means of a narrow population bracket, raises constitutional concerns. Public Chapter 350 amends T.C.A., title 49, ch. 2, part 2, to add a procedure that allows the registered voters of a county to petition for an election to recall a member of the local board of education. However, T.C.A. § 49-2-213 “only applies in counties having a population of not less than 98,200 nor more than 98,300, according to the 2010 federal census or any subsequent federal census.” Because of this narrow population bracket, the recall procedure currently applies only to Madison County, as the legislature apparently intended it to do. Legislative classifications based on population brackets do enjoy a presumption of constitutionality, but they must also be supported by some justification related to population. Neither the text of Public Chapter 350 nor its legislative history provides a rationale for the distinction it creates between Madison County and all other counties with respect to the recall of members of local boards of education. Nor is any rational basis for such a distinction readily apparent. Absent a rational basis for the distinction between Madison County and all other counties, Public Chapter 350 raises constitutional concerns under article I, section 8, and article XI, section 8, of the Tennessee Constitution. Public Chapter 350 also raises concerns under article XI, section 9, of the Tennessee Constitution, which prohibits legislation that is, in effect, applicable only to a particular county if the legislation does not provide for local approval. Public Chapter 350 applies only to Madison County currently and does not provide for local approval. Moreover, in contrast to other legislation that courts have held not to implicate article XI, section 9, the population bracket in Public Chapter 350 is so narrow that it is unlikely to ever apply to another county. OAG 19-18, 2019 Tenn. AG LEXIS 54 (9/25/2019).

HB 2919/SB 2925, 111th Tenn. Gen. Assem. (2020), which is intended to exempt the city of Athens from the operation of TCA § 67-4-1425(a) by means of a narrow population bracket, raises constitutional concerns. Both article I, section 8 and article XI, section 8 of the Tennessee Constitution require that a population bracket designed to exempt a particular county or municipality from a tax law be supported by some rational basis related directly to the size of the bracketed population. Because there does not appear to be such a rational basis for creating a narrow population-bracket exception from TCA § 67-4-1425 for the city of Athens, the proposed legislation raises significant constitutional concerns. OAG 20-12, 2020 Tenn. AG LEXIS 16 (6/12/2020).

NOTES TO DECISIONS

1. General Notes.

One of the primary objects of Tenn. Const. art. I, § 8 was to protect the feeble, odious, and obnoxious in their person and property from the injury and injustice of the strong and powerful, and, in general, to protect minorities from the wrongful action of majorities. Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15 (1831); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842). It is the duty of the state, by general laws, to protect and provide for those who are incapable of taking care of themselves. Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890).

There is not a single provision in the constitution more salutary in its character, or that demands in its enforcement the exercise of greater vigilance and energy than Tenn. Const. art. I, § 8 forbidding the enactment of a partial law abridging or taking away the rights of any individual. Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 396 (1877).

Under Tenn. Const. art. I, § 8, an individual may be deprived of his property in many instances by legislation clearly constitutional. The property of an individual may be taken by summary proceedings for the payment of his taxes, or by judicial proceedings to compel the performance of his contracts, or to recover damages for the breach of his contracts, or for torts committed by him, or it may be taken as a punishment for his crime, but it cannot be taken from one merely to give it to another. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890).

When the constitutional rights of a citizen are at issue, or when questions of due process or equal protection of the law are involved, an act of the legislature will prevail over the provisions of a municipal ordinance. Bartlett v. Hoover, 571 S.W.2d 291, 1978 Tenn. LEXIS 644 (Tenn. 1978).

The individual's right to personal liberty is a fundamental right for equal protection purposes. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Defendant was competent to stand trial where his expert witness stated that defendant's inability to relate to his attorneys appeared to be defendant's choice based on his characterologic style, but not from dementia or psychosis. State v. Davis, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Oct. 25, 2004), aff'd, State v. Davis, 185 S.W.3d 338, 2006 Tenn. LEXIS 189 (Tenn. 2006).

Where neither fundamental rights nor suspect classifications are at issue, rational basis scrutiny applies, and the legislature could have had any number of rational bases for the differential treatment of minority tolling in the area of medical malpractice; state supreme courts were not constrained from prospectively applying new interpretations of state statutes by anything contained in the United States constitution, such that the retrospective application of the rule to the doctor had no merit. Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 2005 Tenn. LEXIS 1061 (Tenn. 2005).

2. —Relation to Other Constitutional Provisions.

Tenn. Const. art. I, § 8 positively prohibits the imposition of burdens and wrongs and deprivations upon the individual as such, while Tenn. Const. art. XI, § 8 prohibits the granting of favors and benefits to the individual as such. This distinction is important for the purpose of determining under which provision partial and objectionable class legislation falls. This distinction is shown in The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

Laws are general within the meaning of the provisions of Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, when they include equally all persons who are in, or who may come into, the situation and circumstances contemplated; for, in this particular, the requirement of one is the same as the other provision. Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Scott v. Marley, 124 Tenn. 388, 137 S.W. 492, 1911 Tenn. LEXIS 54 (1911); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, do not impose any restraint upon the legislative authority conferred by Tenn. Const. art. VI, § 1, to create courts and define their jurisdiction, or transfer jurisdiction from one court to another. Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 1935 Tenn. LEXIS 98 (1936).

3. —State-Created Rights.

While a statute may give rights protected by Tenn. Const. art. I, § 8, the rights are not perpetual; they exist only as long as the general assembly retains the language affording the right. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

The general assembly may enact statutes that afford such rights, but the general assembly is also free to amend these statutes, even where the amendment eliminates the formerly protected interests. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

4. —Jurisdiction.

Chancellor is without jurisdiction of bill by county judge against county trustee seeking declaration as to constitutionality of act extending delinquent date for taxes in all except a few counties, claimed to be void under Tenn. Const. art. I, § 8, the attorney general not having received notice. Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062, 1928 Tenn. LEXIS 241 (1928).

The supreme court of the United States is the final arbiter of questions involving the contract, retrospective law, due process, and equal protection provisions contained in both the state and federal constitutions so that all decisions of such court with reference to such questions are controlling. Paine v. Fox, 172 Tenn. 290, 112 S.W.2d 1, 1937 Tenn. LEXIS 79 (1937).

Supreme court did not have jurisdiction of appeal from circuit court dismissing petition by railroad for review of determination by public utilities commission reducing rates of railroad alleged by railroad to have resulted in taking of its property without due process of law on the ground that evidence before the commission did not support its determination since a mere error in judgment by the court as to the admissibility or probative value of evidence does not constitute a denial of due process. Tennessee C. R. Co. v. Pharr, 183 Tenn. 658, 194 S.W.2d 486, 1946 Tenn. LEXIS 249 (1946).

The Tennessee supreme court, as the final arbiter of the Tennessee constitution, is always free to expand the minimum level of protection mandated by the federal constitution. State v. Ferguson, 2 S.W.3d 912, 1999 Tenn. LEXIS 426 (Tenn. 1999).

5. —Standing.

One who is not being prosecuted for having in his possession any of the drugs specified in an act prohibiting the sale or distribution of opium or its derivatives cannot question the constitutionality of the provision of the act declaring possession of the drugs to be presumptive evidence of a violation of the act, on the ground that it contravenes Tenn. Const. art. I, § 8. Hyde v. State, 131 Tenn. 208, 174 S.W. 1127, 1914 Tenn. LEXIS 100 (1915).

The reasonableness of the exclusion of particular industries from a district or zone cannot be attacked by those whose interests are not affected thereby. Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, 1926 Tenn. LEXIS 22 (1927).

Citizens and taxpayers who were voters in the referendum calling the 1977 limited constitutional convention lacked standing to challenge amendment to Tenn. Const. art. XI, § 12, on ground that the amendment exceeds the limits of the convention call of Acts 1976, ch. 848 and therefore is ineffective under Tenn. Const. art. XI, § 3. Parks v. Alexander, 608 S.W.2d 881, 1980 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2019, 68 L. Ed. 2d 326, 1981 U.S. LEXIS 1852 (1981).

Lawsuit challenging amendment to Tenn. Const. art. XI, § 12, did not present a justiciable controversy under the Declaratory Judgments Act where amendment was not self-executing but required legislative action to affect any rights of the plaintiffs, thereby rendering the controversy theoretical and contingent. Parks v. Alexander, 608 S.W.2d 881, 1980 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2019, 68 L. Ed. 2d 326, 1981 U.S. LEXIS 1852 (1981).

A man who claims to be the father of a child does not have standing to bring a paternity action in which he seeks to be declared the father, along with visitation rights and a name change of a child born during the marriage of the natural mother to a man previously declared by the trial court to be the father of the child; and such denial does not violate the equal protection or due process clauses of U.S. Const. amend. 14, Tenn. Const. art. I, § 8, or Tenn. Const. art. XI, § 8. Cline v. Drew, 735 S.W.2d 232, 1987 Tenn. App. LEXIS 3192 (Tenn. Ct. App. 1987).

6. —Statute of Limitations.

Section 28-3-104 did not apply to constitutional challenge of Homosexual Practices Act (former T.C.A. § 39-13-510), because there is no statute of limitations on challenging an unconstitutional penal statute. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

7. —Application to Corporations.

The state may by statute prescribe the terms upon which foreign corporations shall come within its borders and carry on business with its citizens, or may exclude them altogether, or, if once admitted, may expel them. State v. Phenix Fire Ins. Co., 92 Tenn. 420, 21 S.W. 893, 1892 Tenn. LEXIS 89 (1892)(insurance corporations)Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743, 1893 Tenn. LEXIS 15 (1893); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Connecticut Mut. Life Ins. Co., 106 Tenn. 282, 61 S.W. 75, 1900 Tenn. LEXIS 163 (1901); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901); D'Arcy v. Connecticut Mut. Life Ins. Co., 108 Tenn. 567, 69 S.W. 768, 1902 Tenn. LEXIS 2 (1902).

But the transaction of interstate commerce by foreign corporations not engaged in carrying on business within the borders of the state cannot be prohibited or prevented by the state. Milan Milling & Mfg. Co. v. Gorten, 93 Tenn. 590, 27 S.W. 971, 1894 Tenn. LEXIS 3, 26 L.R.A. 135 (1894); State v. Connecticut Mut. Life Ins. Co., 106 Tenn. 282, 61 S.W. 75, 1900 Tenn. LEXIS 163 (1901).

The word “man” in Tenn. Const. art. I, § 8 includes corporations, and the word “person” in U.S. Const. amends. 5, 14, § 1 includes corporations; and corporations are protected under “the law of the land” and “due process of law” clauses therein against the deprivation of their life, liberty, and property. Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901).

But the word “citizens” in U.S. Const. amend. 14, § 1 does not include corporations within the provision prohibiting the abridgement of “the privileges or immunities of the citizens of the United States,” nor does the word “citizens” in U.S. Const. art. 4, § 2, cl. 1 declaring that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” include corporations. Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S. Ct. 281, 43 L. Ed. 552, 1899 U.S. LEXIS 2386 (1899); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901).

8. Liberties and Privileges.

The whole community is entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its application. It is not the partial character of the rule, so much as its arbitrary and unusual nature, that condemns it as unknown to the law of the land. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

When an act of the legislature applies to all who come within the defined terms of the statute, all are treated alike, accorded the same privileges and subject to the same restrictions, a limitation as to certain reasonable exemptions will not be held unreasonable and arbitrary as in violation of Tenn. Const. art. I, § 8. Hughes v. Board of Comm'rs, 204 Tenn. 298, 319 S.W.2d 481, 1958 Tenn. LEXIS 271 (1958).

Tennessee Board of Nursing did not err by denying the applicant a contested case because T.C.A. § 63-7-115 did not mandate that a contested case occur, and even if the applicant's liberty interests were implicated, he received all of the process to which he was entitled because his meetings with the Board qualified as a name-clearing hearing. Butler v. Tenn. Bd. of Nursing, — S.W.3d —, 2016 Tenn. App. LEXIS 792 (Tenn. Ct. App. Oct. 25, 2016).

9. —Right to Contract.

The right to contract is subject to legislative control, and is subject to curtailment, limitation, and destruction by “the law of the land.” Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Leeper v. State, 103 Tenn. 500, 53 S.W. 962, 1899 Tenn. LEXIS 133, 48 L.R.A. 167 (1899); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); Standard Oil Co. v. State, 117 Tenn. 618, 100 S.W. 705, 1906 Tenn. LEXIS 71, 10 L.R.A. (n.s.) 1015 (1907); Cantrell v. Ring, 125 Tenn. 472, 145 S.W. 166, 1911 Tenn. LEXIS 41 (Tenn. Dec. 1911), criticized, Teague Bros., Inc. v. Martin & Bayley, Inc., 750 S.W.2d 152, 1987 Tenn. App. LEXIS 3040 (Tenn. Ct. App. 1987), criticized, McCallum v. Stem, 23 F.2d 491, 1928 U.S. App. LEXIS 3197 (6th Cir. Tenn. Jan. 6, 1928); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Both the words “liberty” and “property” in Tenn. Const. art. I, § 8 include the right to make contracts, and contracts are entitled to the same protection as property itself. Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Third Nat'l Bank v. Divine Grocery Co., 97 Tenn. 603, 37 S.W. 390, 1896 Tenn. LEXIS 187, 34 L.R.A. 445 (1896); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); State ex rel. Hamby v. Cummings, 166 Tenn. 460, 63 S.W.2d 515, 1933 Tenn. LEXIS 100 (1933).

The liberty of contract is one of the inalienable rights of the citizen, and includes the right to pursue a lawful calling embracing the right to enter into all contracts proper, necessary, and essential to the carrying out of the purpose of such calling, and the possession of property, of which a person cannot be deprived, and implying the right to acquire and dispose of property; and a general prohibition against entering into contracts with respect to property or having as their object the acquisition of property is unconstitutional and void. Moyers v. Memphis, 135 Tenn. 263, 186 S.W. 105, 1916 Tenn. LEXIS 26 (1916).

Any person sui juris may make any contract with another which is not in violation of the federal or state constitutions, federal or state statutes, some ordinance of a city or town, or some rule of the common law. Wallace v. McPherson, 138 Tenn. 458, 197 S.W. 565, 1917 Tenn. LEXIS 56, 1918A L.R.A. (n.s.) 1148 (1917).

Act making sale of gasoline without permit from state superintendent of division of motors and motor fuels unlawful is invalid in that it confers on superintendent right to fix price at which gasoline shall be sold, for it deprives both seller and purchaser of freedom to contract. Standard Oil Co. v. Hall, 24 F.2d 455, 1927 U.S. Dist. LEXIS 1724 (D. Tenn. 1927), aff'd, Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 1928 U.S. LEXIS 323, 60 A.L.R. 596 (1928).

Act prohibiting the teaching of the evolution theory in public schools was a valid enactment and not contrary to Tenn. Const. art. I, § 8 since the state may prescribe the terms upon which teachers must serve the state. Scopes v. State, 154 Tenn. 105, 289 S.W. 363, 1926 Tenn. LEXIS 109, 53 A.L.R. 821 (1926), superseded by statute as stated in, State v. Durso, 645 S.W.2d 753, 1983 Tenn. LEXIS 768 (Tenn. 1983).

The legislature may freely prescribe the terms and conditions upon which employees of the state or of municipalities of the state should work, unhampered by Tenn. Const. art. I, § 8. Knoxville v. State, 175 Tenn. 159, 133 S.W.2d 465, 1939 Tenn. LEXIS 26 (1939).

Collection of tax from consumer does not abridge the freedom of contract. Hooten v. Carson, 186 Tenn. 282, 209 S.W.2d 273, 1948 Tenn. LEXIS 549 (1948).

The right to work or to contract in regard to work is a property right which is protected by the constitutional provision. Bryan v. International Alliance, 43 Tenn. App. 180, 306 S.W.2d 64, 1957 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1957).

The right to contract is subject to curtailment, limitation and destruction by the legislature where such is done pursuant to “the law of the land.” Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

T.C.A. § 29-26-120, concerning attorney fee contracts, does not violate the due process provisions of the state and federal constitutions; section is not arbitrary nor discriminatory, and bears a reasonable relation to a proper legislative purpose, the general assembly's desire to ameliorate the medical malpractice crisis. Newton v. Cox, 878 S.W.2d 105, 1994 Tenn. LEXIS 144 (Tenn. 1994), cert. denied, 513 U.S. 869, 115 S. Ct. 189, 130 L. Ed. 2d 122, 1994 U.S. LEXIS 6289 (1994).

10. —Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee declaration of rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

The right to privacy contained in Tenn. Const. art. I, § 8 and other sections of the Tennessee constitution's declaration of rights is similar to, but not synonymous with, the federal right to privacy encompassed by U.S. Const. amends. 5 and 14. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

The right to privacy in Tennessee is founded in part upon Tenn. Const. art. I, § 8, but its sources also include Tenn. Const. art. I, §§ 3, 7, 19 and 27. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

The state constitutional guarantee of privacy is not a source of public policy which restricts the right of private employers to discharge terminable-at-will employees who test positive on random drug tests. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 1997 Tenn. LEXIS 283 (Tenn. 1997).

The Tennessee constitution does not provide a right to the nondisclosure of private acts. Cutshall v. Sundquist, 193 F.3d 466, 1999 FED App. 352P, 1999 U.S. App. LEXIS 24363 (6th Cir. Tenn. 1999), cert. denied, 529 U.S. 1053, 120 S. Ct. 1554, 146 L. Ed. 2d 460, 2000 U.S. LEXIS 2391 (2000).

11. — —Woman's Right to Terminate Pregnancy.

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

12. — —Parental Rights.

In light of the right to privacy under the Tennessee constitution, when no substantial harm threatens a child's welfare, the state lacks a sufficiently compelling justification for infringement on the fundamental right of parents to raise their children as they see fit. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Parental rights constitute a fundamental liberty interest under Tenn. Const. art. I, § 8. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Right to privacy fully protects the right of parents to care for their children without unwarranted state intervention. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Parental immunity is limited to conduct that involves the exercise of parental authority, performance of parental supervision, and the provision of parental care and custody; mother's operation of automobile in which children were passengers was not protected under this standard, and thus immunity did not protect mother from liability for injuries to the children. Broadwell ex rel. Broadwell v. Holmes, 871 S.W.2d 471, 1994 Tenn. LEXIS 9 (Tenn. 1994).

Provision of former § 36-1-111 that would allow court to enter decree of adoption based on best interest of child, without prior judicial termination of father's parental rights pursuant to law, is constitutionally invalid. Nale v. Robertson, 871 S.W.2d 674, 1994 Tenn. LEXIS 36 (Tenn. 1994).

Adoptive parents are entitled to the same constitutional protection of parenting decisions as natural parents. Simmons v. Simmons, 900 S.W.2d 682, 1995 Tenn. LEXIS 271 (Tenn. 1995).

In a contempt action by paternal grandparents against mother for refusing to allow visitation with grandchild, where the natural father's parental rights had been terminated and the child adopted by the mother's husband, under their constitutionally protected parental rights, and where there was no evidence that the child was in danger of substantial harm, the mother and adoptive father had the right to refuse visitation. Simmons v. Simmons, 900 S.W.2d 682, 1995 Tenn. LEXIS 271 (Tenn. 1995).

Statutory provision that no putative father may legitimate his child without the consent of the mother violates due process and equal protection principles. Vineyard v. Hood (In re Hood), 930 S.W.2d 575, 1996 Tenn. App. LEXIS 348 (Tenn. Ct. App. 1996).

The statute denying standing to an alleged biological father seeking to establish paternity of a child born to a woman while she was married to another man does not seek to remove a parental relationship where one exists but to create rights for the putative father and, since no protected rights are implicated, this statute does not violate the alleged biological father's rights to due process. Evans v. Steelman, 970 S.W.2d 431, 1998 Tenn. LEXIS 179 (Tenn. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 371 (Tenn. June 22, 1998).

The language of T.C.A. § 36-6-306, allowing grandparents reasonable visitation rights upon a finding of the best interests of the minor child, constitutes an unconstitutional invasion of the privacy rights of the parents under the Tennessee constitution. Ellison v. Ellison, 994 S.W.2d 623, 1998 Tenn. App. LEXIS 746 (Tenn. Ct. App. 1998).

It is beyond question that before a parent's rights can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated. Tennessee Baptist Children's Homes, Inc. v. Swanson (In re Swanson), 2 S.W.3d 180, 1999 Tenn. LEXIS 475 (Tenn. 1999).

The definition formerly found in § 36-1-102 of “willfully failed to support” and “willfully failed to make reasonable payments toward such child's support” is unconstitutional because it creates an irrebutable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional. Tennessee Baptist Children's Homes, Inc. v. Swanson (In re Swanson), 2 S.W.3d 180, 1999 Tenn. LEXIS 475 (Tenn. 1999).

The state has a compelling interest that justifies establishing a procedure for resolving parentage disputes and for making this procedure available not only to the child and the child's mother and her husband, but also to any man claiming to be the child's biological father. State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 2000 Tenn. App. LEXIS 566 (Tenn. Ct. App. 2000).

The parentage statutes, codified at T.C.A. § 36-2-301 et seq., which provide a new remedy for biological fathers to establish paternity notwithstanding the marital status of the child's mother, do not impermissibly interfere with familial privacy interests, or with the rights and interests of a husband of a woman whose child's parentage is disputed; accordingly, these sections are constitutional on their face. State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 2000 Tenn. App. LEXIS 566 (Tenn. Ct. App. 2000).

It would be a violation of constitutional rights if the parents were denied a day in court on either other parent's petition to modify or the other original petition to relocate the children. Placencia v. Placencia, 48 S.W.3d 732, 2000 Tenn. App. LEXIS 824 (Tenn. Ct. App. 2000).

When child's parent voluntarily consented to cede custody to the child's maternal grandparent, the parent no longer enjoyed a presumption of superior rights; the parent's strengthened relationship with the child did not justify a change in custody from the grandparent to the parent. Blair v. Badenhope, 77 S.W.3d 137, 2002 Tenn. LEXIS 192 (Tenn. 2002).

Court did not err by refusing to apply the “superior parental rights doctrine” to a mother's petition to modify a child custody because witnesses testified that the mother indicated that she understood the order and the process, testimony showed that the parties intended for the order to transfer custody of the child from the mother to the foster parents, and it was to remain effective until such time as the mother sought to file a petition to modify custody to regain custody of the child, and the mother voluntarily consented to the entry of the order and waived a hearing on the custody issue; therefore, the court did not err in failing to apply the superior parental rights doctrine. Baker v. He (In re A.M.H.), — S.W.3d —, 2005 Tenn. App. LEXIS 736 (Tenn. Ct. App. Nov. 23, 2005), rev'd, In re the Adoption of A.M.H., 215 S.W.3d 793, 2007 Tenn. LEXIS 13 (Tenn. Jan. 23, 2007).

Evidence that appellant parents' daughter would be harmed from a change in custody because she lived and bonded with appellees during the pendency of the instant litigation did not constitute the substantial harm required to prevent the parents from regaining custody. In re A.M.H., 215 S.W.3d 793, 2007 Tenn. LEXIS 13 (Tenn. Jan. 23, 2007), rehearing denied, 215 S.W.3d 793, 2007 Tenn. LEXIS 235 (Tenn. 2007), cert. denied, Baker v. Shao-Qiang He, — U.S.—, — S. Ct. —, — L. Ed. 2d —, 2007 U.S. LEXIS 8357 (U.S. June 25, 2007).

Alleged heir could not prevail on constitutional grounds where the decedent simply did not intend to make a bequest; a petition by a child born out of wedlock to establish paternity after the death of the testator had no bearing on the intent of the testator. Lanier v. Rains, 229 S.W.3d 656, 2007 Tenn. LEXIS 583 (Tenn. June 28, 2007).

Court erred in terminating a mother's parental rights because the State failed to provide reasonable efforts at rehabilitation; the case manager conceded that she never attempted to communicate with the mother in writing and that she never had any follow-up conversations with the mother about helping her obtain rehabilitative services. In re Tiffany B., 228 S.W.3d 148, 2007 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 26, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 379 (Tenn. Apr. 23, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 531 (Tenn. May 29, 2007).

Court erred in terminating a father's parental rights because the State failed to provide reasonable efforts at rehabilitation; the case manager conceded that no effort was made to communicate with the father in writing, and his third case manager admitted that she had only one face-to-face meeting with the father that occurred when he was incarcerated in the workhouse. On that occasion, the case manager admitted that she failed to provide the father with the written notice of the meeting that she had provided the mother earlier that same day and that she did not offer to make arrangements to provide him services at that time. In re Tiffany B., 228 S.W.3d 148, 2007 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 26, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 379 (Tenn. Apr. 23, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 531 (Tenn. May 29, 2007).

Trial court appropriately applied a presumption of superior parental rights in favor of a mother because she did not appreciate the consequences of entering into an agreed order transferring custody of her child to grandparent; the grandparents, who were the mother's adoptive parents, were in a position of trust when they presented the mother with a custody order, and the mother reasonably trusted them to protect her parental rights and to act in the child's best interest. In re Kane H., — S.W.3d —, 2015 Tenn. App. LEXIS 359 (Tenn. Ct. App. May 20, 2015).

Because the new requirements were added to the permanency plan shortly before trial, and the evidence showed that the mother was not given sufficient time to complete those newly added requirements, although she did make an effort to complete some of them, terminating her parental rights for failure to complete those requirements would violate due process; thus, the order terminating the mother's parental rights to the child for substantial noncompliance with the statement of responsibilities in the permanency plan was reversed. In re Bryson C., — S.W.3d —, 2016 Tenn. App. LEXIS 498 (Tenn. Ct. App. July 18, 2016).

Mother failed to demonstrate that she was deprived of any of her rights related to her representation or to fundamental fairness in the parental termination proceedings because her counsel remained on her case and represented her at trial in her absence; counsel attempted to communicate with the mother throughout the case, and the mother had to accept the responsibility of counsel's choice to proceed without the mother at trial. In re Karissa, — S.W.3d —, 2017 Tenn. App. LEXIS 134 (Tenn. Ct. App. Feb. 27, 2017), appeal denied, In re Karissa V., — S.W.3d —, 2017 Tenn. LEXIS 330 (Tenn. May 24, 2017).

Trial court's visitation schedule for the grandmother, which allowed her overnight visitation with the child the third weekend of every month, every Christmas break, every other Thanksgiving break, and every summer break, and required the mother to facilitate two phone calls per week, was not reasonable because it impermissibly interfered with the mother's rights and it was not narrowly tailored, as the child was only 16 months old, the grandmother never acted as a caregiver or parent, and yet to establish a significant relationship with the child, having only visited her twice. In re Diawn B., — S.W.3d —, 2018 Tenn. App. LEXIS 422 (Tenn. Ct. App. July 23, 2018).

Grandparent visitation statutes must be narrowly construed to protect the fundamental parental liberty interest at stake, and the supreme court has expressly rejected the examination of the extent or quality of a petitioner's relationship with the child when determining whether he or she qualifies as a grandparent under the statute; thus, subsection (e) does not authorize a court to determine that a petitioner qualifies as a de facto grandparent based upon his or her relationship with a child. In re Claire C., — S.W.3d —, 2020 Tenn. App. LEXIS 66 (Tenn. Ct. App. Feb. 14, 2020).

13. — —Homosexual Practices Act.

The Homosexual Practices Act, codified in former § 39-13-510, is an unconstitutional violation of the fundamental right of privacy; this right encompasses Tennessee citizens' rights to engage in consensual, private, non-commercial, sexual conduct, because that activity involves intimate questions of personal and family concern. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

14. —Right to Litigate.

The right to litigate in the courts is a common right, and a species of property — an incorporeal property — and is not taxable as a privilege, but may be taxed as a property right by the imposition of a specific tax upon the unsuccessful litigant. Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 Tenn. LEXIS 413, 19 Am. Rep. 604 (1871); Maxwell v. State, 55 Tenn. 565, 1875 Tenn. LEXIS 3 (1875); State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879).

Fact that court refused to allow complainant to prosecute suit as assignee did not amount to deprivation of property without judgment of peers where cause of action was not assignable and bill did not state cause of action. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Denial to wife of cause of action against husband for personal injuries did not constitute denial of due process or equal protection of law. Fischer v. Fischer, 477 S.W.2d 513, 1972 Tenn. LEXIS 392 (Tenn. 1972).

Where state proceeding could subject insurer to liability, insurer's right to present evidence and cross-examine witnesses precludes state court from accepting federal agency decision as conclusive on liability issue. Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23, 1976 Tenn. LEXIS 568 (Tenn. 1976).

15. — —Rights in Remedies.

A special law in aid of the remedy to enforce existing rights, and depriving no one of a right, may be constitutional. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836).

Neither Tenn. Const. art. I, § 8, providing that no one shall be deprived of his property except by due process of law, nor Tenn. Const. art. I, § 20, prohibiting the making of retroactive laws or laws impairing the obligation of contracts, guarantees to the complaining party any particular remedy for the enforcement of his rights. Lunati v. Progressive Bldg. & Loan Ass'n, 167 Tenn. 161, 67 S.W.2d 148, 1933 Tenn. LEXIS 22 (1933).

Neither Tenn. Const. art. I, § 8 nor Tenn. Const. art. I, § 20 forbids a change in remedy, if it does not deprive one of a contractual right or prevent its enforcement. Lunati v. Progressive Bldg. & Loan Ass'n, 167 Tenn. 161, 67 S.W.2d 148, 1933 Tenn. LEXIS 22 (1933).

Principles of due process forbid the legislature to abolish a remedy that has been so far carried into operation that the substantive rights of the litigants would be adversely affected if the remedy, as to them, were abolished. Morris v. Gross, 572 S.W.2d 902, 1978 Tenn. LEXIS 660 (Tenn. 1978).

Tennessee has not recognized any implied cause of action for damages based upon violations of the Tennessee constitution. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

16. — —Statutes of Limitation.

Products liability statute of limitations, barring actions ten years after purchase of product is not an unconstitutional disseizing or depriving of life, liberty or property where the cancer occurred twenty-five years after exposure to the product. Mathis v. Eli Lilly & Co., 719 F.2d 134, 1983 U.S. App. LEXIS 16203 (6th Cir. Tenn. 1983).

Products Liability Act provisions in § 29-28-103 barring actions against manufacturers or sellers after ten years from purchase do not deny injured persons equal protection because there is a reasonable relation between the statutory classification and the statutory objective, namely, relieving manufacturers and sellers from indefinite liability and helping stem the increasing costs of products liability insurance. Stutts v. Ford Motor Co., 574 F. Supp. 100, 1983 U.S. Dist. LEXIS 12082 (M.D. Tenn. 1983).

The three-year statute of limitations for post-conviction release petitions contained in § 40-30-102 (repealed) complies with the due process requirements of the United States and Tennessee constitutions. Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

Where grounds for post-conviction relief occurred after action by the state's highest appellate court, the three-year statute of limitations found in § 40-30-102 (repealed) was unconstitutional as applied to petitioner because it denied him due process under the state and federal constitutions. Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

Narrowing of the statute from the general population of court litigants to only inmates is rationally related to a legitimate state interest and the statute does not deprive inmates of administrative remedies and does not permanently bar any inmate access to the courts; the State has a legitimate interest in reducing costs and in reducing the amount of meritless inmate litigation, and thus the statute is rationally related to the State's interest, the constitutional requirement of rationality is satisfied, and the statute does not offend principles of equal protection. Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 2017 Tenn. LEXIS 179 (Tenn. Mar. 23, 2017).

17. —Right to Vote.

The right of suffrage, the elective franchise, the right to vote, by whatever name it may be designated, is a privilege and a right more valuable than any other; for by it all other rights, property, liberty, and life may be guarded and protected. One clothed with this right has a vested interest, of which he can be deprived, not by any act of the legislature, but only by due process of law, or by the will of the people, acting in their sovereign character. The power to deprive one of this right cannot be conferred upon the governor by a legislative act. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

18. —Violation of Laws.

The supreme court refuses to recognize as one of the liberties guaranteed by government to its citizens the privilege of violating its laws. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

Tenn. Const. art. I, §§ 7, 8 gives no one a right to violate and defy the law, and when one has been prevented from doing that which is unlawful, he has been denied no constitutional right; and he who engages in the outlawed sale of intoxicating liquors subjects himself to the penalties of the law just as any other lawbreaker; and property used in such unlawful business will not be protected by the law with the same sacredness as property held and used for lawful purposes is protected. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

The enforcement of the liquor laws does not involve a controversy between the people and their liberties, and does not involve a doctrine that would seriously oppress the people and impair their liberties; and there is no element of oppression of the people in making effective the mandate of their own laws, that, for the good of the public, they shall not do certain things. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

An act prohibiting the transportation of intoxicating liquors intended for personal use does not violate Tenn. Const. art. I, § 8. There is no disseisin of liberties or privileges otherwise than by “the law of the land.” Liquor Transportation Cases, 140 Tenn. 582, 205 S.W. 423, 1918 Tenn. LEXIS 57 (1918).

Statute declaring certain acts to be deemed a commission of the offense of manufacture of whisky is not void as depriving one accused of his liberty and subjecting him to fines contrary to Tenn. Const. art. I, § 8. Hall v. State, 151 Tenn. 416, 270 S.W. 84, 1924 Tenn. LEXIS 74 (1925).

19. Judgment of Peers.

By the judgment of his peers or the law of the land is meant the verdict of a jury or such procedure at law as is recognized in our law as a proper and legal course of proceeding; as by judgment upon demurrer, or by attachment for contempt of court, and disobedience of such process and orders as are legally used for the enforcement of justice and the execution of the law. Renney v. Mayfield, 5 Tenn. 165, 1817 Tenn. LEXIS 82 (1817). These words (by the judgment of his peers or the law of the land) mean by the verdict of a jury in a case of disputed facts; and where the facts are otherwise legally apparent, by the judgment of a court legally constituted. For instance, if the fact be demurred to, or be confessed on record by the party, then, without the intervention of a jury, the court applies the law to the fact so legally apparent. Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824). See Tipton v. Harris, 7 Tenn. 414, 1824 Tenn. LEXIS 21 (1824); Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827); Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831); State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895).

Statutes giving the courts discretion to determine the punishment for crimes within fixed limitations are not unconstitutional as violative of Tenn. Const. art. I, § 8. The defendant is punished in accordance with the judgment of his peers and the law of the land. Durham v. State, 89 Tenn. 723, 18 S.W. 74, 1890 Tenn. LEXIS 94 (1891).

Statutes prescribing rules of evidence and declaring what shall be evidence, or what shall be prima facie evidence, and which party shall assume the burden of proof in civil cases, are constitutional, so long as they are impartial and uniform, and do not preclude a party from exhibiting his rights. Such statutes do not violate the right of trial by jury, nor deprive a litigant of “the judgment of his peers” under Tenn. Const. art. I, § 8. Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910). See notes under Tenn. Const. art. I, § 6.

The provision that no man shall be deprived of his liberty, “but by the judgment of his peers,” does not mean that the jury shall fix the punishment, but merely that, in cases to which jury trials are applicable, the prisoner shall not be deprived of his liberty but by the judgment of a jury finding his guilt; for, upon such guilt being found by the verdict duly returned into court and accepted by the trial judge, the law at once attaches to it the penalty prescribed therefor, and it is the duty of the judge to pronounce sentence accordingly. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

In felony cases, one of the means necessary to secure a fair and impartial trial by a jury of defendant's peers is not to permit the jury to separate, though accused consents to the separation. Long v. State, 132 Tenn. 649, 179 S.W. 315, 1915 Tenn. LEXIS 59 (1915).

A private act which established a special court in a particular locality for trial of certain misdemeanors without indictment, arraignment, or trial by jury was contrary to the law of the land and is unconstitutional. State ex rel. Ward v. Murrell, 169 Tenn. 688, 90 S.W.2d 945, 1935 Tenn. LEXIS 97 (1935); Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 1935 Tenn. LEXIS 98 (1936).

Neither Tenn. Const. art. I, §§ 6 or 8 prevents an individual from waiving his right of a trial by jury in misdemeanor cases. Cates v. State, 198 Tenn. 270, 279 S.W.2d 262, 1955 Tenn. LEXIS 370 (1955); State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

In trial for a felony, it was not error for the trial court to refuse defendant's request to waive a trial by jury. Jones v. Tenn., 206 Tenn. 245, 332 S.W.2d 662, 1960 Tenn. LEXIS 512 (1960).

The fact that a juror was asleep in the jury box during a portion of the trial is not alone ground for a new trial, where it appears that accused was not prejudiced. State v. Chestnut, 643 S.W.2d 343, 1982 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. 1982).

20. Property and Property Rights.

Property, in the sense of Tenn. Const. art. I, § 8, is a thing in being which is capable of becoming the subject of dominion or ownership, and which actually has a master or proprietor, and is actually reduced into possession. Property in possession by Tenn. Const. art. I, § 8 is secured to the owner, so that it cannot be taken from him but by due course of law in a court regularly constituted and proceeding by the standing rules of law; and not by a legislative act depriving the owner of it for the benefit of some other individual. Townsend v. Townsend, 7 Tenn. 1, 1821 Tenn. LEXIS 14, 14 Am. Dec. 722 (Tenn. May 1821).

Where state law gives the licensing agency broad discretion to grant or to deny license applications in a closely regulated activity, the applicants for an initial license do not have a constitutionally protected claim of entitlement. Mid-South Indoor Horse Racing, Inc. v. Tennessee State Racing Com., 798 S.W.2d 531, 1990 Tenn. App. LEXIS 587 (Tenn. Ct. App. 1990).

While a justice of the peace has no vested right in his office, he has a property right therein. State v. Kerby, 136 Tenn. 386, 189 S.W. 859, 1916 Tenn. LEXIS 142 (1916).

Limitation of appointments to board of dental examiners to dentists recommended by state dental association did not violate Tenn. Const. art. I, § 8 on ground that such association was exclusive in character since the right to membership on such board was not a property right. Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S.W.2d 687, 1933 Tenn. LEXIS 78 (1934).

Statute providing for taxing of gasoline in storage unless intended for export and held not longer than sixty days does not violate constitution on the ground that it is depriving one of a property right, since right to store gasoline is a natural right and not a property right and storage can be taxed as a privilege. Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 1934 Tenn. LEXIS 99 (Dec. 1934).

The right to dispose of property by will, or real estate at least, depends entirely upon statute, since it is not a natural or constitutional right and may be regulated by legislation. Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713, 1960 Tenn. LEXIS 491 (1960).

A vested right of action is as much property as are tangible things and is protected from arbitrary legislation, whether such right of action be based upon the law of contracts or upon other principles of the common law. Morris v. Gross, 572 S.W.2d 902, 1978 Tenn. LEXIS 660 (Tenn. 1978).

When the decree of divorce adversely affects property interests of the surviving spouse, the death of the other spouse does not defeat the right of the surviving spouse or his or her representative to institute vacation proceedings. This is permitted, not for the purpose of continuing the controversy regarding the right to a divorce itself, but to determine whether or not the surviving spouse has been deprived of property interests by reason of the change in his or her marital status brought about by the divorce decree. Baggett v. Baggett, 541 S.W.2d 407, 1976 Tenn. LEXIS 548 (Tenn. 1976).

21. —Zoning.

Not only must a zoning ordinance requiring the termination of a nonconforming use within a specified period of time be reasonable in and of itself, it must also be reasonable as it applies to the particular property owner. Rives v. Clarksville, 618 S.W.2d 502, 1981 Tenn. App. LEXIS 470 (Tenn. Ct. App. 1981).

In determining if a zoning ordinance is reasonable as applied to plaintiff, the following, while not all inclusive, should be taken into consideration: (1) The structure located on the property; (2) The use of the property; (3) The location of the property; (4) The cost of the property; (5) The benefit to be derived by the public; (6) The period of use; and (7) The amortization period. In determining whether the amortization period is reasonable, consideration should be given to the length of the amortization period in relation to the property owner's investment and the length of the amortization period in relation to the use of the property. Rives v. Clarksville, 618 S.W.2d 502, 1981 Tenn. App. LEXIS 470 (Tenn. Ct. App. 1981).

“Amortization” to eliminate nonconforming uses does not violate the constitution. Rives v. Clarksville, 618 S.W.2d 502, 1981 Tenn. App. LEXIS 470 (Tenn. Ct. App. 1981).

Title 13, ch. 24, part 1, which removed local zoning restrictions and permitted the establishment of group homes for the mentally retarded, or mentally or physically handicapped, did not violate due process or equal protection. Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13, 1982 Tenn. App. LEXIS 478 (Tenn. Ct. App. 1982).

Allegation that zoning board acted arbitrarily and illegally by holding plaintiff to strict requirements of zoning ordinance, while at the same time permitting other sexually oriented businesses competing with him to operate illegally outside the zone, was dismissed for failure to state a claim; that some people escape the law's reach while others have the law enforced against them does not, by itself, run afoul of the equal protection guarantees in the state and federal constitutions. 421 Corp. v. Metropolitan Gov't of Nashville & Davidson County, 36 S.W.3d 469, 2000 Tenn. App. LEXIS 261 (Tenn. Ct. App. 2000).

Trial court properly dismissed landowners' claim that an ordiance violated due process because the statements in the preamble reflected legitimate legislative purposes, protecting the welfare of economically vulnerable citizens; the metropolitan council chose to restrict the location of alternative financial service providers in order to regulate the proliferation and clustering of those services and decision reasonably advanced the governmental interests identified in the preamble. Brown v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2018 Tenn. App. LEXIS 679 (Tenn. Ct. App. Nov. 26, 2018).

22. —Employment.

Employee promoted pursuant to the Civil Service Act was subject to six-month probationary period, and could be separated from the service without right of appeal or hearing according to the rules of the department of personnel, and being nontenured during the probationary period, employee did not have such a property interest in continued employment that would entitle her to the due process protection of the United States constitution or the provisions of the Tennessee constitution. Christians v. State Dep't of Correction, 790 S.W.2d 535, 1990 Tenn. App. LEXIS 4 (Tenn. Ct. App. 1990).

Due process requirements applied to dismissed professor because of her property interest in her tenured faculty position. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

23. —Professional Licenses.

An architect's due process interest in a professional license was not violated when that architect was prosecuted before the state disciplinary board by an attorney who also advised that board on unrelated matters. Martin v. Sizemore, 78 S.W.3d 249, 2001 Tenn. App. LEXIS 616 (Tenn. Ct. App. 2001).

Tennessee Nursing Board's petition for rehearing was denied because the notice did not fairly appraise the nurse under U.S. Const. amend. 14 and Tenn. Const. art. I, § 8 that the Division of Health Related Boards was seeking revocation or suspension of her license; division also presented no competent evidence regarding the nurse's psychological condition. Miller v. Tennessee Bd. of Nursing, 256 S.W.3d 225, 2007 Tenn. App. LEXIS 826 (Tenn. Ct. App. Oct. 22, 2007).

Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101 et seq., provides for procedural safeguards in contested medical license revocation cases, and UAPA procedure scrupulously protects the fundamental right of notice and opportunity to be heard. The doctor had not alleged that he was not provided either sufficient notice of the charges against him, or an opportunity to be heard, and from the appellate court's review of the record, it appeared that a contested hearing was set when the doctor appealed from the administrative judge's decision and was stayed pursuant to his request; accordingly, the appellate court did not find that due process under U.S. Const. amend. V & IV and Tenn. Const. art 1, § 8 required dismissal of the action since the doctor had been afforded due process by being given proper notice of the charges and an opportunity to be heard, where he may present evidence of the alleged settlement agreements and evidence disputing the substantive allegations. Hardy v. State, — S.W.3d —, 2010 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 19, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 772 (Tenn. Aug. 25, 2010), cert. denied, Hardy v. Tenn. Dep't of Health, 179 L. Ed. 2d 500, 131 S. Ct. 1603, 79 U.S.L.W. 3512, 2011 U.S. LEXIS 1953 (U.S. 2011).

Tennessee Department of Health satisfied due process because the steps it took were reasonably calculated to apprise the doctor of the charges against him and of the hearing at which his medical license was revoked; the Department advised the doctor of the alleged conduct that warranted action against his license and provided him with an opportunity to show compliance and mailed the notice of the alleged conduct to the doctor at the address shown on his last license renewal application. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

24. —Public Offices and Officers.

The legislature can abolish any office, if there be no constitutional restriction in the way, and thereby abrogate the duties attached, and as an incident thereto the rights of the officer cease, since there is nothing to which they can attach. Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 1916 Tenn. LEXIS 109 (1916).

There is a public necessity that the legislature shall have power to abolish an office when it has ceased to be a necessity to the public, or when it forms a part of a scheme of municipal government, and its abolition is necessary, or so deemed by the legislature, in order that a better form of municipal benefit may be conferred. Therefore, a statute abolishing city offices in amending the city charter is not unconstitutional as violative of Tenn. Const. art. I, § 8 or the federal constitution. Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 1916 Tenn. LEXIS 109 (1916).

In the exercise of the state's sovereignty over municipalities, the legislature may abolish existing city offices held by incumbents, and this, if done by a statute, in all other respects constitutional, puts an end to the rights and privileges of the incumbent officers, except to receive compensation for services already rendered. Tenn. Const. art. I, § 8 is no barrier to this legislative power. Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 1916 Tenn. LEXIS 109 (1916); State ex rel. Linkous v. Morris, 136 Tenn. 157, 189 S.W. 67, 1916 Tenn. LEXIS 110 (1916).

Act depriving clerks of courts, sheriffs, registers of deeds, masters in chancery, and county trustees throughout the state of fees and providing salaries for only a part of them unconstitutionally deprives part of compensation, contrary to “the law of the land.” Hickman v. Wright, 141 Tenn. 412, 210 S.W. 447, 1918 Tenn. LEXIS 104 (1919).

Statute, abolishing fee system in counties of over 190,000 population, which applies only to one county, under which officials of that county would be required to render some services as officials of other counties who are permitted to retain fees collected, is invalid as arbitrary and partial and as suspending general law for benefit of one county. State ex rel. Shelby County v. Stewart, 147 Tenn. 375, 247 S.W. 984, 1922 Tenn. LEXIS 50 (1922).

The legislature may adopt a new system of government for municipal corporation or for such institutions and agencies of the state as are not properly protected by the constitution, and may abolish the old plan, and the offices created for the administration of the old plan, in whole or in part, and the rights of officers must give way to what the legislature conceives to be the public interest, without violation of Tenn. Const. art. I, § 8 or the federal constitution, assuming that such change is real and not colorable, for the purpose of putting one set of men out of office and another set in office. House v. Creveling, 147 Tenn. 589, 250 S.W. 357, 1922 Tenn. LEXIS 66 (1922).

Though statute deprives members of the board of education of a county of their office, it is not for that reason unconstitutional, where the change is brought about by a change in the manner of selection of the members of such board. Holland v. Parker, 159 Tenn. 306, 17 S.W.2d 926, 1928 Tenn. LEXIS 86 (1929).

An act guaranteeing to an official a certain salary annually with right to fees in excess of that amount is unconstitutional as arbitrary classification and discriminatory where confined in its application to one county by reference to the federal census, such officers in other counties being limited to a maximum amount by general law. Harbert v. Mabry, 166 Tenn. 290, 61 S.W.2d 652, 1933 Tenn. LEXIS 94 (1933).

The legislature may alter the membership or duties of an agency created by it, if it does not legislate one set of members out of office and another set into office, and statute increasing the state board of elections, thus lessening power of former members, does not violate Tenn. Const. art. I, § 8. Waldauer v. Britton, 172 Tenn. 649, 113 S.W.2d 1178, 1937 Tenn. LEXIS 111 (1938).

T.C.A. § 5-14-114's classification of a county official's conflict of interest with regard to a county contract as a Class D felony in only those counties adopting the County Purchasing Law of 1957 is purely arbitrary and violates Tenn. Const. art. I, § 8. State v. Whitehead, 43 S.W.3d 921, 2000 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. 2000).

25. —Deprivation of Property.

One cannot be deprived of vested rights by a legislative act, and the rights of two individuals in judicial conflict cannot be determined by a legislative act. Williams v. Register of West Tennessee, 3 Tenn. 213, 1 Cooke, 1812 Tenn. LEXIS 59 (1812); Officer v. Young, 13 Tenn. 320, 1833 Tenn. LEXIS 182 (1833); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Reynolds v. Baker, 46 Tenn. 221, 1869 Tenn. LEXIS 54 (1869); Southern R. Co. v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A. (n.s.) 828, 1912 Tenn. LEXIS 54 (1912).

There can be no reasonable classification in legislation by which one man can, without his consent, be deprived of his property for the benefit of another; and a statute cannot be saved from such unconstitutionality, by reason of any classification made under Tenn. Const. art. XI, § 8. McConnell v. Bell, 121 Tenn. 198, 114 S.W. 203, 1908 Tenn. LEXIS 16 (1908).

An act, requiring employment of a mine foreman in every mine to perform duties required by statute to keep the mine safe, which makes the foreman the agent of the owner or operator so as to render the owner or operator liable to miners for negligence of the foreman, held not violative of Tenn. Const. art. I, § 8 as depriving the owner or operator of his property contrary to the law of the land. Ducktown Sulphur, Copper & Iron Co. v. Galloway, 262 F. 669, 1920 U.S. App. LEXIS 1593 (6th Cir. Tenn. 1920).

Act creating county board of education in each county is not violative of Tenn. Const. art. I, § 8 as divesting property rights vested under an earlier act creating a special school district and vesting control of the school therein in a board of trustees, where the later act is construed as not repealing the earlier. Oneida High School v. Scott County Board of Education, 145 Tenn. 306, 237 S.W. 52, 1921 Tenn. LEXIS 81 (1921).

The provisions of Tenn. Const. art. I, § 8 against depriving of property without due process of law are not violated by an act providing for opening building and improving a city's highways and for improvement districts. The act is within the constitutional authority of municipalities to levy taxes for corporate purposes. Jordan v. City of Cleveland, 148 Tenn. 337, 255 S.W. 377, 1922 Tenn. LEXIS 89 (1922).

The owner of a grocery store who cut his own meat and who refused to join a butcher's union or work union hours was deprived of his liberty and property by the conduct of the union in picketing his store and advertising that he was unfair to organized labor so that he was entitled to enjoin such conduct by the union. Lyle v. Amalgamated Meat Cutters & Butchers Workmen, 174 Tenn. 222, 124 S.W.2d 701, 1938 Tenn. LEXIS 83 (1939), overruled, Ira A. Watson Co. v. Wilson, 187 Tenn. 402, 215 S.W.2d 801, 1948 Tenn. LEXIS 445 (1948).

Employer was not entitled to enjoin threatened payment of unemployment compensation to employees on strike on the ground that such payment amounted to confiscation of property of employer without due process of law since suit was premature as employer had not exhausted his administrative remedies, and since payment might never be paid as it was dependent upon a contingency which might not happen. Tennessee Enamel Mfg. Co. v. Hake, 183 Tenn. 615, 194 S.W.2d 468, 1946 Tenn. LEXIS 245 (1946).

If constitutional question involved in appeal is alleged to be that property of petitioner was taken in violation of due process the property taken must be the direct result of denial of due process. Tennessee C. R. Co. v. Pharr, 183 Tenn. 658, 194 S.W.2d 486, 1946 Tenn. LEXIS 249 (1946).

Contract between city and water company which authorized water company to discontinue water service of water users who failed to pay sewer service charge did not deprive water users of property and property rights without due process of law since water and sewer systems were interlocking. Patterson v. Chattanooga, 192 Tenn. 267, 241 S.W.2d 291, 1951 Tenn. LEXIS 401 (1951).

Where there was no established practice at a private college to make decisions on tenure other than during the final year of probation, teacher denied reemployment for the subsequent year during his final year of probation did not have a reasonable expectancy of reemployment nor had he achieved a tentative tenure, so that he was not entitled to formal notice and hearing and a showing of cause for the nonrenewal of his employment. Johnson v. Christian Bros. College, 565 S.W.2d 872, 1978 Tenn. LEXIS 552 (Tenn. 1978).

Ordinances regulating the use and development of property are generally held to lie within the police power of municipal corporations, and their adoption, while frequently affecting property values and restricting use of property, has generally not been considered to amount to a taking under the power of eminent domain or to constitute retrospective legislation within the meaning of the state constitution. Draper v. Haynes, 567 S.W.2d 462, 1978 Tenn. LEXIS 604 (Tenn. 1978).

26. — —Confiscation and Forfeiture.

Except in well-known cases, recognized at common law, of great emergencies, such as the demolition of a house in a city to check the progress of a fire, etc., neither dogs nor any other property shall be destroyed or forfeited without a previous adjudication to that effect made upon a trial had according to the course of the common law. It cannot be done by mere legislation, but only by adjudication, with the well-known exceptions above mentioned. Phillips v. Lewis, 3 Shan. 230 (1877).

A party by his conduct cannot so forfeit a right that it may be taken from him without judicial proceedings, in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative acts, and confiscations without a judicial hearing, after due notice, would be void, as not being due process of law. State v. Del Rio Turnpike Co., 131 Tenn. 600, 175 S.W. 1143, 1914 Tenn. LEXIS 129 (1914).

Judgment ordering padlocking of residence as public nuisance for alleged unlawful sale of intoxicating liquors did not constitute an unconstitutional confiscation or forfeiture of property. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

Forfeiture proceedings did not violate claimant's due process because they were presided over by the commissioner of safety since neither the commissioner nor his department could have benefited from the proceeding. Jones v. Greene, 946 S.W.2d 817, 1996 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1996).

A 41-month delay between the seizure of property and the forfeiture hearing caused by protracted litigation over claimant's right to the property did not violate his due process rights. Jones v. Greene, 946 S.W.2d 817, 1996 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1996).

State provided sufficient proof that the detective complied with this section when he delivered the notice of seizure by certified mail to defendant where the detective explained the need to get an accurate count of the money at a bank prior to providing notice of the seizure to defendant, defendant did not claim that he did not receive the notice of the seizure, and the record showed that he had sufficient time to file a pretrial motion to dismiss the forfeiture and to challenge the forfeiture of the funds in a post-trial hearing. State v. Tuttle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 8, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 5, 2015), aff'd in part, rev'd in part, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

Trial court did not err in finding that a city was immune from an inmate's constitutional claims because the inmate was not in a procedural posture to petition for return of his seized property through a civil action, and no forfeiture proceeding had been initiated against his personal property; therefore, the inmate was asserting a claim against the city for violation of his civil rights under the Fourth, Fifth, and Fourteenth Amendments. Lankford v. City of Hendersonville, — S.W.3d —, 2018 Tenn. App. LEXIS 165 (Tenn. Ct. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 458 (Tenn. July 18, 2018).

Department sent notice of forfeiture proceedings via certified mail to the driver at the address he listed when registering the vehicle, and because he did not update his information to show he had moved, the department did not know he no longer lived at that address; the notice indicated that the time period to file a claim began to run on the date he actually received the notice, but this was misleading, such that the notice was insufficient to satisfy due process. Nicholas v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2018 Tenn. App. LEXIS 465 (Tenn. Ct. App. Aug. 13, 2018).

Thirty-day time period to file a claim commences on the date a party is given notice satisfying statutory and constitutional requirements, not on the date that the notice was received by a party. Nicholas v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2018 Tenn. App. LEXIS 465 (Tenn. Ct. App. Aug. 13, 2018).

Co-owner of a mobile home lacked standing to contest the forfeiture of currency that was properly seized as proceeds from drug trafficking during a search of the mobile home, which was leased to the co-owner's adult child, because the co-owner failed to demonstrate an ownership interest in the currency. The trial court's application of an incorrect standard of review was harmless error as, under the correct standard of review, the evidence preponderated in favor of the administrative law judge's determination that the co-owner lacked standing. Tubbs v. Long, — S.W.3d —, 2020 Tenn. App. LEXIS 198 (Tenn. Ct. App. Apr. 28, 2020).

27. — —Taking for Public Use.

Though the constitution does not expressly prohibit the taking of private property for private use, yet it has been held to do so by implication, and, therefore, a statute which takes the private property of one person to give to another for the latter's private use cannot, under Tenn. Const. art. I, § 8, be “the law of the land,” however general in form and application it may be. Harding v. Goodlett, 11 Tenn. 40, 11 Tenn. 41, 1832 Tenn. LEXIS 15 (1832); Clack v. White, 32 Tenn. 540, 1852 Tenn. LEXIS 113 (1852); Memphis Freight Co. v. Memphis, 44 Tenn. 419, 1867 Tenn. LEXIS 65 (1867); Reynolds v. Baker, 46 Tenn. 221, 1869 Tenn. LEXIS 54 (1869); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Ryan v. Louisville & N. Terminal Co., 102 Tenn. 111, 50 S.W. 744, 1898 Tenn. LEXIS 12 (1899); Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Alfred Phosphate Co. v. Duck River Phosphate Co., 120 Tenn. 260, 113 S.W. 410, 1907 Tenn. LEXIS 47, 22 L.R.A. (n.s.) 701 (1907).

City's act of taking out group insurance for employees in its water department and paying therefor with funds of that department is not an appropriation of public funds for a private purpose contrary to Tenn. Const. art. I, § 8. State ex rel. Thompson v. City of Memphis, 147 Tenn. 658, 251 S.W. 46, 1922 Tenn. LEXIS 74, 27 A.L.R. 1257 (1922).

Act conferring right of eminent domain on cemeteries in counties of such population standard as to make the act applicable to cemetery corporation in only one county is based on an unreasonable classification and is violative of Tenn. Const. art. I, § 8. Trustees of New Pulaski Cemetery v. Ballentine, 151 Tenn. 622, 271 S.W. 38, 1924 Tenn. LEXIS 90 (1925).

Where appropriate compensation had originally been paid, claimant of strip of land was not entitled to maintain suit against state to quiet title to land taken by condemnation on theory that such land had been abandoned. A. L. Kornman Co. v. Moulton, 210 Tenn. 491, 360 S.W.2d 30, 1962 Tenn. LEXIS 311 (1962), appeal dismissed, A. L. Kornman Co. v. Pack, 373 U.S. 63, 83 S. Ct. 1118, 10 L. Ed. 2d 197, 1963 U.S. LEXIS 1699 (1963).

Due process prohibits the taking of an individual's property by condemnation unless it is for a public purpose. Johnson City v. Cloninger, 213 Tenn. 71, 372 S.W.2d 281, 1963 Tenn. LEXIS 470 (1963).

There are at least three general classes of eminent domain cases in which the use which will meet the “public use” criterion is measured by different standards depending on the character of the condemnor: (1) Condemnation by the state or municipality which it will carry out and use or operate; (2) Condemnation by a public service corporation which the state will regulate and which will provide some necessity to the public; and (3) Condemnation by or for the use of a private individual or corporation which is necessary for the public welfare. Johnson City v. Cloninger, 213 Tenn. 71, 372 S.W.2d 281, 1963 Tenn. LEXIS 470 (1963).

Taking of land for municipal golf course as part of public park was a taking for a public purpose. Johnson City v. Cloninger, 213 Tenn. 71, 372 S.W.2d 281, 1963 Tenn. LEXIS 470 (1963).

28. —Rates.

In determining whether rate is confiscatory it is not the actual rate of return which is being realized by company but whether or not the return that is being realized is just and reasonable under proven circumstances taking into consideration experiences of the past in reference to experiences of the future. Southern Bell Tel. & Tel. Co. v. Tennessee Public Service Com., 202 Tenn. 465, 304 S.W.2d 640, 1957 Tenn. LEXIS 413 (1957).

Where rates set by the public service commission have passed beyond arbitrariness, capriciousness or are an abuse or unwarranted exercise of discretion, a judicial determination of confiscation may be made and relief provided. United Inter-Mountain Tel. Co. v. Public Service Com., 555 S.W.2d 389, 1977 Tenn. LEXIS 627 (Tenn. 1977); Public Service Com. v. General Tel. Co., 555 S.W.2d 395, 1977 Tenn. LEXIS 629 (Tenn. 1977).

29. Law of the Land — Due Process.

It was manifestly the intention of the constitution that summary proceedings, such as the people had been accustomed to, should not be inhibited. The phrase “the law of the land” in Tenn. Const. art. I, § 8 communicates the idea of such proceedings of the courts as had been customary before the constitution, or should thereafter be provided conformably to the spirit of those habits, and of the common law. M'Carroll's Lessee v. Weeks, 2 Tenn. 215, 1814 Tenn. LEXIS 1 (1814); M'Carrol's Lessee v. Weeks, 6 Tenn. 246, 1814 Tenn. LEXIS 47 (1814).

The government could not possibly be administered, had the phrase “the law of the land” been left out of the constitution. Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827).

Courts of chancery every day, by process without the judgment of their peers, deprive men of their privileges, liberties, and property, and disseize them of their freeholds, and yet act within the pale of the constitution, because justice is administered according to “the law of the land.” Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827).

A statute depriving one of life, liberty, or property may be valid, if it is, in realty, “the law of the land” as to the subjects embraced in it. Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900).

Former section 36-2-106 [repealed], insofar as it provided that an alleged father shall not be compelled to give evidence in a bastardy proceeding, violated the equal protection clause of U.S. Const. amend. 14; the law of the land provision of Tenn. Const. art. I, § 8 and the privileges, immunities and exemptions of Tenn. Const. art. XI, § 8. Tennessee Dep't of Human Services v. Vaughn, 595 S.W.2d 62, 1980 Tenn. LEXIS 417 (Tenn. 1980).

Since neither the plaintiff miners nor their predecessors in title was ever conveyed the legal right to strip mine, § 66-5-102 and former § § 1544(a)(6)(B) (now § 59-8-205(a)(1)(F)) concerning surface mining of coal did not unconstitutionally affect plaintiffs' contract rights or deprive them of property without due process, for the statutes merely codified the common law governing the construction of deeds and other such contracts. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

To permit the state, for enhancement of sentence, to present evidence sufficient to convince the jury beyond a reasonable doubt that the defendant had committed other murders for which he has not yet been convicted, and to the very jury that has just returned a guilty verdict for first degree murder for a later offense, violates the concept of fundamental fairness embodied in due process of law, and would thus be invalid under the law of the land provision. State v. Bobo, 727 S.W.2d 945, 1987 Tenn. LEXIS 1057 (Tenn. 1987), cert. denied, Bobo v. Tennessee, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155, 1987 U.S. LEXIS 3866 (1987).

The practice of permitting a privately retained prosecutor to assist a district attorney general, or his assistant, as authorized by T.C.A. § 8-7-401, does not violate Tenn. Const. art. I, § 8. State v. Bennett, 798 S.W.2d 783, 1990 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 372 (Tenn. Oct. 15, 1990), cert. denied, Bennett v. Tennessee, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98, 1991 U.S. LEXIS 2747 (1991).

The dismissal of the appellant's suit on the ground it was barred by the statute of limitations, absent additional facts, did not deny the appellant due process of law. Passarella v. State, 891 S.W.2d 619, 1994 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. 1994), superseded by statute as stated in, Baxter v. State,—S.W.3d—1998 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App 1998), superseded by statute as stated in, State v. Newman,—S.W.3d— 1998 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App 1998), superseded by statute as stated in, Martin v. Carlton, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1106 (Tenn. Crim. App 2005), superseded by statute as stated in, Talal v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. May 23, 2006).

T.C.A. § 42-8-101 et seq., prohibiting the use of certain land as a heliport, does not violate due process or equal protection under the federal or state constitutions. Riggs v. Burson, 941 S.W.2d 44, 1997 Tenn. LEXIS 126 (Tenn. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. LEXIS 174 (Tenn. 1997), cert. denied, 139 L. Ed. 2d 380, 118 S. Ct. 444, 522 U.S. 982, 1997 U.S. LEXIS 6925 (1997).

To the extent a party asserting that a law violates Tenn. Const. art. I, § 8 and the due process clause of the federal constitution fails to identify differences between the two sections, both claims will be analyzed under the same standard. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Quasi-governmental hospital district did not deprive doctors of their due process rights by denying current memberships and revoking former membership in provider networks. Eye Clinic, P.C. v. Jackson-Madison County Gen. Hosp., 986 S.W.2d 565, 1998 Tenn. App. LEXIS 488 (Tenn. Ct. App. 1998).

Child support guidelines did not violate the equal protection clauses of the state and federal constitutions just because they looked to the obligor's income to determine the proper calculation, as the guidelines allow for deviation from the calculation if it is in the best interest of the child. Gallaher v. Elam, 104 S.W.3d 455, 2003 Tenn. LEXIS 337 (Tenn. 2003).

In a felony murder case, a court did not err by denying defendant's motion for a continuance where defendant completely failed to demonstrate that the findings or testimony of expert witnesses would have been favorable to the defense. In short, the defendant failed to establish that the trial court abused its discretion, because there was no indication that he was denied a fair trial or that the result of the proceeding would have been different had a continuance been granted. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

In a second degree murder case, the trial court's failure to charge the jury on the lesser-included offense of facilitation of second degree murder violated defendant's right to a jury trial, a right that is essential to the concept of due process, as defendant's failure to request the instruction did not waive his right to have the jury so instructed, and evidence existed that reasonable minds could accept as to facilitation of second degree murder, because there was no proof establishing which of four men involved in the beating death of the victim struck the fatal blow. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Defendant's claim of a violation of his due process rights failed because the theory of guilt presented by the prosecution at the trial of his codefendant was not fundamentally inconsistent with and inherently contradictory to evidence and argument presented by the prosecution at his trial. The prosecution at each trial sought to establish each defendant's criminal responsibility for first-degree murder and especially aggravated kidnapping by showing that each defendant held a leadership position in a gang and that, acting in his leadership role, each defendant ordered and otherwise directed gang members to kidnap and murder the victim. State v. Robinson, 146 S.W.3d 469, 2004 Tenn. LEXIS 843 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 912 (Tenn. 2004), cert. denied, Robinson v. Tennessee, 126 S. Ct. 1429, 164 L. Ed. 2d 132, 546 U.S. 1214, 2006 U.S. LEXIS 1839 (2006).

Court erred by denying a motion to withdraw a nolo contendere plea because it was not knowing and voluntary where the court failed to discuss the nature of the offense to which defendant was pleading, and defendant consistently maintained that he did not understand the legal definition of “facilitation” when he entered the plea. He maintained that he had repeatedly advised his attorney that he was willing to enter the nolo contendere plea to facilitation only if it meant that he had nothing to do with the murder, and defendant further consistently maintained that he entered the plea believing it meant that he had been “present at the crime scene and witnessed the murder.” State v. Crowe, 168 S.W.3d 731, 2005 Tenn. LEXIS 577 (Tenn. 2005), rehearing denied, 168 S.W.3d 731, 2005 Tenn. LEXIS 639 (Tenn. 2005).

T.C.A. § 50-6-204(d)(5) did not violate substantive due process because the creation of the medical impairment rating process, designed to minimize costs and expedite the resolution of claims by injured workers, did not qualify as an arbitrary, or conscience shocking exercise of the legislature's authority. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

There was no substantive due process issue, as reviewing the attorney's sanction to ensure uniformity of discipline was not arbitrary or conscience-shocking. In re Walwyn, 531 S.W.3d 131, 2017 Tenn. LEXIS 457 (Tenn. Aug. 4, 2017).

30. —Defined.

“The law of the land” is a general and public law, equally binding, under similar circumstances, or in some aspects of it, upon every member of the community, or which extends to and embraces all persons who are in, or who may come into, the like situation and circumstances, and which is to be administered in the due course of recognized and established legal proceedings, and which secures the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice, and must not be arbitrary and unusual. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831); Sheppard v. Johnson, 21 Tenn. 285, 1841 Tenn. LEXIS 1 (1841); State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869); State ex rel. Roane County v. Burnett, 53 Tenn. 186, 1871 Tenn. LEXIS 341 (Tenn. Sep. 30, 1871); McKinney v. Memphis Overton Hotel Co., 59 Tenn. 104, 1873 Tenn. LEXIS 34 (1873); Myers v. Park, 55 Tenn. 550, 1875 Tenn. LEXIS 2 (1875); Wallace v. County Court of Tipton County, 3 Shan. 542 (1875), overruled on other grounds, Lauderdale County v. Fargason, 75 Tenn. 153, 1881 Tenn. LEXIS 91 (1881), questioned, Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904), overruled on other grounds, Lauderdale County v. Fargason, 75 Tenn. 153, 1881 Tenn. LEXIS 91 (1881); Knox v. State, 68 Tenn. 202, 1877 Tenn. LEXIS 18 (1877).

Our earlier cases defined the phrase “the law of the land” to mean a general and public law, equally binding upon every member of the community under similar circumstances. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831); Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Sheppard v. Johnson, 21 Tenn. 285, 1841 Tenn. LEXIS 1 (1841); Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853); Pope v. Phifer, 50 Tenn. 682, 1871 Tenn. LEXIS 126 (1871), overruled, Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229, 1912 Tenn. LEXIS 50 (1912); Brown v. Haywood, 51 Tenn. 357, 1871 Tenn. LEXIS 175 (1871); State ex rel. Roane County v. Burnett, 53 Tenn. 186, 1871 Tenn. LEXIS 341 (Tenn. Sep. 30, 1871); Wallace v. County Court of Tipton County, 3 Shan. 542 (1875), overruled on other grounds, Lauderdale County v. Fargason, 75 Tenn. 153, 1881 Tenn. LEXIS 91 (1881), questioned, Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 407 (1877); Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

The phrase “the law of the land,” correctly defined, means a law which embraces all persons who are in, or who may come into, the like situation and circumstances. It may be made to extend to all citizens, or be confined, under proper limitations, to particular classes. If the class be a proper one, it matters not how few the persons are who may be included in it. If all who are in, or who may come into, the like situation and circumstances be embraced in the class, the law is general, and not partial. Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842); Alexandria v. Dearmon, 34 Tenn. 104, 1854 Tenn. LEXIS 20 (1854); Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 15 L. Ed. 372, 1855 U.S. LEXIS 698 (1855); State v. Rauscher, 69 Tenn. 96, 1878 Tenn. LEXIS 51 (1878); Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); Maney v. State, 74 Tenn. 218, 1880 Tenn. LEXIS 236 (1880); County of Tipton v. Locomotive Works, 103 U.S. 523, 26 L. Ed. 340, 1880 U.S. LEXIS 2150 (1880); Hatcher v. State, 80 Tenn. 368, 1883 Tenn. LEXIS 181 (1883); Woodard v. Brien, 82 Tenn. 520, 1884 Tenn. LEXIS 154 (1884); Dent v. West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623, 1889 U.S. LEXIS 1669 (1889); Caldwell v. Texas, 137 U.S. 692, 11 S. Ct. 224, 34 L. Ed. 816, 1891 U.S. LEXIS 2059 (1891); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); Gulf, Colo. & S.F. Ry. v. Ellis, 165 U.S. 150, 17 S. Ct. 255, 41 L. Ed. 666, 1897 U.S. LEXIS 1957 (1897); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, 1897 Tenn. LEXIS 76 (1897); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); King v. Mullins, 171 U.S. 404, 18 S. Ct. 925, 43 L. Ed. 214, 1898 U.S. LEXIS 1613 (1898); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 22 S. Ct. 30, 46 L. Ed. 92, 1901 U.S. LEXIS 1256 (1901); State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901), dismissed, Tennessee v. Condon, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709, 1903 U.S. LEXIS 1325 (1903); Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

By the phrase “the law of the land” is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869); Knox v. State, 68 Tenn. 202, 1877 Tenn. LEXIS 18 (1877); Phillips v. Lewis, 3 Shan. 230 (1877); Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S.W. 414, 1889 Tenn. LEXIS 28, 6 L.R.A. 207 (1889) (in dissenting opinion); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780, 1898 U.S. LEXIS 1501 (1898).

The phrase “the law of the land,” used in Tenn. Const. art. I, § 8, and the phrase “due process of law,” used in U.S. Const. amends. 5 and 14, § 1, are synonymous phrases meaning one and the same thing, and that which in statutes is violative of the one is violative of the other. Illinois C. R. Co. v. Crider, 91 Tenn. 489, 19 S.W. 618 (1892); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901), dismissed, Tennessee v. Condon, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709, 1903 U.S. LEXIS 1325 (1903); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913). See Tenn. Const. art. I, § 17State v. Hale, 840 S.W.2d 307, 1992 Tenn. LEXIS 507 (Tenn. 1992), rehearing denied, State v. Eugene Hale, — S.W.2d —, 1992 Tenn. LEXIS 558 (Tenn. Sept. 8, 1992).

The phrase “the law of the land,” means the general law. State ex rel. Hamby v. Cummings, 166 Tenn. 460, 63 S.W.2d 515, 1933 Tenn. LEXIS 100 (1933).

The “law of the land” provision of Tenn. Const. art. I, § 8 is synonymous with the “due process of law” provisions of U.S. Const. amends. 5 and 14. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965); Kittrell v. Kittrell, 56 Tenn. App. 584, 409 S.W.2d 179, 1966 Tenn. App. LEXIS 237 (Tenn. Ct. App. 1966); Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978); Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

31. —Scope and Application.

The phrase “the law of the land,” as used in Tenn. Const. art. I, § 8, does not mean a statute passed for the purpose of working the wrong. Such construction would render the restriction absolutely nugatory, and turn Tenn. Const. art. I, § 8 into mere nonsense, and would permit the legislature to do the prohibited wrong by a statute. Every enacted statute is not “the law of the land.” Phillips v. Lewis, 3 Shan. 230 (1877); Knox v. State, 68 Tenn. 202, 1877 Tenn. LEXIS 18 (1877).

The difficulty, if not the impossibility, of formulating a definition of the phrase “the law of the land,” that is at once perspicuous, comprehensive, and satisfactory, is recognized and conceded by the courts, and it is wiser to ascertain the intent and application of so important a phrase by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded; for it is impossible to formulate a definition that will, at all times, include everything that may be or may come within, and exclude everything that may be or fall without, the true meaning of the phrase “the law of the land.” Davidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616, 1877 U.S. LEXIS 1632 (1877); Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780, 1898 U.S. LEXIS 1501 (1898); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

A law that violates any provision of the constitution, whether the provision be express or implied, cannot be “the law of the land,” because an unconstitutional law is, in fact, no law at all. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897) (in the dissenting opinion).

Legislation, general in its operation upon the subjects to which it relates, and enforceable in the usual modes established in the administration of government with respect to kindred matters, that is, by process or proceedings adapted to the nature of the case, is “the law of the land.” Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

All valid laws, statutory and otherwise, now existing in this state, constitute the aggregate body of our present “law of the land,” and each part, each separate law that is complete in itself, may properly be called “the law of the land” as to the matter or matters embraced therein. Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

The phrase “the law of the land” was not employed in Tenn. Const. art. I, § 8, with reference to the then existing laws only, but with reference to any and every valid law that might be in existence at any particular time, in the near or remote future, when an effort might be made to impair or take away the right of life, liberty, or property. Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901).

The phrase “the law of the land,” as used in the constitution, did not embrace, as a fixed and immovable system, the common law in existence at the adoption of the constitution. It had reference to the common law and statutes then existing in this state; but this does not mean that the legislature cannot alter, change, or abolish the system of law then in force, and it may do so, unless it is prohibited from so doing, by the constitution of this state or that of the United States, either expressly or by fair and necessary implication. Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

Allegation that trial in the juvenile court by a judge who was not a lawyer has deprived the juvenile relators of their rights under the “law of the land” clause of Tenn. Const. art. I, § 8, raised a fundamental issue which could properly be raised by the remedy of habeas corpus. State ex rel. Anglin v. Henderson, 575 S.W.2d 284, 1979 Tenn. LEXIS 412 (Tenn. 1979), overruled in part, Archer v. State, 851 S.W.2d 157, 1993 Tenn. LEXIS 143 (Tenn. 1993).

The applicability of the law of the land clause of the state constitution is a fundamental issue which properly may be raised on habeas corpus. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

In the context of a juvenile commitment, “the law of the land” provision of Tenn. Const. art. I, § 8, does not permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates to confine him or deprive him of his liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

The due process provisions of the constitutions of the United States or of the state of Tennessee do not require pretrial discovery in a case seeking termination of parental rights pending in the juvenile court. Hearn v. Pleasure, 624 S.W.2d 556, 1981 Tenn. App. LEXIS 552 (Tenn. Ct. App. 1981).

The supreme court of Tennessee, in its capacity as the final arbiter of the constitution of Tennessee, is only bound by the interpretations of the due process clause of the United States constitution to the extent that they establish a minimum level of protection; that conformity is mandated by the principles of federalism embodied in the supremacy clause of the United States constitution. In the interpretation of the constitution of Tennessee, the Tennessee supreme court is always free to expand the minimum level of protection mandated by the federal constitution. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

A fundamental requirement of due process is notice and an opportunity to be heard. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

In determining what process is due in a particular situation, three factors must be considered: (1) The private interest affected by the official action; (2) The risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

The component parts of due process are designed to reach a substantively correct result. Elaborate procedures at one stage may compensate for deficiencies at other stages. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

The fundamental protection afforded by the due process provision is protection against state action and a private actor is not required to conform to the requirements of due process before taking action. Bryant v. Tenet, Inc., 969 S.W.2d 923, 1997 Tenn. App. LEXIS 843 (Tenn. Ct. App. 1997).

Even though no statute or constitutional provision requires that a municipal judge be a licensed attorney, the due process protections of Tenn. Const. art. I, § 8 prohibit a non-attorney judge from presiding over a criminal proceeding that may result in a citizen's incarceration. City of White House v. Whitley, 979 S.W.2d 262, 1998 Tenn. LEXIS 573 (Tenn. 1998).

County had a rational basis for increasing a circuit court clerk's salary, when that person was the clerk of two courts, and not increasing the salary of the person who was the clerk and master of the chancery court and the clerk of the probate court because the duties and responsibility associated with the circuit court clerk position were far greater than those associated with the master and clerk position. Sneyd v. Washington County, 387 S.W.3d 1, 2012 Tenn. App. LEXIS 437 (Tenn. Ct. App. June 28, 2012), appeal denied, Sneyd v. Wash. County, — S.W.3d —, 2012 Tenn. LEXIS 849 (Tenn. Nov. 20, 2012).

State action is required before there can be a violation of the law of the land provision, Tenn. Const. art. I, § 8, and the open courts and the right to a remedy clauses, Tenn. Const. art. I, § 17, because those provisions limit the actions of the government, but not private entities; private non-judicial foreclosure by auction does not involve state action. CitiMortgage, Inc. v. Drake, 410 S.W.3d 797, 2013 Tenn. App. LEXIS 116 (Tenn. Ct. App. Feb. 21, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 663 (Tenn. Aug. 14, 2013).

Given the existing procedural safeguards applicable to parental termination proceedings, the Tennessee Supreme Court declines to hold that securing the constitutional right of parents to fundamentally fair procedures requires adoption of an additional procedure, subsequent to or separate from an appeal as of right, by which parents may attack the judgment terminating parental rights based upon ineffective assistance of appointed counsel. In re Carrington H., 483 S.W.3d 507, 2016 Tenn. LEXIS 49 (Tenn. Jan. 29, 2016).

Due process unquestionably requires States to provide parents with fundamentally fair procedures, but it does not require States to ignore the other interests at stake in parental termination proceedings; by refusing to import criminal law post-conviction type remedies, the Tennessee Supreme Court does not at all disregard the well-established constitutional principle precluding the termination of parental rights except upon fundamentally fair procedures. In re Carrington H., 483 S.W.3d 507, 2016 Tenn. LEXIS 49 (Tenn. Jan. 29, 2016).

Petitioner had a hearing before the Tennessee Board of Probation and Parole that was not contingent upon his ability to pay any filing fees and had the ability to appeal the board's decision, and his appeal was denied because his allegations of misconduct were not substantiated; under the facts of this case, petitioner was not denied due process, and as applied in this case, the statute does not violate the Due Process Clause. Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 2017 Tenn. LEXIS 179 (Tenn. Mar. 23, 2017).

Trial court did not deny a father procedural due process because it held a telephonic, non-evidentiary hearing on a mother's motion for discretionary costs because it provided the father a meaningful opportunity to be heard; the father failed to cite to any authority supporting his contention that due process required an evidentiary hearing before awarding discretionary costs. Nelson v. Justice, — S.W.3d —, 2019 Tenn. App. LEXIS 36 (Tenn. Ct. App. Jan. 25, 2019).

Trial court's discretion to require a cash-only bond is constrained by the due process guarantees of the United States and Tennessee Constitutions. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Because the trial court did not properly ensure that a father possessed the key to his prison cell, the trial court violated the father's right to due process; the trial court had no competent evidence of what the father actually owed in child support or any evidence of the father's ability to pay the arrearage. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Terminated municipal employee failed to demonstrate that the employee had a property interest entitled to protection under either the Due Process Clause of the United States Constitution or the Law of the Land Clause of the Tennessee Constitution because the municipality's employee handbook, which included an explicit statement that the municipality did not intend for the procedures to be binding or constitute any type of contract, did not convert the employee's at-will employment into a property interest entitled to due process protection. Keller v. Casteel, — S.W.3d —, 2020 Tenn. LEXIS 258 (Tenn. June 12, 2020).

32. —Procedural Due Process.

In determining what procedural protections a particular situation demands, three factors must be considered: (1) The private interest at stake; (2) The risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and (3) The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Seals v. State, 23 S.W.3d 272, 2000 Tenn. LEXIS 347 (Tenn. 2000).

In a parental rights termination case, a mother was not denied due process where she had adequate notice of the hearing, she was present at the termination proceeding, she testified on her own behalf with the benefit and presence of counsel, and at all times during the termination proceeding received full assistance of counsel. In re S.Y., 121 S.W.3d 358, 2003 Tenn. App. LEXIS 130 (Tenn. Ct. App. 2003).

Court erred in finding that the parents, in a complex, extended dependency and neglect case, were not indigent and finding their seven children dependent and neglected and that the parents had committed severe child abuse; that finding could have led to termination of parental rights and the parents clearly had a right to appointed counsel if they were indigent. The parents were entitled to a thorough hearing in compliance with T.C.A. § 40-14-202 to determine if they were indigent and thus, entitled to appointed counsel under Tenn. Sup. Ct. R. 13(d)(2)(B). Tenn. Dep't of Children's Servs. v. David H., 247 S.W.3d 651, 2006 Tenn. App. LEXIS 193 (Tenn. Ct. App. Mar. 21, 2006).

Knoxville, Tenn., City Code § 17-210 made the owner of the vehicle responsible for a red light violation regardless of who was driving the vehicle, and at all times the city had the burden of proving every element of its case regardless of who was driving the vehicle; since the city at all times had to establish the necessary elements of its case by the requisite burden of proof, City Code § 17-210 did not violate the owner's due process rights. City of Knoxville v. Brown, 284 S.W.3d 330, 2008 Tenn. App. LEXIS 436 (Tenn. Ct. App. July 30, 2008), rehearing denied, — S.W.3d —, 2008 Tenn. App. LEXIS 813 (Tenn. Ct. App. Aug. 22, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 193 (Tenn. Feb. 17, 2009).

T.C.A. § 50-6-204(d)(5) did not violate procedural due process because the statute did not create a permanently irrebuttable presumption. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

Holding a sexually oriented nightclub vicariously liable for an entertainer's violation of a local ordinance did not violate procedural due process where the club was allowed to present evidence, the ordinance clearly indicated that a licensee's knowledge and powerlessness to prevent the violation were appropriate defenses, and material evidence in the record supported the conclusion. Howell v. Metro. Sexually Oriented Bus. Licensing Bd., 466 S.W.3d 88, 2014 Tenn. App. LEXIS 721 (Tenn. Ct. App. Nov. 5, 2014), appeal dismissed, — S.W.3d —, 2015 Tenn. LEXIS 187 (Tenn. Mar. 3, 2015).

Civil forfeiture of defendant's house was inappropriate because the evidence preponderated against the trial court's findings that the State of Tennessee filed a forfeiture warrant and a notice of seizure and forfeiture of conveyances in accordance with the statutory requirements, that the State filed its petition for forfeiture in compliance with the requirements, and that the State did not comply with the statutory procedural requirements in the forfeiture proceeding. State v. Sprunger, 458 S.W.3d 482, 2015 Tenn. LEXIS 177 (Tenn. Mar. 9, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. LEXIS 258 (Tenn. Mar. 16, 2015).

There was no due process violation in a trial court's finding that a family service worker was an unavailable witness, as the worker was on maternity leave, and directing that the worker's deposition be taken and admitted into evidence did not increase the risk of an erroneous decision. The parent had the opportunity to confront and question the worker in both a discovery deposition and in the subsequent deposition for proof and had the opportunity to rebut the testimony of the worker with the parent's own testimony. In re Bailey W., — S.W.3d —, 2016 Tenn. App. LEXIS 408 (Tenn. Ct. App. June 10, 2016).

Any due process violation associated with the failure to appoint counsel in a prior dependency and neglect proceeding involving a parent's children was remedied by the procedural protections provided to the parent as a part of the parental termination proceeding. In re Makenzie P., — S.W.3d —, 2016 Tenn. App. LEXIS 737 (Tenn. Ct. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 897 (Tenn. Nov. 22, 2016).

State of Tennessee did not violate defendant's due process rights by failing to preserve clothing items which defendant shoplifted from a department store as evidence because the police did not have a duty to collect the clothing items and defendant did not present any evidence that the clothing items were exculpatory or material to defendant's defense. State v. Shotwell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 44 (Tenn. Crim. App. Jan. 21, 2016).

Court of appeals erred in determining that a correctional officer possessed a protected property interest in continued employment because the Tennessee Excellence, Accountability, and Management Act of 2012 gave the Tennessee Department of Correction (TDOC) the authority to dismiss any employee if it found the good of the service would be served; the officer and other similarly situated preferred service employees did not possess a property interest in their continued employment with the State. Tenn. Dep't of Corr. v. Pressley, 528 S.W.3d 506, 2017 Tenn. LEXIS 554 (Tenn. Sept. 14, 2017).

Plain reading of the Tennessee Excellence, Accountability, and Management Act of 2012 makes clear the Act does not expressly confer a property interest in continued employment on preferred service employees. Tenn. Dep't of Corr. v. Pressley, 528 S.W.3d 506, 2017 Tenn. LEXIS 554 (Tenn. Sept. 14, 2017).

Petition for writ of mandamus was properly dismissed as petitioner's constitutional rights to due process and state court access were not violated because the statute regarding application to testify before the grand jury did not establish a clear and specific duty on the part of the grand jury foreperson to meet with petitioner in prison or to cause him to be transported to testify before a grand jury panel; much of the manner in which the foreperson, in collaboration with the grand jury panel, was to determine whether the potential witness's knowledge warranted investigation by the grand jury was discretionary; and a writ of mandamus would not be a proper remedy as issuance of the writ would manifestly prejudice public interest. Willis v. Johnson, — S.W.3d —, 2018 Tenn. App. LEXIS 563 (Tenn. Ct. App. Sept. 27, 2018).

In a child custody action, the father was not deprived of procedural due process because he was not completely barred from participating at trial, introducing evidence, and cross-examining witnesses, and his proof and numerous motions were the reason the trial took two years Nelson v. Justice, — S.W.3d —, 2019 Tenn. App. LEXIS 35 (Tenn. Ct. App. Jan. 25, 2019).

Delay of more than 20 years between the murder and the issuance of the indictment did not violate defendant's right to due process of law because the now-deceased medical examiner's report included factual findings which could be interpreted by the current medical examiner, the deceased officers created reports that did not contradict any of the other officers' reports or testimony, the consumption of the DNA evidence was a result of duplicative testimony, and defendant admitted that he was not working on the day of the murder and therefore any work records were not relevant to his defense. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

Termination of an incarcerated father's parental rights was inappropriate because the trial court's application of the missing witness rule and the doctrine of unclean hands — neither of which was applicable — undermined the protections to which the father was entitled under the Due Process Clauses of the Federal and Tennessee Constitutions by virtue of the liberty interest at stake. In re Mattie L., — S.W.3d —, 2020 Tenn. App. LEXIS 152 (Tenn. Ct. App. Apr. 14, 2020).

33. —Imprisonment.

Imprisonment may be inflicted for failure to pay or secure fines, penalties, and costs for violation of city ordinances. Mosley v. Gallatin, 78 Tenn. 494, 1882 Tenn. LEXIS 213 (1882); Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890); O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449, 1908 Tenn. LEXIS 36, 127 Am. St. Rep. 1014 (1908).

An act requiring one convicted of a misdemeanor to pay, secure, or work out county and state expense fees of five dollars each in addition to other costs is not a taking of defendant's property without compensation or without due process of law in violation of Tenn. Const. art. I, § 8. McKee v. State, 142 Tenn. 173, 218 S.W. 233, 1919 Tenn. LEXIS 46 (1920).

Tenn. Const. art. I, § 8, which protects the citizen against imprisonment without an indictment and trial by jury, is not applicable to the administrative control of penal or other corrective institutions. Harwood v. State ex rel. Pillars, 184 Tenn. 515, 201 S.W.2d 672, 1947 Tenn. LEXIS 405 (1947).

Transfer of petitioner aged 16 by commissioner from reformatory to penitentiary on the ground that she was incorrigible did not violate due process since possibility of transfer was a part of punishment inflicted by court when she was sentenced to reformatory. Harwood v. State ex rel. Pillars, 184 Tenn. 515, 201 S.W.2d 672, 1947 Tenn. LEXIS 405 (1947).

Imposition of life term under former habitual criminal statute for recidivist forger did not violate defendant's equal protection rights under the state or federal constitutions. State v. Russell, 866 S.W.2d 578, 1991 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. 1991).

The automatic imposition of a life sentence upon a conviction of first degree murder, where the death penalty is not sought, is not arbitrary or irrational in violation of the equal protection clause. State v. Ray, 880 S.W.2d 700, 1993 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 1993).

Assignment of defendant to an institution where he had no opportunity to earn eligibility for sentence reduction by engaging in work programs was not a denial of equal protection since correction officials have broad discretion in the confinement of inmates and he had no right to particular assignment. France v. Bradley, 922 S.W.2d 118, 1995 Tenn. App. LEXIS 811 (Tenn. Ct. App. 1995).

Liberty interest was not created unless the disciplinary restraints being imposed on a prisoner were atypical in comparison to the ordinary incidents of prison life. Prisoner was not deprived of a liberty interest when he was punished with, inter alia, a 30-day sentence of punitive segregation, and involuntary administrative segregation. Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 2003 Tenn. LEXIS 721 (Tenn. 2003).

Where petitioner was fined, inter alia, five dollars for attempted escape, to be paid from his prison trust account, the government's interests, including fiscal and administrative burdens of providing additional process, outweighed the petitioner's interest in his five dollars. The de minimis nature of the fine made it immune from procedural due process requirements and at the very least, the amount of the fine certainly did not warrant any more process than he actually received. Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 2003 Tenn. LEXIS 721 (Tenn. 2003).

Citizen's allegation that she was imprisoned for days without a hearing, the opportunity to appear before a judge or a jury invoked her right to due process of law. Luna v. White Cnty., — S.W.3d —, 2015 Tenn. App. LEXIS 525 (Tenn. Ct. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 876 (Tenn. Oct. 15, 2015).

34. —Vagueness.

The uncertainty of a statute which will amount to the denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved, and a statute is not uncertain or vague when by the orderly processes of litigation it can be rendered sufficiently definite and certain for the purposes of judicial decision. Donathan v. McMinn County, 187 Tenn. 220, 213 S.W.2d 173, 1948 Tenn. LEXIS 427 (1948).

A criminal statute that forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violated due process. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

A noncriminal statute is not unconstitutionally vague so as to deny due process of law where the statute is set out in terms that an ordinary person exercising ordinary common sense can sufficiently understand and comply. Big Fork Mining Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 1981 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1981).

The punishment provisions for obscenity in § 39-6-1104 (repealed) are not unconstitutional and do not violate the equal protection and due process clauses of Tenn. Const. art. I, § 8 and U.S. Const. amend. 14. State v. Summers, 692 S.W.2d 439, 1985 Tenn. Crim. App. LEXIS 3007 (Tenn. Crim. App. 1985).

While the “capricious disregard of accepted standards of professional conduct” standard of T.C.A. §§ 49-8-302 and 49-8-303 is broad and general, it is not unconstitutionally vague under either the state or federal constitution, as applied to professor who was repeatedly warned about her conduct, and whose dismissal letter identified four specific areas of conduct justifying dismissal. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

The provision of T.C.A. § 63-6-214(b)(12), relating to prescription drugs, is sufficiently clear to a person of ordinary intelligence to put him or her on notice as to what conduct is proscribed and is not unconstitutionally vague. Williams v. State Dep't of Health & Env't, 880 S.W.2d 955, 1994 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1994).

The provision of T.C.A § 49-2-201 limiting the number of members of the county board of education is not unconstitutionally vague under the state or federal constitutions. County of Shelby v. McWherter, 936 S.W.2d 923, 1996 Tenn. App. LEXIS 340 (Tenn. Ct. App. 1996).

The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

A court can find a statute unconstitutionally vague on its face only if the court concludes that it is capable of no valid application or if the law reaches a substantial amount of constitutionally protected activity. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

The void for vagueness doctrine serves two primary goals: First, to ensure fair notice to the citizenry; second, to provide standards for enforcement by police, judges and juries. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Generally, vagueness challenges to laws not threatening first amendment interests must be brought on an as-applied basis because a pre-application facial challenge is premature. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Trial court erred when it enjoined adult bookstore from operating and the bookstore, which was forced to close, was entitled to damages where the definition of “adult bookstores” in Knoxville, Tenn., City Code § 16-468, was void for vagueness because the city was unable to articulate any constitutionally-meaningful standards for the phrase “substantial or significant portion of its stock and trade” in the ordinance's definition of an adult bookstore. City of Knoxville v. Entm't Res., LLC., 166 S.W.3d 650, 2005 Tenn. LEXIS 606 (Tenn. 2005), cert. denied, — U.S. —, — S. Ct. —, — L. Ed. 2d —, 2005 U.S. LEXIS 9056, 74 U.S.L.W. 3334 (2005).

Supreme court of Tennessee held that the definition of “adult bookstores” in Knoxville, Tenn., City Code § 16-468, was void for vagueness because the city was unable to articulate any constitutionally-meaningful standards for the phrase “substantial or significant portion of its stock and trade” in the ordinance's definition of an adult bookstore. City of Knoxville v. Entm't Res., LLC., 166 S.W.3d 650, 2005 Tenn. LEXIS 606 (Tenn. 2005), cert. denied, — U.S. —, — S. Ct. —, — L. Ed. 2d —, 2005 U.S. LEXIS 9056, 74 U.S.L.W. 3334 (2005).

In consolidated appeals from defendants' sexual exploitation of a minor charges and convictions, the supreme court held that earlier provisions of T.C.A. § 39-17-1003(b), a permissive inference, was not unconstitutionally overbroad or vague as the inference did not alter the requirement that the image be of a “minor,” and the possession contemplated by the statute had to be “knowing”; thus, a person who inadvertently stumbled upon child pornography would not be guilty of a crime under the terms of the statute. State v. Pickett, 211 S.W.3d 696, 2007 Tenn. LEXIS 10 (Tenn. 2007), cert. denied, Harwood v. Tennessee, 169 L. Ed. 2d 305, 128 S. Ct. 436, 552 U.S. 973, 2007 U.S. LEXIS 11604 (2007).

Defendant's convictions for animal cruelty were appropriate because T.C.A. § 39-14-202 was sufficiently specific to warn defendant of the proscribed conduct; additionally, not all of defendant's animals were kept under the same conditions and it was within the prosecutor's broad discretion to choose which charges to bring against defendant. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Statute is sufficiently precise to provide fair warning as to conduct that is covered by the statute; the statute applies to a gang member who sells, delivers, or manufactures a controlled substance and where the transaction results, or was intended to result, in the defendant's receiving some sort of compensation for that service, a person of common intelligence would be able to understand the plain meaning of the statute, and it is not void for vagueness. State v. Stripling, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 16, 2016).

In a case in which defendant was convicted of felony burglary, the appellate court found that defendant's state and federal constitutional rights to due process were not violated because the burglary statute was not unconstitutionally vague and provided fair warning to a person of common intelligence that the person could be convicted of burglary for committing theft after entering a building open to the public, knowing the owner had revoked its effective consent for the person to enter; and defendant knew that he had been banned from the stores. State v. Ivey, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Oct. 23, 2018), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 245 (Tenn. Mar. 26, 2020).

T.C.A. § 39-14-402(a)(3) does not violate the fair warning doctrine merely because it has not been for a significant period of time employed to the prosecution of burglaries where a person entered a building open to the public, without the consent of the owner, and committed or attempted to commit a felony, theft, or assault. State v. Bowens, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Oct. 23, 2018).

35. —Partial or Private Statutes.

Every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community who made the law, by another. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831); Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831); Tate's Ex'rs v. Bell, 12 Tenn. 202, 1833 Tenn. LEXIS 55 (1833); Officer v. Young, 13 Tenn. 320, 1833 Tenn. LEXIS 182 (1833); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Nashville v. Althrop, 45 Tenn. 554, 1868 Tenn. LEXIS 46 (1868); Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 396 (1877).

A partial law embraces only a portion of those persons who exist in the same state, and are surrounded by like circumstances, and is not “the law of the land.” Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842); Nolensville Tpk. Co. v. Quinby, 27 Tenn. 476, 1847 Tenn. LEXIS 109 (1847); Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853); Alexandria v. Dearmon, 34 Tenn. 104, 1854 Tenn. LEXIS 20 (1854); Nashville v. Althrop, 45 Tenn. 554, 1868 Tenn. LEXIS 46 (1868); Brown v. Haywood, 51 Tenn. 357, 1871 Tenn. LEXIS 175 (1871); Hatcher v. State, 80 Tenn. 368, 1883 Tenn. LEXIS 181 (1883); Woodard v. Brien, 82 Tenn. 520, 1884 Tenn. LEXIS 154 (1884); Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

A partial law is not made “the law of the land,” and is not saved from unconstitutionality, because it is embraced in a statute granting a charter of incorporation. Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842); Alexandria v. Dearmon, 34 Tenn. 104, 1854 Tenn. LEXIS 20 (1854); Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912). But see Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853).

A legislative grant of a charter or the ordinary franchise for banking is not a partial law in the sense of Tenn. Const. art. I, § 8, but it is in the nature of a contract rather than a “law of the land,” as that phrase is understood to be used in the constitution. Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853); County of Tipton v. Locomotive Works, 103 U.S. 523, 26 L. Ed. 340, 1880 U.S. LEXIS 2150 (1880).

That kind of partial legislation embraced in class legislation whose classification is natural and reasonable is not obnoxious to Tenn. Const. art. I, § 8. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); Scott v. Marley, 124 Tenn. 388, 137 S.W. 492, 1911 Tenn. LEXIS 54 (1911).

A private act authorizing a county commission to impose a tax on the privilege of disposing of solid waste at landfills in the county was invalid because it was inconsistent with general laws mandating a comprehensive plan for the control of solid waste in the state. City of Tullahoma v. Bedford County, 938 S.W.2d 408, 1997 Tenn. LEXIS 45 (Tenn. 1997).

36. —Retrospective Legislation.

Act, regulating cemetery corporations and their officers, which penalizes the officers for acts and omissions of their predecessors is void as retrospective legislation and as violative of the law of the land clause of the constitution. Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111, 1931 Tenn. LEXIS 70 (1931).

In state action to collect child support arrearage, husband could not assert equitable defense based on wife's 1985 private agreement to accept reduced support since the 1987 amendments to § 36-5-101 prohibit such a defense, and husband did not seek to modify his court-ordered obligation until 1995 and thus had no constitutionally protected vested right in the remedies provided under prior law. State ex rel. McAllister v. Goode, 968 S.W.2d 834, 1997 Tenn. App. LEXIS 634 (Tenn. Ct. App. 1997).

37. —Notice.

The tax book is process equivalent to an execution in the hands of an officer, and payment under protest, even of county taxes, entitles the party to sue for so much as may be deemed illegal. Bright v. Halloman, 75 Tenn. 309, 1881 Tenn. LEXIS 121 (1881); State Nat'l Bank v. Memphis, 116 Tenn. 641, 94 S.W. 606, 1906 Tenn. LEXIS 17, 7 L.R.A. (n.s.) 663 (1906).

Statute authorizing service of process upon local agent is unconstitutional as applied to nonresidents, being a denial of due process, but is constitutional as to residents of the state. “Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory, but no state can exercise direct jurisdiction and authority over persons and property without its jurisdiction.” Frolich & Barbour v. Hanson, 155 Tenn. 601, 296 S.W. 353, 1926 Tenn. LEXIS 85 (1927).

Action of state board of elections in removing county election commissioners from office, without charges stating specific causes, and without trial, is a denial of due process of law and void. McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, 1937 Tenn. LEXIS 27 (1938).

When suit was brought against, and process served upon, the president of a cattle association as representative of the class of members of the association, to recover on a note executed by the president and secretary of the association, a judgment undertaking to bind individual members of the association personally was not in violation of Tenn. Const. art. I, § 8. Barnes v. Fort, 181 Tenn. 522, 181 S.W.2d 881, 1944 Tenn. LEXIS 273 (1944).

Where indictment for contributing to the delinquency of a minor sufficiently charged defendant with the acts with which he was accused he had notice of what he was going to have to defend and there was no violation of the constitution. Birdsell v. State, 205 Tenn. 631, 330 S.W.2d 1, 1959 Tenn. LEXIS 403 (1959).

A judgment entered against a defendant who was not served deprived the party of the fundamental right of due process. Hawley v. Lavelle, 602 S.W.2d 499, 1980 Tenn. App. LEXIS 364 (Tenn. Ct. App. 1980).

Dismissed professor who received notice of the allegations supporting the charge against her in the documentation attached to the letter instituting termination proceedings, and was afforded the benefit of both an informal and formal hearing, in which further specific details of the allegations were developed, and had a de novo hearing in the chancery court pursuant to § 49-8-304, received adequate notice of the charges against her and was not deprived of due process. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

Where the department of safety had knowledge of petitioner's possible proprietary interest in property confiscated in connection with a drug arrest, it was required to give notice to the petitioner of the seizure and possible forfeiture. Redd v. Tennessee Dep't of Safety, 895 S.W.2d 332, 1995 Tenn. LEXIS 53 (Tenn. 1995).

Trial court's order suspending bail bond company from writing bail bonds “as the result of actions [by the company] on Wednesday, April 23, 1997” does not adequately apprise the company of the charges to be met. State v. AAA Aaron's Action Agency Bail Bonds, 993 S.W.2d 81, 1998 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. 1998).

Trial court did not err in denying a conservator's motion for a default judgment on a cross-claim against the department of veterans' affairs because the department had not been served, and it was not a party because it had not filed a pleading, nor had it made an appearance in the conservatorship proceedings; since the department had not waived its sovereign immunity, the probate court did not have jurisdiction over it. AmSouth Bank v. Cunningham, 253 S.W.3d 636, 2006 Tenn. App. LEXIS 144 (Tenn. Ct. App. Feb. 27, 2006).

There is no authority for the substitution of an oral directive for a valid court order, and therefore juvenile defendant was entitled to post-commitment relief after he was found to be in violation of the terms of probation based on an oral mandate for house arrest since he was entitled to notice under U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8; moreover, the appeal was not moot because a finding of a probation violation could have had adverse consequences in the future. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

Trial court properly dismissed an owner's petition for judicial review of an order of forfeiture for lack of jurisdiction because the petition was filed one day beyond the statutory 60-day time limit, the civil rules of procedure and appeal were inapplicable to administrative appeals, the notice by certified mail, directed to the owner's home address, although not delivered as intended, was reasonable, and the statute at issue allowed for sufficient time for those living outside of Davidson County to file a timely petition for judicial review. Kolasinski v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2015 Tenn. App. LEXIS 1003 (Tenn. Ct. App. Dec. 30, 2015).

Trial court failed to ensure proper notice to the wife of the hearing at which it awarded the enhanced judgment lien on behalf of her former counsel because the record contained no proof of notice to the wife and neither the affidavit of attorney's fees or the addendum referenced by the attorney during the hearing; the attorney's motion for withdraw did not include a notice of hearing or a request for hearing, and the attorney presented no proof the wife received notice of the hearing date. McCarter v. McCarter, — S.W.3d —, 2016 Tenn. App. LEXIS 381 (Tenn. Ct. App. June 1, 2016).

Attorney received adequate notice of his range of possible punishment, and his procedural due process rights were not violated by the procedure the supreme court used in reviewing and increasing the attorney's disciplinary sanctions from a reprimand to a suspension In re Walwyn, 531 S.W.3d 131, 2017 Tenn. LEXIS 457 (Tenn. Aug. 4, 2017).

Chancery court erred in unilaterally imposing substantive and material restrictions on a father's activities during his parenting time without affording him an evidentiary hearing because some of the restrictions placed on the father were too vague to be enforceable, the statement of the evidence did not provide a factual basis for the restrictions placed on the father, and such restraints should be well defined and must involve conduct that competent evidence shows could cause harm to the child. Brantley v. Brantley, — S.W.3d —, 2017 Tenn. App. LEXIS 617 (Tenn. Ct. App. Sept. 15, 2017).

Tennessee law was well established as to the de novo nature of a hearing before a juvenile court judge of a matter previously heard by a magistrate, and the father had proper notice of the type of hearing he was requesting; his procedural due process rights were not violated by the trial court's consideration of all evidence presented regarding his compliance or noncompliance with the December 2013 order through the time of the August 2016 rehearing. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

38. —Judicial Process.

Due process does not require a court to eliminate the right and wrong test of insanity in criminal cases or to adopt the so-called Durham rule placing further latitude in the hands of psychiatrists in determining the responsibility of an accused for his crime. Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299, 1963 Tenn. LEXIS 405 (1963).

Allegation that two members of supreme court as constituted when petition for certiorari was originally refused had communicated with chancellor and court of appeals on merits of case even if true would not have invalidated granting of second petition for certiorari where one of justices had retired before granting of second petition, the other made no statement as to how case should be decided before it was decided and merely concurred in action of court and three members of present court, sufficient to make a constitutional judgment, had never heard of case until it was presented and argued under second petition. Pierce v. Tharp, 224 Tenn. 328, 455 S.W.2d 145, 1970 Tenn. LEXIS 330 (1970), rehearing denied, 224 Tenn. 339, 457 S.W.2d 529 (1970), cert. denied, McKown v. Pierce, 402 U.S. 929, 91 S. Ct. 1527, 28 L. Ed. 2d 863, 1971 U.S. LEXIS 2286 (1971).

Where a defendant in a suit for collection under an assigned purchase contract was served with process and on the date cited to appear before the court inquired at the clerk's office, without counsel, and was told that the case would not be heard that day, and then took no further action until after he was served with execution by garnishment based on a judgment pro confesso, and then petitioned the court for a writ of coram nobis on the ground that he had not received proper notice, defendant had been negligent in failing to defend the action, had received sufficient notice, and was not denied due process of law in the entering of the judgment pro confesso. Commerce Union Bank v. Inquipco, Inc., 515 S.W.2d 651, 1973 Tenn. App. LEXIS 242 (Tenn. Ct. App. 1973), cert. denied, 419 U.S. 896, 95 S. Ct. 176, 42 L. Ed. 2d 140, 1974 U.S. LEXIS 2937 (1974).

Since the public service commission is an administrative board and not a court, the constitutional requirement of fundamental fairness under the due process clause of the U.S. Const. amend. 14 and Tenn. Const. art. I, § 8 requires only that the hearings it conducts be hearings in a substantial sense, and the statutory procedure which permits hearings before an examiner, a quorum of the commission sitting in shifts, and a decision by members of the commission who did not participate in the hearings, meets the constitutional requirements so long as the members making the decision have considered and appraised the evidence presented at the hearings. McMinnville Freight Line, Inc. v. Atkins, 514 S.W.2d 725, 1974 Tenn. LEXIS 456 (Tenn. 1974).

Where the failure of the state to provide an indigent defendant with a timely bill of exceptions operated to deny him a meaningful appellate review of his criminal trial he was denied his constitutional rights under the United States and Tennessee constitutions. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

An indigent defendant certified by the Central State Hospital as competent to stand trial was not denied constitutional due process by the trial court disallowing his request to subpoena a private expert witness to determine his mental competence. Crum v. State, 530 S.W.2d 103, 1975 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1975).

Where court convened at nine a.m. and heard evidence until one a.m. the following morning without unusual and compelling reason, potential fatigue of the jurors should have been considered by the court and failure to adjourn at a more reasonable hour was reversible error. Hembree v. State, 546 S.W.2d 235, 1976 Tenn. Crim. App. LEXIS 307, 99 A.L.R.3d 586 (Tenn. Crim. App. 1976).

Where the trial judge applied the wrong standard of proof in a criminal contempt proceeding, thus depriving defendants of a fair trial, the correct remedy on remand was a redetermination of guilt or innocence from the existing record by the chancellor who heard the case originally. Strunk v. Lewis Coal Co., 547 S.W.2d 252, 1976 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1976).

Private deprivations of an accused's right may involve civil or criminal sanction or may affect the weight given evidence so obtained, but they do not result in the exclusion of the evidence itself. Ennis v. State, 549 S.W.2d 380, 1976 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. 1976).

Where inadvertently suppressed evidence was only cumulative of facts already overwhelmingly established, there was no denial of due process. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Where the trial judge questioned defense counsel initially concerning issues for appeal, made a determination as to the validity of the issues, and provided the defendant with a transcript limited in scope to issues the trial judge determined to have merit, defendant was denied his right to “a record of sufficient completeness,” a right guaranteed by Tenn. Const. art. I, § 8. State v. Draper, 800 S.W.2d 489, 1990 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1990).

When the issues “make out a colorable need for a complete record”, the state is required to provide the defendant with a complete verbatim transcript of the evidence and proceedings. If the state contends that a verbatim transcript of only a portion of the proceedings, or, in the alternative, a statement of the evidence will suffice, the state has the burden or onus of showing that a partial transcript or a statement of the evidence is sufficient for the defendant to effectively present the issues and have them determined by the appellate court on the merits. State v. Draper, 800 S.W.2d 489, 1990 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1990).

When the defendant is indigent, and appeals as of right to the supreme court or court of criminal appeals, the state of Tennessee is required to provide the defendant with a “record of sufficient completeness” to permit proper consideration of the issues the defendant will present for review. State v. Draper, 800 S.W.2d 489, 1990 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1990).

While trial judge held trial a period of 14 hours and 45 minute on the first day of trial, and 14 hours and 30 minutes on the second day of trial, the stressful hours involved in the trial, over the protest of defendant's counsel, without the express agreement of the jurors, and without unusual and compelling circumstances, violated the rule laid down in Hembree v. State, 546 S.W.2d 235, 1976 Tenn. Crim. App. LEXIS 307, 99 A.L.R.3d 586 (Tenn. Crim. App. 1976) and constituted deprivations of defendant's right to due process under U.S. Const., amend. 14 and Tenn. Const. art. I, § 8, and his right to counsel, U.S. Const. amend. 6, Tenn. Const. art. I, § 9, and required a reversal of his conviction and a remand for a new trial. State v. McMullin, 801 S.W.2d 826, 1990 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. 1990).

Plain error existed in the trial court's conducting trial into the late night and early morning hours of the next day. State v. Parton, 817 S.W.2d 28, 1991 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1991).

First-degree murder statute, which eliminated the requirement that the killing be willful, deliberate, malicious, and premeditated if the victim was under thirteen years of age and the death resulted from child abuse, unconstitutionally deprived defendant of due process in contravention of the law of the land provisions of Tenn. Const. art. I, § 8. State v. Hale, 840 S.W.2d 307, 1992 Tenn. LEXIS 507 (Tenn. 1992), rehearing denied, State v. Eugene Hale, — S.W.2d —, 1992 Tenn. LEXIS 558 (Tenn. Sept. 8, 1992).

Invalidation of the Standard Unsafe Building Abatement Code was reversed because a property owner's right to be heard before the city could execute a demolition order satisfied the property owner's right to due process. Manning v. City of Lebanon, 124 S.W.3d 562, 2003 Tenn. App. LEXIS 476 (Tenn. Ct. App. 2003).

Fiduciary shield doctrine did not apply to T.C.A. §§ 20-2-214(a)(6), 20-2-225, because the statutes were coextensive with due process, and defendants, a company's officers, purposefully availed themselves of Tennessee by sending emails to plaintiff equipment supplier for the supplier to fraudulent pay the company instead of its accounts receivable assignee. Simplex Healthcare, Inc. v. Marketlinkx Direct, Inc., 761 F. Supp. 2d 726, 2011 U.S. Dist. LEXIS 7178 (M.D. Tenn. Jan. 25, 2011).

39. — —Compel Attendance of Witnesses.

The exercise of authority in such manner as to deprive an accused of a substantive procedural right to compel attendance of witnesses guaranteed by the federal and state constitutions is an essential illegality committed within actual powers which will authorize relief by certiorari. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

There was no merit in a contention that the civil investigative demand denies parties due process by requiring them to divulge privileged and protected matters and to forfeit rights to judicial review because § 8-6-407 provides for the confidentiality of documents turned over to the attorney general pursuant to a civil investigative demand and where contested, the production of documents cannot be compelled by the attorney general without the approval of the chancellor. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The civil investigative demand statutes, title 8, ch. 6, part 4, are not violative of due process and equal protection provisions of the state and federal constitutions because the advantages, if any, conferred upon the state by having the statutory right to precomplaint discovery is minimal and is negated upon commencement of an adjudicatory proceeding by the fact that the state's adversary then has full discovery rights. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

There is a due process right to refuse unreasonable and irrelevant investigative demands. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

40. —Conservatorship Proceedings.

The very simple statutory procedure for contesting incompetency by the ward of a conservatorship affords adequate procedural due process and the statutes do not unjustifiably restrict a ward's liberty in violation of substantive due process or the right to equal protection. State ex rel. McCormick v. Burson, 894 S.W.2d 739, 1994 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1994).

41. —Criminal Law and Procedure.

Our criminal laws, when they are the laws of the land, embrace all persons who are in, or who may come into, the like situation or circumstances, and are not amenable to the charge of unconstitutionality because they contain exemptions which, equally with the law, include all members of the community, who may fall within their purview. Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); Maney v. State, 74 Tenn. 218, 1880 Tenn. LEXIS 236 (1880); Daly v. State, 81 Tenn. 228, 1884 Tenn. LEXIS 30 (1884); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896) (citing several cases); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897) (citing several cases). See West v. State, 28 Tenn. 66, 1848 Tenn. LEXIS 41 (1848); State v. Rauscher, 69 Tenn. 96, 1878 Tenn. LEXIS 51 (1878); Murphy v. State, 77 Tenn. 373, 1882 Tenn. LEXIS 68 (1882).

An exception or exemption in a criminal law does not render it unconstitutional, when. Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895). See Gilbert Parks & Co. v. Thomas Parks & Co., 59 Tenn. 633, 1874 Tenn. LEXIS 20 (1874); Demoval v. Davidson County, 87 Tenn. 214, 10 S.W. 353, 1888 Tenn. LEXIS 55 (1888); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900).

Where rape victim had ample opportunity to clearly observe defendant before and during rape and there was other evidence persuasive of his identity, the court held that the exhibition to the victim of a single photograph of defendant, who was then in custody, immediately prior to victim's viewing and identifying him at a line-up was improper and erroneous but, in view of the “totality of the circumstances” did not taint the line-up or in-court identification and did not violate constitutional due process. Bennett v. State, 530 S.W.2d 511, 1975 Tenn. LEXIS 564 (Tenn. 1975).

Even if the exhibition of defendant's photograph to the robbery victim had been unduly suggestive, the resulting proof of identification would have been admissible since the safeguards of the exclusionary rule do not extend to activities of private citizens. Ennis v. State, 549 S.W.2d 380, 1976 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. 1976).

Where the out-of-court identification was made 50 days after the commission of the crime, during a chance encounter having no official sanction, by a witness who had seen defendants in a well-lighted whiskey store, under circumstances commanding complete attention, and made with devastating certainty, it was without taint. Rippy v. State, 550 S.W.2d 636, 1977 Tenn. LEXIS 536 (Tenn. 1977).

An indigent defendant does not have a right, under the federal or state constitution, to the services of a private psychiatrist, at state expense. Graham v. State, 547 S.W.2d 531, 1977 Tenn. LEXIS 557 (Tenn. 1977).

Where defendant was a hospital patient, victim's identification was necessarily confined to the hospital premises, but considering the totality of the circumstances including the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation, the defendant was not denied any constitutional rights under Tenn. Const. art. I, § 8. Forbes v. State, 559 S.W.2d 318, 1977 Tenn. LEXIS 649 (Tenn. 1977).

Where the rape victim saw defendant's face, recognizing him as a former neighbor, and the police showed her an old photograph of defendant thirty hours prior to the time of the lineup, defendant was not denied due process. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Defendant was arrested without probable cause, and the resulting searches and seizures were constitutionally infirm under the U.S. Const. amends. 4 and 14 and under Tenn. Const. art. I, §§ 7 and 8, where there was no proof in the record of the reliability of the informant or the credibility of his information. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

The issuance of a state's warrant by a nonsalaried justice of the peace does not satisfy the requirements of a neutral and detached magistrate and is violative of U.S. Const. amend. 14 and Tenn. Const. art. I, § 8. In re Dender, 571 S.W.2d 491, 1978 Tenn. LEXIS 647 (Tenn. 1978).

So long as one of the participants to an electronically recorded conversation consents to the procedure, there exists no constitutional infringement. State v. Mosher, 755 S.W.2d 464, 1988 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1988).

A one party consensual surveillance did not violate the right of the defendant to be free from unreasonable searches and seizures. State v. Mosher, 755 S.W.2d 464, 1988 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1988).

The commingling of status offenders with delinquent children in secure penal facilities operated for delinquent children is not rationally related to a legitimate governmental purpose and is therefore punishment and, as this confinement amounts to punishment without an adjudication of guilt, the practice violates the principles of substantive due process under the Tennessee and United States constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Though the state's interest in protecting status offenders from harm is a compelling interest, the state's practice of placing status offenders in secure penal facilities and commingling them with delinquent offenders is not a practice “precisely tailored” to serve this compelling interest. Therefore this practice violates the guarantees of equal protection under the Tennessee and United States constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Driver's due process guarantees provided for by U.S. Const. amends. 5 and 14, and Tenn. Const. art. I, § 8 were not violated by having a Tennessee highway patrolman conduct a driver license suspension hearing pursuant to § 55-10-406 to determine if the driver refused to take a breath-alcohol test after being placed under arrest for driving under the influence. Hookanson v. Jones, 757 S.W.2d 347, 1988 Tenn. App. LEXIS 392 (Tenn. Ct. App. 1988).

The due process clause and equal protection application of the U.S. Const. amends. 5 and 14, and Tenn. Const. art. I, § 8 require that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final. State v. Enochs, 823 S.W.2d 539, 1991 Tenn. LEXIS 486 (Tenn. 1991), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 41 (Tenn. Jan. 27, 1992).

If a criminal defendant sincerely contends that his guilty plea was induced by the state's misrepresentation that it possessed no evidence favorable to his position, there is a denial of due process resulting as a matter of law in the manifest injustice required to be shown before the defendant will be permitted to withdraw a plea of guilty, after sentence and before the judgment becomes final. State v. Davis, 823 S.W.2d 217, 1991 Tenn. Crim. App. LEXIS 533 (Tenn. Crim. App. 1991).

Although freedom from bodily restraint and punishment by the state without due process of law is a fundamental right, states have no constitutional duty to provide post-conviction relief procedures; accordingly, the opportunity to collaterally attack constitutional violations occurring during the conviction process is not a fundamental right entitled to heightened due process protection. Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

The statutory form of first degree murder committed while in the perpetration of a designated felony is a legitimate and constitutional legislative function; thus, even though a showing of premeditation, deliberation, and intent to kill is not required for conviction of felony murder in the first degree, and defendant cannot rely on certain defenses afforded defendants and charged with other forms of first degree murder, there is no denial of due process. State v. Walker, 893 S.W.2d 429, 1995 Tenn. LEXIS 26 (Tenn. 1995).

Participation in the criminal trial by special prosecutors who represented the victim in a civil matter arising from the same incident was a violation of defendant's due process right under the federal and state constitutions. State v. Eldridge, 951 S.W.2d 775, 1997 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. 1997).

Revoking probation based upon criminal acts defendant committed before being placed on probation does not implicate due process concerns because, unlike other conditions of probation that may be imposed, defendant is deemed to have notice that his conduct must conform to the requirements of the law from the time of the law's enactment. State v. Stubblefield, 953 S.W.2d 223, 1997 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1997).

A prosecutor may not use peremptory strikes to challenge potential jurors solely on account of their race. State v. Carroll, 34 S.W.3d 317, 2000 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 2000).

The basis for the state's use of a peremptory challenge against juror was sufficiently race-neutral to dispel any indicia of purposeful discrimination, where prosecutor and defense counsel agreed that the potential juror avoided eye contact during voir dire. State v. Carroll, 34 S.W.3d 317, 2000 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 2000).

In a felony murder case, a court did not err by denying defendant's motion for a continuance where defendant completely failed to demonstrate that the findings or testimony of expert witnesses would have been favorable to the defense. In short, the defendant failed to establish that the trial court abused its discretion because there was no indication that he was denied a fair trial or that the result of the proceeding would have been different had a continuance been granted. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

Post-conviction relief petition was properly summarily dismissed, because petitioner failed to show that he was deprived of due process by jury instructions for second degree murder which failed, like those in State v. Page , 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002), to specify that a second degree murder was a result-of-conduct offense; since petitioner was convicted of first degree, premeditated murder, any failure of the trial court to adequately instruct the jury under Page was harmless beyond a reasonable doubt. O'Baner v. State, 159 S.W.3d 605, 2004 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1023 (Tenn. Nov. 15, 2004), cert. denied, O'Baner v. Tennessee, 544 U.S. 999, 125 S. Ct. 1933, 161 L. Ed. 2d 773, 2005 U.S. LEXIS 3553 (2005).

Upon retrial for felony murder, defendant's constitutional right to a jury trial would be violated by an order preventing him from presenting proof that would question his aggravated burglary conviction, which was the predicate offense for the felony murder charge. Just as he could not be collaterally estopped from presenting proof as to the burglary conviction, he, likewise, could not be barred by application of the law of the case. State v. Scarbrough, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Oct. 11, 2004), aff'd, 181 S.W.3d 650, 2005 Tenn. LEXIS 1044 (Tenn. 2005).

In a capital murder case, a court properly found that defendant was competent to stand trial because, although defendant had been diagnosed by his experts with anosognosia, one of defendant's experts admitted that defendant had a previous history of malingering, he had rationally discussed many facets of his case with his attorneys, and he understood the roles of the prosecutor, the judge, and the defense attorneys; defendant himself had expressed an understanding of the proceedings. State v. Reid, 213 S.W.3d 792, 2006 Tenn. LEXIS 1203 (Tenn. 2006), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 17, (Tenn. 2007), cert. denied, Reid v. Tennessee, 169 L. Ed. 2d 305, 128 S. Ct. 437, 552 U.S. 974, 2007 U.S. LEXIS 11530 (2007).

Defendant's especially aggravated kidnapping convictions violated due process where, as part of his robbery attempt, defendant moved the victims to facilitate access to a safe, and the physical circumstances of the respective confinements did not prevent either victim from leaving the building and summoning help. Ultimately, the co-manager merely walked out of the fan room and collected the manager, who removed the tape from her hands, and the two women walked into the vacated office to call 911. State v. Richardson, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. May 4, 2006), rehearing denied, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 7, 2006), dismissed, Richardson v. Colson, — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 94366 (M.D. Tenn. July 9, 2012), rev'd, 251 S.W.3d 438, 2008 Tenn. LEXIS 318 (Tenn. May 7, 2008).

Defendant's argument that the state prosecuted defendant and his accomplice using inconsistent theories, facts, and arguments in violation of his due process rights was rejected because defendant's “lone perpetrator” characterization of his accomplice's prosecution was false. The core theory of the two prosecutions was consistent, namely that the accomplice shot the victims and robbed the store while defendant served as a lookout. State v. Housler, 193 S.W.3d 476, 2006 Tenn. LEXIS 431 (Tenn. 2006), cert. denied, Housler v. Tennessee, 549 U.S. 994, 127 S. Ct. 499, 166 L. Ed. 2d 368, 2006 U.S. LEXIS 8048 (2006).

Reversal of an order that concluded that a confidential informant was a material witness and that disclosure was warranted was appropriate because defendants failed to establish that the informant, who provided information upon which a detective relied in seeking a search warrant, but who was not present at the scene of, and did not participate in, the crimes charged, possessed any information that was either material or favorable to their defense. Rather, defendants relied on vague, conclusory allegations and their mere invocation of their rights did not automatically outweigh the public policies favoring the protection of confidential informants. State v. Ostein, 293 S.W.3d 519, 2009 Tenn. LEXIS 520 (Tenn. Aug. 20, 2009).

Although the double jeopardy clause was not implicated because the jury was not reassembled to determine guilt or innocence, but only to determine the facts relevant to sentencing, there was no separate jeopardy, the recall of the discharged jury violated defendant's due process rights under U.S. Const. amend. V, U.S. Const. amend. XIV, § 1, and Tenn. Const. art. I, §§ 6, 8, 9 because once a jury had returned a complete verdict, or the jurors had separated and passed from the control of the court, the jury could not be reassembled to act on the case for any purpose. Accordingly the case was remanded to the trial court to select a new jury in order to hold a new trial solely on the issue of whether defendant's conviction was his first, second, third, or fourth driving under the influence offense based on the evidence presented regarding prior convictions. State v. Nash, 294 S.W.3d 541, 2009 Tenn. LEXIS 652 (Tenn. Oct. 7, 2009).

Method employed to elicit defendant's admissions was not so inherently unfair that it violated due process because there was no proof that the detective directed defendant's wife to promise defendant he would not be prosecuted or that he would receive leniency from the State, nor did she, as a private citizen, have the power to do so. State v. Clark, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Sept. 6, 2012), aff'd, 452 S.W.3d 268, 2014 Tenn. LEXIS 913 (Tenn. Nov. 10, 2014).

Under Ferguson, the standard of review of a trial court's determination as to whether a defendant was deprived of a fundamentally fair trial is de novo with no presumption of correctness. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

When defendant engaged in criminal conduct while released on bond, the Tennessee trial court was required to conduct a bail revocation hearing to determine whether defendant forfeited the constitutional right to pretrial bail in compliance with the procedure established to meet the constitutional due process requirements. State v. Burgins, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

Trial court did not err in denying appellant's motion to suppress his statements to appellant's ex-wife on October 15 and 16, 2002 where the statements were voluntary as the ex-wife did not threaten appellant or make him any promises; the ex-wife told appellant that she wanted to help, but her offer was not conditioned upon appellant's confessing. State v. Willis, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 13, 2015), aff'd, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016).

Appellate court lack jurisdiction to consider defendant's appeal because the certified question of law regarding the legality of the warrantless entry into defendant's home and the seizure of defendant from his doorway was not dispositive of the case where, even if a police officer detained defendant in a manner that exceeded constitutional limits, the search warrant—based on anonymous tips and the smell of marijuana all of which were known before the officer placed his foot inside the residence and physically seized defendant—remained valid and the police obtained no information or evidence to secure the warrant as a result of seizing and detaining defendant before execution of the search warrant. State v. Snider, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1069 (Tenn. Dec. 14, 2015).

State's failure to disclose their discovery of exculpatory text messages did not amount to a Brady violation where defendant failed to show that the evidence was material because her claim that she was in the vehicle trying to reach a missing friend went unchallenged during her DUI trial. In addition, the text messages were sent from defendant's phone and therefore were available to her. State v. Conkin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Sept. 7, 2016).

There was no error in the post-conviction court's refusal to admit evidence of the State's chart used during jury selection; the prosecutor stated there were no notations related to race or ethnicity, and it could not be concluded that the admission of the chart would have in any way aided petitioner in a potential Batson claim, and not post-conviction relief was warranted. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Trial court required petitioner's counsel to review an audiotape recording of the voir dire before ordering a transcription of the hearing, and petitioner could not be granted postconviction relief on the issue related to a potential Batson claim when he failed to exercise due diligence and actually listen to a copy of the audiotape. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

This section, which gave the Tennessee Bureau of Investigation (TBI) $250 for each DUI conviction that was obtained using a blood or breath test, violated the Due Process Clause of the Fourteenth Amendment and Tenn. Const. art. I, § 8 because the TBI had a direct pecuniary interest in securing convictions, given that the money from the fees was placed directly in the intoxicant testing fund which was designated for exclusive use by the TBI. The court held that procedural safeguards suggested by the State failed to remedy the due process violations resulting from the fee system itself. State v. Decosimo, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 6, 2018), rev'd, 555 S.W.3d 494, 2018 Tenn. LEXIS 471 (Tenn. Aug. 23, 2018), overruled, State v. Mitchell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Oct. 29, 2018), overruled, State v. Ipock, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 854 (Tenn. Crim. App. Nov. 20, 2018), overruled, State v. Liles, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 8, 2019).

T.C.A. § 55-10-413 was not unconstitutional due to the imposition of a fee upon persons convicted of drug and alcohol offenses when forensic scientists employed by the Tennessee Bureau of Investigation (TBI) conducted chemical tests used to determine blood alcohol or drug content, as the TBI forensic scientists were not judicial officials to whom the requirements of Turney v. Ohio applied. State v. Decosimo, 555 S.W.3d 494, 2018 Tenn. LEXIS 471 (Tenn. Aug. 23, 2018), cert. denied, Decosimo v. Tennessee, 202 L. Ed. 2d 577, 139 S. Ct. 817, — U.S. —, 2019 U.S. LEXIS 222 (U.S. Jan. 7, 2019).

Trial court's consideration of evidence relating to the nolled count of the indictment, sexual exploitation of a minor for possession of pornographic images, did not violate defendant's right to substantive due process because the trial court could utilize criminal behavior shown by a preponderance of the evidence to enhance a sentence without violating federal or state due process principles. State v. Broadrick, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 678 (Tenn. Crim. App. Sept. 4, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 84 (Tenn. Jan. 16, 2019).

Defendant failed to show a due process violation because he failed to establish an agreement between the State and the witnesses. Defendant cross-examined the witnesses and both witnesses testified that the State did not promise to reduce their sentences in exchange for their testimony. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 27, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 253 (Tenn. June 19, 2019).

42. — —Multiple Convictions for Same Offense.

Multiple convictions for same offense cannot stand unless offenses supporting convictions are wholly separate and distinct, and key test is whether each provision requires proof of fact which the other does not. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

Not guilty verdicts erroneously reported by the jury, coupled with the discharge of the jury, concluded the defendant's jeopardy and her subsequent convictions violated double jeopardy and due process protections. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

Convictions for both rape and incest arising out of the same act did not violate due process under the Tennessee or United States constitutions because neither offense was “essentially incidental” to the other. State v. Beauregard, 32 S.W.3d 681, 2000 Tenn. LEXIS 662 (Tenn. 2000).

Defendant's convictions for especially aggravated kidnapping and attempted aggravated robbery did not violate due process, as the kidnapping was not incidental to the robbery; additional movement and confinement by defendant exceeded what was necessary to accomplish the attempted aggravated robbery, lessened defendant's risk of detection, and increased a victim's risk of harm. State v. Majors, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. June 21, 2010), appeal denied, State v. Major's, — S.W.3d —, 2010 Tenn. LEXIS 1190 (Tenn. Dec. 8, 2010), dismissed, Majors v. Sexton, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 166310 (M.D. Tenn. Nov. 22, 2013).

43. — — —Death Penalty.

Where defendant received death sentence following first degree murder conviction, the aggravating circumstance — the defendant employed another to commit the murder for remuneration or the promise of remuneration — did not duplicate the elements of the offense, even incorporating the criminal responsibility statutes, and therefore constitutional narrowing was accomplished. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

Denial of petitioner's, an inmate's, motion to reopen his postconviction petition for the purpose of determining whether he was mentally retarded and thus ineligible for the death penalty was appropriate pursuant to T.C.A. § 39-13-203(b) because he failed to meet the bright-line mark of 70 for establishing mental retardation at the time of the offense. He also failed to establish that he had adaptive deficits and he was not twice placed in jeopardy. Coleman v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 13, 2010), aff'd in part and vacated in part, 341 S.W.3d 221, 2011 Tenn. LEXIS 319 (Tenn. Apr. 11, 2011).

In a death penalty case, defendant was mentally competent to waive presentation of mitigation evidence because the trial court ordered a competency evaluation, and following the evaluation, both doctors reported back to the trial court that defendant refused to participate. The mere fact that defendant's decision to waive the presentation of mitigation evidence might not have been wise did not inherently mean that he was incompetent to make the decision. State v. Johnson, 401 S.W.3d 1, 2013 Tenn. LEXIS 355 (Tenn. Apr. 19, 2013), cert. denied, Johnson v. Tennessee, 187 L. Ed. 2d 371, 134 S. Ct. 513, — U.S. —, 2013 U.S. LEXIS 7883 (U.S. Nov. 4, 2013).

44. — —Miranda.

In a prosecution for aggravated sexual assault, even though defendant was not advised that his statements to a counselor were not privileged, admission of the statements did not violate due process since they were made in a noncustodial setting and there was no evidence of interference by a state agent. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

Because defendant's reluctance to answer questions did not amount to an invocation of his right to remain silent, the deputy director's testimony regarding such reluctance was not improper. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

45. — —Identification.

The rule is that constitutional due process is violated if a pretrial identification is influenced by suggestiveness by police officers to such degree as to render the identification unreliable. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

Only after a determination is made that the pretrial identification is unconstitutionally suggestive are certain factors considered to ascertain whether the in-court identification is influenced and tainted by the suggestiveness of the pretrial identification. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

In determining whether the in-court identification is tainted by an unconstitutional pre-trial identification so as to render the in-court identification inadmissible, the following factors must be considered: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

A rape victim who has had an opportunity to observe her assailant, and has been in contact with him for any considerable length of time is entitled to make an in-court identification based on that observation. Key v. State, 591 S.W.2d 793, 1979 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1979).

Court rejected defendant's claim that the trial court erred in denying his motion to suppress an eyewitness identification of him made by the murder victim's wife because her identification was not improperly enhanced by hypnosis; although hypnosis may have affected the wife's level of certainty, nothing in the record showed that hypnosis brought out previously unremembered key facts in light of the fact that the wife had given a detailed description of the assailant on the day of the murder that remained unchanged after hypnosis. State v. Thomas, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. Mar. 30, 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 844 (Tenn. Oct. 10, 2005), cert. denied, Thomas v. Tennessee, — U.S. —, 126 S. Ct. 1475, 164 L. Ed. 2d 249, 2006 U.S. LEXIS 2053 (2006), dismissed, Thomas v. Carlton, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 41940 (E.D. Tenn. Mar. 26, 2013).

Based upon the proof before the trial court that a trained narcotics officer viewed defendant in the daylight on three occasions for a total of at least two minutes, the last and lengthiest of those being face-to-face, and two months later was positive in his identification of defendant from a photograph, the record supported the trial court's determination that the motion to suppress was without merit and defendant's right to due process had not been denied. State v. Biggs, 211 S.W.3d 744, 2006 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1129 (Tenn. 2006).

Trial court did not err by failing to suppress the victim's pretrial identifications of defendant on the ground that the sergeant failed to preserve the photograph array containing a particular man's photograph where it found that the State had a duty to preserve the array but that the sergeant's loss of it was simple human error, the victim's testimony was entirely consistent with the sergeant's testimony at the suppression hearing that he did not identify anyone in the array in which the man's photograph was part of, the original array was saved in a mugshot database and an exact duplicate was available to the defense, and the remaining evidence was more than sufficient to convict defendant. State v. Sanders, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 27, 2016).

46. — —Competency to Stand Trial.

Defendant's conviction for escape was proper because he was competent to stand trial; although the trial court found that defendant would have memory deficits, the charge was relatively minor and did not involve any complicated concepts and further, a memory deficit alone did not render defendant incompetent. State v. Ferrell, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Aug. 24, 2007), rev'd, 277 S.W.3d 372, 2009 Tenn. LEXIS 16 (Tenn. 2009).

Judgment of the trial court declaring defendant competent was supported by a doctor's testimony that defendant was competent and did not require medication to maintain his competence and evidence concerning defendant's behavior and demeanor, and defendant offered no evidence to the contrary to show that he was unable to understand the nature and object to the proceedings against him. State v. Ghormley, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1010 (Tenn. Crim. App. Nov. 5, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 138 (Tenn. Feb. 19, 2015).

Trial court did not err in refusing to order a second evaluation of defendant's competency after he refused to attend his trial, as he had been lucid at a hearing two weeks prior and defense counsel stated he had met with defendant the previous day and defendant was able to consult with him regarding his defense. State v. Hamby, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. Apr. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 641 (Tenn. Aug. 13, 2015).

Evidence did not preponderate against the finding that defendant one was competent to stand trial, and there was no error in the denial of defendant two's motion for severance; the doctor conceded that defendant one understood the roles of those in the courtroom, nothing indicated that she was unable to understand the nature of the proceedings, and while her behavior at trial was colorful, it was not indicative of incompetence. State v. Sims, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 775 (Tenn. Crim. App. Sept. 25, 2015).

Trial court determined that defendant's inability to recall the accident did not amount to incompetence because the degree of his amnesia did not hinder his ability to establish a defense; it was difficult to determine the issue without a transcript, plus counsel conceded that defendant's inability to assist ultimately made no difference in the outcome of the trial, and defendant was not entitled to relief. State v. Naifeh, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 391 (Tenn. Crim. App. May 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 714 (Tenn. Sept. 30, 2016).

Evidence supported the trial court's finding of defendant's competency to stand trial because the trial court credited the testimony of a forensic psychiatrist and a forensic psychologist, who interviewed defendant and testified that defendant was competent to stand trial. The trial court also observed defendant's demeanor and speaking ability during defendant's testimony on direct and cross-examination. State v. Davis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1020 (Tenn. Crim. App. Dec. 11, 2017).

47. — —Delay in Bringing to Trial.

An unreasonable delay between the commission of an offense and the commencement of the prosecution may violate the defendant's constitutional right to due process. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

Defendant's due process rights were not violated by a 13 year delay between the commission of the murder and the return of the indictment because the trial court found that actual prejudice had not been proven; the missing tapes and witness statements might have supported an alternative theory as to the perpetrator, but that was not proven. The trial court further found that the state had not caused the delay for tactical advantage but instead had lacked sufficient evidence until the discovery of the projectiles. State v. D'Antonio, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1152 (Tenn. Crim. App. Oct. 26, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 389 (Tenn. 2006), dismissed, D'Antonio v. Carpenter, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 90998 (M.D. Tenn. July 3, 2014).

Defendant's conviction for premeditated first-degree murder was appropriate because he failed to show that his due process rights were violated; almost 20-year delay between offense and prosecution was due to ongoing investigation as information was sought and suspects were eliminated, and although the investigation continued, there was no evidence that the state intentionally delayed the indictment in order to gain a tactical advantage over defendant. State v. Gilley, 297 S.W.3d 739, 2008 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Aug. 13, 2008).

Defendant did not show a pre-indictment delay required an indictment's dismissal because defendant did not show (1) defendant sustained actual prejudice as a direct and proximate result of the delay, or (2) the State caused the delay to gain a tactical advantage or to harass defendant. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Defendant did not establish that the pre-indictment delay of 17 months violated defendant's right to a fair trial because the delay was not presumptively prejudicial. Furthermore, defendant did not show that defendant suffered any actual prejudice as a result of the delay, or that the State of Tennessee caused the delay to obtain a tactical advantage over defendant. State v. Gleason, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Feb. 10, 2020).

Defendant's due process rights were not violated due to a three and one-half year delay in prosecuting the case where the delay was due in large part to some level of incompetence or inaction of the initial investigator and not to gain a tactical advantage or harass defendant, and defendant did not suffer any prejudice. State v. Golden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Oct. 23, 2020).

48. — —Indictment.

Defendant's due process right to a fair trial was not violated due to the fact that the 25-year pre-indictment delay resulted in the death of his alibi witness because the witness' death occurred after the indictment was obtained by the State and after the initial trial date. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 369 (Tenn. June 7, 2017).

Defendant's due process right to a fair trial was not violated by the pre-indictment delay of over 25 years because the record supported the trial court's finding that the cause of the delay was insufficient evidence to charge defendant for the victim's killing. Defendant was the sole suspect at the time of the offense and remained so until he was indicted, and it was not until an investigation beginning in 2011 that the State obtained statements from defendant's former wives implicating him in the victim's death. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 369 (Tenn. June 7, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper, as the delay in charging defendant with burglary was attributable to the State because it had evidence of defendant's ban from the store in question prior to her first trial and failed to investigate it, and the State's deficiencies did not provide a sound basis for burdening defendant with the addition of a felony offense after a mistrial. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary count in defendant's case was upheld on independent due process grounds; given the legislative history, T.C.A. § 39-14-402(a)(3) was never intended to cover buildings open to the public, and by charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting under T.C.A. §§ 39-14-105, 39-14-146, prosecutors are abusing their charging discretion by unreasonably expanding the reach of the burglary statute, and charging of burglary in these instances is unreasonable, unjust, and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper as the State failed to rebut the presumption of prosecutorial vindictiveness, regardless of whether the trial court explicitly relied on such; the State admitted it charged defendant with burglary following defendant's first mistrial because it intended use its discretionary charging authority to prosecute all banned, repeat shoplifters like defendant with burglary, which was retaliatory and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Because the blood alcohol concentration (BAC) evidence was suppressed, the trial court did not err by dismissing the count alleging DUI per se; however, the trial court erred by dismissing the indictment in its entirety because the grand jury could consider the suppressed evidence showing defendant's BAC level as the grand jury could consider evidence obtained in violation of an accused's constitutional rights; the State did not knowingly present false testimony; the officer's and the magistrate's testimony was not unfairly prejudicial to defendant in relation to the remaining indictment counts; and, even without the blood analysis results, the evidence was sufficient to permit the State to continue its prosecution of the remaining charges. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

49. — —Evidence.

If a witness' in-court identification, is tainted by an unconstitutional pretrial identification, then the in-court identification is not admissible in evidence. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

State's knowing use of false testimony to convict an accused is violative of the right to a fair and impartial trial as embodied in the due process clause of the U.S. Const. amend. 14 and Tenn. Const. art. I, §§ 8 and 9. State v. Spurlock, 874 S.W.2d 602, 1993 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1993).

As the preservation of a defendant's fundamental right to a fair trial is of paramount importance, the Tennessee supreme court has adopted a balancing approach, rather than a bad faith analysis, in determining whether the loss or destruction of evidence is so critical to the defendant as to make a criminal trial fundamentally unfair. State v. Ferguson, 2 S.W.3d 912, 1999 Tenn. LEXIS 426 (Tenn. 1999).

If proof demonstrates the failure of the state to preserve evidence where such a duty exists, the analysis then moves to a consideration of factors which should guide the decision regarding the consequences of the breach, including: (1) The degree of negligence involved; (2) The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and (3) The sufficiency of the other evidence used at trial to support the conviction. State v. Ferguson, 2 S.W.3d 912, 1999 Tenn. LEXIS 426 (Tenn. 1999).

Prosecutors' knowing use of defendant's confession, which contained many facts known to be false, did not violate defendant's due process rights because due process merely required the trial court to find that defendant confessed voluntarily and that the confession was minimally corroborated; once the two conditions were satisfied, the truth or falsity of the confession was a determination for the jury. The trial court found that defendant's confession was voluntary, and defendant did not challenge that finding on appeal; the confession was sufficiently corroborated by numerous witnesses. State v. Housler, 193 S.W.3d 476, 2006 Tenn. LEXIS 431 (Tenn. 2006), cert. denied, Housler v. Tennessee, 549 U.S. 994, 127 S. Ct. 499, 166 L. Ed. 2d 368, 2006 U.S. LEXIS 8048 (2006).

Trial court erred in denying defendant's motion to vacate, as violative of due process principles, his conviction for especially aggravated kidnapping under T.C.A. § 39-13-305(a)(1) because defendant successfully demonstrated that his movement of the victim was not beyond that necessary to complete his aggravated robbery. State v. White, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. May 12, 2010), rev'd, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012).

Trial court did not abuse its discretion in dismissing the charges of driving under the influence, reckless endangerment, and reckless driving on the basis that the state's loss of the video recording of the police officer's stop of defendant deprived defendant of a fair trial. The video recording became more significant in light of the relative strength of the state's case. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

Loss of the video recording of a police officer's stop of defendant deprived defendant of her right to a fair trial given that the lost evidence recorded defendant's conduct, which provided the factual basis for her charges. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

Trial court's determination of the appropriate remedy for the state's failure to preserve evidence is reviewed under an abuse of discretion standard. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

Trial court did not err in denying defendants' motion to dismiss the case against them or strike an eyewitness's testimony because the degree of negligence in the State's failing to preserve the recording of the eyewitness's statement was simple negligence; the eyewitness consistently maintained before trial and during trial that both defendants were the shooters, and defense counsel had the eyewitness's transcribed statement; and the evidence was sufficient to support their convictions. State v. Swift, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 829 (Tenn. Oct. 24, 2016).

Evidence was sufficient to support defendant's conviction of especially aggravated kidnapping where the jury received the full White instruction, defendant and two others entered the victim's home, held the three victims at gunpoint for eight to 10 hours, and took property from all three, defendant sexually assaulted two of the victims, and the confinement lasted much longer than the time necessary to commit the other acts of robbery and sexual assault. State v. Cornelius Banks, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. Jan. 29, 2016).

State did not have a duty to preserve alarm clocks located next to the victim's bed, particularly where it was unclear whether they could have been collected without destroying the information they contained, which an investigator did collect by writing down that information. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Even though the trial court erred by failing to conduct an in camera review of an investigator's notes for exculpatory information, defendant was not entitled to relief because the notes did not contain any information that would have changed the outcome of the trial. State v. Hernandez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Sept. 27, 2016).

Even though the lost or destroyed evidence implicated defendant's right to a fundamentally fair trial, the trial court did not abuse its discretion by denying defendant's motion to dismiss the indictment because the relevant evidence was not used to implicate defendant in the victim's killing, the remaining evidence was sufficient to support defendant's second-degree murder conviction, and defendant possessed sufficient information to impeach the credibility of the State's primary witnesses. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 369 (Tenn. June 7, 2017).

There was no recording of defendant's admissions during a phone call, and nothing suggested that a recording of defendant's side of the conversation, if it existed, would have been exculpatory, and therefore defendant's claim that the State had a duty to preserve the evidence failed. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

Defendant was not entitled to relief on appeal when a portion of the recording of codefendant's interview was lost due to technical failure because the trial court did not err in its determination that defendant could have a fundamentally fair trial protected by adequate curative measures and that a dismissal was not warranted. Furthermore, the trial court's jury instructions were an appropriate and adequate remedy for the absence of a recording of a portion of codefendant's interview. State v. Sherrill, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Nov. 8, 2018).

50. — —Discovery.

In defendant's capital murder case, defendant's due process rights were not violated because the state withheld information regarding a witness where the information about which defendant complained could not reasonably be taken to put the case in such a different light as to undermine confidence either in defendant's convictions or his death sentence for the homicide. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

In a murder case, a court did not err when it failed to grant defendant's motion for a new trial based upon the state's failure to disclose exculpatory evidence to him where, the young age of the witness making the statements, and the fact that the statements did not exonerate defendant but simply implicated an additional shooter, the failure to establish the “materiality” of the favorable evidence defeated defendant's due process claim. State v. Hatcher, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept 15, 2004), cert. denied, Hatcher v. Tennessee, 126 S. Ct. 154, 163 L. Ed. 2d 154, 546 U.S. 867, 2005 U.S. LEXIS 5691 (U.S. 2005), review or rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 63 (Tenn. Jan. 24, 2005).

Defendant's conviction for first-degree murder was appropriate because he was not prejudiced by any improper conduct on the part of the state in part because, in regard to the photographic and descriptive information regarding the other individual who also had the same nickname, the record showed that this individual did not match the description provided by the eyewitnesses to the offense. Additionally, the trial court properly directed the state to allow defense counsel to review the statement of an alibi witness upon his request under Tenn. R. Evid. 613 because, although the witness was a prospective state witness, the defense ultimately called her as an alibi witness and the impeachment evidence which developed as a result did not exist until after the witness provided her direct testimony. State v. Anderson, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 9, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 846 (Tenn. Sept. 1, 2010), cert. denied, Anderson v. Tennessee, 562 U.S. 1154, 131 S. Ct. 947, 178 L. Ed. 2d 782, 2011 U.S. LEXIS 191 (U.S. 2011).

Prosecution violated defendant's constitutional right to due process by failing to provide to the defense the third statement of a witness to the police until after the trial, and the State of Tennessee did not prove that the error was harmless as the third statement differed from the accounts the witness had given in the first and second statements of the witness and could have been used to impeach the testimony of the witness at trial. State v. Jackson, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

Defendant failed to show that the State suppressed the police file he sought or that the State knew the victim worked as a confidential informant, which she did after the incident in this case and that it was unrelated to defendant; nothing about the victim's working for the police reflected a reasonable probability that the result of the trial would have been different had the file been disclosed to the defense. State v. Henry, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. Jan. 16, 2015).

There was no any obvious exculpatory, favorable, or material value of the information that a detective's initial search of the database returned results that failed to narrow the field of possible suspects in any meaningful manner; no Brady disclosure was required. State v. Sails, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Aug. 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1021 (Tenn. Dec. 10, 2015).

Record did not reflect that defendant requested Brady material other than one recorded statement, and the evidence in question was not viewed as having any obvious exculpatory value and was not subject to Brady disclosure; the information that the witness initially minimized his own involvement had no bearing on defendant's culpability, and although the evidence was relevant to impeach the witness, the information was developed at the trial, and defense counsel thoroughly cross-examined him about the inconsistencies. State v. Sails, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Aug. 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1021 (Tenn. Dec. 10, 2015).

The trial court reviewed the victim's DCS file as the appellant had requested and determined that it did not contain Brady material. Nothing indicates that the file contained exculpatory information. Therefore, we conclude that the trial court did not err by refusing to review the file again or by denying counsel's request to review it. State v. Whitehair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 741 (Tenn. Oct. 20, 2016).

Defendant's right to a fair trial was not violated by the State's failure to preserve evidence of the victim's cellphone and the cellphone records regarding texts between defendant and the victim and to turn over exculpatory evidence to defendant because there was nothing in the record affirmatively establishing that the victim's cellphone records were unobtainable from her provider at the time requested by the defense; there was no documentation of any attempt to obtain the relevant records from defendant's cellphone provider; and defendant acknowledged that the desired information would have been available to him had he been able to locate his own cell phone. State v. Freeman, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 179 (Tenn. Crim. App. Mar. 10, 2016).

Police detective's actions in destroying compact discs that contained witness statements did not deprive defendant of a fair trial because defendant obtained access to the statements before the trial, the detective testified at defendant's trial regarding the matter, and defendant had the opportunity to cross-examine the detective at trial. Furthermore, despite defendant's concern that the detective may have engaged in undiscovered misconduct, defendant did not present proof of any misconduct. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Defendant was not deprived of the constitutional right to a fair trial because the evidence did not preponderate against the post-conviction court's finding that defense counsel knew before the trial all the impeachment evidence contained in a report of codefendant's criminal history that was not disclosed by the prosecution before the trial. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Post-conviction court properly denied petitioner relief because there was no Brady violation; there was no evidence that trial counsel made a specific request for a police report, which would have triggered the State's duty to disclose the report, and petitioner failed to show that a witness's subsequent testimony was material since it did not discredit a codefendant's trial testimony, which was the key to the State's case. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Because a police report containing a witness's statement was not included in the pre-trial discovery provided to trial counsel, despite the State's open-file discovery policy, and was not disclosed after the victim's testimony rendered the impeaching nature of the evidence apparent, the State did suppress evidence. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Although defendant argued in a DUI case that the State committed a Brady violation by failing to disclose an exculpatory statement made by passenger to a deputy, the passenger's statement was not favorable to the defense, nor was it material. Because defendant did not establish all four prerequisites to establish a Brady violation, he was not entitled to relief on this issue. State v. Pratt, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 634 (Tenn. Crim. App. Aug. 20, 2018).

Despite the trial court's failure to analyze defendant's Brady claims properly, the trial court did not err in denying defendant's Brady claim as to a mistake regarding release eligibility pursuant to the original plea agreement of a State of Tennessee witness in exchange for the witness testifying against defendant and as to the charge and subsequent plea agreement of the witness in a neighboring county to an offense involving sexual conduct with the victim's brother. State v. Sherrill, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Nov. 8, 2018).

Defendant, who complained that the State committed a Brady violation by failing to disclose to the defense prior to trial that his blood sample was contaminated with naphthalene, did not establish all four prerequisites to establish a Brady violation. Consequently, defendant was not entitled to relief on this issue. State v. Brewer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 221 (Tenn. Crim. App. Apr. 6, 2020).

Even though the court held that defendant was entitled to Brady material at the juvenile transfer hearing, the information concerning other potential suspects was neither favorable nor material to the hearing because the individuals did not appear to be legitimate suspects but rather stray leads that were dismissed early in the case. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

Trial court did not err by denying defendant's motion to dismiss based upon lost or destroyed evidence of recordings from a deputy's dash and body cameras utilized at time of a traffic stop and by providing a jury instruction relative to the State of Tennessee's duty to preserve evidence because the nonexistence of the recordings occurred through inadvertence and was due to an equipment malfunction and other evidence, including defendant's incriminating statements during a police interview at the jail, was sufficient to support the convictions. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. Aug. 7, 2020).

When the existence of photographs were not disclosed until a sheriff's sergeant testified at trial to having taken photographs with the sergeant's cell phone of the heroin and cocaine found at the scene of a traffic stop but to forgetting about the photographs until the sergeant's trial testimony, defendant was not entitled to relief because the photographs were inculpatory and would have corroborated the testimony of witnesses about the events during the traffic stop and the result of the proceeding would not have been different. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. Aug. 7, 2020).

51. — —Prosecutorial Comments.

State's argument to the jury that the homicide was a “terrible, heinous, atrocious, brutal, senseless killing of one of ours,” while perhaps imprudently spoken, did not rise to the level of reversible error. State v. Gregory, 862 S.W.2d 574, 1993 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1993).

In trial for first degree premeditated homicide, prosecutor did not improperly divert the jury's attention away from defendant by invoking the memory of victim, and therefore did not violate Tenn. Const. art. I, §§ 8 and 16. State v. Brimmer, 876 S.W.2d 75, 1994 Tenn. LEXIS 15 (Tenn. 1994), rehearing denied, 876 S.W.2d 75, 1994 Tenn. LEXIS 136 (1994), cert. denied, Brimmer v. Tennessee, 513 U.S. 1020, 115 S. Ct. 585, 130 L. Ed. 2d 499, 1994 U.S. LEXIS 8413 (1994).

The state's characterization of defendant's mitigating evidence as an “excuse” and argument that the sentencing hearing was about “responsibility” did not distort the evidence or mislead the jury as to the issue before it. State v. Smith, 893 S.W.2d 908, 1994 Tenn. LEXIS 278 (Tenn. 1994), rehearing denied, 893 S.W.2d 908, 1995 Tenn. LEXIS 48 (Tenn. 1995), cert. denied, Smith v. Tennessee, 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53, 1995 U.S. LEXIS 5601 (1995).

Dismissal of an otherwise valid indictment returned by a grand jury may be appropriate where prosecutorial misconduct denies a defendant the constitutional right to due process. State v. Culbreath, 30 S.W.3d 309, 2000 Tenn. LEXIS 588 (Tenn. 2000).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the prosecutor's objections at defendant's resentencing hearing did not deprive defendant a fair trial nor violate any of his constitutional rights under the U.S. Constitution or Tenn. Const. art. I, § 8 and Tenn. Const. art. I, § 16; while some series of objections were incessant, there was no indication in the record that the objections were without legal basis or were made merely as an attempt to comment upon the credibility of the testimony. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

Although the prosecutor lacked a good faith basis for asking defendant about her termination from a job, defendant was not entitled to relief, because it was unlikely that the improper questions affected the outcome. State v. Taylor, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Sept. 30, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 70 (Tenn. Jan. 16, 2015), cert. denied, Taylor v. Tennessee, 192 L. Ed. 2d 158, 135 S. Ct. 2368, — U.S. —, 2015 U.S. LEXIS 3523 (U.S. 2015).

52. Fair Trial.

Destruction of a blood sample prior to defendant's being indicted did not deprive defendant of the ability to have the sample independently tested because the State had no duty to preserve the evidence, and it destroyed the evidence in accordance with established Tennessee Bureau of Investigation (TBI) policy; the TBI's policy was to keep samples for a minimum of sixty days, and the TBI did not destroy defendant's blood sample until well-beyond that sixty-day requirement. State v. Riddle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1044 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 322 (Tenn. May 5, 2016).

While the State had a duty to preserve the stolen items, the destruction was not attributable to the State's negligence and, even if counsel was deficient regarding the Ferguson issue, the inmate failed to prove prejudice given the evidence supporting the inmate's conviction. Mayers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 604 (Tenn. Aug. 18, 2016).

It was not an abuse of discretion to dismiss an indictment charging defendant with vehicular assault because the loss of the video taken from a trooper's patrol car would deprive him of a fair trial; the lost video was significant because it recorded defendant's alleged admission, if defendant did not say on the video he was the driver, the trooper would not testify at trial that he made the admission, and the State never indicated it would use an occupant's testimony as to who was driving. State v. Smithson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 18, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 580 (Tenn. Aug. 18, 2016).

Defendant was not deprived of the constitutional right to a fair trial because codefendant testified that codefendant had no agreement with the State of Connecticut regarding leniency in return for codefendant's testimony at trial, which was consistent with post-conviction testimony of the prosecutors and codefendant's defense counsel, and the post-conviction court found that no agreement existed. Furthermore, defendant testified at the post-conviction hearing that defendant had no proof codefendant lied at the trial. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Destruction of defendant's blood sample did not violate defendant's due process rights because the State did not have a duty to preserve the blood past the date it was destroyed, as blood could not be preserved indefinitely, it had been preserved for over one year, and defendant failed in her obligation to secure the sample. The presence of the prescription drug in defendant's blood was not apparently exculpatory because it would not have been relevant to negating any mental state as DUI was a strict liability offense and defendant, who voluntarily ingested alcohol and the prescription drug, could not claim that her subsequent actions were involuntary. State v. Blair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 863 (Tenn. Crim. App. Nov. 16, 2016).

Defendant's right to a fair trial was not violated when the prosecutor used the term “rape” in closing arguments, it was not so inflammatory that it likely affected the the outcome of the trial given the daughter's testimony that she did not consent to defendant's sexual abuse and defendant's failure to object at trial. State v. Hawkins, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017).

Defendant could not show plain error when the State of Tennessee did not preserve a toaster oven which a retail store sold at a discount after defendant allegedly removed the item from its box and placed items which defendant removed from the store in the box because the State had no duty to preserve the toaster oven, which defendant claimed would have potentially provided exculpatory evidence, as the State never had possession of the toaster oven. State v. Craig, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. Apr. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 530 (Tenn. Aug. 13, 2018).

Trial court did not err by denying defendant's motion to exclude testimony regarding the missing portion of a surveillance video; the State did not have a duty to collect a complete copy of the video, the video was privately owned and never in the State's control, the State did not lose or destroy the video and instead preserved the portion it obtained and introduced at trial, and a detective testified that he did not request a complete copy because he was merely verifying the accuracy of the information a witness provided. State v. Crowell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. Aug. 16, 2018).

Because the trial court afforded defendant the opportunity for a mental evaluation, and his own conduct was the reason no evaluation was performed, he could not be heard to complain on appeal that he did not receive the evaluation. He failed to carry his burden of demonstrating incompetency because he refused to cooperate with a mental evaluation geared toward determining whether incompetency existed and the evidence of record did not establish that he was incompetent. State v. Myers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 30, 2019).

Law enforcement's failure to preserve a videotape made by an evidence technician and provide it to the defense did not plainly violate Brady because the evidence does not show that the recording was material, as a recording of one of the investigating detectives using a racial slur would not have cast doubt on defendant's identity as the perpetrator as defendant had admitted that there was no African-American suspect. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 21, 2019).

Trial court did not err by declining to give a limiting instruction regarding the State's duty to preserve the identity of a witness who spoke to police after a robbery because the State had no duty to collect an unnamed woman's identifying information; the woman's description of the man she saw fleeing was not more detailed than that of the victims, extensive identity testimony was presented at trial, and the sufficiency of the evidence regarding identity was not at issue. State v. Atha, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 588 (Tenn. Crim. App. Sept. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 41 (Tenn. Jan. 15, 2020).

53. — Jury Instructions.

In felony-murder trial, trial court's instruction to jury that it must find proof “beyond a reasonable doubt” and be convinced to a “moral certainty” of the existence of the aggravating circumstances and of the fact that they outweighed the mitigating circumstances was not a lower burden of proof than evidentiary certainty, and was not violative of the due process clauses of the state and federal constitutions. State v. Nichols, 877 S.W.2d 722, 1994 Tenn. LEXIS 135 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 202 (1994), cert. denied, Nichols v. Tennessee, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791, 1995 U.S. LEXIS 589 (1995).

Former § 40-35-201(b)(2)'s provision for jury instructions including an explanation of early release and parole eligibility did not violate defendant's right to due process since the instructions given complied with the statute and were not inaccurate, the provision was not impermissably vague, sentencing and parole information is not entirely irrelevant to the jury's determination, and the jurors were instructed that the information was not to be considered in the determination of guilt or innocence. State v. King, 973 S.W.2d 586, 1998 Tenn. LEXIS 424 (Tenn. 1998).

Post-conviction relief petition was properly summarily dismissed, because petitioner failed to show that he was deprived of due process by jury instructions for second degree murder which failed, like those in State v. Page , 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002), to specify that a second degree murder was a result-of-conduct offense; because petitioner was convicted of first degree, premeditated murder, any failure of the trial court to adequately instruct the jury under Page was harmless beyond a reasonable doubt. O'Baner v. State, 159 S.W.3d 605, 2004 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1023 (Tenn. Nov. 15, 2004), cert. denied, O'Baner v. Tennessee, 544 U.S. 999, 125 S. Ct. 1933, 161 L. Ed. 2d 773, 2005 U.S. LEXIS 3553 (2005).

State's failure to make a proper election of offenses deprived defendant of the right to a unanimous jury verdict because the state repeatedly told the jury that it was not necessary for them to determine unanimously which sworn testimony amounted to perjury, and therefore, the jury was invited to reach a “patchwork verdict.” State v. Buford, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Aug. 18, 2005), rev'd, 216 S.W.3d 323, 2007 Tenn. LEXIS 315 (Tenn. 2007).

It was doubtful that anything discovered on the victim's cellphone would have shed light on whether defendant reasonably feared he was in danger of imminent death, and while the contents of the victim's phone might have shown that he was sending angry messages to third parties, no evidence supported this claim, and it was undisputed that the victim had repeatedly yelled at and threatened to kill defendant; the phone data was in the control of a third party, defendant could have obtained comparable evidence by other reasonably available means but chose not to do so, and the denial of defendant's request for a jury instruction in this regard was not error. State v. Ferrell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Nov. 18, 2016).

Jury instruction on possessing a firearm with intent to go armed during commission of a dangerous felony was plain error because (1) the record showed what occurred at trial, (2) the instruction breached an unequivocal rule of law by stating defendant could be guilty for acting knowingly or recklessly, when the mens rea was intentionally, (3) defendant's substantial right was adversely affected by lessening the State's burden of proof, violating defendant's rights to a fair trial and a jury trial, (4) defendant did not tactically waive the issue, and (5) it was necessary to consider the error to do substantial justice, as the error likely changed the trial's outcome. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 5, 2017).

54. — Sentencing.

The admission of evidence of the defendant's prior criminal behavior as an enhancement factor in sentencing does not violate the defendant's right to due process. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

Inmate's contention that he was sentenced to death in violation of due process, contending that to satisfy Apprendi the indictment had to include language of the statutory aggravating circumstances to elevate the offense to capital murder, was rejected because the argument had previously been rejected by the Tennessee supreme court. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Statute violates substantive due process principles; without a requirement that the offense be related to a defendant's criminal gang membership, the court fails to comprehend how the second subsection is reasonably related to the goal of deterring criminal gang activity, and the statute unconstitutionally abridges substantive due process. State v. Stripling, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 16, 2016).

Statute subjects the defendant to conviction for a higher degree crime than originally charged, resulting in an increased penalty range, based only upon a defendant's simple association with others, who may or may not be criminals, and the statute runs afoul of due process. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

While defendant was a gang member and he committed the crimes at issue, there was no evidence tying his assault to any sort of gang activity, and his sentences were enhanced based solely on his membership in the gang; the statute offends the principle of due process because it fails to tie membership in a gang to the offense at issue, and because the version of the gang enhancement statute in effect at the time of defendant's convictions was unconstitutional, these enhancements were vacated. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

55. — Extradition.

Mere irregularities in extradition would not vitiate the extradition; the conduct must be of a most shocking and outrageous character. Sneed v. State, 872 S.W.2d 930, 1993 Tenn. Crim. App. LEXIS 117 (Tenn. Crim. App. 1993).

56. — Jury Deliberations.

In first degree murder trial, defendant was not deprived of due process or denied a fair trial due to jury deliberations where after five (5) full days of trial the jury deliberated late at night at its hotel and delivered its verdict early Sunday morning. State v. Hurley, 876 S.W.2d 57, 1993 Tenn. LEXIS 150 (Tenn. 1993), cert. denied, Hurley v. Tennessee, 513 U.S. 933, 115 S. Ct. 328, 130 L. Ed. 2d 287, 1994 U.S. LEXIS 7172 (1994), superseded by statute as stated in, State v. Price, 46 S.W.3d 785, 2000 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. 2000), superseded by statute as stated in, State v. Powers, — S.W.3d —, 2002 Tenn. LEXIS 768 (Tenn. Jan. 6, 2002), superseded by statute as stated in, State v. Powers, 101 S.W.3d 383, 2003 Tenn. LEXIS 2 (Tenn. 2003).

57. — Directed Verdict.

Even though proof of guilt is conclusive, the issue of guilt should be submitted to the jury on a plea of not guilty; there is no provision in this state or any other jurisdiction for the trial judge to order a verdict of conviction. State v. Davis, 637 S.W.2d 471, 1982 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 1982).

58. — Death Penalty.

Statutes pertaining to sentencing for first degree murder and appeal and review of a death sentence are not violative of the U.S. Const. amends. 5, 6, 8, and 14, nor of Tenn. Const. art. I, §§ 8, 9, 16, and 17, and Tenn. Const. art. II, § 2. State v. Shepherd, 902 S.W.2d 895, 1995 Tenn. LEXIS 269 (Tenn. 1995).

Inmate failed to show that Tennessee's lethal injection protocol violated due process under U.S. Const. amend. 14, or Tenn. Const. art. I, § 1 because the inmate failed to cite authority that the adoption of the lethal injection protocol violated procedural due process and the method of lethal injection was created by the legislature and that the implementation of lethal injection was left to the department of correction pursuant to T.C.A. § 40-23-114(c); further, the department was not subject to the notice and approval provisions of the Uniform Administrative Procedures Act (UAPA) because department procedures were not “rules” as defined by the UAPA because they fit squarely into the exceptions under T.C.A. § 4-5-102. Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 2005 Tenn. LEXIS 828 (Tenn. 2005), cert. denied, 547 U.S. 1147, 126 S. Ct. 2288, 164 L. Ed. 2d 813, 2006 U.S. LEXIS 3970 (2006).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the waiver of his right to testify at his sentencing hearing was knowing, intelligent, and voluntary as required by the U.S. Constitution and Tenn. Const. art. I, §§ 8, 9, and 16; the appellate court rejected defendant's argument that he was not sufficiently advised of the salient consequences of exercising his fundamental constitutional right to testify. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

59. — — Competency to be Executed.

The only relevant constitutional concern at a competency-to-be-executed hearing is the right to have the substantive eighth amendment claim determined in a manner that comports with procedural due process. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

A prisoner is not competent to be executed if the prisoner lacks the mental capacity to understand the fact of the impending execution and the reason for it. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

60. Post-Conviction Relief.

The state is not required to provide expert assistance to indigent non-capital post-conviction petitioners. Davis v. State, 912 S.W.2d 689, 1995 Tenn. LEXIS 691 (Tenn. 1995), superseded by statute as stated in, Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016).

Juveniles adjudged delinquent on the basis of an offense which would be a felony if committed by an adult are not entitled by the Tennessee constitution to a jury trial upon their de novo appeal to circuit court. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

Prisoner's case did not warrant due process tolling of the post-conviction statute of limitations because he did not diligently pursue his rights when did not file his petition in the intervening years after his discovery of the undisclosed sentence. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

Inmate was not entitled to post-conviction relief for the State's failure to preserve evidence because the inmate waived such a freestanding claim by not raising the claim on direct appeal. Carroll v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 5, 2018).

Inmate was not entitled to post-conviction relief for ineffective assistance of counsel because, (1) as to counsel's failure to move to dismiss for the State's failure to preserve evidence, it was not apparent the evidence had to be preserved, and reliable substitute evidence existed, and, (2) as to counsel's alleged advice to waive a direct appeal, sufficient evidence supported the inmate's conviction such that the inmate was not prejudiced, the inmate admitted counsel actually told the inmate an appeal would not succeed, and the inmate admitted the inmate waived a direct appeal because the inmate thought an appeal would be a waste of time. Carroll v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 5, 2018).

61. Early Release.

Exclusion of defendant from consideration for early release in accordance with a declaration of the governor directing the department of correction and parole board not to consider inmates convicted of homicide for release under the early release program did not violate due process since defendant did not have a vested right to early release or to be considered for early release. Kaylor v. Bradley, 912 S.W.2d 728, 1995 Tenn. App. LEXIS 523 (Tenn. Ct. App. 1995).

62. Invasion of Privacy.

A state law cause of action for invasion of privacy could not be maintained on the assertion that the mayor, chief of police, and various police officers engaged in surveillance of union meetings held at a public place, recorded the license tag numbers of persons attending the meetings, and then upon checking on the registrations of such license tag numbers, furnished such information to the employer of a number of persons attending the union meeting. International Union v. Garner, 601 F. Supp. 187, 1985 U.S. Dist. LEXIS 23113 (M.D. Tenn. 1985).

63. Police Power.

When the local police regulation has real relation to the suitable protection of the people of the state, and it is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce. State v. McKay, 137 Tenn. 280, 193 S.W. 99, 1916 Tenn. LEXIS 77 (1916).

The legislature may impose any limitation upon the use of property which it deems necessary or expedient to promote and protect the safety, health, morals, comfort, and welfare of the people, provided only that the power is not used arbitrarily, without reasonable relation between the limitations imposed and the public safety, health or welfare. Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, 1926 Tenn. LEXIS 22 (1927).

Statute requiring operators of coal mines, employing more than 50 persons, to provide suitable building, equipped with shower baths and lockers, for the use and benefit of employees, does not violate constitutional provisions, the statute being a valid exercise of police power and the classification not being unreasonable. Sun Coal Co. v. State, 157 Tenn. 522, 11 S.W.2d 893, 1928 Tenn. LEXIS 214 (1928).

The reasonableness of the exercise of the police power of the state must be considered in the light of the economic conditions existing at the time of the enactment. Mascari v. International Brotherhood of Teamsters, etc., 187 Tenn. 345, 215 S.W.2d 779, 1948 Tenn. LEXIS 434 (1948), cert. dismissed, International Brotherhood, T. C. W. & H. v. Mascari, 335 U.S. 907, 69 S. Ct. 410, 93 L. Ed. 440, 1949 U.S. LEXIS 3035 (1949).

The classification in a zoning regulation between mobile homes and regular residences was not constitutionally impermissible and, since it bore a reasonable relationship to the public health, safety or morals, it must be sustained as a valid exercise of police power. Mobile Home City v. Hamilton County, 552 S.W.2d 86, 1976 Tenn. App. LEXIS 207 (Tenn. Ct. App. 1976), cert. denied, Mobile Home City, Inc. v. Hamilton County, 431 U.S. 956, 97 S. Ct. 2678, 53 L. Ed. 2d 273, 1977 U.S. LEXIS 2271 (1977).

Whether the police power of the city is exercised directly by the governing body or through one of its local agencies is usually deemed to be immaterial, so long as the exercise lies within authority expressly or impliedly granted to the municipal corporation by general state law or by its charter provisions. Draper v. Haynes, 567 S.W.2d 462, 1978 Tenn. LEXIS 604 (Tenn. 1978).

64. —Alcohol.

While it is lawful to sell, in this state, intoxicating liquors (such as whisky, brandy, wine, beer, and ale), for medical and other nonbeverage purposes, still it is within the police power of the state to forbid the manufacture of such liquors for sale. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The whole body of the criminal law is but a branch of the police power, under which men and women may be deprived of their liberty and their lives, and there is nothing in the manufacture of whisky greater than these. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The state has the power to enact legislation totally prohibiting the manufacture and sale of intoxicating liquors. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Although it is lawful to sell intoxicating liquors in this state for medical, mechanical, and scientific purposes, the manufacture of such articles in this state, though in and of itself not immoral, may be prohibited, because of the great opportunity, afforded by the presence of breweries and distilleries, for aiding those whose purpose and desire to violate the laws prohibiting the sale of intoxicating liquors as a beverage, and because of the temptation on the part of the brewers and distillers themselves to encourage such violations in order to make profits. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The state legislature has the constitutional power to enact laws prohibiting the manufacture of intoxicating liquors for sale and exportation to other states and countries; and a statute allowing the manufacture of intoxicating liquors “for purposes of sale,” but not “for purposes of sale as a beverage within the state of Tennessee,” can only mean that the manufacture is for the purpose of sale abroad, and also for the purpose of sale in Tennessee for medical, mechanical, and scientific purposes. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The business of selling beer is subject to unlimited restrictions; such restrictions even to the extent of a prohibition are not “unreasonably oppressive,” discriminatory, nor violate any civil right of beer licensees, and a city ordinance prohibiting the sale of beer does not violate Tenn. Const. art. I, § 8. Grubb v. Morristown, 185 Tenn. 114, 203 S.W.2d 593, 1947 Tenn. LEXIS 310 (1947).

Where the alcoholic beverage commission promulgated a regulation requiring its permission to transfer liquor distributorships, there was no denial of due process since the commission acted pursuant to powers delegated by the legislature which has unlimited powers of regulation and restrictions on the liquor traffic within the state. Seagram Distillers Co. v. Jones, 548 S.W.2d 667, 1976 Tenn. App. LEXIS 226 (Tenn. Ct. App. 1976), appeal dismissed, Joseph E. Seagram & Sons, Inc. v. Jones, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1074, 1977 U.S. LEXIS 2457 (1977).

The .08 percent presumption of intoxication in former T.C.A. § 55-10-408(b), which is lower than the .10 percent presumption applied in first-offense DUI cases, is rationally related to the state's legitimate interest in deterring repeat DUI offenders and does not violate the equal protection provisions of Tenn. Const. art. I, § 8, U. S. Const. amend. 14, or Tenn. Const. art. XI, § 8. State v. Robinson, 29 S.W.3d 476, 2000 Tenn. LEXIS 583 (Tenn. 2000).

Inasmuch as the pre-existing subsections of Chattanooga, Tenn., City Code § 5-47, established the hours during which the City prohibited beer sales, no rational basis related to the public health, morals, and safety of the City's people existed to require that all beer permit holders, regardless of their type of business, close completely during those hours, and thus Chattanooga, Tenn., City Code § 5-47(c), violated Tenn. Const. art. I, § 8. G & N Rest. Group, Inc. v. City of Chattanooga, — S.W.3d —, 2014 Tenn. App. LEXIS 634 (Tenn. Ct. App. Oct. 8, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 201 (Tenn. Mar. 11, 2015).

Trial court did not err in finding that Chattanooga, Tenn., City Code § 5-47, did not violate the bar owners' equal protection rights where it applied to all permittees equally. G & N Rest. Group, Inc. v. City of Chattanooga, — S.W.3d —, 2014 Tenn. App. LEXIS 634 (Tenn. Ct. App. Oct. 8, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 201 (Tenn. Mar. 11, 2015).

65. —Animals.

Tenn. Const. art. I, § 8 is not violated by an act requiring registration and license fee to keep a female dog, the act being designed to regulate dogs and the tax being only an incident of such object. State v. Erwin, 139 Tenn. 341, 200 S.W. 973, 1917 Tenn. LEXIS 110 (1917).

Private statute regulating the keeping of dogs is not violative of constitution, being within the police power of the state, though it applies only to certain named counties and though it provides for the summary destruction of dogs kept in violation of law. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

A dog law passed as a revenue measure may be unconstitutional. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

66. —Business and Occupations.

Where the classification of corporations or of employers is natural and reasonable, and based upon some distinctive difference in the business of the several classes, a difference peculiar to and inhering in its very nature, it is valid; but legislation that affects certain acts of corporations, and does not affect similar acts by individuals and firms, as where the application of the statute is made to depend solely upon the fact whether the employer is a natural or artificial person, between which, within the constitutional provisions invoked, Tenn. Const. art. I, § 8, and Tenn. Const. art. XI, § 8, and U. S. Const. amend. 14, there is no distinction, is class legislation, and denies to corporations the equal protection of the laws. State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

Constitutional provisions not violated by act authorizing issuance of long term bonds and notes in large amounts, and limiting interest rates thereon, the classification being reasonable. Caldwell & Co. v. Lea, 152 Tenn. 48, 272 S.W. 715, 1924 Tenn. LEXIS 101 (1925).

Constitutional provisions are not violated by act regulating cemeteries in and near cities, which is valid exercise of police power. Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132, 1929 Tenn. LEXIS 123 (1929), appeal dismissed, 283 U.S. 791, 51 S. Ct. 363, 75 L. Ed. 1417, 1931 U.S. LEXIS 194 (1931).

Tenn. Const. art. I, § 8 is not violated by an act, regulating the small loan business, which applies to all similarly situated within the class affected, those engaged in such business constituting a distinctive class. Koen v. State, 162 Tenn. 573, 39 S.W.2d 283, 1930 Tenn. LEXIS 126 (Tenn. Dec. 1930).

The granting and enforcement of an exclusive franchise to an electric company by the public utilities commission did not violate the rights of a competitor under Tenn. Const. art. I, § 8, but was a valid exercise of police power. Holston River Electric Co. v. Hydro Electric Corp., 17 Tenn. App. 122, 66 S.W.2d 217, 1933 Tenn. App. LEXIS 50 (Tenn. Ct. App. 1933).

Statute providing for licensing of motor transportation agents and motor freight brokers and requiring bonds of applicants for license to cover losses under contracts and negligent operation of vehicles does not violate Tenn. Const. art. I, § 8, since legislature in its discretion and in exercise of the police power can regulate any occupation or business, if the occupation or business has inherent within it the germs of fraud or danger to public safety. Bowen v. Hannah, 167 Tenn. 451, 71 S.W.2d 672, 1933 Tenn. LEXIS 61 (1934).

Legislation classifying occupations for purpose of taxation will be held constitutional if there is any reason justifying classification. Sterchi Bros. Stores v. Wallace, 168 Tenn. 299, 77 S.W.2d 807, 1934 Tenn. LEXIS 57 (1934).

City ordinance requiring the examination and licensing of electricians was not invalid because it exempted public service corporation employees and employees of manufacturing concerns doing work in the plant of such manufacturer such exemptions not being an unreasonable classification. Hughes v. Board of Comm'rs, 204 Tenn. 298, 319 S.W.2d 481, 1958 Tenn. LEXIS 271 (1958).

The practice of public accounting is a highly skilled and technical business or profession and may be regulated by the legislature within proper limits but statute regulating same may not be extended to preclude the right of an individual to engage in ordinary bookkeeping services in matters of purely private concern. State ex rel. State Board of Accountancy v. Bookkeepers Business Service Co., 53 Tenn. App. 350, 382 S.W.2d 559, 1964 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1964).

Insurance companies may constitutionally be subjected to regulations not applicable to other business enterprises. Massachusetts Mut. Life Ins. Co. v. Vogue, Inc., 54 Tenn. App. 624, 393 S.W.2d 164, 1965 Tenn. App. LEXIS 282 (Tenn. Ct. App. 1965).

It was not arbitrary or unreasonable to place the business of termite extermination in a single class separate and apart from other pest control businesses for the purpose of regulation. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

Judicial review of an administrative decision upholding a request for patient records in a medical license proceeding provides the same sort of judicial review that T.C.A. § 8-6-404 provides for civil investigative demands issued by the attorney general and reporter; accordingly, State ex rel. Shriver v. Leech , 612 S.W.2d 454, 1981 Tenn. LEXIS 412, provides no support for the trial court's conclusion that former T.C.A. § 63-1-117(a)(3) is unconstitutional. McNiel v. Cooper, 241 S.W.3d 886, 2007 Tenn. App. LEXIS 241 (Tenn. Ct. App. Mar. 30, 2007).

The limiting of the application of the Health Club Bond Act to for-profit corporations is not arbitrary or discriminatory and is not violative of the equal protection guaranteed by the federal or state constitutions. State v. Southern Fitness & Health, Inc., 743 S.W.2d 160, 1987 Tenn. LEXIS 1083 (Tenn. 1987).

The limiting of the Health Club Bond Act to agreements of three months or longer has a rational basis and is related to the legitimate legislative objective of limiting consumer loss due to a health club's inability to fulfill its obligations under its membership agreements. State v. Southern Fitness & Health, Inc., 743 S.W.2d 160, 1987 Tenn. LEXIS 1083 (Tenn. 1987).

The 1986 amendment creating an exemption from the bonding requirement for health clubs that have been operated for at least five years under the same ownership is directly and reasonably related to the legitimate legislative objective which is to limit consumer loss due to a health club's inability to satisfy its obligations under its membership agreements. State v. Southern Fitness & Health, Inc., 743 S.W.2d 160, 1987 Tenn. LEXIS 1083 (Tenn. 1987).

Insofar as it prohibits telephone solicitations by professional solicitors, § 48-3-513(i) (repealed) is unconstitutional and in violation of U.S. Const. amends. 1 and 14, and Tenn. Const. art. I, §§ 8 and 19. WRG Enterprises, Inc. v. Crowell, 758 S.W.2d 214, 1988 Tenn. LEXIS 176 (Tenn. 1988).

A percentage-based regulation upon the fees to be collected by professional solicitors is an unconstitutional invasion upon the rights of charities and fund raisers alike. Section 48-3-513(k) (repealed) falls within the ambit of that prohibition, and violates U.S. Const. amends. 1 and 14, and Tenn. Const. art. I, §§ 8 and 19. WRG Enterprises, Inc. v. Crowell, 758 S.W.2d 214, 1988 Tenn. LEXIS 176 (Tenn. 1988).

A metropolitan government need only have a rational basis for its decision to prohibit certain acts in establishments selling beer when the same prohibition does not extend to all public places. PP & C, Inc. v. Metropolitan Beer Permit Bd., 833 S.W.2d 90, 1992 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1992).

67. —Prevention of Fraud.

The prevention of fraud in general is within the police power of the state; and statutes enacted for the prevention of fraud, and which have a fair, just, and reasonable relation to the preservation of the lives, health, morals, and the general welfare of the public, do not contravene the constitutional provisions against the abridgement of the rights of persons to contract and against the deprivation of their liberty and property, without due process of law, under Tenn. Const. art. I, § 8 or the U.S. Const. amend. 14, although such statutes may interfere to some extent with individual liberty and the free use and enjoyment of private property. State v. Cooperative Store Co., 123 Tenn. 399, 131 S.W. 867, 1910 Tenn. LEXIS 13 (1910); Cantrell v. Ring, 125 Tenn. 472, 145 S.W. 166, 1911 Tenn. LEXIS 41 (Tenn. Dec. 1911), criticized, Teague Bros., Inc. v. Martin & Bayley, Inc., 750 S.W.2d 152, 1987 Tenn. App. LEXIS 3040 (Tenn. Ct. App. 1987), criticized, McCallum v. Stem, 23 F.2d 491, 1928 U.S. App. LEXIS 3197 (6th Cir. Tenn. Jan. 6, 1928); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911); Bird v. State, 131 Tenn. 518, 175 S.W. 554, 1914 Tenn. LEXIS 124 (1915).

City ordinance regulating sale of personal property by auction within city limits for the purpose of preventing frauds was valid under the police power though certain provisions of ordinance were held invalid where deleted provisions left an ordinance capable of being enforced. Jones v. Jackson, 195 Tenn. 329, 259 S.W.2d 649, 1953 Tenn. LEXIS 345 (1953).

In order to prevent fraud and to make the violation of law more difficult, acts which in themselves are harmless may be prohibited; and as an aid to the enforcement of our laws against the sale of liquor, statutes regulating the shipment and delivery of liquor constitute a valid exercise of the police power of the state. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911); State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914); Bird v. State, 131 Tenn. 518, 175 S.W. 554, 1914 Tenn. LEXIS 124 (1915).

68. Classification.

Citizens may be classified under Tenn. Const. art. I, § 8, when the object of the legislature is to subject them to the burden of certain disabilities, duties, or obligations not imposed upon the community at large. Dibrell v. Morris' Heirs, 89 Tenn. 497, 15 S.W. 87 (1891); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898). The only limitation is that the statutory classification must be natural, and not arbitrary. Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898).

If the classification in a statute is made under Tenn. Const. art. I, § 8, every one who is in, or who may come into, the situation or circumstances which constitute the reasons for and the basis of the classification must be subjected to the disabilities, duties, obligations, and burdens imposed by the statute, or it will be partial and void. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

There must be reasonable and substantial differences in the situation and circumstances of the persons placed in different classes which disclose the propriety and necessity of the classification. State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

The constitutional provisions, among others, Tenn. Const. art. I, § 8, Tenn. Const. art. XI, § 8, and U.S. Const. amend. 14, authorizing the courts to control the legislative exercise of the police power, forbid that any mere individual shall be singled out for legislative action, but do not deny the right to the legislature to make proper classifications for purposes of legislation; but such classification must rest upon some natural or reasonable basis, having some substantial relation to the public welfare, and the same provisions must approximately apply in the same way to all the members of the class. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

Tenn. Const. art. I, § 8 forbids any mere individual to be singled out for legislative action but does not deny the right of the legislature to make proper classification for the purpose of legislation. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

The constitution does not forbid classifications but simply keeps governmental decision makers from treating differently persons who are in all relevant aspects alike. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

The statue denying standing to an alleged biological father seeking to establish paternity of a child born to a woman while she was married to another man does not violate the alleged father's equal protection rights in that it does not affect a fundamental right or suspect class and is rationally based on the state's interest in preserving the integrity of the family. Evans v. Steelman, 970 S.W.2d 431, 1998 Tenn. LEXIS 179 (Tenn. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 371 (Tenn. June 22, 1998).

69. —Gender-based.

Sections 36-5-101 — 36-5-103, which, as written prior to the 1979 amendment, provided for alimony and support awards only to wives, created a gender-based classification with no rational relation to legitimate government interests and was violative of the equal protection guarantees of both state and federal constitutions. Mitchell v. Mitchell, 594 S.W.2d 699, 1980 Tenn. LEXIS 421 (Tenn. 1980).

With no evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages, T.C.A. § 29-39-102 does not violate the Tennessee Constitution by discriminating disproportionately against women; without evidence of discriminatory purpose, disparate impact alone does not violate the equal protection provisions of the Tennessee Constitution. McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 2020 Tenn. LEXIS 84 (Tenn. Feb. 26, 2020).

70. —Extent of Legislative Discretion.

It is essential to the validity of every legislative classification, whether it be made under Tenn. Const. art. I, § 8 or under Tenn. Const. art. XI, § 8, that it shall not violate any other provision of the constitution, whether such provision be express or implied. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897)1104 (in the dissenting opinion)State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

The general assembly may enact laws containing reasonable and proper classification of the objects of the legislation, but the classification must not be a mere arbitrary selection. It must have some basis which bears a natural and reasonable relation to the object sought to be accomplished, and there must be some good and valid reason why the particular individual or class upon whom the benefit is conferred, or who are subject to the burden imposed, not given to or imposed upon others, should be so preferred or discriminated against. State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912). See Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

The legislature has a wide range of discretion in distinguishing, selecting, and classifying objects of legislation, and the classification made, if practical, is not reviewable unless palpably arbitrary. Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 1921 Tenn. LEXIS 89, 22 A.L.R. 755 (1922); Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

A wide discretion must be conceded to the legislative power of the state in making classifications for the purpose of taxation, in view of Tenn. Const. art. XI, § 8 and U.S. Const. amend. 14. Sterchi Bros. Stores v. Wallace, 168 Tenn. 299, 77 S.W.2d 807, 1934 Tenn. LEXIS 57 (1934).

Legislatures have wide discretion to classify for taxation which classification will be upheld if any reason may be conceived to justify it. Marion County, Tenn., River Transp. Co. v. Stokes, 173 Tenn. 347, 117 S.W.2d 740, 1937 Tenn. LEXIS 32 (1937).

71. —Legislative Classification.

A statute, as an act regulating public utilities, such as street railroads, is void under both the federal and state constitutions, if it makes arbitrary and illegal classifications. Memphis v. Enloe, 141 Tenn. 618, 214 S.W. 71, 1919 Tenn. LEXIS 15 (1919).

Legislative classification may rest on other grounds than differences in population. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

It is unnecessary that the reasons for classification shall appear on the face of the legislation. Knoxtenn Theatres, Inc. v. McCanless, 177 Tenn. 497, 151 S.W.2d 164, 1940 Tenn. LEXIS 48 (1940).

The classifications of statutes must not be arbitrary or capricious nor partial in their operation nor intended to affect particular individuals alone, but if the law bears equally on all who may come into like situations and circumstances it is the law of the land. Knoxtenn Theatres, Inc. v. McCanless, 177 Tenn. 497, 151 S.W.2d 164, 1940 Tenn. LEXIS 48 (1940).

Where reasonableness of classification is “fairly debatable” the court will uphold the classification. Phillips v. State, 202 Tenn. 402, 304 S.W.2d 614, 1957 Tenn. LEXIS 405 (1957).

Classification in legislation has to rest upon some natural or reasonable basis having some substantial relation to the public welfare and the same provisions must approximately apply in the same way to all members of the class. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

If provision of obscenity law describing persons subject to penalties of law as “a person, corporation or any other taxable entity” be construed to exempt those religious, charitable, scientific or educational general welfare corporations that pay no taxes and include those that pay taxes, such provision would be void under the equal protection clause. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

Strip mining regulation contained in former § 1544(a)(6)(B) (now § 59-8-205(a)(1)(F)) and in § 66-5-102 does not deny equal protection, as the legislative classification is reasonably related to legitimate public interests. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

The 1985 amendment of § 8-21-1001, which increased the fees to be collected by county registers for their services in all counties except the five most populous counties of the state, did not violate Tenn. Const. art. I, § 8, Tenn. Const. art. XI, § 8, or the equal protection clause of U.S. Const. amend. 14. Bates v. Alexander, 749 S.W.2d 742, 1988 Tenn. LEXIS 98 (Tenn. 1988).

The classification of municipalities in populous counties in § 6-54-114 was reasonable, not arbitrary, and not violative of the provisions of Tenn. Const. art. I, § 8. Civil Service Merit Bd. v. Burson, 816 S.W.2d 725, 1991 Tenn. LEXIS 386 (Tenn. 1991).

Disparities in educational opportunities available to public school students throughout the state caused principally by a statutory funding scheme violated the constitutional guarantee of equal protection. Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 1993 Tenn. LEXIS 114 (Tenn. 1993).

Provisions of the Workers' Compensation Law (chapter 6 of title 50) on permanent partial disability impairment awards do not violate equal protection. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 1995 Tenn. LEXIS 781 (Tenn. 1995), cert. denied, 517 U.S. 1222, 116 S. Ct. 1852, 134 L. Ed. 2d 952, 1996 U.S. LEXIS 3465 (1996).

The exemption of employees and volunteers of charitable organizations from the definition of a professional solicitor does not create a classification violative of the freedom of speech or equal protection provisions of the federal or state constitutions. State v. Smoky Mt. Secrets, 937 S.W.2d 905, 1996 Tenn. LEXIS 695 (Tenn. 1996).

Where no fundamental right is at stake, Tenn. Const. art. I, § 8 requires only that the classification rationally further a legitimate governmental interest. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Legislative history of the Money Laundering Act indicated that the gambling laws, T.C.A. § 39-17-501 et seq., were exempted from the definition of “specified unlawful activity” in T.C.A. §§ 39-14-902 and 39-14-903(b)(1) and because a majority of the members of the Tennessee house of representatives did not feel that the money laundering statute should be applied to gambling acts which might be considered minor offenses, and because, by implication, the act was designed to enable law enforcement to combat money laundering in other offenses considered to be more serious by the legislative body; thus, the legislative history supported the constitutionality of the money laundering statutes, T.C.A. §§ 39-14-901 and 39-14-903, by establishing that the reasonableness of the classification was at least fairly debatable and, therefore, the money laundering statutes did not violate the equal protection divisions of the Tenn. Const. art. XI, § 8 and Tenn. Const. art., I, § 8.State v. Price, 124 S.W.3d 135, 2003 Tenn. Crim. App. LEXIS 403 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1066 (Tenn. 2003).

72. —Natural and Reasonable Basis.

The doctrine of reasonableness in classification in legislation embraces, as a part thereof, the subject of proper classification, and the two subjects cannot be clearly separated in the authorities; but the cases cited hereunder may be regarded as being especially interesting upon this particular phase of the inquiry. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, 1886 U.S. LEXIS 1938 (1886); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, 1897 Tenn. LEXIS 76 (1897); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Gulf, Colo. & S.F. Ry. v. Ellis, 165 U.S. 150, 17 S. Ct. 255, 41 L. Ed. 666, 1897 U.S. LEXIS 1957 (1897); Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 18 S. Ct. 594, 42 L. Ed. 1037, 1898 U.S. LEXIS 1545 (1898); Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780, 1898 U.S. LEXIS 1501 (1898); Missouri, Kan. & Tex. Ry. v. May, 194 U.S. 267, 24 S. Ct. 638, 48 L. Ed. 971, 1904 U.S. LEXIS 853 (1904); Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911); Chicago, B. & Q.R.R. v. McGuire, 219 U.S. 549, 31 S. Ct. 259, 55 L. Ed. 328, 1911 U.S. LEXIS 1653 (1911), questioned, Slone v. Kentucky Dep't of Transp., 379 F. Supp. 652, 1974 U.S. Dist. LEXIS 7493 (E.D. Ky. 1974); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

If a statute attempts to create distinctions and classifications under Tenn. Const. art. I, § 8 of the constitution for the purpose of subjecting a class to the burden of some special disability, duty, or obligation, there must be some good and valid reason why that particular class should alone be subject to the burden. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Weaver v. Davidson County, 104 Tenn. 315, 59 S.W. 1105, 1899 Tenn. LEXIS 38 (1899); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Southern R. Co. v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A. (n.s.) 828, 1912 Tenn. LEXIS 54 (1912); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

Whether a statute be public or private, general or special in form, if it attempts to create distinctions and classifications between the citizens of this state, the basis of such classification must be natural, and not arbitrary or capricious. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, 1897 Tenn. LEXIS 76 (1897); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); Hall v. State, 124 Tenn. 235, 137 S.W. 500, 1910 Tenn. LEXIS 54 (1910); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

The constitutional provisions against class legislation apply only where the statutory classification bears no reasonable or natural relation to the subject sought to be accomplished. Massachusetts Mut. Life Ins. Co. v. Vogue, Inc., 54 Tenn. App. 624, 393 S.W.2d 164, 1965 Tenn. App. LEXIS 282 (Tenn. Ct. App. 1965).

Class legislation that is natural and reasonable is constitutional and valid but class legislation that is arbitrary and capricious is unconstitutional and invalid. City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602, 1969 Tenn. LEXIS 389 (1969).

If allegedly discriminatory classifications by the state legislature do not interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of suspect classes, there need be only some rational basis for the legislation. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

Legislation imposing bona fide residential requirements for governmental personnel will not be held to be unconstitutionally discriminatory if there is a rational basis for the legislation. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

If the exclusion of “natural persons acting as agents of a non-taxable entity” were construed to exempt agents of all general welfare corporations who pay no taxes and include those who pay any taxes the classification would violate due process having no rational basis in the context of the criminal offense involved. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

73. — —Population.

A special legislative act affecting a certain specified county or city, in its political or governmental capacity or agency, is not for that reason unconstitutional; but such legislation affecting the citizens composing of certain specified county, and not the other citizens of the state, is for that reason unconstitutional. Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Red River Furnace Co. v. Tennessee C. R. Co., 113 Tenn. 697, 87 S.W. 1016, 1904 Tenn. LEXIS 60 (1903)and citationsMaxey v. Powers, 117 Tenn. 381, 101 S.W. 181, 1906 Tenn. LEXIS 53 (1907); Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229, 1912 Tenn. LEXIS 50 (1912).

Constitutional provision did not forbid reasonable classification of counties according to population standard for the application of laws that may affect all alike that fall naturally into the class. Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71, 1925 Tenn. LEXIS 70 (1925), superseded by statute as stated in, Ledbetter v. Duncan, 676 S.W.2d 91, 1984 Tenn. App. LEXIS 2776 (Tenn. Ct. App. 1984).

Acts applying to classification made to depend upon the population standard are authorized by authority and sustained on principle. Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132, 1929 Tenn. LEXIS 123 (1929), appeal dismissed, 283 U.S. 791, 51 S. Ct. 363, 75 L. Ed. 1417, 1931 U.S. LEXIS 194 (1931).

The legislature, in enacting statutes, may make a classification based on population, if the classification is reasonable, natural, and not arbitrary or capricious. State ex rel. Hamby v. Cummings, 166 Tenn. 460, 63 S.W.2d 515, 1933 Tenn. LEXIS 100 (1933).

An act contrary to the general law of the state will not be upheld because it relates to a particular county on basis of population unless such act relates to a matter in respect to which a difference in population would furnish a rational basis for diversity of laws. State ex rel. Bales v. Hamilton County, 170 Tenn. 371, 95 S.W.2d 618, 1935 Tenn. LEXIS 144 (1936); Harwell v. Leech, 672 S.W.2d 761, 1984 Tenn. LEXIS 813 (Tenn. 1984).

In order to render a statute affecting only one county invalid on the ground that it operates to suspend the general law of the state, in violation of Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, the statute must primarily affect the citizens of the county in their individual relations. Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33, 1937 Tenn. LEXIS 4 (1937).

Special legislation affecting different counties or cities in their governmental or political capacities does not offend Tenn. Const. art. I, § 8 or Tenn. Const. art. XI, § 8, even though contrary to a general statute, provided there is a reasonable basis for the classification. Jones v. Haynes, 221 Tenn. 50, 424 S.W.2d 197, 1968 Tenn. LEXIS 446 (1968).

The work release statute is unconstitutional because the provision limiting to three counties the applicability of the statute was an unconstitutional classification under the equal protection guarantees of both the federal and state constitutions and, because it was not clear that the legislature would have enacted the statute with the unconstitutional provision omitted, the doctrine of elision did not apply. State v. Tester, 879 S.W.2d 823, 1994 Tenn. LEXIS 172 (Tenn. 1994).

The five population exclusion brackets of former § 67-7-221, the rebate and refund statute of the mineral severance tax law, violated the due process provisions of the state constitution, but, because the brackets could be elided, the remainder of the law was constitutional. Nolichuckey Sand Co. v. Huddleston, 896 S.W.2d 782, 1994 Tenn. App. LEXIS 676 (Tenn. Ct. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 157 (Tenn. Apr. 3, 1995).

74. — —Police Power.

Tenn. Const. art. I, § 8, embracing “the law of the land” clause, when read in connection with the first clause of Tenn. Const. art. XI, § 8, is substantially the same as that contained in U.S. Const. amend. 14, § 1, cl. 2, which does not take from the state the power of classification in the enactment of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and, therefore, purely arbitrary; for a classification having some reasonable basis does not offend against that provision merely because it is not made with mathematical nicety, or because in practice it results in some inequality. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

When the classification in a police law is called in question, or asserted to be in conflict with certain constitutional provisions, Tenn. Const. art. I, § 8, Tenn. Const. art. XI, § 8 and U.S. Const. amend. 14, § 1, any state of facts that can be reasonably conceived that would sustain it will be assumed to have existed when the law was enacted; and one assailing the classification in such law must bear the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

With the legislature rests the determination of the reasonableness of regulations under the police power, and a court will not examine the question de novo and overrule such judgment by substituting its own, unless it clearly appears that those regulations are so “beyond all reasonable relation to the subject to which they are applied as to amount to mere arbitrary usurpation of power,” or is unmistakably and palpably in excess of the legislative power, or is arbitrary “beyond possible justice,” bringing the case within “the rare class” in which such legislation is declared void. State v. McKay, 137 Tenn. 280, 193 S.W. 99, 1916 Tenn. LEXIS 77 (1916).

If any possible reason can be conceived to justify the classification made in an act involving the police power of the state, it will be upheld and deemed reasonable. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

A classification in a statute which is not arbitrary but designed as an exercise of the police power is constitutional. Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132, 1929 Tenn. LEXIS 123 (1929), appeal dismissed, 283 U.S. 791, 51 S. Ct. 363, 75 L. Ed. 1417, 1931 U.S. LEXIS 194 (1931).

If a classification for police power or for taxation is arbitrary under Tenn. Const. art. I, § 8, it also violates U.S. Const. amend. 14. Marion County, Tenn., River Transp. Co. v. Stokes, 173 Tenn. 347, 117 S.W.2d 740, 1937 Tenn. LEXIS 32 (1937).

While a city had the general right under its police power to enact ordinances to prevent fires and explosions, it could not under such power pass an ordinance having the effect of excluding certain persons from engaging in the filling station business while allowing others to do so. Consumers Gasoline Stations v. City of Pulaski, 200 Tenn. 480, 292 S.W.2d 735, 1956 Tenn. LEXIS 432 (1956).

75. —Degree of Certainty.

Mathematical or logical exactness, in every aspect, in a division for classification, is not always possible, and it is not required in order to have validity. Memphis v. State, 133 Tenn. 83, 179 S.W. 631, 1915 Tenn. LEXIS 76, 1916B L.R.A. (n.s.) 1151, 1917C Am. Ann. Cas. 1056 (1915); Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

If the classification of an act enacted under the police power has some reasonable basis, it is not unconstitutional merely because it is not made with mathematical nicety or because in practice it results in some inequality. Cosmopolitan Life Ins. Co. v. Northington, 201 Tenn. 541, 300 S.W.2d 911, 1957 Tenn. LEXIS 332 (1957).

A classification is not unreasonable merely because in practice it results in some inequality where the classification has a reasonable basis. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

Provision of obscenity law describing persons subject to penalties of act as “a person, corporation or any other taxable entity” but excluding “natural persons acting as agents of a nontaxable entity” was void under due process clause as too vague to determine who is included since many entities that are basically nontaxable have taxable operations. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

76. —Burden of Proof.

One assailing classification in a police act must carry the burden of showing that it rests upon no reasonable basis but that it is essentially arbitrary. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

The burden of showing that the classification does not rest upon a reasonable basis is upon the complainant and if any reasonable basis can be conceived to justify the classification or if the reasonableness is fairly debatable the legislation will be upheld. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

77. —Review.

The legislature has a wide range of discretion in distinguishing, selecting, and classifying objects of legislation, because of the function of legislation and the purposes to which it is addressed. Classification for such purposes is not invalid because not depending on scientific or marked differences in things or persons, or in their relations. It suffices if it is practical, and is not reviewable unless palpably arbitrary. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 18 S. Ct. 594, 42 L. Ed. 1037, 1898 U.S. LEXIS 1545 (1898); Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S. Ct. 281, 43 L. Ed. 552, 1899 U.S. LEXIS 2386 (1899); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901), dismissed, Tennessee v. Condon, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709, 1903 U.S. LEXIS 1325 (1903); Edmondson v. Board of Educ., 108 Tenn. 557, 69 S.W. 274, 1902 Tenn. LEXIS 1, 58 L.R.A. 170 (1902).

Under the constitutional provisions against class legislation, it is not sufficient to invalidate a statute, merely to show points of similarity in the thing classified, and the thing excluded from the classification, for if the classification is reasonable and practicable, it is sufficient. Memphis v. State, 133 Tenn. 83, 179 S.W. 631, 1915 Tenn. LEXIS 76, 1916B L.R.A. (n.s.) 1151, 1917C Am. Ann. Cas. 1056 (1915).

Under U.S. Const. amend. 14, Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, inhibiting arbitrary class legislation, the same rules are applied as to the validity of classification made in legislative enactments, so that the basis for classification must be natural, and not arbitrary or capricious, and must rest upon some substantial difference between the situation of the class created and others to whom it does not apply; but the classification is not invalid, because not depending on scientific or marked differences in things and persons, or in their relations. The classification suffices if it is practical and it is not reviewable unless palpably arbitrary. Memphis v. State, 133 Tenn. 83, 179 S.W. 631, 1915 Tenn. LEXIS 76, 1916B L.R.A. (n.s.) 1151, 1917C Am. Ann. Cas. 1056 (1915); Sullivan v. State, 136 Tenn. 194, 188 S.W. 1153, 1916 Tenn. LEXIS 116 (1916); State v. McKay, 137 Tenn. 280, 193 S.W. 99, 1916 Tenn. LEXIS 77 (1916); Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645, 1918 Tenn. LEXIS 101 (1918) (a very wide range of discretion in the matter of classification in police statutes and revenue statutes; and if any possible reason can be conceived to justify the classification, it will be upheld).

The sole test of the constitutionality of any particular classification is that it must be made upon a reasonable basis with such reasonableness depending upon the facts of the particular case. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

Classifications made by the legislature are reviewable by the court only where there is a showing that the classification is palpably arbitrary and if the reasonableness of the classification is fairly debatable it must be upheld. City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602, 1969 Tenn. LEXIS 389 (1969).

78. —Examples.

The classifications of citizens which have been sustained as not arbitrary were made for one or the other of the following purposes: (1) For the purpose of taxation. State v. Schlier, 50 Tenn. 281, 1871 Tenn. LEXIS 99 (1871); Kelly & McCaden v. Dwyer, 75 Tenn. 180, 1881 Tenn. LEXIS 93 (1881); Fulgum v. Mayor of Nashville, 76 Tenn. 635, 1881 Tenn. LEXIS 54 (1881); Vosse v. City of Memphis, 77 Tenn. 294, 1882 Tenn. LEXIS 52 (1882); Eastman v. Jackson, 78 Tenn. 162, 1882 Tenn. LEXIS 157 (1882); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Nashville, M. & S. Turnpike Co., 92 Tenn. 369, 22 S.W. 75, 1892 Tenn. LEXIS 83 (1893); State v. Alston, 94 Tenn. 674, 30 S.W. 750, 1895 Tenn. LEXIS 52, 28 L.R.A. 178 (1895); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); English's Estate v. Crenshaw, 120 Tenn. 531, 110 S.W. 210, 1908 Tenn. LEXIS 41, 127 Am. St. Rep. 1025, 17 L.R.A. (n.s.) 753 (1908); Knox v. Emerson, 123 Tenn. 409, 131 S.W. 972, 1910 Tenn. LEXIS 14 (1910); (2) For police purposes. State v. Rauscher, 69 Tenn. 96, 1878 Tenn. LEXIS 51 (1878); Hatcher v. State, 80 Tenn. 368, 1883 Tenn. LEXIS 181 (1883); Theilan v. Porter, 82 Tenn. 622, 1885 Tenn. LEXIS 3, 52 Am. Rep. 173 (1885); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); Standard Oil Co. v. State, 117 Tenn. 618, 100 S.W. 705, 1906 Tenn. LEXIS 71, 10 L.R.A. (n.s.) 1015 (1907); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); and (3) For the necessary protection of the particular class. Gilbert Parks & Co. v. Thomas Parks & Co., 59 Tenn. 633, 1874 Tenn. LEXIS 20 (1874).

On an appeal from a finding that petitioner, an inmate, was competent to withdraw his petition for postconviction relief, his equal protection claim failed as a matter of law because his putative class was too small to use for any sort of meaningful equal protection analysis. He defined one class for purposes of his argument as Tennessee capital petitioners who sought to dismiss pending postconviction petitions, a class apparently comprised of only two members; the other class included only himself and those “classes” were comprised of so few members as to have defied even meaningful statistical analysis, much less equal protection analysis. Hugueley v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. June 8, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1207 (Tenn. Dec. 13, 2011), rehearing denied, — S.W.3d —, 2012 Tenn. LEXIS 47 (Tenn. Jan. 11, 2012), cert. denied, Hugueley v. Tennessee, 184 L. Ed. 2d 504, 133 S. Ct. 763, 568 U.S. 1051, 2012 U.S. LEXIS 9286 (U.S. 2012).

79. Cities and Counties.

A municipal corporation, in the exercise of its charter and police powers, may by ordinance limit, restrict, or confine the sale of intoxicating liquors, the running of stock at large, marketing produce and meats, operation of slaughterhouses, and similar things, to specified portions or limits of the city, and prohibit the same in other specified portions or limits; for such ordinances are not unconstitutional as vicious class legislation, nor as taking of property without due process of law, nor as creating monopolies. Mayor, etc., of Chattanooga v. Norman, 92 Tenn. 73, 20 S.W. 417, 1892 Tenn. LEXIS 52 (1892); Gorrell v. Mayor of Newport, 1 Tenn. Ch. App. 120 (1901).

A special statute affecting a particular and specified municipal corporation in its political aspects or sovereignty is not, for that reason, unconstitutional; but such a statute affecting such municipal corporation in its capacity as an individual is invalid and unconstitutional as class legislation. Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904).

In cases involving municipal ordinances, the doctrine of reasonableness in classification has a wider scope than in cases of classification in state legislation under the police power, because such ordinances must be tested, not only by the constitution, but also by the statutes of the state, and by the common law. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Statute authorizing municipalities with population of over 160,000 to regulate the use or uses of land, which includes the use to which buildings located on the land may be put, is valid exercise of police power, and is not arbitrary classification though, at certain time, it applied to one city only, nor does it unlawfully destroy or deprive of property. Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, 1926 Tenn. LEXIS 22 (1927).

Statutory provisions prohibiting the prosecution of a business by private individuals, not harmful in and of itself, and not made unlawful by the general laws of the state, in counties having certain population, violates the constitution. Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565, 1927 Tenn. LEXIS 114 (1927).

Charter statute creating civil service and pension board for city, requiring city's employees to work subject to orders of such board, and making board's orders final, in matters of termination of employment, is not unconstitutional. City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164, 1927 Tenn. LEXIS 138 (1927).

The justification of stock laws rests on local conditions and necessities, and courts will be very slow to set aside legislative classification of counties and to declare that no reason can be conceived for omitting or embracing particular counties from the operation of such an act. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

Where a statute, public or private, general or special, applies to a county (or municipality) not in its governmental capacity as an arm of the state, but as affecting the individual citizens of the county in their private relations, the constitutional provisions prohibiting partial or special legislation apply; but the contrary is true where the statute applies to a county in its governmental capacity. Nashville, C. & St. L. Ry. v. Marshall County, 161 Tenn. 236, 30 S.W.2d 268, 1929 Tenn. LEXIS 54 (1929).

Tenn. Const. art. I, § 8 is not violated by a front foot abutting property act, applying to all cities of over certain population and affecting all citizens alike, and not providing arbitrary classification. Reasonover v. City of Memphis, 162 Tenn. 633, 39 S.W.2d 1029, 1931 Tenn. LEXIS 78 (Tenn. Apr. 1931).

Special laws may be passed affecting counties, municipalities, school districts, and the like, as arms or agencies of the state. Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33, 1937 Tenn. LEXIS 4 (1937).

Private act creating commission form of government did not violate constitutional prohibition against a private act suspending the general law, as only the instrumentality administering the county was changed, which did not affect the status of the individual citizens of the county. Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33, 1937 Tenn. LEXIS 4 (1937); Crewse v. Beeler, 186 Tenn. 475, 212 S.W.2d 39, 1948 Tenn. LEXIS 568 (1948).

Ordinance forbidding erection of fences across front yards of residences was based solely on aesthetic considerations and was invalid as being an improper exercise of police power. Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543, 1958 Tenn. LEXIS 272 (1958).

The issuance of a permanent injunction against the owner of premises which had been used for purposes of prostitution prohibiting such use of his property, in absence of any proof that he had knowledge of such use, was not violative of his constitutional rights, since it did not deprive him of property or punish him in any way. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

A city charter provision which required residence within the surrounding county for city employees was constitutional since it insured proximity to the employees' worksite in case of emergency, since the city reaped benefits for local expenditure of county residents' salaries, and since pride in one's place of employment by the county residents would further the city's progress; in other words, the provision had a rational basis. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

Defendant storeowner's right to equal protection of the law was not violated by enforcement against him of municipal law prohibiting the sale of beer even though the prohibition was not enforced against certain other businesses where the other businesses or their predecessors in interest had operated beer-selling establishments under county permits prior to the city's annexation of the territory containing their businesses whereas the defendant's establishment did not antedate annexation. Goldston v. City of Harriman, 565 S.W.2d 858, 1978 Tenn. LEXIS 549 (Tenn. 1978).

City ordinance prohibiting the sale of beer on Sunday did not violate the constitutional prohibition against religious preferences or due process. Martin v. Beer Bd., 908 S.W.2d 941, 1995 Tenn. App. LEXIS 271 (Tenn. Ct. App. 1995).

Pursuant to Knoxville, Tenn., City Code 17-210, vehicle owner was the party responsible for the violation; therefore, when a red light violation occurred, the “guilty party” was the vehicle owner who may or may not be driving the vehicle at the time of the violation, and the mailing of a citation to the vehicle's registered owner did not violate equal protection. City of Knoxville v. Brown, 284 S.W.3d 330, 2008 Tenn. App. LEXIS 436 (Tenn. Ct. App. July 30, 2008), rehearing denied, — S.W.3d —, 2008 Tenn. App. LEXIS 813 (Tenn. Ct. App. Aug. 22, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 193 (Tenn. Feb. 17, 2009).

City's limitations on digital billboards did not violate an advertiser's rights to due process and equal protection because (1) the regulations were an appropriate exercise of the city's power to protect the health, safety, and welfare of citizens, (2) exceptions to the regulations had reasonable bases, and (3) the parties granted such exceptions were not similarly situated to the advertiser. Lamar Tenn., LLC v. City of Knoxville, — S.W.3d —, 2016 Tenn. App. LEXIS 142 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, Lamar Tenn. LLC v. City of Knoxville, — S.W.3d —, 2016 Tenn. LEXIS 465 (Tenn. June 23, 2016).

80. Schools.

Policy requiring dismissal of person enrolled in a nursing program who receives two “D” grades or below in any school of nursing in Tennessee, and making that person ineligible for re-admission into any of the public schools of nursing in the state, did not violate substantive due process or equal protection. Lilly v. Smith, 790 S.W.2d 539, 1990 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1990).

Under Tenn. Const. art. I, § 8, where a student is suspended for 10 days or less, the student must be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

Claim by a student who was suspended for 10 days that he was deprived of his due process rights failed, as there was no evidence that school officials had decided that discipline at the school was tainted by racial bias or that they tried to correct the problem by singling out Caucasian students for unwarranted discipline. Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

Where a student was suspended for 10 days, the fact that a disciplinary coordinator had performed both prosecutorial and decision-making functions, without more, did not deprive the student of his due process rights, as it was impossible and undesirable for administrators involved in incidents of misbehavior always to be precluded from acting as decision-makers. Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

81. Taxation.

Statutes authorizing the ascertainment of the amount of taxes due from each citizen, and the issuance of a distress warrant to enforce the same against such as fail or refuse to pay the taxes assessed, are constitutional and valid as “the law of the land,” and as authorizing “due process of law.” Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 15 L. Ed. 372, 1855 U.S. LEXIS 698 (1855); Myers v. Park, 55 Tenn. 550, 1875 Tenn. LEXIS 2 (1875); McMillen v. Anderson, 95 U.S. 37, 24 L. Ed. 335, 1877 U.S. LEXIS 2130 (1877); Davidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616, 1877 U.S. LEXIS 1632 (1877); Springer v. United States, 102 U.S. 586, 26 L. Ed. 253, 1880 U.S. LEXIS 2066 (Tenn. 1881); Kelly v. Pittsburgh, 104 U.S. 78, 26 L. Ed. 658, 1881 U.S. LEXIS 1970 (Tenn. Nov. 7, 1881); Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S. Ct. 663, 28 L. Ed. 569, 1884 U.S. LEXIS 1826 (1884); Cincinnati, N.O. & Tex. Pac. R.R. v. Kentucky, 115 U.S. 321, 6 S. Ct. 57, 29 L. Ed. 414, 1885 U.S. LEXIS 1843 (1885); East Tenn. Brewing Co. v. Currier, 126 Tenn. 535, 150 S.W. 541, 1912 Tenn. LEXIS 76 (1912).

The legislature has the power to impose a penalty for the nonpayment of taxes, and to authorize the penalty to be enforced with the taxes, and such imposition is not in violation of Tenn. Const. art. I, § 8, or Tenn. Const. art. II, § 28. Myers v. Park, 55 Tenn. 550, 1875 Tenn. LEXIS 2 (1875); Nance v. Hopkins, 78 Tenn. 508, 1882 Tenn. LEXIS 215 (1882).

Statute authorizing a county to make special levies for enumerated items of county expense is not unconstitutional as an unlimited and unrestrained delegation of the power of taxation, merely because it failed to fix a maximum rate of taxation for the authorized special levies. Nashville, C. & St. L. Ry. v. Benton County, 161 Tenn. 588, 33 S.W.2d 68, 1930 Tenn. LEXIS 44 (1930), appeal dismissed, Nashville C. & St. L. R. Co. v. Benton County, 283 U.S. 786, 51 S. Ct. 349, 75 L. Ed. 1414, 1931 U.S. LEXIS 185 (1931), dismissed, Randall v. United States, 51 S. Ct. 349, 283 U.S. 826, 75 L. Ed. 1440, 1931 U.S. LEXIS 285 (1931).

The provision of the statute, allowing only ten days in which to appeal from the county trustee's back tax assessment to the board of equalizers, is sufficiently long to constitute due process of law. Tennessee Fertilizer Co. v. McFall, 128 Tenn. 645, 163 S.W. 806, 1913 Tenn. LEXIS 78 (1913).

Prosecution for failure to collect sales tax on sales of gold and silver coins and bullion was not a violation of due process since the statutes imposing the tax are not so vague and ambiguous as to lead one to believe that such sales were not subject to the tax. State v. Sanders, 923 S.W.2d 540, 1996 Tenn. LEXIS 358 (Tenn. May 28, 1996).

Exclusion of several counties in T.C.A. § 67-4-1425(c) and (d) is constitutional under equal protection, because the growth of the counties provided a rational basis for excluding them from the prohibition against double taxation by an occupancy tax. Admiralty Suites & Inns, LLC v. Shelby County, 138 S.W.3d 233, 2003 Tenn. App. LEXIS 835 (Tenn. Ct. App. Nov. 24, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 406 (Tenn. May 10, 2004).

Franchise tax credit under T.C.A. § 56-4-217(b) did not apply to the taxpayer as a workers' compensation self-insurer, because T.C.A. § 56-4-217(b) was added at the same time and in conjunction with T.C.A. § 56-4-217(c), which restricted its application to “insurance companies” as defined in T.C.A. § 56-1-102(2); therefore T.C.A. § 56-4-217(b) was also restricted to insurance companies. The classification of insurance companies versus self-insurers did not violate the equal protection guarantees of U.S. Const. amend. 14, Tenn. Const. art. I, § 8, or Tenn. Const. art. XI, § 8, because the classification rested upon a reasonable basis where it was held that alleviating the effects of retaliatory taxation by other states to the disadvantage of Tennessee's domestic insurance companies standing alone was a sufficient basis to withstand equal protection scrutiny. Saturn Corp. v. Johnson, 197 S.W.3d 273, 2006 Tenn. App. LEXIS 252 (Tenn. Ct. App. 2006).

Flexibility of the bottler's tax, T.C.A. § 67-4-402, with regard to out-of-state and in-state manufacturers has some relevance to its objective of avoiding double taxation. Accordingly, to the extent the bottler's tax imposes differential treatment of out-of-state and in-state manufacturers, it does not violate the Equal Protection Clauses of U.S Const. amend. XIV or Tenn. Const. arts. I, § 8 and XI, § 8. Dr. Pepper Pepsi-Cola Bottling Co. v. Farr, 393 S.W.3d 201, 2011 Tenn. App. LEXIS 615 (Tenn. Ct. App. Nov. 16, 2011), appeal denied, Dr. Pepper Pepsi-Cola Bottling Co., of Dyersburg LLC v. Farr, — S.W.3d —, 2012 Tenn. LEXIS 231 (Tenn. Apr. 12, 2012).

82. —Allocation and Assessment.

Exemptions from taxation offered in legislative charters of incorporation and not previously accepted, were withdrawn by the adoption of the Constitution of 1870, with the provisions in Tenn. Const. art. I, § 8 and Tenn. Const. art. II, § 28. State v. Planters' Fire & Marine Ins. Co., 95 Tenn. 203, 31 S.W. 992, 1895 Tenn. LEXIS 78 (1895), aff'd, Planters' Ins. Co. v. Tennessee, 161 U.S. 193, 16 S. Ct. 466, 40 L. Ed. 667, 1896 U.S. LEXIS 2152 (1896), dismissed, Mechanics Sav. Bank v. Tennessee, 16 S. Ct. 1203, 163 U.S. 695, 41 L. Ed. 314, 1896 U.S. LEXIS 3495 (1896), dismissed, Mechanics Sav. Bank v. Tennessee, 16 S. Ct. 1203, 163 U.S. 695, 41 L. Ed. 314, 1896 U.S. LEXIS 3496 (1896), aff'd, Memphis City Bank v. Tennessee, 161 U.S. 186, 16 S. Ct. 468, 40 L. Ed. 664, 1896 U.S. LEXIS 2151 (1896); State v. Mercantile Bank, 95 Tenn. 212, 31 S.W. 989, 1895 Tenn. LEXIS 79 (1895), aff'd, Mercantile Bank v. Tennessee ex rel. Memphis, 161 U.S. 161, 16 S. Ct. 461, 40 L. Ed. 656, 1896 U.S. LEXIS 2149 (1896), aff'd, Home Ins. & Trust Co. v. Tennessee, 161 U.S. 198, 16 S. Ct. 476, 40 L. Ed. 669, 1896 U.S. LEXIS 2153 (1896), aff'd, Planters' Ins. Co. v. Tennessee & Shelby County, 16 S. Ct. 468, 161 U.S. 198 (1896), dismissed, German Bank v. Tennessee, 16 S. Ct. 1201, 163 U.S. 688, 41 L. Ed. 313, 1896 U.S. LEXIS 3493 (1896), dismissed, German Bank v. Tennessee, 16 S. Ct. 1201, 163 U.S. 688, 41 L. Ed. 313, 1896 U.S. LEXIS 3494 (1896), aff'd, HOME INS. & TRUST CO. v. TENNESSEE & SHELBY CTY., 16 S. Ct. 476, 161 U.S. 200, 40 L. Ed. 670, 1896 U.S. LEXIS 2154 (1896). See Nelson v. Haywood County, 87 Tenn. 781, 11 S.W. 885, 1889 Tenn. LEXIS 27, 4 L.R.A. 648 (1889).

A statute imposing a privilege tax upon shoe shining parlors, but providing that the tax shall not apply to barber shops, is not unconstitutional as violative of this constitutional provision. Barlin v. Knox County, 136 Tenn. 238, 188 S.W. 795, 1916 Tenn. LEXIS 122, 2 A.L.R. 112 (1916).

Act imposing annual excise tax on foreign and domestic corporations and joint stock associations equal to a certain percent of the net earnings from business done wholly within the state excluding earnings from interstate commerce is not unconstitutional as taxing corporations to exclusion of partnerships and individuals, the classification being reasonable and not arbitrary. Bank of Commerce & Trust Co. v. Senter, 149 Tenn. 569, 260 S.W. 144, 1923 Tenn. LEXIS 115 (1923).

Statute requiring payment of annual fee by corporations, fees being graduated according to amount of capital stock, held not arbitrary class legislation. Camden Fire Ins. Ass'n v. Haston, 153 Tenn. 675, 284 S.W. 905, 1925 Tenn. LEXIS 53 (1925).

Constitutional provisions not violated by act creating privilege tax on gasoline storage, in that the act excludes petroleum products other than gasoline, the tax operating uniformly throughout the state. Foster & Creighton Co. v. Graham, 154 Tenn. 412, 285 S.W. 570, 1925 Tenn. LEXIS 118, 47 A.L.R. 971 (1925).

A reasonable classification of the income from stocks and bonds to be taxed is permissible. Shields v. Williams, 159 Tenn. 349, 19 S.W.2d 261, 1928 Tenn. LEXIS 92 (1929).

An attempt by special act to exempt any particular county from its share of taxes for state highway purposes is unconstitutional as arbitrary class legislation for which no possible justification can be conceived. Berry v. Hayes, 160 Tenn. 577, 28 S.W.2d 50, 1929 Tenn. LEXIS 135 (1929).

This clause is not violated by a law exempting from a second inheritance tax property on which one has been paid within five years. Bank of Commerce & Trust Co. v. McLemore, 162 Tenn. 137, 35 S.W.2d 31, 1930 Tenn. LEXIS 71 (1930).

If any reason can be seen to justify a classification in revenue statutes they will not be held unconstitutional because discriminatory. Sterchi Bros. Stores v. Wallace, 168 Tenn. 299, 77 S.W.2d 807, 1934 Tenn. LEXIS 57 (1934).

Where apportionment of distributable property of railroad for tax purposes was made on basis of the average value per mile of such property multiplied by the number of miles of main track in Tennessee and there was no showing of special circumstances indicating the portions of the railroad outside Tennessee were largely of greater value than the portion within the state, such apportionment did not violate Tenn. Const. art. I, § 8. Nashville, C. & S. L. Ry. v. Browning, 176 Tenn. 245, 140 S.W.2d 781, 1939 Tenn. LEXIS 121, aff'd, Nashville, C. & S. L. Railway v. Browning, 310 U.S. 362, 60 S. Ct. 968, 84 L. Ed. 1254, 1940 U.S. LEXIS 593 (May 20, 1940).

The inheritance tax does not violate Tenn. Const. art. I, § 8. Bergeda v. State, 179 Tenn. 460, 167 S.W.2d 338, 1942 Tenn. LEXIS 43, 144 A.L.R. 696 (1942).

If method of allocation used by commissioner in fixing excise tax on manufacturing corporation located in Tennessee is fairly calculated to assign to Tennessee that portion of the net income of the manufacturer reasonably attributable to business done in the state, the due process clause is not violated. General Shoe Corp. v. Stokes, 181 Tenn. 286, 181 S.W.2d 146, 1944 Tenn. LEXIS 372 (1944).

The legislature, as long as what it does is not arbitrary and capricious, but is natural and reasonable, may classify for taxation things in any reasonable manner which it sees fit, and such classification will not be interfered with by the courts if such a tax can be considered reasonable as between various classes. Lawrence v. MacFarland, 209 Tenn. 376, 354 S.W.2d 78, 1962 Tenn. LEXIS 368 (1962).

County privilege tax on residential development, including multi-unit parcels, did not violate the equal protection provisions of the state or federal constitutions. Throneberry Properties v. Allen, 987 S.W.2d 37, 1998 Tenn. App. LEXIS 683 (Tenn. Ct. App. 1998).

83. —Method of Collection.

Laws providing summary remedies for the collection of delinquent taxes are not unconstitutional, because they dispense with some of the formalities of ordinary judicial procedure, or cut off technical defenses, or authorize the seizure of the property before a hearing, provided the taxpayer is given an opportunity at some stage to contest the validity of the tax. East Tenn. Brewing Co. v. Currier, 126 Tenn. 535, 150 S.W. 541, 1912 Tenn. LEXIS 76 (1912); Tennessee Fertilizer Co. v. McFall, 128 Tenn. 645, 163 S.W. 806, 1913 Tenn. LEXIS 78 (1913).

Summary proceedings for the assessment and collection of taxes are not violative of “the law of the land.” M'Carroll's Lessee v. Weeks, 2 Tenn. 215, 1814 Tenn. LEXIS 1 (1814); M'Carrol's Lessee v. Weeks, 6 Tenn. 246, 1814 Tenn. LEXIS 47 (1814).

A special act authorizing a particular county to levy certain taxes is not invalid as being class legislation. The only requirement as to uniformity is that the tax shall be equal and uniform throughout the county. Nashville, C. & S. L. Ry. v. Carroll County, 161 Tenn. 581, 33 S.W.2d 69, 1930 Tenn. LEXIS 43 (1930), appeal dismissed, Nashville C. & St. L. R. Co. v. Carroll County, 283 U.S. 785, 51 S. Ct. 349, 75 L. Ed. 1414, 1931 U.S. LEXIS 184 (1931), dismissed, Randall v. United States, 51 S. Ct. 349, 283 U.S. 826, 75 L. Ed. 1440, 1931 U.S. LEXIS 285 (1931).

84. —Actions for Recovery of Taxes.

Trial of a claim for recovery of insurance taxes by the Tennessee claims commission and a review of the decision in the courts satisfies the claimant's right to due process. Stewart Title Guar. Co. v. McReynolds, 886 S.W.2d 233, 1994 Tenn. App. LEXIS 296 (Tenn. Ct. App. 1994).

85. Confidentiality Privileges.

Abrogation of the counselor privilege in child sexual abuse cases does not contravene due process under either the federal or state constitutions. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

86. Religion.

Excluding prospective jurors who oppose the death penalty on religious grounds from capital case juries does not violate the prospective jurors' equal protection rights. Wolf v. Sundquist, 955 S.W.2d 626, 1997 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1997).

Where a teacher alleged that the teacher's union's violations were “under color of state law,” the trial court erred when it dismissed the teacher's suit against the teacher's union for failure to state a claim; although the complaint that part of his union dues were being used in violation of, inter alia, his rights to free speech, free assembly and petition, and freedom of religion, was premised on state constitutional violations, when viewed under the Education Professional Negotiations Act (EPNA), T.C.A. § 49-5-601 — T.C.A. § 49-5-613, the complaint could also have been construed to have alleged other wrongs upon which relief could have been granted. The EPNA could have been interpreted to mean that a voluntary donation of a portion of the dues collected from the teachers exceeded the authority granted to the collective bargaining agent. Esquinance v. Polk County Educ. Ass'n, 195 S.W.3d 35, 2005 Tenn. App. LEXIS 446 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 31 (Tenn. 2006) .

87. Adoption.

The adoption statutes contained in T.C.A. § 36-1-101 et seq., provide a reasonable basis for the legislature's disparate treatment of children involved in adoption proceedings and those who are the subject of guardianship or foster care proceedings. In re M.J.S., 44 S.W.3d 41, 2000 Tenn. App. LEXIS 704 (Tenn. Ct. App. 2000).

88. Double Jeopardy.

Civil forfeiture does not constitute punishment for purposes of the Double Jeopardy Clause in either the Tennessee or the United States Constitutions. State v. Sprunger, 458 S.W.3d 482, 2015 Tenn. LEXIS 177 (Tenn. Mar. 9, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. LEXIS 258 (Tenn. Mar. 16, 2015).

89. Pretrial Release.

Because a trial court had no rational basis for making it more difficult for a father, a defendant in a civil child support enforcement action, to obtain pretrial release than a criminal defendant, requiring a cash-only bond violated the father's right to equal protection of the law under both the state and federal constitutions; a trial court's discretion to require a cash-only appearance bond is constrained by the equal protection guarantees of the United States and Tennessee Constitutions. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

In order to comport with the Equal Protection guarantees of both the United States and Tennessee Constitutions in a child support enforcement action, the court must follow the applicable bail statutes set forth in the Release from Custody and Bail Reform Act of 1978 unless the bail statute or statutes conflict with T.C.A. § 36-5-101(f)(2), in which case § 36-5-101(f)(2) controls; this mandate includes T.C.A. §§ 40-11-122 and 40-11-118. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Defendants in child support enforcement actions, by virtue of their alleged wrong, pose no risk of danger to the public, and a civil defendant not facing the possibility of a prison sentence upon conviction has less incentive to flee than a criminal defendant; considering the civil contemnor's risk to the community and incentive to flee, it is illogical to make it more difficult for a defendant in a child support enforcement action to secure pretrial release than it for a criminal defendant. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Sec. 9. Right of the accused in criminal prosecutions.

That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the County in which the crime shall have been committed, and shall not be compelled to give evidence against himself.

Compiler's Notes. In the Constitutions of 1796 and 1834, the word “a” was used instead of the word “the” before the word “right”; and in the Constitutions of 1796 and 1834, the words “or district” occurred after the word “county”.

The word “district” had reference to the state of things under the Constitution of 1796, when there was only one court for several counties, constituting what was called a “district.” It does not apply to circuits. It was carried into the Constitution of 1834 by copying from the Constitution of 1796, without noticing the change that had taken place in our judicial system, by which a circuit court was held in every county. After the adoption of this system, the word “district,” in this connection, had no application, and nothing upon which to operate. See Armstrong v. State , 41 Tenn. 337 (1860); Kirk v. State, 41 Tenn. 344 (1860).

Cross-References. Form and sufficiency of indictments, title 40, ch. 13, part 2.

Grand jury proceedings, title 40, ch. 12.

Indictment, § 40-13-101.

Meeting witnesses face to face, compulsory process for obtaining witnesses, § 40-17-105.

Offenses indictable, § 40-13-102.

Privilege unavailable in removal of officer cases, § 8-47-107.

Right to be heard, § 40-14-101.

Right to counsel, § 40-14-102.

Right to notice of charges and counsel, § 40-10-101.

Right to speedy trial, § 40-14-101.

Rights of the accused, U.S. Const. amend. 6.

Testimony before legislative committee, §§ 3-3-119, 3-3-120.

Trial by court martial as former jeopardy, § 40-16-101.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 5.1, 10.2, 12.13, 16.54, 16.92, 19.6, 20.5, 23.15, 24.43, 24.51, 25.10, 25.40, 26.86, 27.71, 27.111, 27.193, 29.38, 30.68.

Tennessee Law of Evidence (Paine, Schaffner, and Ulin), §§ 52, 186-189.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 402.1.

Law Reviews.

A Proposal To Strengthen Juvenile Miranda Rights: Requiring Parental Presence in Custodial Interrogations, 53 Vand. L. Rev. 1355 (2000).

Another Can of Crawford Worms: Certificates of Nonexistence of Public Record and the Confrontation Clause (Keith Hollingshead-Cook), 63 Vand. L. Rev. 1793 (2010).

Confessions and the Tennessee Constitution (V. Lakshmi Arimilli), 25 U. Mem. L. Rev. 637 (1995).

Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford? 67 Vand. L. Rev. 1497 (2014).

Criminal Law—State v. Sawyer: Tennessee Supreme Court Holds that a Police Officer Cannot Read an Affidavit to a Person in Custody Without Giving Miranda Warnings (Andre Mathis), 36 U. Mem. L. Rev. 1171 (2006).

Criminal Procedure—Juror Misconduct and Bias—Assessing the Prejudicial Effect of Extra-Judicial Communications by Jurors in a Technologically Advanced Society, 82 Tenn. L. Rev. 253 (2014).

Current Issues in Drug Enforcement Law, 43 Vand. L. Rev. 1255 (1990).

In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099 (2014).

Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997).

The County Line Rule: Venue in Dr. Feist's Trial (Donald F. Paine), 40 No. 4 Tenn. B.J. 29 (2004).

The Court in Action: A summary of key cases from the U.S. Supreme Court 2000-2001 (Perry A. Craft and Arshad (Paku) Khan), 37 No. 9 Tenn. B.J. 18 (2001).

The Language of Mens Rea, 67 Vand. L. Rev. 1327 (2014).

The Prevalence and Use of Criminal Defenses: A Preliminary Study (Neil P. Cohen, Michael G. Johnson, Tracy B. Henley), 60 Tenn. L. Rev. 957 (1993).

Attorney General Opinions. Child abuse victim testimony by closed circuit television, OAG 98-024, 1998 Tenn. AG LEXIS 24 (1/23/98).

Constitutionality of closed trial during testimony of sexual offense victim, OAG 98-051, 1998 Tenn. AG LEXIS 51 (2/23/98).

Constitutionality of sexual assault victim testimony via one-way glass, OAG 98-051, 1998 Tenn. AG LEXIS 51 (2/23/98).

Administrative fee assessed against defendants with court-appointed counsel, OAG 98-0167, 1998 Tenn. AG LEXIS 167 (8/28/98).

Judge's options when misdemeanor case is set for trial and prosecutor subsequently decides that defendant will not be given a bench trial but a preliminary hearing, OAG 99-197, 1999 Tenn. AG LEXIS 201 (10/6/99).

An officer who is subpoenaed to provide information concerning an act which would subject the officer to ouster under T.C.A. § 8-47-101 is required to provide the information, but such information can not be used against the officer in any criminal proceeding, OAG 00-129, 2000 Tenn. AG LEXIS 130 (8/14/00).

Constitutionality of proposed legislation regarding registration and reporting requirements for sex offenders, OAG 04-069, 2004 Tenn. AG LEXIS 72 (4/20/04).

Proposed amendment to legislation establishing the TennCare Fraud and Abuse Reform Act of 2004 would violate the state constitution to the extent it permits a defendant to be tried on a criminal charge in a county other than the county where the crime was committed, OAG 04-079, 2004 Tenn. AG LEXIS 79 (4/28/04).

Under neither the Tennessee nor United States Constitution does the reporting of blood test results by a physician to law enforcement violate a criminal defendant's right against self-incrimination, OAG 05-069, 2005 Tenn. AG LEXIS 69 (5/3/05).

Constitutionality of proposed legislation requiring arrested persons to provide a biological specimen for DNA analysis, OAG 06-070, 2006 Tenn. AG LEXIS 79 (4/17/06).

Retired misdemeanor cases. OAG 11-4, 2011 Tenn. AG LEXIS 4 (1/7/11).

Use of government employee's Garrity statement in criminal prosecution of another. OAG 12-81, 2012 Tenn. AG LEXIS 81 (8/15/12).

NOTES TO DECISIONS

1. In General.

Although the language of § 39-2-203(i)(12) (repealed) could be read to permit the state to present evidence of murders other than the defendant's record of convictions to show this aggravating circumstance beyond a reasonable doubt, such a construction would violate a number of state constitutional guarantees, including the rights to a trial by an impartial jury, to an indictment or presentation, to confront witnesses against him, and against self-incrimination, all guaranteed by Tenn. Const. art. I, § 9. State v. Bobo, 727 S.W.2d 945, 1987 Tenn. LEXIS 1057 (Tenn. 1987), cert. denied, Bobo v. Tennessee, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155, 1987 U.S. LEXIS 3866 (1987).

Plain error existed in the trial court's conducting trial into the late night and early morning hours of the next day. State v. Parton, 817 S.W.2d 28, 1991 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1991).

Although the provisions in U.S. Const. amend. 5, and Tenn. Const. art. I, § 9 are not identical, the supreme court of Tennessee has previously declined to hold that protection under the state constitution is broader than that of the federal constitution merely because the language of the two provisions is not the same; however, this observation does not foreclose the possibility that the state constitutional provision might be applied more broadly than its federal counterpart, based upon considerations other than, and in addition to, the difference in terminology. State v. Smith, 834 S.W.2d 915, 1992 Tenn. LEXIS 360 (Tenn. 1992).

2. Due Process.

Defendant's conviction for first-degree murder was appropriate, because he failed to show that his due process rights were violated since the record contained little evidence to support his contention that the jurors actually saw him wearing handcuffs; also, what evidence did exist revealed that the jury was not unduly prejudiced by the sight of defendant in handcuffs. State v. Ordway, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 604 (Tenn. Crim. App. July 27, 2007), cert. denied, Ordway v. Tennessee, 170 L. Ed. 2d 764, 128 S. Ct. 1894, 552 U.S. 1321, 2008 U.S. LEXIS 3131 (2008).

Defendant's first degree premeditated murder was reversed because the trial court erred in allowing defendant's expert witness to testify for the State where an ordinary person knowledgeable of all the relevant facts in this case would conclude that allowing the expert to switch sides and testify for the State posed a substantial risk of disservice to the public interest and to defendant's fundamental right to a fair trial and the State failed to rebut the presumption in favor of disqualification. State v. Larkin, 443 S.W.3d 751, 2013 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Mar. 28, 2013).

Defendant was not entitled to relief on his claim that his rights to due process were violated when the trial court dismissed, without defendant being present, the violation of probation warrants because there was no case law or statute that supported his interpretation of the constitution. State v. Cauley, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. May 12, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 783 (Tenn. Sept. 17, 2015).

Defendant's right to confront a witness against defendant was violated because the trial court allowed the admission of a videotape of defendant performing field sobriety tasks when the officer conducting those tasks was not present at trial. State v. Carey, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 984 (Tenn. Crim. App. Dec. 10, 2015).

Trial court did not violate defendant's right against self-incrimination, by requiring defendant to show the jury the tattoos on defendant's arm, because the State of Tennessee used the tattoos solely for the purpose of identification. Furthermore, defendant by removing defendant's shirt and exposing defendant's arms was not exhibiting defendant in a way not commonly seen in public. State v. Pillow, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 617 (Tenn. Aug. 18, 2016).

Defendant's constitutional rights were not violated by the trial court's decision to allow an incarcerated witness for the State of Tennessee to wear street clothes while giving testimony at defendant's trial. Furthermore, while the trial court erred by prohibiting defendant from naming the pending offense for which the witness was charged, considering the evidence and the information that the trial court did allow defendant to mention, the error was harmless beyond a reasonable doubt. State v. Moses, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. May 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 660 (Tenn. Sept. 22, 2016).

Defendant did not prove that the jury at defendant's trial was not fair and impartial because defendant did not provide the appellate court of a transcript of the voir dire, so that the appellate court had to assume that the trial court's findings at the motion for new trial were correct. Moreover, there was no evidence that a member of the jury venire did anything improper and there was no evidence that an apparent member of the jury who was a school principal did anything improper or knew the prosecutor through the church that they attended. State v. Dickerson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. June 13, 2016).

Trial court erred in dismissing defendant's re-indictment for rape of a child and aggravated sexual battery based on a violation of defendant's due process right, because the prosecution commenced within the applicable statutory periods, the length of the delay, between 7 and 12 years, was not excessive, the bulk of the delay was attributable to the victim's reluctance to come forward and changing memory, factors not within the control of either the State or defendant, and defendant's inability to call certain witnesses due to death or failure to locate did not demonstrate actual prejudice. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. Aug. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 937 (Tenn. Dec. 15, 2016).

Trial court did not err in denying defendant's motion to suppress statements, because the evidence preponderated against a finding that defendant was in custody when he went to the sheriff's office of his own accord and agreed to talk to the authorities, and was allowed to go to the restroom unaccompanied, was made aware that he was free to leave at any time, and was not subject to coercive or overbearing interrogation techniques. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Defendant was not denied a fair trial by the State's failure to disclose investigators' notes or a statement defendant made to a detective, as one agent's notes were not material and one agent's notes were provided in compliance with Tenn. R. Crim. P. 26.2. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Count of the indictment charging defendant with employment of a firearm during the attempt to commit a dangerous felony was not void for failing to name the underlying predicate felony where the record made it clear that the attempted second degree murder offense, which was the only dangerous felony with which defendant was charged, served as the predicate felony. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Defendant's right to a fair trial was not violated when the prosecutor used the term “rape” in closing arguments, it was not so inflammatory that it likely affected the the outcome of the trial given the daughter's testimony that she did not consent to defendant's sexual abuse and defendant's failure to object at trial. State v. Hawkins, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017).

While two counts of defendant's indictment for attempted introduction of contraband into a penal facility did not reference the attempt statute, the indictment satisfied the requirements of the United States Constitution, the Tennessee Constitution, and the attempt statute because the indictment charged a violation covered by the criminal attempt statute and was sufficient to place defendant on notice of the accused crime, to confer jurisdiction on the trial court, and to protect defendant against double jeopardy. State v. Matthews, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 252 (Tenn. Apr. 13, 2017).

Defendant did not show a pre-indictment delay required an indictment's dismissal because defendant did not show (1) defendant sustained actual prejudice as a direct and proximate result of the delay, or (2) the State caused the delay to gain a tactical advantage or to harass defendant. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Dismissal of the burglary count in defendant's case was upheld on independent due process grounds; given the legislative history, T.C.A. § 39-14-402(a)(3) was never intended to cover buildings open to the public, and by charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting under T.C.A. §§ 39-14-105, 39-14-146, prosecutors are abusing their charging discretion by unreasonably expanding the reach of the burglary statute, and charging of burglary in these instances is unreasonable, unjust, and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper as the State failed to rebut the presumption of prosecutorial vindictiveness, regardless of whether the trial court explicitly relied on such; the State admitted it charged defendant with burglary following defendant's first mistrial because it intended use its discretionary charging authority to prosecute all banned, repeat shoplifters like defendant with burglary, which was retaliatory and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper, as the delay in charging defendant with burglary was attributable to the State because it had evidence of defendant's ban from the store in question prior to her first trial and failed to investigate it, and the State's deficiencies did not provide a sound basis for burdening defendant with the addition of a felony offense after a mistrial. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Defendant was not entitled to relief due to missing audiotape of a controlled drug buy because it did not appear that the audiotape was exculpatory evidence the State of Tennessee had a duty to preserve. An officer identified defendant as the driver of car in which a drug transaction took place, and the State voluntarily dismissed the drug sale charge for the failure to preserve and did not mention the content of the interaction between defendant and a confidential informant until defendant brought the missing evidence to the jury's attention. State v. Buford, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. Jan. 27, 2020).

Defendant was not entitled to relief on his claim that his statement should have been suppressed, where defendant voluntarily reinitiated his conversation with a detective after telling the detective that he had an attorney. Defendant did not allege that the detective coerced him into reinitiating the conversation, and the video of the interview showed that the detective did not say anything before defendant began asking questions about his case and voluntarily made the statement at issue. State v. Banks, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. Aug. 25, 2020).

3. Right to be Heard.

The right of the accused “to be heard by himself” is a privilege which is waived by not being demanded. Wilson v. State, 50 Tenn. 232, 1871 Tenn. LEXIS 87 (1871); Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882). It is never voluntarily awarded, but if it be demanded, the court must allow him the privilege of conducting and arguing his case or assisting therein. Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), overruled in part, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

In a civil case, it was stated that, under the provisions of Tenn. Const. art. I, § 9, one accused of crime has a right to be heard both by himself and by his counsel in argument upon the case or explanation of facts in evidence. Grace v. Curley, 3 Tenn. App. 1, — S.W. —, 1926 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1926).

The right of the accused to be present and to make defense applies not only in trials for felony, but also misdemeanor as well, as in State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908) and Lebanon & Big Spring Tpk. Co. v. State, 141 Tenn. 675, 214 S.W. 819, 1919 Tenn. LEXIS 18 (1919); Gray v. State, 158 Tenn. 370, 13 S.W.2d 793, 1928 Tenn. LEXIS 164 (1928). But see Ready v. State, 155 Tenn. 15, 290 S.W. 28, 1926 Tenn. LEXIS 13 (1927).

Allowing jurors to read notes taken during course of trial in their deliberations did not violate right of accused to be heard by himself and by counsel. Watkins v. State, 216 Tenn. 545, 393 S.W.2d 141, 1965 Tenn. LEXIS 598, 14 A.L.R.3d 818 (1965).

While no person accused of a crime may be compelled to testify he has the right to do so if he chooses. Campbell v. State, 4 Tenn. Crim. App. 100, 469 S.W.2d 506, 1971 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. 1971).

The accused in a criminal prosecution does not have a constitutional right to make an unsworn statement. Quite aside from the fact that such a statement would be of questionable value, there is for consideration the patent unfairness to the state of permitting a defendant to make an unsworn statement, not subject to cross-examination, and without leave for the state to comment upon his failure to testify in the regular manner. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

When a defendant argues in his own behalf he is limited to fair comment on the evidence and may not use argument as a guise for an unsworn statement. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

A defendant has no absolute right to make an unsworn statement before the jury. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

A defendant has no absolute right to hybrid representation. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

While State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976) pretermits the issue of waiver in cases of hybrid representation, placing in the trial court the discretion to permit such participation of a defendant, this discretion must be exercised sparingly and only in exceptional cases. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

In exercising its discretion in hybrid representation cases, not only must the trial court make the threshold determinations: (1) That defendant is not seeking to disrupt the trial; (2) That the defendant has the intelligence, ability and general competence to participate in his own defense; but the trial court must also ensure that: (3) The circumstances are so exceptional as to justify the defendant's request, which circumstances must be made to appear on the record; (4) The defendant has the opportunity to confer with counsel out of the presence of the jury prior to his participation; (5) Out of the presence of the jury, the defendant is instructed that he may not state facts not in evidence; and (6) The defendant and the jury are instructed that the defendant is acting as his own counsel and that the defendant is not giving any evidence or testimony. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

The right to testify by a criminal defendant is fundamental and constitutionally guaranteed by Tenn. Const. art. I, § 9 and U.S. Const. amends. 5 and 14. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

The right to testify must be personally waived by the criminal defendant. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

Although a criminal defendant's right to testify is a fundamental constitutional right, violation of that right is subject to constitutional harmless error analysis, meaning that the burden is on the state to prove that the constitutional right violation is harmless beyond a reasonable doubt. Factors impacting upon the harmless error analysis include: (1) The importance of the defendant's testimony to the defense case; (2) The cumulative nature of the defendant's testimony; (3) The presence or absence of evidence corroborating or contradicting the defendant on material points; and (4) The overall strength of the prosecution's case; these four factors are merely instructive and not exclusive considerations. State v. Vaughan, 144 S.W.3d 391, 2003 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. 2003).

Where a criminal defendant asserted that he wanted to testify, and where the state put on no proof that refuted the defendant's testimony that he did not personally waive his right to testify, that right was violated; moreover, the violation of that right was not harmless where defendant's version of events was supported by other proof at trial, there was no evidence submitted that contradicted defendant's version of the events, and his version of the events contradicted the state's circumstantial proof of the case against him. The failure of the jury to hear defendant's version may have contributed to the finding that he was guilty of murder and aggravated arson and reversal of those convictions and remand for a new trial were ordered. State v. Vaughan, 144 S.W.3d 391, 2003 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. 2003).

Criminal defendants have the right to testify and that right is a fundamental right which must be personally waived; to ensure that the defendant's right has been personally waived, procedural guidelines exist that call for defense counsel to request a jury-out hearing to demonstrate that the defendant's waiver of the right to testify has been knowingly, intelligently, and voluntarily made and the trial judge has a duty to ensure that a criminal defendant personally waives the right to testify. State v. Vaughan, 144 S.W.3d 391, 2003 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. 2003).

4. —Joint Participation by Defendant and Counsel.

In all criminal prosecutions the accused does not have a constitutional right to participate in propria persona in his own defense and simultaneously to be represented by participating counsel. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

If the interests of justice so require, the trial judge, in exceptional circumstances, may permit the defendant to participate in the trial, including the cross-examination of witnesses and the argument of his own defense, but this discretion should be exercised sparingly and with caution and only after a judicial determination that the defendant: (1) Is not seeking to disrupt orderly trial procedure; and (2) Has the intelligence, ability and general competence to participate in his own defense. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

It is entirely a matter of grace for a defendant to represent himself and have counsel, and such privilege should be granted by the trial court only in exceptional circumstances. State v. Melson, 638 S.W.2d 342, 1982 Tenn. LEXIS 431 (Tenn. 1982), cert. denied, Melson v. Tennessee, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983).

The reference to “elbow counsel” in State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), is merely a shorthand form of saying that a criminal defendant has the right to conduct his own defense and in the process can confer with what has also been referred to as “standby counsel.” Smith v. State, 757 S.W.2d 14, 1988 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1988).

5. —Jury Selection.

The “right to be heard by himself” requires the presence of the defendant from the beginning of the impaneling of the jury until the jury's discharge and, in the absence of evidence that the defendant waived the right to be present for jury selection, the defendant's total absence from jury selection is not subject to harmless error analysis and requires automatic reversal. State v. Muse, 967 S.W.2d 764, 1998 Tenn. LEXIS 196 (Tenn. 1998).

6. —Right to Have Witnesses.

If the informant is a material witness to the offense for which the accused is being prosecuted and is a witness to the crime that might be in a position to assist the defense in countering the accusation, if the state refuses to disclose his identity, then the defendant is effectively deprived of the important right to have his witnesses. The disclosure of the informant's identity may be presumed to be relevant and helpful to the defense or, at least, essential to a fair determination of the cause. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

When determining whether the issue of the right to present the testimony of certain witnesses and whether the constitutional right to present a defense has been violated by the exclusion of evidence, the analysis should consider whether: (1) The excluded evidence is critical to the defense; (2) The evidence bears sufficient indicia of reliability; and (3) The interest supporting exclusion of the evidence is substantially important. State v. Brown, 29 S.W.3d 427, 2000 Tenn. LEXIS 24 (Tenn. 2000), cert. denied, Tennessee v. Brown, 531 U.S. 916, 121 S. Ct. 275, 148 L. Ed. 2d 200, 2000 U.S. LEXIS 6506 (2000).

Defendant's due process rights were not violated in a murder case where the court excluded testimony of alibi witnesses where defendant failed to disclose the witnesses, and instead, sprang the witnesses on the prosecution in order to gain a tactical advantage. State v. Looper, 118 S.W.3d 386, 2003 Tenn. Crim. App. LEXIS 83 (Tenn. Crim. App. 2003), cert. denied, Looper v. Tennessee, 540 U.S. 1060, 124 S. Ct. 836, 157 L. Ed. 2d 717, 2003 U.S. LEXIS 8789 (2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 675 (Tenn. 2003).

7. — —Expert Witnesses.

Trial court properly denied defendant's motion for state funds to have fingerprint and other scientific tests performed since the defendant had admitted being with the complainant and thus the tests would have availed nothing; moreover, an indigent defendant has no constitutional right to the provision to expert witnesses at state expense. Couch v. State, 566 S.W.2d 288, 1978 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1978).

8. —Exculpatory Evidence.

The state deprived defendant of due process of law by failing to furnish defendant with exculpatory evidence, which was in its possession. State v. Marshall, 845 S.W.2d 228, 1992 Tenn. Crim. App. LEXIS 578 (Tenn. Crim. App. 1992).

Inmate's allegations of the newly discovered exculpatory evidence that was suppressed by the state that the accomplice told another person that he was the sole shooter could not have been litigated previously and raised serious questions regarding whether the inmate, in fact, murdered the victim. Thus, due process precluded summary dismissal of her claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence; at the hearing, the inmate would have the opportunity to establish that there was a “reasonable probability” that the newly discovered evidence might have resulted in a different judgment if the evidence had been admitted at the previous trial and, if she made that showing and she established that she “was without fault” in failing to present the newly discovered evidence at the appropriate time, she would be entitled to a new trial. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

Fact that the inmate escaped from jail and remained a fugitive for many years did not change the fact that the exculpatory evidence was withheld by the state and, even if the inmate had not escaped, there was no reason to believe the exculpatory evidence would have been disclosed voluntarily. Thus, due process precluded the summary dismissal of the inmate's claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

9. Right to Counsel.

The appearance of more than one attorney on each side of a case is a matter within the discretion of the court. The right to be heard by attorney does not entitle a party to more than one, except by permission, and a refusal is not a reversible error. Chambers v. State, 22 Tenn. 237, 1842 Tenn. LEXIS 79 (1842).

The right of the accused “to be heard by … his counsel” means more than a simple argument before the jury. It entitles the accused to the advice and assistance of counsel in the preparation of his defense and in properly shaping the same, so that his innocence may be made to appear, if the facts shall so warrant. For this purpose, counsel must be given time to prepare the defense. Especially is this true, when counsel is assigned by the court to defend the accused. State v. Poe, 76 Tenn. 647, 1881 Tenn. LEXIS 57 (1881).

The right of the accused to be heard by himself and his counsel is subject to the control of the courts in the exercise of a sound judicial discretion. In cases involving the life or liberty of the accused, this discretion intrusted to the courts should be carefully and cautiously exercised. A mere general exception to the limitation of time for argument by counsel is insufficient to cause a reversal, unless the court can see that the accused might have been injured by an improper exercise of the judicial discretion. The grounds of objection to the limitation of time for argument should be stated, and at the close of the argument under the limited time, it should be stated or shown that the argument had not been completed, and an extension of time to complete the argument should be asked for. Kizer v. State, 80 Tenn. 564, 1883 Tenn. LEXIS 208 (1883).

Under Tenn. Const. art. I, § 9, accused is guaranteed the assistance of counsel in the preparation and presentation of his defense. Poindexter v. State, 183 Tenn. 193, 191 S.W.2d 445, 1946 Tenn. LEXIS 201 (1946).

Where counsel was assigned by the court to represent the defendant, but not until he was brought out and arraigned for trial, which was at once proceeded with, and counsel only had ten minutes to consult with the defendant and to make preparations for his proper defense, defendant was deprived of a right guaranteed by Tenn. Const. art. I, § 9. Poindexter v. State, 183 Tenn. 193, 191 S.W.2d 445, 1946 Tenn. LEXIS 201 (1946).

The constitutional and statutory provisions relating to the right of accused to have the assistance of counsel for his defense require the appointment of counsel in all cases where an accused is unable to procure the services of an attorney, and where the right has not been intentionally and competently waived. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Each case must stand on its own in determining what is a reasonable time for preparation of a defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

The general rule is that a reasonable time for preparation of defendant's case must be allowed between the time of assignment of counsel and the time of trial. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Where after granting defense counsel's motion to withdrawal from case, court appointed another attorney and ordered case to trial on the same day after denying counsel's motion for continuance to prepare case, counsel was not afforded a reasonable time to confer with defendant and prepare his defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Denial of access of accused to counsel at some time prior to trial does not operate to prevent accused from ever being tried but rather present the question of whether the trial of the accused became infected by the germ of the violation of the constitutional right to counsel. Scott v. State, 216 Tenn. 375, 392 S.W.2d 681, 1965 Tenn. LEXIS 661 (1965).

Petitioner in habeas corpus proceeding was not entitled to relief on ground that he was not adequately represented by counsel because attorneys were only appointed fifteen minutes before trial where it appeared that petitioner did in fact commit the crimes with which he was charged and, petitioner had no witnesses or defense and elected to plead guilty after counsel advised that they had been able to obtain agreement by attorney-general to accept minimum sentence. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

Where defendant through counsel waived right to respond to state's initial closing argument, it was prejudicial error to allow state a second closing argument in which state presented its only real attack and to which defendant was not permitted to respond. Wallis v. State, 546 S.W.2d 244, 1976 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1976).

Defendants were not denied a fair and impartial trial where district attorney general and other assistants participated in trial although one assistant who had participated in preparation for trial was barred from the trial because of a remote connection with the defendants through a legal aid clinic case. Mattress v. State, 564 S.W.2d 678, 1977 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1977).

Where one of the assistant district attorneys during his previous employment at a legal clinic had been assigned to other cases involving the defendants, and he had done some preparatory work for the robbery prosecutions at issue but he had at no time received or communicated any confidential information and did not participate in the robbery trial, he nonetheless was properly disqualified from the robbery prosecution, but disqualifying the entire district attorney general's office or dismissal of the case was not necessary to preserve the defendants' right to a fair trial or the confidentiality of the attorney-client relationship. Mattress v. State, 564 S.W.2d 678, 1977 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1977).

Lack of seating in the courtroom which forced defendant's attorneys to stand while awaiting their participation in trial did not deprive defendant of proper representation by counsel. Sesson v. State, 563 S.W.2d 799, 1978 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1978).

When an arrest is made without a warrant and a lineup is conducted there is no constitutional right to counsel; however, even then the accused is constitutionally protected against unnecessarily suggestive procedures. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

One charged with a crime who is unable to obtain representation must be furnished counsel by the state. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

Unless the right is waived, every indigent defendant is entitled to have counsel assigned to represent him in all matters necessary for his defense and at every stage of the proceedings. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

A codefendant's counsel has no obligation to protect the interests of another defendant. State v. Brown, 644 S.W.2d 418, 1982 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1982).

Where trial judge held trial a period of 14 hours and 45 minutes on the first day of trial, and 14 hours and 30 minutes on the second day of trial, the stressful hours involved in the trial, over the protest of defendant's counsel, without the express agreement of the jurors, and without unusual and compelling circumstances, violated the rule laid down in Hembree v. State , 546 S.W.2d 235, 1976 Tenn. Crim. App. LEXIS 307, 99 A.L.R.3d 586 (Tenn. Crim. App. 1976) and constituted deprivations of defendant's right to due process under U.S. Const. amend. 14 and Tenn. Const. art. I, § 9, and his right to counsel, U.S. Const. amend. 6, Tenn. Const. art. I, § 9, and required a reversal of his conviction and a remand for a new trial. State v. McMullin, 801 S.W.2d 826, 1990 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. 1990).

Defendant's counsel was properly disqualified where an actual conflict of interest existed because counsel was also a part time assistant district attorney in the same county where the case was being prosecuted, counsel's dual roles in the same county created an actual conflict of interest that the state could not be forced to waive, and the conflict of interest superseded defendant's right to the counsel of his choosing. State v. White, 114 S.W.3d 469, 2003 Tenn. LEXIS 828 (Tenn. 2003).

Under both U.S. Const. amend. 5 and Tenn. Const. art. I, § 9, an accused must articulate a desire to have counsel present sufficiently clearly that a reasonable police officer would understand the statement to be a request for an attorney; therefore, defendant failed to invoke the right to counsel by making several equivocal requests to an unidentified police officer before questioning began. State v. Saylor, 117 S.W.3d 239, 2003 Tenn. LEXIS 861 (Tenn. 2003), cert. denied, Saylor v. Tennessee, 540 U.S. 1208, 124 S. Ct. 1483, 158 L. Ed. 2d 133, 2004 U.S. LEXIS 1500 (2004).

Record did not reflect that the trial court made an inquiry on the record to ensure that defendant knowingly and intelligently waived his right to assistance of counsel at the hearing; because defendant was denied counsel throughout the prosecution's case in chief, this denial affected the entire criminal proceeding, which was a structural error requiring automatic reversal. Cottingham v. Cottingham, 193 S.W.3d 531, 2006 Tenn. LEXIS 442 (Tenn. 2006).

Defendant's right to counsel was not violated by post-presentment interrogations where he was meticulously informed of his right to counsel and of the consequences of failing to exercise that right before he confessed to murder; he not only agreed to speak with an officer, but also signed an advice and waiver of rights form. State v. Rollins, 188 S.W.3d 553, 2006 Tenn. LEXIS 191 (Tenn. 2006), cert. denied, Rollins v. Tennessee, 549 U.S. 866, 127 S. Ct. 162, 166 L. Ed. 2d 115, 2006 U.S. LEXIS 6933 (2006).

Where the police asked defendant if he had an attorney and defendant initially responded in the affirmative but then indicated that what he really had was a prepaid legal services plan and asked for his cellular phone, where the police officers refused to permit him to use his own phone but made a telephone available to defendant so that he could contact his attorney but defendant declined to use it and where defendant agreed to speak with the police after they advised him of his Miranda rights, the trial court erred in finding that defendant had invoked his right to counsel and in granting defendant's motion to suppress. Defendant's ambiguous references to an attorney did not constitute an unequivocal request; as such, the police were not required to cease their interrogation, and defendant's statement was admissible. State v. Turner, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 20, 2009), aff'd, 305 S.W.3d 508, 2010 Tenn. LEXIS 148 (Tenn. Mar. 19, 2010).

Defendant's conviction for first-degree felony murder was proper because defendant did not show that the trial court heard his motion for new trial while he was not represented by appointed counsel. The record did not contain a transcript of any of the motion for new trial proceedings; nothing in the record indicated that defendant refused the services of his appointed counsel in writing and signed the written refusal in the presence of the court; the record did not show that defendant moved the court to dismiss his counsel and appoint a substitute; the record did not show that the trial court heard defendant's motion for new trial after allowing trial counsel to withdraw and before appointing new counsel; and it was the duty of defendant to provide a record that conveyed a fair, accurate, and complete account of what transpired. State v. Hayes, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 1085 (Tenn. Crim. App. Dec. 23, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 540 (Tenn. May 25, 2011), dismissed, Hayes v. Westbrooks, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 120263 (M.D. Tenn. Aug. 28, 2014).

By failing to provide an adequate record for review, petitioner has waived consideration of his ineffective assistance claim. Graham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 425 (Tenn. June 24, 2016).

Defendant's socks and photographs of his hands were not the products of a coerced statement from defendant where the detectives testified that the observed the blood on the bottom of defendant's sock and on his thumb shortly after entering his jail cell and well before his invocation of his Miranda rights and in the audio recording of defendant's interview a detective mentioned the blood on defendant's sock within the first two minutes of the interview, after he had been advised of his Miranda rights but well before he requested an attorney. State v. Peden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 699 (Tenn. Crim. App. Sept. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 976 (Tenn. Dec. 14, 2016).

Defendant's petition for post-conviction relief was properly denied because defendant's right to counsel was not violated as no conflict of interest existed because, although trial counsel had previously represented a witness, counsel was unaware of the witness's connection to defendant's case during counsel's representation of the witness; counsel did not obtain confidential information relevant to defendant's case during counsel's representation of the witness; counsel and the witness did not discuss any conduct that could have been used to impeach the witness at defendant's trial; and nothing about counsel's representation of the witness would have impaired counsel's ability to represent defendant. Woodard v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Nov. 8, 2016).

Because there was no right to effective assistance of counsel on defendant's motion for correction of an illegal sentence, defendant's claim for post-conviction relief could not be premised on the supposed deficiency of counsel in the proceeding. Northener v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. Apr. 25, 2017).

Postconviction court's dismissal of petitioner's claim regarding the effectiveness of Tenn. R. App. 11 counsel was affirmed because it was not a cognizable claim for postconviction relief, as defendants had no co