State vs William Glenn Talley
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 17, 2008 Session
STATE OF TENNESSEE v. WILLIAM GLENN TALLEY
Direct Appeal from the Criminal Court for Davidson County
No. 2006-A-559 Monte Watkins, Judge
No. M2007-01905-CCA-R9-CD - Filed July 1, 2009
The appellant, William Glenn Talley, was charged in the Davidson County Criminal Court with two
counts of sexual exploitation of a minor and four counts of possessing a controlled substance with
intent to sell or deliver. He filed pretrial motions to suppress the evidence linking him to the crimes
and his statement to police, and the trial court denied the motions. From the trial court’s order, the
appellant brings this interlocutory appeal, arguing that the evidence and his statement were obtained
in violation of his right to be free from unreasonable searches and seizures as provided by the Fourth
Amendment of the United States Constitution and article I, section 7 of the Tennessee Constitution.
Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT
W. WEDEMEYER, JJ., joined.
David L. Raybin (at trial and on appeal) and Ed Yarbrough (at trial), Nashville, Tennessee, for the
appellant, William Glenn Talley.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that in August 2005, the appellant lived in a condominium building on
Thirty-First Avenue North in Nashville. The building’s front door was always locked, and residents
gained entry to the building by entering an access code into a keypad outside the main door. On
August 16, 2005, detectives went to the building after receiving a tip that the appellant was selling
drugs from his condominium. When the detectives arrived and found the building’s front door
locked, they called their department to obtain the access code, which was on file. While waiting for
the code, a man exited the building and let the detectives inside. The detectives went to the
appellant’s condominium on the second floor and knocked on the door. The appellant was not home,
but Kimberly Knight answered the door. She told the officers she had been living in the
condominium with the appellant for about three weeks, and she gave the officers permission to come
inside. In plain view, the detectives saw a glass crack pipe and a knife with a white residue on it.
They secured the scene and obtained a search warrant for the condominium and the appellant’s place
of business. Searches revealed controlled substances and child pornography at both locations. The
appellant was arrested, and he stated that he was addicted to cocaine and that he exchanged pills with
his friends for money. Subsequently, the appellant filed motions to suppress the evidence and his
statement. In pertinent part, he claimed in the motions that the evidence and the statement resulted
from an unlawful search because the detectives gained warrantless, unreasonable entry to the private
condominium building.
At the hearing on the motions, Charles B. Reasor testified that he owned a condominium on
the third floor and that the appellant owned a unit on the second floor. Twenty-one condominiums
were in the building, and each owner owned their individual condominium and one twenty-first
(1/21) of all the building’s common areas such as the hallways, stairs, and the outside yard. Reasor
stated that a person gained access into the building from the keypad at the locked front door. A guest
could push the “pound sign” on the keypad to find a condominium owner’s name. Once the guest
found the owner’s name, the guest could call the owner’s condominium telephone. The owner could
give the guest the access code to get into the front door or the owner could come to the front door
and let the guest into the building.
Reasor testified that the fire department, the police department, the United Postal Service,
FedEx, vendors, the cleaning service, and “people who need[ed] to have access” had the access code.
He described the code as a “general number” but acknowledged that it was considered an
“emergency code.” He stated that absent an emergency, the police were not allowed to come into
the building. He stated that once a person entered the front door, it would take one to two minutes
for the person to get to the appellant’s second-floor condominium.
On cross-examination, Reasor testified that once an owner’s guest gained entry to the
building, the guest had free access to the building’s hallways. He acknowledged that he had seen
deliverymen in the hallways and that there was a reduced expectation of privacy in the hallways. He
also acknowledged that if he had thought someone was selling drugs from a condominium, he would
have contacted the police and would have expected them to come into the building to investigate.
He stated that he was unaware of any problems in the appellant’s condominium until the police
“raided” it. He acknowledged that if the police came to the building in response to an emergency
or in order to investigate, the police could call dispatch to obtain the access code. He said it was his
understanding the code had “just been registered with the police department, just like it has with the
postal service, and it’s [to be used] at their discretion.” He acknowledged that there were no “no
trespassing” signs posted around the building and that an owner or a guest had the authority to let
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the detectives into the building. On redirect examination, Reasor testified that the building’s
homeowners association may have provided the police department with the access code “as a matter
of courtesy.” On recross-examination, Reasor testified that he would not let police officers into the
building without a warrant.
Metropolitan Nashville Police Detective Joseph Simonik testified that on August 16, 2005,
he went to the appellant’s condominium building in response to an anonymous complaint that had
been called in to “244-dope-line.” According to the caller, the appellant was selling pills from his
residence and place of business. Detective Simonik decided to do a “knock and talk” at the
appellant’s condominium and went to the building with Detectives Fox, Osborne, Stokes, and
Gonzales. When they arrived, they encountered the building’s locked front door. Detective Simonik
called dispatch to obtain the door’s access code. While waiting for the code, a man came out of the
building, said hello to the officers, and opened the door for them. Detective Simonik said the man
was in his late twenties or thirties, was dressed casually, and was possibly a resident. The officers
went inside and went up to the appellant’s condominium. Detectives Simonik, Fox, and Osborne
went to the appellant’s unit while Detectives Stokes and Gonzales waited down the hall.
Detective Simonik testified that although the detectives were not wearing police uniforms,
they were wearing “raid jackets” marked with a police patch and a badge and were clearly identified
as police officers. Detective Simonik knocked on the door, and Kimberly Knight opened it. The
detective told her they were looking for the appellant, and Knight told them he was not there.
Detective Simonik asked Knight if they could come inside and speak with her, and she said yes.
Knight told Detective Simonik she had been living in the condominium for about three weeks;
Detective Simonik later discovered she had clothes in the condominium and a key to the residence.
In the living room, the officers saw a glass smoking pipe and a knife with a white residue on it.
Knight asked if she could telephone the appellant, and she called him with her cellular telephone.
Detective Simonik spoke with the appellant on the phone and explained to him why the detectives
were there. Detective Simonik asked the appellant if he could come to the condominium, and the
appellant said yes. When the appellant arrived, Detective Simonik asked to search the home. The
appellant seemed nervous and refused to consent to the search. Detective Simonik had the scene
“frozen” and left to get a search warrant. He obtained the warrant, returned to the condominium, and
executed the warrant. During the search, officers found drugs, drug paraphernalia, pornographic
images of children, and three pornographic compact discs.
Detective Simonik testified that Knight told him the appellant had drugs and a gun at his
place of business. Officers obtained another search warrant and searched the business. There, they
found more drugs, a gun, and a large number of pornographic images of children. The appellant was
arrested and told Detective Simonik he had been using cocaine since September. He also told the
detective that he exchanged the drugs with his friends for money but that he did not consider this to
be “selling” drugs.
On cross-examination, Detective Simonik acknowledged that without a warrant, police had
to have consent to enter a home. He stated that although he had described the tipster as
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“anonymous” on direct examination, he spoke with the caller and got the caller’s name. However,
he did not “check out” the caller. He acknowledged that he waited five days after the tip to go to the
appellant’s condominium and that going to the condominium was not an emergency. He stated that
after searching the appellant’s home and business, he learned the appellant had a pharmacy license.
He acknowledged that he did not use the speaker at the building’s front door to call the appellant’s
condominium because he did not want to “tip off” anyone in the condominium that the police were
there.
In a written order, the trial court noted that in order for a person, other than a resident, to gain
entry to the condominium building, the person had to have express authorization to enter. The court
determined that the area between the door of the building and the appellant’s condominium door was
“within the curtilage of his home, and is protected from warrantless entry by the Fourth
Amendment.” Therefore, the court concluded that the detectives should have obtained consent to
enter the building because exigent circumstances did not exist to justify a warrantless entry. The trial
court ruled that because the unidentified male who held open the door for the detectives could have
been a resident, a guest, or a trespasser, the detectives did not obtain lawful consent to enter the
building. Nevertheless, the trial court denied the appellant’s motions because it determined that the
detectives gained lawful entry to the appellant’s condominium when Kimberly Knight, who lived
in the condominium with the appellant, gave consent for the detectives to come inside. Through an
interlocutory appeal to this court, the appellant challenges the denial of the motions.
II. Analysis
The appellant contends that the trial court correctly concluded the detectives’ entry of the
private condominium building was unlawful because it violated the appellant’s reasonable
expectation of privacy and, therefore, violated his constitutional right to be free from unreasonable
searches and seizures. However, he argues that the trial court incorrectly concluded Knight’s consent
for the detectives to enter the condominium cured the taint because “like a set of dominoes, the
searches of the [condominium], business and the custodial interrogation all fall pursuant to the ‘fruit
of the poisonous tree’ doctrine [when] the initial intrusion into Mr. Talley’s condominium was
unlawful.” The State contends that the detectives’ entry to the building was lawful because the
homeowner’s association consented to the entry by providing the police department with the access
code in order for police to investigate complaints. The State also contends that the detectives’ entry
was lawful because a man “with apparent authority” permitted it. In response, the appellant argues
that according to Charles Reasor’s testimony, the police were to use the access code only for an
emergency, not merely an investigation. He also argues that the only time the police could lawfully
use the access code for investigative purposes was if one of the condominium owners summoned
them. Finally, he contends that the unidentified man could not consent to the entry because the State
failed to show the man had any right to use or occupy the building.
In reviewing a trial court’s determinations regarding a suppression hearing, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18,
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23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial
court’s application of law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001). Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences
that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
A. Reasonable Expectation of Privacy in the Condominium Building
The Fourth Amendment to the United States Constitution provides that every person has the
right to be free from unreasonable searches and seizures. Article I, section 7 of the Tennessee
Constitution similarly provides “[t]hat the people shall be secure . . . from unreasonable searches and
seizures.” The Tennessee Supreme Court has previously noted that, generally, “‘article I, section 7
is identical in intent and purpose with the Fourth Amendment.’” State v. Downey, 945 S.W.2d 102,
106 (Tenn. 1997) (citation omitted). However, the court also noted that, in some cases, the
Tennessee Constitution may afford greater protection. Id. When determining whether an
unreasonable government intrusion has occurred, the first question is whether the defendant had a
reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516
(1967) (Harlan, J. concurring). In order to answer this question, we must determine “(1) whether the
individual had an actual, subjective expectation of privacy and (2) whether society is willing to view
the individual’s subjective expectation of privacy as reasonable and justifiable under the
circumstances.” State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001) (citing Smith v. Maryland, 442
U.S. 735, 740, 99 S. Ct. 2577, 2580 (1979)).
In support of his argument that a person has a reasonable expectation of privacy in the
common areas of a locked apartment building, the appellant relies heavily on United States v.
Carriger, 541 F.2d 545 (6th Cir. 1976). In Carriger, the Sixth Circuit Court of Appeals considered
“whether a tenant in an apartment building has a reasonable expectation of privacy in the common
areas of the building not open to the general public.” 541 F.2d at 549. The court concluded that
“when, as here, an officer enters a locked building, without authority or invitation, the evidence
gained as a result of his presence in the common areas of the building must be suppressed.” Id. at
552. As the court explained, “A tenant expects other tenants and invited guests to enter in the
common areas of the building, but he does not expect trespassers.” Id. at 551. Citing Carriger, some
state courts also have held that a reasonable expectation of privacy exists in the hallways of a
multiple-unit apartment building. People v. Trull, 380 N.E.2d 1169, 1173 (Ill. App. Ct. 4th Dist.
1978); People v. Killebrew, 256 N.W.2d 581, 583 (Mich. Ct. App. 1977); see also State v. Di
Bartolo, 276 So. 2d 291, 294 (La. 1973).
Just a year later, however, the Eighth Circuit specifically disagreed with Carriger in United
States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977), stating that the “locks on the doors to the
entrances of the apartment complex were to provide security to the occupants, not privacy in
common hallways.” The appellate court held that “[a]n expectation of privacy necessarily implies
an expectation that one will be free of any intrusion, not merely unwarranted intrusions.” Id.
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Because the hallways of the defendants’ locked apartment building were available for use by the
residents, their guests, the landlord and the landlord’s agents, and any other person “having
legitimate reasons to be on the premises,” the court concluded that the defendants did not have a
reasonable expectation of privacy in the building’s hallways. Id. Various other federal and state
jurisdictions also have found that privacy interests do not exist in the locked common areas of
multi-unit apartment buildings. See United States v. Nohara, 3 F.3d 1239, 1241-42 (9th Cir. 1993);
United States v. Concepcion, 942 F.2d 1170, 1171-72 (7th Cir. 1991); United States v. Holland, 755
F.2d 253 (2d Cir. 1985); State v. Davis, 711 N.W.2d 841, 845 (Minn. Ct. App. 2006);
Commonwealth v. Reed, 851 A.2d 958, 962 (Pa. Super. Ct. 2004); Commonwealth v. Dora, 781
N.E.2d 62, 67 (Mass. App. Ct. 2003); People v. Lyles, 772 N.E.2d 962, 966 (Ill. App. Ct. 1st Dist.
2002).
In our view, access by third parties alone does not necessarily negate a reasonable
expectation of privacy in a locked apartment building’s common areas. See Cornelius v. State,
2004 Minn. App. LEXIS 149 (Minn. Ct. App. Feb. 10, 2004); State v. Trecroci, 630 N.W.2d 555,
566 (Wis. Ct. App. 2001); see also Killebrew, 256 N.W.2d at 583 (stating that, generally, tenants
in an apartment building have a reasonable expectation of privacy in hallways that are shared by
occupants and guests). On the other hand, we also disagree with the Sixth Circuit’s bright line rule
that a tenant has a reasonable expectation of privacy in the common areas of a locked apartment
building. The Sixth Circuit’s reasoning in Carriger, that a tenant expects other tenants and invited
guests to enter a building’s common areas but does not expect trespassers, is flawed because a
person’s being a trespasser is irrelevant if tenants do not have a reasonable expectation of privacy
in those areas. See Eisler, 567 F.2d at 816.
The determination as to whether a tenant has a reasonable expectation in the common areas
of a locked apartment building is a fact-driven issue. In the instant case, Charles Reasor testified
that owners could give their guests the access code to get into the building and that various
nonresidents such as delivery and cleaning people used the code. See State v. Breuer, 577 N.W.2d
41, 46-47 (Iowa 1998) (noting as one factor in its conclusion that the defendant had a reasonable
expectation of privacy in the stairway of his locked apartment building was that guests usually
waited at building door after ringing doorbell). Furthermore, twenty-one condominiums were in
the building. Compare id. (noting that only two units were in the building). Given the numerous
third parties that had unescorted access to the building’s common areas, we conclude that the
appellant in this case did not have an actual, subjective expectation of privacy in those areas.
Regarding the State’s claim that the detectives obtained consent to enter the building from
the person who held the door open for them, there is no proof that the person had authority to give
consent. As to the State’s claim that the detectives lawfully entered the building because the
homeowner’s association had provided the code to the police department, we find this argument
unpersuasive because the detectives did not use the code to enter the building. Nevertheless,
because the appellant did not have a reasonable expectation in the building’s common areas, we
conclude that the trial court erred by ruling the detectives entered the building unlawfully.
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B. Fruit of the Poisonous Tree
Given the possibility of further appellate review, we will now determine whether the trial
court properly concluded that Kimberly Knight’s consent for the detectives to enter the
condominium cured the taint of their illegal entry into the building. Again, we disagree with the
trial court’s conclusion.
In Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963), the United
States Supreme Court observed that the exclusionary rule bars the admissibility of evidence
obtained both directly and derivatively from an unlawful invasion of an individual’s privacy or
personal security. However, the court declined to hold that “all evidence is ‘fruit of the poisonous
tree’ simply because it would not have come to light but for the illegal actions of the police.” 371
U.S. at 487-88, 83 S. Ct. at 417. Instead, the court held that, in determining whether physical or
verbal evidence is the fruit of a prior illegality, the “apt question . . . is ‘whether, granting
establishment of the primary illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.’” 371 U.S. at 488, 83 S. Ct. at 417. Therefore, consent to search that
is preceded by a Fourth Amendment violation may nevertheless validate the search if the consent
is voluntary. State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998); see Schneckloth v. Bustamonte,
412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059 (1973). Moreover, the consent must be “sufficiently
an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun, 371 U.S. at 486,
83 S. Ct. at 416-17. “The first prong focuses on coercion, the second on causal connection with the
constitutional violation.” United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The
trial court found, and the appellant does not dispute, that Knight’s consent was voluntary. Therefore,
we turn to the causal connection and whether Knight’s consent was an exploitation of the prior
unlawful entry. See State v. Garcia, 123 S.W.3d 335, 346 (Tenn. 2003).
To determine whether the causal connection between a Fourth Amendment violation and
a consent to search has been broken, a court should consider the following three factors set forth
by the United States Supreme Court in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254,
2261-62 (1975): (1) the temporal proximity of the illegal seizure and the consent; (2) the presence
of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.
Although the trial court did not address the issue of attenuation, the question of attenuation is one
that this court reviews de novo. State v. Ford, 30 S.W.3d 378, 380 (Tenn. Crim. App. 2000). The
State carries the burden of establishing sufficient attenuation. Brown, 422 U.S. at 604, 95 S. Ct.
at 2262.
The evidence at the suppression hearing established that after the detectives entered the
building, they immediately went upstairs to the appellant’s condominium and knocked on the door.
According to Charles Reasor’s testimony, this would have taken only one to two minutes.
Therefore, factor one, the temporal proximity of the illegal seizure and the consent, weighs against
attenuation. As to factor two, the presence of intervening circumstances, the detectives knocked
on the door and Knight opened it. The detectives asked to speak with the appellant, and Knight told
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them the appellant was not there. The detectives then asked to enter the condominium but did not
verbally inform Knight that they were detectives investigating a crime. We conclude factor two also
weighs against a finding of attenuation. Next, we consider the third factor, the purpose and
flagrancy of the official misconduct. Detective Simonik gave contradictory testimony about the
identity of the informant, testifying on direct examination that the informant was anonymous but
testifying on cross-examination that he got the informant’s name. Moreover, although the
detectives had not received any information that Knight was involved in the appellant’s alleged
criminal activities, they asked to enter the condominium even though the appellant was not there.
Finally, when asked at the suppression hearing why the detectives did not end the investigation
when the detectives learned the appellant was not present, Detective Simonik said, “I wanted to
come inside and talk, to see if there was anything in plain view, where I could obtain a search
warrant. There happened to be stuff in plain view in order for me to obtain that search warrant.”
The third factor also weighs against a finding of attenuation. Therefore, had we determined that the
officers entered the building unlawfully, the State’s failure to show the consent was sufficiently
attenuated from the entry into the building would have required suppressing the evidence.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the trial court’s denial of the
motions to suppress.
_________________________________
NORMA McGEE OGLE, JUDGE
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