State of Tennessee v. Sheryl Pendergrass

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 8, 1998
• Docket: 01C01-9708-CR-00359
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE December 8, 1998 SEPTEMBER 1998 SESSION Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9708-CR-00359 ) vs. ) Sumner County ) SHERYL L. PENDERGRASS, ) Hon. Jane Wheatcraft, Judge ) Appellant. ) (Certified Question - Motion to Suppress)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID A. DOYLE JOHN KNOX WALKUP District Public Defender Attorney General & Reporter 117 E. Main St. Gallatin, TN 37066 DARYL J. BRAND Clifton, TN 38425 Senior Counsel for the State 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493

LAWRENCE RAY WHITLEY District Attorney General

DEE GAY Asst. District Attorney General 113 W. Main St. Gallatin, TN 37066

OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE OPINION

The defendant, Sheryl L. Pendergrass, appeals a certified question

of law pursuant to Rule 37(b)(2)(I), Tennessee Rules of Criminal Procedure. In the

Sumner County Criminal Court, the defendant pleaded guilty to three drug offenses,

subject to reservation of the certified question. In her certified question, the

defendant contends that law enforcement officers infringed on her rights to be free

of unreasonable searches and seizures pursuant to the Fourth Amendment of the

United States Constitution and article 1, section 7 of the Tennessee Constitution.

We affirm the judgment of the trial court.

In 1991, the defendant's cordless telephone conversations were

intercepted by the Sumner County Drug Task Force by use of police scanners and

tape recorders. The intercepted conversations substantiated the defendant's

involvement in the drug trade, and they formed the basis of the state's case against

the defendant. A motion to suppress was heard and denied in 1992. The

defendant pleaded guilty a few months later, subject to reservation of a certified

question of law. This court ruled on the certified question in 1995. We held that the

trial court correctly denied the suppression motion. State v. Sheryl L. Pendergrass,

No. 01C01-9306-CR-00169 (Tenn. Crim. App., Nashville, Mar. 9, 1995). In 1996,

the supreme court reversed our ruling, holding that the defendant had not properly

reserved her certified question, and therefore, the substantive issue was not

properly before the court. See State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996).

On March 25, 1997, the defendant obtained post-conviction relief from the trial

court, and her plea was set aside. Then, in 1997, she again pleaded guilty, this time

properly reserving her certified question of law. No further evidence was presented

in the trial court on the suppression issue. The case is now before this court with

the same substantive issue and evidence on which we ruled in 1995.

2 In Sheryl L. Pendergrass, a panel of this court considered the very

issue which is before us again. In a thoughtful opinion, the panel held that although

Pendergrass had a subjective expectation of privacy in her cordless phone

conversations, her expectation was not objectively reasonable. Sheryl L.

Pendergrass, slip op. at 14-28. Therefore, state and federal constitutional

protections did not mandate suppression of the evidence. Sheryl L. Pendergrass,

slip op. at 14-28. Although the supreme court later reversed this court's ruling in the

case, the basis for the reversal was the defendant's failure to reserve explicitly the

certified question for appellate review. Pendergrass, 937 S.W.2d at 838. Thus, the

supreme court did not consider the propriety of our holding on the substantive issue.

Following the successful post-conviction proceedings and the second

guilty plea, the defendant has returned to this court with exactly the same case on

the merits as in 1995. Since our 1995 opinion, neither this court nor the Tennessee

Supreme Court has had occasion to consider the constitutional ramifications of

warrantless electronic surveillance of cordless telephone conversations. The United

States Supreme Court has been silent on this issue, as well. The logic and citations

of the earlier panel's decision are compelling. The facts are identical. As such, we

adhere to our earlier ruling in State v. Sheryl L. Pendergrass, No. 01C01-9306-CR-

00169 (Tenn. Crim. App., Nashville, Mar. 9, 1995), and once again we affirm the

trial court's determination that the evidence was not subject to suppression.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

3 CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE