{"id":44161,"date":"2020-06-17T21:48:11","date_gmt":"2020-06-18T02:48:11","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=44161"},"modified":"2020-06-17T21:49:22","modified_gmt":"2020-06-18T02:49:22","slug":"tn-motion-to-suppress-wasnt-decided-but-state-didnt-offer-evidence-at-trial-until-defense-opened-the-door-admitted-as-404b","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=44161","title":{"rendered":"TN: Motion to suppress wasn’t decided but state didn’t offer evidence at trial until defense opened the door; admitted as 404(b)"},"content":{"rendered":"\n

The state sought a search warrant for cell phones and then lost the product before trial. They still had the phones and looked again without a warrant just before trial. Defendant moved to suppress but argued that the phones weren\u2019t his and the content was irrelevant. Throughout the litigation, no challenge for authenticity of text messages was made. The state didn\u2019t use the evidence at trial until the defendant opened the door at trial, and it validly came in as 404(b) evidence. State v. Burns<\/a>, 2020 Tenn. Crim. App. LEXIS 415 (June 16, 2020):<\/p>\n\n\n\n\n\n\n\n

In the motion to suppress, Defendant objected to the introduction of the contents of the cell phones because they were unlawfully searched. At the hearing, however, Defendant argued that he did not own the flip phone, so anything on it was irrelevant and inadmissible hearsay. Immediately prior to trial, defendant advanced yet another argument with regard to the admissibility of the text messages, arguing that the text messages on the flip phone should be excluded as evidence of bad acts. In our review of the record, we fail to find any argument by Defendant that the messages lacked authentication. This issue is waived.<\/p>

Moreover, the State did not introduce the contents of the text messages until counsel for Defendant questioned Investigator Pate about the content of the messages found on the phone. Counsel for Defendant asked Investigator Pate if he saw “a single text with one of those \u2014 any of those street terms referring to heroin or meth in there?” Counsel also asked if there was a search warrant obtained to search the phones because officers “expect[ed] to find proof of drug sales in those phones.” On redirect, the State admitted the text messages from both phones into evidence. By asking questions about the specific content of the messages, counsel for Defendant effectively opened the door to allow the State to move for the admission of the text messages. See Tenn. R. App. P. 36(a); see also Tenn. R. App. P. 36, Advisory Comm’n Cmt. (“The last sentence of this rule is a statement of the accepted principle that a party is not entitled to relief if the party invited error, waived an error, or failed to take whatever steps were reasonably available to cure an error.”). Defendant is not entitled to relief on this issue.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The state sought a search warrant for cell phones and then lost the product before trial. They still had the phones and looked again without a warrant just before trial. Defendant moved to suppress but argued that the phones weren\u2019t … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[124,5],"tags":[],"class_list":["post-44161","post","type-post","status-publish","format-standard","hentry","category-admissibility-of-evidence","category-cell-phones"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/44161","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=44161"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/44161\/revisions"}],"predecessor-version":[{"id":44163,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/44161\/revisions\/44163"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=44161"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=44161"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=44161"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}