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Posted by: Tanja Trezise on Oct 9, 2014

Head Comment: CORRECTION: On page two- name correction for Clark B. Thornton.

Court: TN Court of Criminal Appeals

Attorneys 1:

Jim Todd, Nashville, Tennessee, for the appellant, Jerry Brandon Phifer.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

The defendant, Jerry Brandon Phifer, was convicted of one count of aggravated robbery, a Class B felony, and one count of aggravated burglary, a Class C felony. On appeal, the defendant argues that the trial court erred by: (1) denying his motion to suppress the results of a traffic stop that occurred two weeks prior to his arrest; (2) denying the motion to suppress evidence seized as a result of the warrantless installation of a GPS tracking device; (3) finding that the State had probable cause to arrest the defendant; (4) finding that the defendant’s waiver of his Miranda rights was knowing and voluntary; (5) declaring Jongho Lim an unavailable witness pursuant to Tennessee Rule of Evidence 804 and admitting his prior testimony as substantive evidence; (6) imposing consecutive sentences; and (7) violating the defendant’s due process rights based upon the cumulative effect of the errors. After review of the record and the applicable law, we affirm the trial court’s findings in issues 1, 4, 5, and 6. We conclude that the warrantless use of the GPS tracking device constituted an illegal search, and the evidence obtained therefrom, including the defendant’s arrest and statements to police, must be suppressed. We reverse the trial court’s denial of the motion to suppress the evidence and remand the case for a new trial.