IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE, (
FILED
FOR PUBLICATION
( June 22, 1998
Appellee, ( Filed: June 22, 1998
( Cecil Crowson, Jr.
( Appellate C ourt Clerk
v. ( Madison Criminal
(
( Hon. Whit LaFon,
JOHNNY M. HENNING, ( Judge
(
Appellant. ( No. 02S01-9707-CC-00065
For State-Appellee: For Defendant-Appellant:
John Knox Walkup Hughie Ragan
Attorney General & Reporter Jackson, Tennessee
Michael E. Moore
Solicitor General
Kenneth W. Rucker
Assistant Attorney General
Nashville, Tennessee
James G. Woodall
District Attorney General
Twenty-Sixth Judicial District
Jackson, Tennessee
Shaun A. Brown
Assistant District Attorney General
Jackson, Tennessee
OPINION
AFFIRMED. DROWOTA, J.
We granted this appeal primarily to consider two issues: 1) whether the
search warrant in this case is supported by probable cause and is otherwise valid;
and 2) whether an appellate court reviewing a pretrial ruling that a search warrant
was validly executed may consider the entire record, including evidence submitted
at trial, in addition to evidence submitted at the pretrial suppression hearing. We
have determined that the search warrant issued in this case is supported by
probable cause and free from other defects. As to the second issue, which is a
question of first impression in Tennessee, we have determined that an appellate
court may consider the entire record, including the evidence submitted at trial, in
evaluating the correctness of a pretrial ruling that a search warrant was validly
executed. Accordingly, for the reasons that follow, the judgment of the Court of
Criminal Appeals upholding the trial court’s denial of the defendant’s motion to
suppress is affirmed.
FACTUAL BACKGROUND
On October 21, 1993, Johnny Henning was arrested at his home and police
seized .9 grams of cocaine, an unknown quantity of Mannitol, a substance
commonly mixed with cocaine, and a set of scales. The arrest, search, and
seizure was the culmination of several hours of surveillance of Henning’s home by
Officer Mark Caldwell of the Madison County Sheriff’s Department and a member
of the Drug Task Force of the 26th Judicial District.
After receiving information from a confidential informant that Henning was
selling crack cocaine, Officer Caldwell positioned himself in a field across the road
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from Henning’s residence at approximately 3:00 p.m. Between 3:00 p.m. and
4:20 p.m. that day, Caldwell observed three cars arrive separately at Henning’s
house. Each time, Caldwell observed Henning approach the car, talk to the
occupants for a short time, walk to the side of his house, return about four
seconds later, again approach the car, and then exchange something with the
occupants. Following the last exchange at approximately 4:30 p.m., Henning left
his home on foot.
During his absence, Officer Caldwell telephoned Captain Thomas A.
Coleman, described the transactions he had observed, and directed Capt.
Coleman to obtain a search warrant for Henning’s residence. Capt. Coleman
prepared an affidavit, obtained the warrant, returned to a location near Henning’s
residence with several other officers, and waited for Caldwell to call for execution
of the warrant.
Henning returned at 5:00 p.m, and thereafter, Caldwell observed two more
exchanges before Henning again departed his residence in a vehicle at
approximately 6:30 p.m. Caldwell maintained his position in the field across from
Henning’s home for about twenty minutes after Henning departed, but eventually
crossed the road and positioned himself so that he could observe the west side of
the house to which Henning had walked before each prior exchange had
occurred.
From that vantage point, Caldwell had observed three different vehicles
arrive at Henning’s residence. Each time the occupants remained inside their cars
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for a short time before approaching Henning’s house and knocking on the door.
Each time the visitors left as soon as Henning’s wife came to the door and told
them, “Johnny’s not here.”
Henning returned home at approximately 8:30 p.m., and shortly thereafter,
another car arrived at his residence. Henning came outside and spoke to the
driver and passenger of the vehicle. Caldwell observed Henning go to a concrete
block at the side of the house. During this activity, Caldwell crawled into
Henning’s yard, and was lying on the ground beside an abandoned car on the
west side of the house. Caldwell said he had been “very, very close” to Henning
and the occupants of the car. At that point, Caldwell called for backup assistance
from Capt. Coleman and the other officers located a short distance from
Henning’s residence. After making the call, Officer Caldwell stood and
approached the defendant who was engaged in conversation with one of the
occupants of the car. Henning began to flee toward his residence, and Caldwell
pursued him, stating that he knew it would be difficult to “keep up with where the
drugs were going to be . . . if they got in the house. . . .” Caldwell seized Henning
as he was entering his residence, and they fell into the doorway of Henning’s
residence.1
Once he had apprehended Henning, Caldwell announced he was a police
officer and told the defendant he had a search warrant. Caldwell ordered Henning
1
Apparently one of the occupants of the car involved in the exchange fled the scene on foot
and the other departed the scene in the car.
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and the other occupants of the house to sit down. Henning sat on the sofa, and
Caldwell observed him throw something on the carpet and try to kick it under the
couch. Caldwell recovered the object, and a subsequent laboratory analysis
revealed the substance to be .9 grams of cocaine. Other officers assisting in the
execution of the search warrant found Mannitol, a substance often combined with
cocaine, and a set of scales, inside a drainage pipe on the west side of the house
to which the defendant had walked before each transaction occurred.
The defendant moved pretrial to suppress the evidence seized as a result
of the search. The motion was denied, and the case proceeded to trial. The jury
found the defendant guilty of possession of cocaine with intent to sell, possession
of cocaine with intent to deliver, and possession of drug paraphernalia. The trial
court merged the two cocaine possession verdicts into a single conviction. The
defendant was sentenced to twelve years for the felony possession conviction and
eleven months, and twenty-nine days for the misdemeanor drug paraphernalia
conviction. The sentences were ordered to be served concurrently. The
defendant appealed, raising numerous issues. The intermediate court affirmed
the convictions, but remanded for resentencing because of a conflict between the
bench ruling and the judgment as to the applicable sentencing range. Thereafter,
we granted permission to appeal and now affirm the judgment of the Court of
Criminal Appeals.
I. CONSTITUTIONAL VALIDITY OF THE SEARCH WARRANT
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A. Probable Cause
Initially, the defendant contends that the affidavit, upon which the search
warrant was issued, did not establish probable cause because the affidavit failed
to allege facts from which the credibility of the informant and the reliability of the
information could be determined as is constitutionally required in Tennessee by
this Court’s decision in State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). The
State first responds that the affidavit contained facts from which the magistrate
could determine the credibility of the informant and the reliability of the
information, and alternatively argues that any deficiencies in the affidavit were
remedied by the independent police corroboration outlined in the affidavit in this
case. We agree.
The Fourth Amendment 2 to the United States Constitution requires that
search warrants issue only “upon probable cause, supported by Oath or
affirmation.” Article I, Section 7 of the Tennessee Constitution precludes the
issuance of warrants except upon “evidence of the fact committed.” Therefore,
under both the federal and state constitutions, no warrant is to be issued except
upon probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d
527 (1983); State v. Jacumin, supra; Tenn. Code Ann. § 40-6-103 (1997 Repl.).
Probable cause has been defined as a reasonable ground for suspicion,
supported by circumstances indicative of an illegal act. Lea v. State, 181 Tenn.
378, 181 S.W.2d 351, 352 (1944).
2
The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent.
Map p v. O hio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1 081 (1961).
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In Tennessee, a finding of probable cause supporting issuance of a search
warrant must be based upon evidence included in a written and sworn affidavit.
Tenn. Code Ann. 40-6-104 (1997 Repl.); Tenn. R. Crim. P. 41(c); Jacumin, 778
S.W.2d 432. Indeed, an affidavit containing allegations from which the magistrate
can determine whether probable cause exists is an indispensable prerequisite to
the issuance of a search warrant in this State. Id.; see also State ex rel.
Blackburn v. Fox, 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (Tenn. 1956). The
affidavit must set forth facts upon which a neutral and detached magistrate,
reading the affidavit in a common sense and practical manner, can find probable
cause for the issuance of a search warrant. State v. Bryan, 769 S.W.2d 208, 210
(Tenn. 1989). To ensure that the magistrate exercises independent judgment, the
affidavit must contain more than mere conclusory allegations by the affiant.
Jacumin, 778 S.W.2d at 432; State v. Moon, 841 S.W.2d 336, 337 (Tenn. Crim.
App. 1992). An affidavit may contain hearsay information and need not reflect the
direct personal observations of the affiant. Jacumin, 778 S.W.2d at 432; State v.
Melson, 638 S.W.2d 342, 354 (Tenn. 1982). However, under the Tennessee
Constitution, an affidavit containing hearsay information supplied by a confidential
informant can not support a finding of probable cause unless it also contains
factual information concerning the informant’s basis of knowledge and credibility.
Jacumin, 778 S.W.2d at 432, 436. While independent police corroboration can
make up deficiencies in either prong, we have recognized that “each prong
represents an independently important consideration that must be separately
considered and satisfied in some way.” Id. Appellate courts reviewing the
existence of probable cause to support issuance of a warrant may consider only
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the affidavit and may not consider other evidence provided to or known by the
issuing magistrate or possessed by the affiant. Jacumin, 778 S.W.2d at 432;
Moon, 841 S.W.2d at 337.
Having delineated the guiding principles, we now consider whether the
affidavit in this case sufficiently describes the informant’s credibility and basis of
knowledge. The affidavit, in pertinent part, provides as follows:
Personally appeared before me, Capt. Thomas Coleman, who
makes oath that he has probable cause for believing and does
believe that Johnny Henning is in possession of the following
described property, to-wit: illegal narcotics, crack cocaine, pictures,
ledgers, tapes, or records of drug sales or records of proceeds
therefrom . . . .
Affiant has been provided information by a reliable informant whose
reliability has been established by providing information which has
resulted in several arrest[s] in the past. Said informant was in the
company of a subject who stated the intention to obtain crack
cocaine and did go to the above described residence and did enter
the described residence and did display crack cocaine obtained
within the residence. Investigators with the drug task force did
observe five transactions of a type believed to be drug sales. The
resident of the dwelling, Mr. Henning has two prior arrest for
possession of drugs with intent to sale[sic], and a vehicle seizure for
possession of drugs. These transactions were observed within the
last 6 hours and the informant has been on the property within the
last 72 hours.
Affiant therefore asks that a warrant issue to search the person of
Johnny Henning and the premises herein described . . . [for] illegal
narcotics crack cocaine.
With respect to the informant’s basis of knowledge, the affidavit contained
specific allegations: “[s]aid informant was in the company of a subject who stated the
intention to obtain crack cocaine and did go to the above described residence and
did enter the described residence and did display crack cocaine obtained within the
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residence.” The affidavit also alleged that the informant had been on the premises
in the last 72 hours. The informant’s personal observation and knowledge of
Henning’s activities satisfies the basis of knowledge prong of Jacumin. See State v.
Valentine, 911 S.W.2d 328, 330 (Tenn. 1995).
However, as the Court of Criminal Appeals recognized, the affidavit contains
only a conclusory allegation regarding the informant’s credibility: “a reliable informant
whose reliability has been established by providing information which has resulted
in several arrest[s] in the past.” Although there is no specific allegation in the affidavit
which, on its face, establishes the credibility of the informant, the independent police
corroboration of the informant’s tip, explained in the affidavit, is sufficient to establish
the informant’s credibility. As Judge Wade, writing for the Court of Criminal Appeals,
stated:
While the affidavit here contains nothing more than a conclusory
attestment of the reliability of the informant, police had seen ‘five
transactions of what appeared to be drug sales.’ Police learned that
the defendant had two prior arrests for drug violations and vehicle
seizure. That officers knew of the prior arrests and seizure, that they
had placed his residence under surveillance for six hours within three
days of the report by the informant, and that they had observed actions
by the defendant consistent with the sale of illegal drugs, does provide
the very kind of corroboration envisioned by the ruling in Jacumin.
We agree with the Court of Criminal Appeals that the independent police
corroboration sufficiently established the informant’s credibility, and the affidavit in
this case was sufficient to support a finding of probable cause justifying issuance of
the search warrant.
B. General Warrant
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The defendant next contends that the search warrant is unconstitutional
because it failed to adequately specify the items to be located during the search of
the premises. The State responds that the search warrant adequately delineated the
items for which a search had been authorized. We agree.
Under the Fourth Amendment a search warrant must contain a particular
description of the items to be seized. See Marron v. United States, 275 U.S. 192, 48
S.Ct. 74, 72 L.Ed. 231 (1927). Likewise, Article I, Section 7 of the Tennessee
Constitution prohibits general warrants, and, in addition, Tenn. Code Ann. § 40-6-103
(1997 Repl.), specifically requires that search warrants describe the property to be
seized with particularity. See Lea v. State, supra; Hampton v. State, 148 Tenn. 155,
252 S.W. 1007 (1923).
The constitutional prohibition against general warrants is designed to limit
governmental intrusion upon a citizen’s privacy and property rights to only that shown
to the magistrate to be necessary and to limit the discretion of the officer conducting
the search. Marron, supra; Wayne R. LaFave, Search and Seizure, § 4.6(a) (3rd ed.
1996)(hereinafter “LaFave”). To satisfy the particularity requirement, a warrant “‘must
enable the searcher to reasonably ascertain and identify the things which are
authorized to be seized.’” State v. Meeks, 867 S.W.2d 361, 367 (Tenn. Crim. App.
1993) (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981). However,
as this Court stated in Lea,
[W]here the purpose of the search is to find specific property, it should
be so particularly described as to preclude the possibility of seizing any
other. On the other hand, if the purpose be to seize not specified
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property, but any property of a specified character which, by reason of
its character, and of the place where and the circumstances under
which it may be found, if found at all, would be illicit, a description, save
as to such character, place and circumstances, would be unnecessary,
and ordinarily impossible.
181 Tenn. at 382-83,181 S.W.2d at 352-53 (emphasis added).
The warrant issued in this case authorized a search for “crack cocaine, illegal
narcotics, pictures, records, ledgers, tapes or items that tend to memorialize [sic]
drug sales and proceeds therefrom.” In our view, the warrant describes the character
of the property subject to seizure with sufficient particularity “to enable the searcher
to reasonably ascertain and identify the things which are authorized to be seized.”
See Melson, 638 S.W.2d at 353; State v. Meadows, 745 S.W.2d 886, 891 (Tenn.
Crim. App. 1987). Accordingly, the warrant is not unconstitutionally general and the
defendant’s claim is without merit.
C. Filing of the Affidavit
The defendant next contends that the warrant was invalid because the
underlying affidavit was not attached to nor filed with the warrant. We disagree.
While an affidavit must be retained in order to ensure subsequent judicial review of
the probable cause determination, there is no statute or rule in Tennessee which
requires an affidavit upon which a search warrant is issued to be attached or
otherwise kept with the warrant. State v. Smith, 836 S.W.2d 137, 141 (Tenn. Crim.
App. 1992). Rule 41(c), Tenn. R. Crim. P., contains mandatory recording and filing
requirements for warrants, but not for affidavits. The affidavit is not considered part
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of the search warrant in this State even if it appears on the same printed form as the
warrant. Minton v. State, 186 Tenn. 541, 212 S.W.2d 373 (1948); Hampton, supra.
Therefore, the fact that the affidavit here was not attached to the warrant is
inconsequential. The magistrate maintained a copy of the affidavit and it was made
a part of the record at the hearing on the defendant’s motion to suppress. There is
a printed reference on the search warrant to the affidavit made by Capt. Thomas
Coleman. The affidavit reflects that it was sworn to before the general sessions court
judge of Madison County on October 21, 1993, the same date that the warrant
issued. This issue is without merit.
II. MOTION TO SUPPRESS
A. Appellate Review
Even assuming the validity of the search warrant, the defendant next contends
that the trial court erred in denying his motion to suppress because the officers
executing the warrant failed to comply with the federal and state knock and announce
requirement before entering the defendant’s home. Before considering the merits of
this claim, we must first determine whether our review of this issue extends to the
entire record or to only that proof offered at the hearing on the motion to suppress.
In this case, the trial court commented at the suppression hearing that the only
substantial issue raised by the motion to suppress was the sufficiency of the search
warrant affidavit. Because the sufficiency of a search warrant affidavit is to be
determined from the allegations contained in the affidavit alone, the State offered no
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proof at the suppression hearing. Only the defendant testified, and Henning said that
Officer Caldwell did not “knock and announce,” but simply “barged” into his home.
However, at trial, the State offered the testimony of Officer Caldwell who related the
circumstances of the defendant’s arrest and the execution of the search warrant,
which have been previously set forth herein. Henning contends that the Court of
Criminal Appeals erred by considering the proof offered by the State at trial when
evaluating the correctness of the trial court’s ruling on the motion to suppress.
According to the defendant, when evaluating a trial court’s denial of a pretrial motion
to suppress, an appellate court must only consider the evidence that was before the
trial court at the hearing on the motion. The State, in contrast, argues that in
conducting its review, an appellate court may and should consider the entire record,
including evidence offered at trial.
It is well-settled in this State that courts reviewing a magistrate’s finding of
probable cause are limited to the allegations contained in the affidavit supporting
issuance of the warrant. Indeed, we previously have reaffirmed and applied this rule
in this opinion. However, our research has revealed no Tennessee decision
regarding the evidence which an appellate court may consider when reviewing a
pretrial ruling on a motion to suppress that does not relate to the validity of a search
warrant. While this is a question of first impression in Tennessee,3 other jurisdictions
have considered the question, in a variety of contexts, and the majority rule is that
3
Seldom will this issue arise in Tennessee. The denial of a motion to suppress is very often
followed by entry of a guilty plea. Therefore, if an appeal is taken pursuant to Tenn. R. Crim. P. 37,
the record before the reviewing court will consist only of the evidence offered at the hearing on the
motion to suppress. If a motion to suppress is granted, the prosecution is oftentimes terminated.
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appellate courts may consider evidence adduced at trial in evaluating the correctness
of a pretrial ruling on a motion to suppress. This rule is well established and
uniformly followed by the federal courts. Carroll v. U.S., 267 U.S. 132, 162, 45 S.Ct.
280, 288, 69 L.Ed. 543 (1925) (warrantless search); U.S. v. Han, 74 F.3d 537, 539
(4th Cir. 1996) (warrantless search); U.S. v. Rico, 51 F.3d 495, 503-04 (5th Cir. 1995)
(warrantless arrest); U.S. v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995)
(warrantless entry); U.S. v. Trevino, 60 F.3d 333, 336 (7th Cir. 1995) (warrantless
checkpoint stop); U.S. v. Martin, 982 F.2d 1236, 1240 (8th Cir. 1993) (warrantless
patdown search); U.S. v. Thomas, 875 F.2d 559, 562, n.2 (6th Cir. 1989) (warrantless
seizure); U.S. v. de Jesus-Rios, 990 F.2d 672, 674, n. 2 (1st Cir. 1993) (pretrial
identification); U.S. v. Corral, 970 F.2d 719, 723 (10th Cir. 1992) (investigatory stop
and warrantless search); Washington v. U.S., 401 F.2d 915, 920, n. 19 (D.C. Cir.
1968) (warrantless arrest); Rocha v. U.S., 387 F.2d 1019, 1020 (9th Cir. 1967)
(warrantless arrest).
Likewise, most state courts addressing the issue, again in a variety of
contexts, also have held that an appellate court may consider the entire record when
reviewing the correctness of a trial court’s ruling on a pretrial motion to suppress.
State v. Randall, 385 P.2d 709, 710 (Ariz. 1963) (warrantless arrest); State v.
Whitaker, 578 A.2d 1031, 1033 (Conn. 1990) (voluntariness of confession); People
v. Gilliam, 670 N.E.2d 606, 614 (Ill. 1996) (voluntariness of statement); Lamb v.
State, 348 N.E.2d 1, 3 (Ind. 1976) (voluntariness of statement); State v. Jackson, 542
N.W.2d 842, 844 (Iowa 1996) (inventory search); State v. Chopin, 372 So.2d 1222,
1224, n. 2 (La. 1979) (investigatory stop); State v. Parkinson, 389 A.2d 1, 10 (Me.
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1978) (warrantless arrest); State v. Sharp, 702 P.2d 959, 961 (Mont. 1985)
(investigatory stop); State v. Huffman, 148 N.W.2d 321, 322 (Neb. 1967) (warrantless
search); State v. Martinez, 612 P.2d 228, 231 (N.M. 1980) (warrantless arrest and
search); Commonwealth v. Chacko, 459 A.2d 311, 318, n. 5 (Pa. 1983)
(voluntariness of statement); State v. Keeling, 233 N.W.2d 586, 590, n.2 (S.D. 1975)
(pretrial identification); State v. Bruno, 595 A.2d 272, 273 (Vt. 1991) (investigatory
stop); Carroll v. State, 938 P.2d 848, 850 (Wyo. 1997) (warrantless arrest); Henry v.
State, 468 So.2d 896, 899 (Ala. Crim. App. 1984) (voluntariness of statement);
Sayers v. State, 487 S.E.2d 437, 438 (Ga. App. 1997) (investigatory stop); State v.
Kong, 883 P.2d 686, 688 (Hawaii App. 1994) (voluntariness of statement); State v.
Sims, 952 S.W.2d 286, 290 (Mo. App. 1997) (pretrial identification); Woodson v.
Commonwealth, 491 S.E.2d 743, 745 (Va. App. 1997) (warrantless search). But see
contra Trusty v. State, 521 A.2d 749, 755 (Md. 1987) (warrantless arrest);
Commonwealth v. Doulette, 609 N.E.2d 473, 474 (Mass. 1993) (warrantless search);
People v. Kaigler, 118 N.W.2d 406, 409 (Mich. 1962) (warrantless search); State v.
Buzzard, 461 S.E.2d 50, 58 (W.Va. 1995) (warrantless search); People v. Breault,
273 Cal. Rptr. 110, 117 (Cal.App. 4 Dist. 1990) (warrantless search); People v.
Braithwaite, 568 N.Y.S.2d 135, 136 (N.Y.A.D. 2 Dept. 1991) (investigatory stop);
Alexander v. State, 305 P.2d 572, 576 (Ok. Crim. App. 1956) (voluntariness of
statement); Smith v. State, 840 S.W.2d 689, 691 (Tex. App. 1992) (investigatory
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stop); see generally LaFave, § 11.7(d).4
We previously have recognized that when suppression of evidence seized
pursuant to a search warrant is advocated, the burden is upon the accused to prove
by a preponderance of the evidence: (1) the existence of a legitimate expectation of
privacy in the place or property from which the items sought to be suppressed were
seized; (2) the identity of the items sought to be suppressed; and (3) the existence
of a constitutional or statutory defect in the search warrant or the search conducted
pursuant to the warrant. State v. Evans, 815 S.W.2d 503, 505 (Tenn. 1991); State
v. Harmon, 775 S.W.2d 583, 585-86 (Tenn. 1989). Conversely, if suppression of
evidence seized without a warrant is sought, the burden is upon the State to prove
that the search and seizure was conducted pursuant to one of the exceptions to the
warrant requirement. Id. These principles are important and must guide the trial
court’s decision upon a pretrial motion to suppress. However, in our view, these
principles do not require an appellate court, or a trial court considering a motion for
new trial, to ignore trial evidence which reinforces or negates the correctness of the
pretrial ruling on the motion. To hold otherwise would exalt form over substance.
4
Though none of these decisions address the specific question at issue in this appeal - the
evidence which may be considered by an appellate court reviewing a pretrial ruling that a search
warrant was validly executed - the general principle is the same. Where, as here, a defendant
attem pts to sup press e vidence seized pu rsuant to a warran t on the gro unds th at the State failed to
com ply with the kn ock an d anno unce ru le, the State m ust offer proof to e stablish an excep tion to
the knock and announce rule. Likewise, when suppression of evidence seized in a warrantless
search is sough t, the State m ust offer proof to e stablish tha t the searc h was c onduc ted purs uant to
an exception to the warrant requirement. In contrast, where evidence is seized pursuant to a
warrant, and the defendant seeks suppression on the sole basis that th e issu ing ju dge erred in
finding probable cause to support the warrant, the only evidence which may be presented by the
State is the affid avit su ppo rting is sua nce of the sear ch w arra nt Th e Sta te m ay not offe r extr insic
evidence to bolster the allegations in the affidavit. Likewise, appellate courts reviewing a finding of
probable cause are limited to the allegations contained in the affidavit supporting issuance of the
warrant. Our holding herein does not alter nor abrogate this long-standing rule of criminal
proced ure.
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Certainly, a defendant should not be convicted upon evidence that was seized
in violation of the Fourth Amendment’s protection against unreasonable searches
and seizures simply because the illegality is established by proof offered at trial,
rather than proof offered at the suppression hearing. Likewise, if proof adduced at
trial establishes a lawful search or seizure, the evidence should not be excluded
simply because the proof at the suppression hearing did not establish its legality.
This is particularly true in light of the primary purpose of the exclusionary rule which
is to deter police misconduct. State v. Huddleston, 924 S.W.2d 666, 676 (Tenn.
1996). Suppressing evidence lawfully seized simply because the legality of the
seizure was established by proof introduced at trial, rather than proof introduced at
the suppression hearing, in no way furthers the purpose of the rule and could
perhaps be inimical to prudent law enforcement practices.
The Tennessee Rules of Appellate Procedure are to “be construed to secure
the just, speedy, and inexpensive determination of every proceeding on its merits.”
Rule 1, Tenn. R. App. P. To that end, the appellate courts of this State are
authorized to “grant the relief on the law and facts to which the party is entitled or the
proceeding otherwise requires. . . .” Rule 36(a), Tenn. R. App. P. In our view, these
rules contemplate that allegations of error should be evaluated in light of the entire
record. Accordingly, we hold that in evaluating the correctness of a trial court’s ruling
on a pretrial motion to suppress, appellate courts may consider the proof adduced
both at the suppression hearing and at trial.
Our holding with regard to the evidence which may be considered by an
appellate court does not modify the applicable standard of review, which we recently
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clarified in State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We reiterate that an
appellate court should uphold a trial court’s decision on a motion to suppress, unless
the evidence in the record preponderates against the finding. “Questions of credibility
of 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.” Id. The party
prevailing in the trial court is entitled to the strongest legitimate view of the evidence,
as well as all reasonable and legitimate inferences that may be drawn from the
evidence. Id. Upon consideration of the entire record in this case, we conclude, for
the reasons that follow, that the evidence does not preponderate against the trial
court’s denial of the defendant’s motion to suppress.
B. Knock and Announce
Pursuant to constitutional and statutory mandates, before an officer executing
a search warrant makes a forced entry into an occupied residence, the officer
generally must knock on the door of the residence and announce his or her authority
and purpose. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976
(1995); Tenn. R. Crim. P. 41(e); State v. Lee, 836 S.W.2d 126 (Tenn. Crim. App.
1991). To comply with this rule, officers generally must (a) identify themselves as law
enforcement officials and b) explain the purpose of their presence, i.e. the execution
of a search warrant. Id. If the officer is not admitted to the residence after giving
proper notice, the officer is authorized to “break open any door or window . . ., or any
part thereof, . . . to the extent that it is reasonably necessary to execute the warrant
and does not unnecessarily damage the property.” Tenn. R. Crim. P. 41(e). This
long standing principle derives from the common law which generally protected a
man’s house as “his castle of defense and asylum.” Wilson, 514 U.S. at 931, 115
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S.Ct. at 1916. The purpose of the “knock and announce” rule is threefold. It provides
protection from violence, both to the occupants of the residence and to the entering
law enforcement officers. Secondly, it protects the privacy interest that is inherent in
the home, and finally, it protects against the needless destruction of private property.
Richards v. Wisconsin, __ U.S. __, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997); Wilson,
514 U.S. at 930-32, 115 S.Ct. at 1917; Lee, 836 S.W.2d at 128.
However, the knock and announce requirement is not absolute. Compliance
is not required if knocking and announcing would increase the officer’s peril, or if an
officer executing a warrant perceives indications of flight or indications that evidence
is being destroyed. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726
(1963); State v. Fletcher, 789 S.W.2d 565 (Tenn. Crim. App. 1990). These are
exigencies excusing compliance. Id. Indeed, recently, the United States Supreme
Court specifically held that law enforcement officials executing a search warrant may
initiate a “no-knock” entry, if they have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances of a case would be
“dangerous or futile, or that it would inhibit the effective investigation of the crime by
. . . allowing the destruction of evidence.” Richards, __ U.S. __, 117 S.Ct. at 1421-
22.
Applying these guiding principles to the facts of this case we agree with the
Court of Criminal Appeals that under the particular circumstances of this case,
compliance with the rule was not required. Here, Officer Caldwell testified that he
was hiding a short distance away and observed Henning complete a drug transaction
just outside his home. After calling for back up assistance, Officer Caldwell decided
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to execute the search warrant. When he stood and approached the defendant,
Henning fled toward his residence, and Caldwell pursued him, stating that he knew
it would be difficult to “keep up with where the drugs were going to be . . . if they got
in the house. . . .” Caldwell seized Henning as he was entering his residence, and
they fell into the doorway of Henning’s residence. Officer Caldwell then announced
he was a police officer, with a search warrant, and ordered Henning to sit on the
couch. Henning sat down and attempted to kick crack cocaine under the sofa.
Officer Caldwell recovered the substance. These circumstances establish both that
the defendant fled and that Officer Caldwell reasonably suspected that the evidence
would be destroyed if he did not apprehend Henning before he retreated inside his
home. Considering these circumstances the officer’s failure to formally comply with
the “knock and announce” rule was excused in this case by the exigencies involved.
Moreover, the defendant’s warrantless arrest in this case was justified. A
police officer may make a warrantless arrest upon probable cause that a felony has
been committed. Tenn. Code Ann. § 40-7-103(a)(4) (1997 Repl.). Probable cause
exists if the facts and circumstances within the officer’s knowledge at the time of the
arrest, and of which the officer “had reasonably trustworthy information sufficient to
warrant a prudent man in believing that the petitioner had committed or was
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13
L.Ed.2d 142 (1964). While warrantless felony arrests inside a home are generally
prohibited by the Fourth Amendment absent probable cause and exigent
circumstances, Payton v. New York, 445 U.S. 573, 583-590, 100 S.Ct. 1371, 1378,
1382, 63 L.Ed.2d 639 (1980); State v. Clark, 844 S.W.2d 597, 599 (Tenn. 1992), in
this case, both probable cause and exigent circumstances supported the warrantless
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arrest. Probable cause arose from the confidential informant’s tip, significant first-
hand corroboration of the tip by Officer Caldwell, and Officer Caldwell’s up-close
observation of the last of what appeared to be cocaine sales. Exigent circumstances
arose when the defendant fled upon Officer Caldwell’s approach. See U.S. v.
Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976) (hot
pursuit of a fleeing felon justified warrantless arrest inside home). The record
demonstrates that both the execution of the search warrant and the warrantless
arrest in this case were constitutionally sound. Accordingly, after reviewing the
record, we conclude that the evidence does not preponderate against the trial court’s
denial of the defendant’s motion to suppress.
CONCLUSION
For the reasons previously stated, we conclude that the search warrant in this
case was supported by probable cause and was free from other defects. Moreover,
upon consideration of the evidence in this record, we have also determined that the
trial court appropriately denied the defendant’s pretrial motion to suppress.
Accordingly, the judgment of the Court of Criminal Appeals upholding the trial court’s
denial of the defendant’s motion to suppress and the judgment of conviction is
affirmed.
We also affirm the judgment of the Court of Criminal Appeals in all other
respects and accordingly remand this cause to the trial court for resentencing
because of a conflict between the bench ruling and the judgment as to the applicable
sentencing range. In imposing the appropriate sentence, the trial court should
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consider the terms of Tenn. Code Ann. § 40-35-106, make any factual determinations
necessary, and specify the applicable sentencing range.
______________________________
FRANK F. DROWOTA, III,
JUSTICE
Concur:
Anderson, C.J., and Holder, J.
Separate Concurring Opinion By:
Birch, J. and Reid, Sp. J.
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