IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1999 SESSION
FILED
March 26, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9809-CC-00295
Appellee, )
) Haywood County
V. )
) Honorable Dick Jerman, Jr., Judge
)
HOWARD KAREEM ATKINS, ) (Possession of Schedule VI
) With Intent)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
TOM W. CRIDER JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
JOYCE DIANE STOOTS JOHN ROSS DYER
Assistant Public Defender Assistant Attorney General
107 South Court Square Criminal Justice Division
Trenton, TN 38382 425 Fifth Avenue North
Nashville, TN 37243
CLAYBURN PEEPLES
District Attorney General
110 College, Suite 200
Trenton, TN 38382
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
In the Circuit Court of Haywood County, Tennessee, the defendant,
Howard K. Atkins, pleaded guilty to possession of a schedule VI controlled
substance with intent to sell or deliver. On a certified question of law, the
defendant appeals the trial court’s denying his pre-trial motion to suppress
evidence. We AFFIRM the trial court’s judgment.
BACKGROUND
The defendant states the issue as follows:
Whether the trial judge committed error of prejudicial
dimensions by failing to suppress the items seized pursuant
to law enforcement officers executing a search warrant for
defendant’s home without giving notice and making an
unannounced forcible entry into the premises when no
exigent circumstances existed to justify said lack of notice
and unannounced forcible entry in violation of defendant’s
Fourth Amendment rights.
The trial judge’s Order certifies the question under Tenn. R. Crim. P. 37(b)(2)(i):
An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and
from any judgment of conviction: . . . (2) Upon a plea of
guilty or nolo contender if: (i) Defendant entered into a plea
agreement under Rule 11(e) but explicitly reserved with the
consent of the state and of the court the right to appeal a
certified question of law that is dispositive of the case.
However, the defendant cites Tenn. R. Crim. P. 37(b)(2)(iv), which addresses an
appeal from a plea not subject to any agreement with the state:
An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and
from any judgment of conviction: . . . (2) Upon a plea of
guilty or nolo contender if: . . . (iv) Defendant explicitly
reserved with the consent of the court the right to appeal a
certified question of law that is dispositive of the case.
Under this authority, an appeal does not require permission from the state. The
Judgment incorporates the Order by reference, and that Order satisfies either
standard because it comprises (1) a statement of the certified question, sufficient
to “clearly identify the scope and the limits of the legal issue reserved”;
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(2) consent to the appeal from the trial judge and from the state; and (3) accord
from the trial judge and from the state on the dispositive nature of the question.
See State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988); see also Tenn. R.
Crim. P. 37, advisory comm’n cmts. [1997]. Further, this Court agrees that, on
the submitted record, the certified question is dispositive: suppression of the
evidence would dispose of the state’s case. See State v. Curtis, 964 S.W.2d
604, 609 (Tenn. Crim. App. 1997) (Peace officers violating the “knock and
announce” rule during search warrant execution risk “the exclusion of any
evidence seized under color of the warrant.”). See generally State v. Harris, 919
S.W.2d 619, 621 (Tenn. Crim. App. 1995) (Suppression of evidence found in a
residence during an allegedly invalid search necessitated dismissal.). The
appeal is properly before this Court.
Pursuant to a narcotics investigation, Investigator Billy Blackwell of the
Haywood County Sheriff’s Department obtained a search warrant for the
defendant’s premises. Blackwell supervised execution of the warrant. Two
officers approached the premises from the rear as Blackwell and two other
officers approached the front.
The two officers in the rear advised Blackwell via radio that someone
apparently saw the officers from a back window of the premises and ran from the
window. These officers gave no further information to Blackwell regarding the
actions, description, or location of this unknown person. Blackwell approached
the front of the residence. The main front door was open, but the storm door
was closed. Blackwell observed several people inside the residence. He
opened the storm door and “advised that [he] had a search warrant--it was the
Sheriff’s Department with a search warrant” as he entered. Blackwell stated that
he entered the residence and commenced his search because he feared that the
person observed in the rear of the house might destroy illegal narcotics. The
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officers charged the defendant for possession of suspected narcotics found in
the residence.
STANDARD OF REVIEW
A trial court’s determination of fact at a suppression hearing “is
presumptively correct on appeal.” State v. Stephenson, 878 S.W.2d 530, 544
(Tenn. 1994). This Court upholds a trial court’s decision “unless the evidence in
the record preponderates against the finding.” State v. Henning, 975 S.W.2d
290, 299 (Tenn. 1998). “‘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 view of the evidence, as well as all
reasonable and legitimate inferences that may be drawn from the evidence.” Id.
This Court does apply law de novo to the trial court’s findings of fact. See State
v. Yeager, 958 S.W.2d 626, 629 (Tenn. 1997).
ANALYSIS
The Fourth Amendment of the United States Constitution requires
reasonableness analysis on judicial review of state peace officers’
noncompliance with a “knock and announce” rule during search warrant
execution. See Curtis, 964 S.W.2d at 609. The “knock and announce” rule
explicitly applies to search warrant service in Tennessee:
If after notice of his authority and purpose a peace officer is
not granted admittance, or in the absence of anyone with
authority to grant admittance, a peace officer with a search
warrant may break open any door or window of a building or
vehicle, or any part thereof, described to be searched in the
warrant 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). Absent exigent circumstances, simultaneous
announcement and entry is unacceptable, and the serving officer must “wait a
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reasonable period of time” after announcement before entering. See State v.
Lee, 836 S.W.2d 126, 128 (Tenn. Crim. App. 1991). A law enforcement officer
executing a search warrant must generally give notice of (1) his authority (i.e.,
status as a peace officer) and (2) the purpose of his presence. See Curtis, 964
S.W.2d at 609. This rule protects occupants and officers from violence, protects
privacy, and prevents needless destruction of property. See id. “The state has
the burden of establishing facts and circumstances which constitute exigent
circumstances,” and these alleged circumstances must rise above “general
fears” or “‘mere hunch or suspicion.’” Id. at 610. Factors potentially establishing
exigent circumstances include:
(a) a person within the dwelling knows of the officer’s
authority and purpose; (b) the officers have a justified belief
someone within the dwelling is in immediate peril of bodily
harm; (c) the officers have a justified belief those inside the
dwelling are aware of their presence and are engaged in
escape or the destruction of evidence; (d) a person inside
the dwelling is armed and is either likely to use the weapon
or become violent; or (e) the person inside the dwelling has
threatened an officer’s safety, possesses a criminal record
reflecting violent tendencies, or has a verified reputation of
a violent nature.
Id. (emphasis added).
The submitted question challenges the state’s articulated exigent
circumstances: Did Officer Blackwell justifiably believe that persons inside the
residence were aware of the officer’s presence and were engaged in the
destruction of evidence?
Illegal narcotics are susceptible to destruction. However, this
susceptibility does not automatically constitute exigent circumstances. See
United States v. Bates, 84 F.3d 790, 796 (6th Cir. 1996); see also Richards v.
Wisconsin, 117 S.Ct. 1416, 1417, 1420 (1997) ( Felony drug investigations do
not receive blanket exception from the “knock and announce” requirements
under Fourth Amendment reasonableness analysis.). Absent sounds of
evidence being destroyed, officers serving a search warrant pursuant to a
narcotics investigation and hearing music inside the premises may not force
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entry without complying with the rule. See State v. Fletcher, 789 S.W.2d 565,
566 (Tenn. Crim. App. 1990). Further, compliance with the “knock and
announce” rule is not excused by the main door of a residence being open, with
the screen door closed. See Lee, 836 S.W.2d at 129.
Conversely, officers with a search warrant for narcotics who hear running,
scuffling, and loud noise after identifying themselves “may readily conclude that
the drugs are being destroyed or flushed down the toilet” and may immediately
force entry. Keith v. State, 542 S.W.2d 839, 841 (Tenn. Crim. App. 1976).
Cumulative circumstances may constitute exigency. In Henning, 975 S.W.2d at
300, an officer with a search warrant observed the defendant conclude a drug
transaction outside the premises to be searched. The defendant fled from the
officer’s approach, and the officer seized the defendant in the doorway. The
officer identified himself and his purpose and observed the defendant attempt to
kick cocaine under a sofa. The Tennessee Supreme Court affirmed that these
circumstances cumulatively articulated a threat of destruction to any narcotics
evidence in the premises and therefore excused compliance with the “knock and
announce” rule. See Henning, 975 S.W.2d at 300.
A recent case presents facts similar to this appeal. In Curtis, 964 S.W.2d
at 607 (Tenn. Crim. App. 1997), peace officers obtained a search warrant for
crystal methamphetamine. As officers approached the residence for execution
of the warrant, one officer claimed he saw “a silhouette . . . of a human being”
through a window. The silhouette allegedly closed a window and disappeared
“fairly quickly.” Id. The officer could state neither the gender of the silhouette
nor the area of the residence in which it was standing. Officer safety and
evidence preservation concerns motivated an expedited entrance, and they
entered the residence without performing a “knock and announce.”
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In Curtis, the trial court found no exigent circumstances and granted the
defendant’s motion to suppress evidence. See id. at 607, 608. The trial court
questioned the credibility of the observing officer’s alleged perception of a
silhouette. On appeal, the state, as moving party, did not provide the requisite
preponderance of evidence. This Court noted that the officer could not identify
the gender of the silhouette, in what portion of the residence he saw the
silhouette, or to what portion of the dwelling the silhouette was going “rather
rapidly.” Further, no evidence in the record supported the officer’s allegation that
the person in the residence responsible for the silhouette recognized the identity
or the purpose of the officers. The articulated concerns were thus “generalized
fears” and not exigent circumstances. Id. at 611.
In the instant case the state receives the benefit of the trial court’s
presumption of correctness. The defendant must show by a preponderance of
evidence that the circumstances of service did not merit the finding of an
exigency. The trial court found no Fourth Amendment violation because that
court found that the state met its burden of showing exigent circumstances. The
record submitted to this Court does not constitute a preponderance of evidence
from which one might overcome the presumption granted to the trial court’s
holding. The record supports the trial court’s concluding that the officer’s
concerns were reasonable and justified immediate entry. The issue is without
merit.
CONCLUSION
The judgment below is AFFIRMED.
____________________________
JOHN EVERETT WILLIAMS, Judge
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CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JOE G. RILEY, Judge
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