IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
January 7, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9708-CR-00365
Appellee, )
) Davidson County
V. )
) Honorable Thomas H. Shriver, Judge
)
RODNEY FORD, ) (Aggravated Robbery)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jay Norman John Knox Walkup
213 Third Ave. N. Attorney General & Reporter
Nashville, TN 37201
Daryl J. Brand
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Victor S. (Torry) Johnson III
District Attorney General
Kymberly Haas
Assistant District Attorney General
Washington Sq., Suite 500
222 Second Ave. N.
Nashville, TN 37201-1649
OPINION FILED: ___________________
REMANDED FOR EVIDENTIARY HEARING WITH INSTRUCTIONS
PAUL G. SUMMERS,
Judge
OPINION
The defendant was convicted by a jury of three counts of aggravated
robbery. He was sentenced as a range I standard offender to three concurrent
terms of eight years. In this direct appeal, the defendant contends that the trial
court erred in denying his motion to suppress evidence. Upon our review of both
the suppression hearing and the trial, 1 we remand this matter for further
proceedings consistent with this opinion.
FACTS
Although the defendant does not directly challenge the sufficiency of the
evidence, a brief recitation of the facts is necessary. On February 8, 1994, Kay
Krantz, the co-owner of Kwik Kash Pawn, was working in the shop. Grady Morris
and Timothy Guinn entered with handguns. Morris knocked Krantz to the floor
behind the counter and repeatedly threatened to kill her. He took cash out of the
cash drawer. Krantz did not see a third person but learned from a customer that
he had seen three men driving away. She testified that approximately $33,000
worth of jewelry, handguns, and money was stolen during the robbery. Morris
was the only person she saw actually take things.
One day in early May 1994, Kim Hill was working with Melonie Rose and
Jack Garland in Capitol View Pawn. A car pulled alongside the building, a man
got out, and the car left. The man entered the store and asked to see some car
speakers. His beeper then went off; he left, and immediately thereafter Guinn,
Morris, and a man named Lawrence Seging came in, all armed with 9 mm.
pistols. Guinn put his gun to Hill's head and Morris put his gun to Garland's
head. Seging went to the jewelry showcase. Rose then came out of her office
and got between Hill and Guinn. Guinn refused to release Hill and demanded
money. Rose opened the register and gave him the money. The phone rang,
and Guinn turned the gun on Rose. After taking the money, Guinn ordered the
two women to get down on the floor, which they did. Guinn threatened to kill
1
Our Sup reme C ourt has re cently held that “in eva luating the correctn ess of a tri al court's
ruling on a pretrial motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
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them both. Eventually the men left. Rose testified that approximately $40,000
worth of jewelry and three to five hundred dollars in cash were taken. Neither
Rose nor Hill could identify the defendant as having been in the store during the
robbery, but Hill testified that the man who had come in right before was the
same size, color, and build as the defendant and had the same hair.
On June 14, 1994, Detective Ricky Roll of the Metro Police Department
obtained an arrest warrant for Grady Morris. Later that day, Morris was spotted
driving an automobile. Several officers followed him until he stopped at the
defendant's residence on Boatner Drive. Detective Harold Dean Heaney
testified that he “[h]ad no idea” whose residence this was at the time. Although
the record does not contain the arrest warrant, Detective Roll testified at the
suppression hearing that they had Morris' home address. Morris also lived on
Boatner Drive, “down the street” from the defendant.
The officers watched Morris enter the defendant's residence. Detectives
Heaney and Roll went to the front door and announced themselves. No one
opened the door but they heard someone in the house running. The defendant
exited the back door, at which point he met several officers including Detective
Norris Tarkington with his gun drawn. An officer asked the defendant if Morris
was inside and he replied, “Yes.” The defendant further told them that his
younger brother might also be inside. Detectives Roll, Heaney, and Bill Stroud
entered the house through the back door and arrested Morris. Detective Stroud
then searched the house for other persons. During this search, Stroud located
some jewelry lying on a bed. The defendant was taken to the bedroom and,
upon being shown the jewelry, stated that it was his bedroom. Heaney advised
the defendant of his rights, and the defendant made incriminating statements.
The defendant was then placed under arrest.
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The defendant told the officers that “he was selling the jewelry for Grady
Morris” and told them there was more jewelry in the room. Detective Stroud then
searched the room and found more jewelry as well as numerous pawn tickets in
the defendant's and Morris' names. He also found some business cards and
other literature connected to various pawn shops. Stroud found no cash in the
defendant's house.
The defendant also told the officers that he knew about the guns and
knew where Morris and Guinn had put them. The defendant subsequently
accompanied the officers to this location but no guns were found. The police
then returned to the defendant's house (with the defendant), and he then
accompanied them to Morris' house. The officers obtained consent to search
Morris' house and found more jewelry and a large amount of cash. After this
search, the officers took the defendant to the Criminal Justice Center.
After arriving there, Heaney readvised the defendant of his rights, and the
defendant indicated that he was still willing to talk. Heaney testified that he
“asked [the defendant] if he wouldn't mind just to write down the places that he
had robbed and, also, to diagram [them] out for me.” Thirty to forty-five minutes
later, Heaney returned and collected a handwritten document labelled (by the
defendant) “Confession” and two hand-drawn maps. Heaney testified that the
diagrams were consistent with the lay-outs of the two pawn shops. The
defendant's “Confession” set forth the following:
Quick Cash Pawn. Grady Morris and Timothy Guinn
went into Quick Cash Pawn while I waited outside in
the car. After about 5 min[utes] passed I thought
something had went wrong and I entered. Grady &
Timothy were the only ones I observed, but I heard a
woman on the floor (I never saw). I told them to hurry
up and I took 3 of the cases of jewelry and came out.
About 20 seconds after me the two followed and we
drove off.
Capitol View Pawn. I was supposed to go in and just
look around; after about 2 min[utes] Tim and Grady
came in with the guns along with Larry Segance [sic]
(unarmed) and drew down on the workers. Larry
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began to take the jewelry and then I began to help
him. Next, we left. (I did not know this pawn shop
was to be robbed on that day.)
This document concludes with the defendant's signature and the date, “6/14.”
The officers did not have a search warrant for the defendant's residence.
At the suppression hearing, the defendant testified that the officers had not
asked his consent to enter the house. This testimony was uncontroverted.
ANALYSIS
In its order denying the defendant's motion to suppress, the trial court
addressed only the propriety of the “protective sweep” conducted by Detective
Stroud in searching the house for other persons. The trial court did not address
the warrantless entry into the defendant's residence although this issue was
raised and briefed by the defendant. Accordingly, our review of this issue is de
novo. See, e.g., State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App.
1996).
The Fourth Amendment to the United States Constitution provides that
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated.” See
also Tenn. Const. art. I, § 7. Accordingly, warrantless searches and seizures
within a home are presumptively unreasonable. See Payton v. New York, 445
U.S. 573, 586 (1980); State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996).
Absent consent or exigent circumstances, police officers may not seek the
subject of an arrest warrant in the home of a third person without first obtaining a
search warrant. See Steagald v. United States, 451 U.S. 204, 216 (1981); State
v. Patterson, 966 S.W.2d 435, 441-42 (Tenn. Crim. App. 1997). Exigent
circumstances may be found in three situations: “(1) when the officers [are] in
hot pursuit of a fleeing suspect; (2) when the suspect represent[s] an immediate
threat to the arresting officers or the public; and (3) when immediate police
action [is] necessary to prevent the destruction of vital evidence or thwart the
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escape of known criminals.” Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir.
1989). But, “[t]he mere existence of these circumstances does not necessarily
validate a warrantless search. . . . There must be a showing by those asserting
the exception [to the requirement of a warrant] that the exigencies of the
situation made the search imperative. The burden is on those seeking the
exception to show the need.” Bartram, 925 S.W.2d at 230. This burden is a
“heavy” one. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); State v. Clark,
844 S.W.2d 597, 599 (Tenn. 1992).
The state makes no contention that the officers obtained the defendant's
consent prior to entering his house. Rather, it merely references in a footnote to
its brief that “Detective Roll's testimony was not clear as to whether or not Ford
gave permission for detectives to enter [his] home.” The record of the motion to
suppress reveals the following exchange between the trial court and Detective
Roll:
The Court: And did he -- do you know if [the
defendant] gave any permission to go in and
get Morris?
Detective Roll: (No audible response).
The Court: Or, did anybody ask him for
permission?
Detective Roll: Well, there again, that
conversation had taken place with Sergeant
Stromat before I guess --
The Court: Heaney was in the back, too?
Detective Roll: Heaney was around there
and so was -- uh -- Detective Tarkington.
....
Detective Roll: But, Detective Stroud and I
didn't come to around back until . . . a short
period of time . . . there was some
interaction between Mr. Ford and the other
group back there.
The Court: Okay. So . . . Stromat says
Ford says Morris is in the house?
Detective Roll: Right.
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The Court: And, you and Stroud go in
to get him.
Detective Roll: Yes, sir.
We do not agree that this testimony is unclear; it is simply unhelpful. Moreover,
“[c]onsent to enter and search a home will not be lightly inferred, nor found by
mere acquiescence to unlawful authority.” Clark, 844 S.W.2d at 599. None of
the involved detectives ever testified that they had gotten the defendant's
consent to enter his residence. Indeed, the only evidence in the record on this
issue is to the contrary.
Since there is no proof that the defendant consented to the entry and
search of his home, the state argues that the officers' actions were acceptable
because “exigent circumstances were present” in that the officers were “in hot
pursuit of a dangerous individual.” We disagree. Although law enforcement
officers may enter homes without search warrants when they are in “hot pursuit”
of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43 (1976),
there is no proof in the record before us that Morris was “fleeing” anyone or
anything. Not only was there no proof that Morris had just committed a crime,2
Detective Roll testified that Morris had had a court date on June 14 and that they
began surveillance when he was spotted “leaving the courtroom.” Cf. Welsh,
466 U.S. at 740 (holding that “the claim of hot pursuit is unconvincing [where]
there was not immediate or continuous pursuit of the petitioner from the scene of
a crime.”). Nor was there any proof that Morris knew he was being followed
when he entered the defendant's house or that he did so in an attempt to evade
the officers following him. It is the state's burden to demonstrate why the officers
did not obtain a search warrant prior to entering the defendant's home, and they
can point to no evidence in the record which justifies their decision to ignore this
constitutional requirement.3 The warrantless entry into the defendant's residence
2
Detective Tarkington testified that the information they had on Morris was that he had been
“involved in an armed robbe ry earlier, several days, or maybe even weeks earlier” (emphasis added).
3
The state does not argue, and the record does not support, the existence of either of the
other two types of exigent circumstances--that the suspect posed an immediate threat, or that he was
going to escape o r destroy eviden ce. See Jones, 874 F.2d at 1130.
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and the subsequent search were, therefore, in violation of his constitutional
rights.
Where evidence has been obtained directly or derivatively from an illegal
search, the exclusionary rule may operate to bar its admissibility. See Wong
Sun v. United States, 371 U.S. 471, 484-85 (1963); Clark, 844 S.W.2d at 600.
“However, it has long been recognized that evidence obtained by means
genuinely independent of the constitutional violation is not subject to the
exclusionary rule.” Clark, 844 S.W.2d at 600.
In this case, the evidence that the defendant wants suppressed includes
the jewelry and related items found in his home and his subsequent oral
statements and written confession. We agree that the property found by the
police in the defendant's home incident to their arrest of Morris, together with the
statements made by the defendant when confronted with these items, should
have been suppressed. This evidence was obtained as a direct result of the
officers' illegal entry into the defendant's home and their subsequent search
thereof.4
This is not all of the evidence against the defendant, however. After
arresting him in his home, the police eventually took the defendant down to the
Criminal Justice Center. He subsequently signed a waiver of rights and provided
a written statement in which he admitted to participating in the robberies of Kwik
Kash Pawn and Capitol View Pawn. He also provided diagrams of these two
establishments. 5 What remains to be determined, then, is whether this evidence
is “fruit of the poisonous tree” and must therefore also be suppressed. See
Brown v. Illinois, 422 U.S. 590, 602-03 (1975); Wong Sun, 371 U.S. at 484-86;
4
This evidence would include all of the jewelry collected in the defendant's house, the pawn
tickets, the photographs made of these items by the police, the property inventory made by the police,
and the business cards and other literature connected to various pawn shops.
5
The defendant also made a video-taped statement. Due to a taping error, however, the
videotape is unin telligible and was not pla yed for the jury.
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see also State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996). In other
words, we must determine whether the defendant's self-labeled “confession” was
obtained by exploitation of the illegal entry and search, or whether it resulted
from “an intervening independent act of a free will” sufficient to “purge the
primary taint of the unlawful invasion.” Wong Sun, 371 U.S. at 486.
The question whether a confession is the product of a
free will under Wong Sun must be answered on the
facts of each case. No single fact is dispositive. The
workings of the human mind are too complex, and the
possibilities of misconduct too diverse, to permit
protection of the Fourth Amendment to turn on . . . [the]
talismanic test [of whether the defendant received
Miranda warnings prior to making his confession.]
Brown, 422 U.S. at 603. Thus, in determining whether the taint has been
purged, four factors must be considered: (1) whether the accused received
Miranda warnings; (2) the period of time between the arrest and the confession;
(3) the presence of intervening circumstances; 6 and finally, of particular
significance, (4) the purpose and flagrancy of the official misconduct. See
Brown, 422 U.S. at 603-04. The prosecution has the burden of proving, by a
preponderance of the evidence, the admissibility of the challenged evidence.
See Huddleston, 924 S.W.2d at 675.
Unfortunately, the record before us is simply insufficient with respect to
the circumstances surrounding the defendant's written confession for this Court
to apply these four factors and determine whether it too should have been
suppressed. Accordingly, we must remand this matter to the trial court to
conduct a further evidentiary hearing for the purpose of determining whether the
defendant's confession should have been suppressed pursuant to the
exclusionary rule. If the trial court finds that the confession must be suppressed,
it may grant a new trial and suppress all of the evidence obtained from the
6
One such intervening circumstance following an illegal arrest is the release of the defendant
on bail and his subs equent voluntar y return to the police station to make a statem ent. See Wong Sun,
371 U.S. at 491. An other circum stance may be the defendant's “co nsultation with an attorn ey,
relative, friend, or priest prior to the time a statement is given.” Huddleston, 924 S.W.2d at 675.
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defendant's house as well as all of his oral statements, 7 his written confession,
and the two diagrams that he drew in conjunction with the confession. See State
v. Crabtree, 655 S.W.2d 173, 179 (Tenn. Crim. App. 1983) (where trial court
erroneously excluded evidence at the hearing on the motion to suppress, matter
remanded for another hearing with instructions to grant a new trial if motion
should then be granted). We hold, however, that if the confession is found
admissible, then it, together with the testimony of Krantz, Hill, and Rose, is
sufficient to uphold all three convictions of aggravated robbery.8
The judgment below is vacated and this matter is remanded for further
proceedings in accordance with this opinion.9
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
JOSEPH M. TIPTON, Judge
_____________________________
JOE G. RILEY, Judge
7
This would include any testimony about the video-taped statement he gave at the Criminal
Justice Center.
8
Aggravated robbery is “the intentional or knowing theft of property from the person of another
by violence or putting the person in fear” when it is “[a]ccomplished with a deadly weapon or by
display of any article us ed or fashioned to lead the victim to re asonably believ e it to be a deadly
weapon.” T.C .A. § 39-13-402(a )(1); see also T.C.A. § 39-11 -402 (“A perso n is criminally res ponsible
for an offense committed by the conduct of another if: . . . (2) Acting with intent to promote or assist
the commission of the offense, or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids, or a ttempts to aid anothe r person to com mit the offense .”).
9
In light of our disposition of this matter, we need not address the “protective sweep”
conducted in the defendant's home.
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