IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 3, 2003 Session
STATE OF TENNESSEE v. ALLEN PRENTICE BLYE
Appeal by permission from the Court of Criminal Appeals
Criminal Court for Sullivan County
Nos. S42, 293 R. Jerry Beck, Judge
No. E2001-01227-SC-R11-CD - Filed February 25, 2004
We granted permission to appeal in this case to consider whether the Sixth Amendment entitles the
defendant to participate, through counsel, in the determination of the existence of probable cause for
the issuance of a warrant to seize a sample of the defendant’s blood. Because we find that the
defendant has no such entitlement, we affirm the judgment of the Court of Criminal Appeals.
Tenn. R. App. P. 11 Appeal By Permission; Judgment of the Court of Criminal Appeals
Affirmed
ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,
C.J., and E. RILEY ANDERSON , JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined.
Kenneth F. Irvine, Jr., and Julie A. Rice, Knoxville, Tennessee (on appeal); Terry Jordan, Assistant
Public Defender, Blountville, Tennessee (at trial and on appeal); and Mark Toohey, Kingsport,
Tennessee (at trial), for the appellant, Allen Prentice Blye.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A.
Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E.
Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
On June 19, 1998, the victim, R.C.,1 was awakened when she felt someone in bed with her.
The male attacker put his hands around her neck and began choking her. R.C. struggled with her
attacker, and the two fell off the bed and onto the floor, with the victim landing on her stomach and
1
In keeping with the Court’s policy, we identify the victims of sexual offenses by their initials.
the man landing on her back. Reaching back, R.C. felt some type of soft fabric covering his head.
The attacker forcibly removed R.C.’s panties, pulled his pants down, and penetrated her.
Afterwards, he put a pillowcase over her head and dragged her into the bathroom. The attacker filled
the sink with hot water and tried to force the victim to sit in the sink. When she resisted, he put her
on the floor and attempted to rinse her genital area with water from the sink. After the attacker had
left the bathroom, R.C. escaped through the bathroom window and went to a neighbor’s residence.
The neighbor called the police.
R.C. never saw her attacker’s face. She noticed, however, that he was wearing loose-fitting
gloves, and she estimated that he was approximately five feet, ten inches to six feet tall. She also
stated that she had smelled the odor of gasoline or kerosene about him.
When the police arrived at the scene, they found a pair of nylon jogging pants in R.C.’s
kitchen sink, with water running over them. The pants, which were not the victim’s, were later
determined to have gasoline and kerosene on them.
R.C. was taken to the hospital where medical personnel performed a rape kit examination.
The treating physician testified that R.C. had bruises on her neck, a larger bruise on her left buttock,
and abrasions on her left flank. Police collected the articles that R.C. had worn during the attack.
In January 1999, the Sullivan County Grand Jury issued a presentment charging the
defendant, Allen Prentice Blye, with aggravated burglary and aggravated rape. Counsel was
appointed to represent the defendant. In July 1999, the State filed a motion in the Criminal Court
for Sullivan County, Second Judicial Circuit, seeking a search warrant to obtain a blood sample from
the defendant to conduct DNA (deoxyribonucleic acid) testing. After an evidentiary hearing, the trial
court denied the State’s motion, finding that the State had failed to establish probable cause for the
issuance of the search warrant. The State filed a supplemental motion in April 2000 in which it
alleged that since the trial court’s earlier ruling denying the State’s request, the State had obtained
additional evidence that would establish probable cause for the issuance of a search warrant to obtain
a blood sample.
The criminal case was assigned to Judge R. Jerry Beck in the Criminal Court for Sullivan
County, Second Judicial District. After the district attorney had filed the supplemental motion in
that court, but before that motion was scheduled for a hearing, the police investigator sought to
obtain a search warrant from Judge Lynn Brown, a judge in the First Judicial District.2 The affidavit
submitted by the investigator to Judge Brown stated, in pertinent part:
[a]s part of this investigation, it was learned that the defendant had contacted a friend,
Deborah McDowell, and had corresponded with her by letters, with the purpose of
2
The First Judicial District includes Johnson County, the county in which the defendant was incarcerated at the
time. See Tenn. R. Crim. P. 41(a) (providing “[a] search warrant authorized by this rule may be issued by a magistrate
with jurisdiction within the county wherein the property sought is located”).
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having her contact the victim for him. On February 28, 2000, I [the investigating
detective] went to the Tennessee Prison [f]or Women, in Nashville and interviewed
Ms. McDowell. During this interview, she advised that she still had a letter and
envelope sent to her by the defendant. She voluntarily released these items to me,
and I took them to the TBI Lab. I submitted the envelope for analysis, and saliva was
found. DNA, isolated and analyzed from the saliva, was compared to the DNA
profile of the seminal fluid [recovered from the rape kit and from the tee shirt worn
by the victim on the night she was raped]. The results of this test revealed that the
saliva, from the envelope, had the same profile as the seminal fluid, recovered from
the scene of the rape. The odds of it being someone unrelated would be beyond the
known population of the world.
This letter was sent to Ms. McDowell, and contained the return address
belonging to [the defendant], and the handwriting was confirmed by Ms. McDowell
as belonging to [the defendant]. Your affiant is presently aware of [the defendant’s]
address and of his handwriting, both matching what is displayed on the envelope.
Your affiant has probable cause to believe that [the defendant] sent this letter to Ms.
McDowell, and that the saliva recovered from the envelope is his. Your affiant also
has probable cause to believe that the blood of [the defendant] will be matched, by
DNA, to the seminal fluid left by the rapist.
Based upon the affidavit, Judge Brown issued a search warrant authorizing the taking of a
blood sample from the defendant. The investigator then went to the Northeast State Correctional
Facility in Johnson County, where the defendant was incarcerated. The investigator, along with one
or more correctional officers, met with the defendant in the prison infirmary. After the defendant
refused to submit to the drawing of blood, the investigator returned to Judge Brown, who then
authorized the taking of a blood sample “by whatever means may be necessary or by any necessary
restraint.” The investigator returned to the Northeast State Correctional Facility. The investigator
and the prison warden informed the defendant that the judge had authorized the use of force, if
necessary, to obtain a blood sample. The defendant then agreed to submit to the drawing of blood,
but only after signing a handwritten document stating that he was doing so “under duress.” Medical
personnel obtained the blood sample from the defendant.
The Tennessee Bureau of Investigation (TBI) analyzed the defendant’s blood sample and
determined that the defendant’s DNA matched the DNA found in the seminal fluid recovered from
the rape examination of the victim and from the victim’s tee shirt. In September 2000, the defendant
filed a motion to suppress the DNA evidence obtained pursuant to the search warrant issued by Judge
Brown. He argued that the ex parte procedure used to obtain the search warrant violated his Sixth
Amendment right to counsel. The trial court denied the motion to suppress, and the DNA proof
subsequently was introduced into evidence at trial.
A jury convicted the defendant of aggravated burglary and aggravated rape. The trial court
sentenced him as a Range III, persistent offender to fifteen years imprisonment for the aggravated
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burglary conviction, and as a Range II, violent offender to forty years imprisonment for the
aggravated rape conviction. The trial court ordered that the sentences be served consecutively, for
an effective sentence of fifty-five years. The Court of Criminal Appeals affirmed the trial court’s
judgment, concluding, in part, that the defendant was not entitled to notice and a hearing before the
search warrant was issued. The defendant, acting pro se, filed an application for permission to
appeal to this Court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. We granted
permission to appeal3 in this case to consider whether the Sixth Amendment entitles the defendant
to participate, through counsel, in the determination of the existence of probable cause for the
issuance of a warrant to seize a sample of the defendant’s blood.
II. Standard of Review
The facts concerning the issuance and execution of the search warrant are not in dispute;
instead, the issue presented–whether the Sixth Amendment entitles the defendant to an adversarial
hearing on the issuance of the search warrant–is a question of law. We review questions of law de
novo with no presumption of correctness given to the lower courts. State v. Turco, 108 S.W.3d 244,
246 (Tenn. 2003).
III. Analysis
The defendant contends that because his Sixth Amendment right to counsel4 had attached at
the time the presentment was returned, the ex parte application for and the issuance of the search
warrant violated his Sixth Amendment right to the assistance of counsel. Both the Sixth Amendment
to the United States Constitution5 and Article I, Section 9 of the Tennessee Constitution6 guarantee
the right to assistance of counsel at “critical stages” of the prosecution “where counsel’s absence
might derogate from the accused’s right to a fair trial.” State v. Martin, 950 S.W.2d 20, 25 (Tenn.
1997) (quoting United States v. Wade, 388 U.S. 218, 226 (1967)). The constitutional right to
assistance of counsel attaches at the time adversarial judicial proceedings are initiated against the
3
This Court appointed Kenneth F. Irvine to represent the defendant in this appeal.
4
The defendant relies upon the right-to-counsel provisions of both the federal and state constitutions. For ease
of reference, however, we will refer to both provisions as the “Sixth Amendment right to counsel.”
5
The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defence.”
6
Article I, section 9 provides: “Right of the accused in criminal prosecutions.–That in all criminal prosecutions,
the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation
against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining
witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of
the County in which the crime shall have been committed, and shall not be compelled to give evidence against himself.”
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defendant. See Maine v. Moulton, 474 U.S. 159, 169-70 (1985); Kirby v. Illinois, 406 U.S. 682, 688
(1972); Hartman v. State, 896 S.W.2d 94, 99 (Tenn. 1995). Thus, the right to counsel attaches “at
the time an arrest warrant issues, a preliminary hearing is held (if no arrest warrant is issued), or an
indictment or presentment is returned.” State v. Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App.
1993) (citing State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980)). Clearly, the right to counsel
attached in this case with the return of the presentment.
A defendant is entitled to the assistance of counsel at every critical stage of the proceedings.
The pre-trial “critical stages” at which the defendant is entitled to the assistance of counsel include:
preliminary hearings, post-indictment lineups, and any post-indictment proceedings on motions for
court-ordered mental evaluations of the defendant. See Coleman v. Alabama, 399 U.S. 1, 9-10
(1970) (concluding that the preliminary hearing is a “critical stage”); Wade, 388 U.S. at 236-37
(holding that post-indictment lineup was a “critical stage” of prosecution); State v. Huskey, 964
S.W.2d 892, 898 (Tenn. 1998) (finding that a defendant has a constitutional right to have counsel
present during proceedings on a motion for the mental evaluation of defendant); McKeldin v. State,
516 S.W.2d 82, 85 (Tenn. 1974) (holding that the Tennessee preliminary hearing is a pretrial type
of arraignment where certain rights may be sacrificed or lost such that a defendant has the right to
counsel);7 see also Moulton, 474 U.S. 159, 176 (holding that, once Sixth Amendment right to
counsel has attached, law enforcement officials are barred from obtaining incriminating statements
from defendant through third parties); accord Hartman, 896 S.W.2d at 99.
However, not every preparatory step in the evidence-gathering process is a “critical stage”
that would implicate the Sixth Amendment right to counsel. For instance, there is no Sixth
Amendment right to have defense counsel present when the State provides a pretrial photographic
display to a witness. See United States v. Ash, 413 U.S. 300, 321 (1973); Houston v. State, 567
S.W.2d 485, 488 (Tenn. Crim. App. 1978). Likewise, there is no Sixth Amendment right to have
defense counsel present during a court-ordered mental examination of the defendant. Huskey, 964
S.W.2d at 897-98; Martin, 950 S.W.2d at 27. In United States v. Wade, the Supreme Court,
distinguishing between a post-indictment lineup and other pretrial steps in the gathering of evidence,
noted that certain preparatory steps are not critical stages of the prosecution:
The Government characterizes the lineup as a mere preparatory step in the gathering
of the prosecution’s evidence, not different–for Sixth Amendment purposes–from
various other preparatory steps, such as systematized or scientific analyzing of the
accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are
differences which preclude such stages being characterized as critical stages at which
the accused has the right to the presence of his counsel. Knowledge of the techniques
of science and technology is sufficiently available, and the variables in techniques
few enough, that the accused has the opportunity for a meaningful confrontation of
7
For discussions of whether an arraignment is a critical stage for purposes of the Sixth Amendment right to
counsel, see State v. Sutton, 761 S.W .2d 763, 768-69 (Tenn. 1988), and State v. Street, 768 S.W .2d 703, 709 (Tenn.
Crim. App. 1988).
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the Government’s case at trial through the ordinary processes of cross-examination
of the Government’s expert witnesses and the presentation of the evidence of his own
experts. The denial of a right to have his counsel present at such analyses does not
therefore violate the Sixth Amendment; they are not critical stages since there is
minimal risk that his counsel’s absence at such stages might derogate from his right
to a fair trial.
388 U.S. at 227-28.
We must now determine whether a post-presentment search warrant proceeding in which the
government seeks to obtain a blood sample from the defendant is a critical stage of the prosecution.
The Court of Criminal Appeals alluded to this issue in State v. Baker, 956 S.W.2d 8 (Tenn. Crim.
App. 1997). In that case, the defendant argued that he was entitled to an adversarial hearing when
officers sought a search warrant to obtain “a quantity of blood, saliva and pubic and head hairs” from
him. Id. at 13. In rejecting that argument, the court stated:
It is clear the investigating officers had two procedural methods for obtaining the
samples from the appellant. First, the officers could obtain a search warrant
authorizing them to obtain the samples from the appellant’s body. Second, the
officers could have enlisted the assistance of the District Attorney General’s Office,
filed a motion in the trial court seeking the entry of an order permitting the officers
to obtain the samples, and both parties could have litigated the issues at an
adversarial evidentiary hearing. The officers opted to obtain a search warrant. The
appellant was not entitled to be present or litigate the issue of whether the officers
had probable cause to support the issuance of the warrant prior to the warrant being
issued.
Id. The discussion in Baker, however, does not mention the Sixth Amendment, nor does it state
whether or not the search warrant was sought before or after the initiation of criminal proceedings
against the defendant. Because of these two unanswered questions, Baker does not provide perfect
guidance.
The precise issue here, however, has been addressed by courts in other jurisdictions. See
Dickerson v. State, 526 S.E.2d 443, 446 (Ga. Ct. App. 1999), aff’d 542 S.E.2d 487 (Ga. 2001);8
McClain v. State, 410 N.E.2d 1297, 1302-03 (Ind. 1980); State v. Delisle, 630 A.2d 767, 767-68
(N.H. 1993); State v. Meyers, 546 P.2d 771, 772-73 (Or. Ct. App. 1976); State v. Mata, 30 S.W.3d
486, 488-89 (Tex. Ct. App. 2000); State v. Kennison, 546 A.2d 190, 192-93 (Vt. 1987); State v.
Kalakosky, 852 P.2d 1064, 1069 (Wa. 1993). In the foregoing cases, the respective courts concluded
8
The Sixth Amendment issue decided by the Court of Appeals in Dickerson was not appealed to the Supreme
Court of Georgia; the latter court’s review pertained only to a separate issue.
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that an ex parte application for a search warrant to obtain a blood sample9 from a defendant, sought
after the defendant had been charged, was not a critical stage of the proceedings. As the Court of
Appeals of Texas stated in Mata:
To determine whether a particular stage is critical, “we must scrutinize [the] pre-trial
event with a view to ascertaining whether presence of counsel is necessary to assure
fairness and the effective assistance of counsel at trial.” Green v. State, 872 S.W.2d
717, 720 (Tex. Crim. App. 1994) . . . . A pre-trial stage is not critical when
“confrontation with counsel at trial can serve as a substitute for counsel at the pretrial
confrontation.” [United States v. Ash, 413 U.S. 300, 309 (1973)].
30 S.W.3d at 488. Along the same lines, the Court of Appeals of Oregon stated in Meyers: “[w]e
see no prejudice to defendant’s rights where the state is properly authorized to take specimens of
body samples and defendant has the opportunity to challenge any violation of that authority by
moving to suppress specimens improperly seized.” 546 P.2d at 773. Thus, the above-mentioned
courts held that the ex parte nature of the search warrant did not violate the defendant’s Sixth
Amendment right to counsel.
We now hold that a post-presentment, ex parte search warrant proceeding to obtain a blood
sample from the defendant is not a critical stage of the prosecution, and two compelling reasons
inform our holding. First, we conclude that an ex parte search warrant proceeding does not diminish
the defendant’s right to a fair trial. Consistent with the analysis in Mata and Meyers, we note that
the defendant in this case was permitted to, and did in fact, file a motion to suppress the evidence
9
McClain did not involve a blood sample, but involved a “swab emission test” to determine whether the
defendant had a sexually transmitted disease. 410 N.E.2d at 1301.
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pursuant to Rules 41(f)10 and 12(b)11 of the Tennessee Rules of Criminal Procedure. Consequently,
the defendant seized the opportunity to challenge the evidence that was obtained pursuant to the
search warrant in question.
Second, the nature of the evidence-gathering process compels this result. An effective search
warrant process requires secrecy, confidentiality, and exclusion of the person or persons under
investigation. If a defendant and counsel were permitted to participate in the search warrant process
at the magistrate level, then the State would no longer be able to extend to affiants and witnesses the
secrecy and confidentiality the State relies on to elicit the testimony necessary to meet its probable
cause requirement. Thus, the efficacy of search warrants as a tool to uncover evidence of criminal
activity would be lost to the State.
10
Tennessee Rule of Criminal Procedure 41(f) provides:
Motion for Return or Suppression of Property. A person aggrieved by an unlawful or invalid
search or seizure may move the court pursuant to Rule 12(b) to suppress any evidence
obtained in such unlawful search or seizure. If property was unlawfully seized, the aggrieved
person may move for the return of the property; and the motion shall be granted, except as
to the return of contraband, if the evidence in support of the motion shows that:
(1) the search or seizure was made illegally without a search warrant, or illegally with an
invalid search warrant, or in any other way in violation of the constitutional protection
against unreasonable searches and seizures; or
(2) a search warrant was relied upon, but the search warrant or supporting affidavit is legally
insufficient on its face and hence invalid; or
(3) the search warrant relied upon was issued upon evidence consisting in material part of
willful or reckless misrepresentations of the applicant to the issuing magistrate, resulting in
a fraudulent procurement; or
(4) the search warrant does not describe the property seized, and the seized property is not
of such a character as to be subject to lawful seizure without a warrant.
11
Tennessee Rule of Criminal Procedure 12(b) provides:
Pretrial Motions. Any defense, objection, or request which is capable of determination
without the trial of the general issue may be raised before trial by motion. Motions may be
written or oral at the discretion of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or
(2) Defenses and objections based on defects in the indictment, presentment or information
(other than that it fails to show jurisdiction in the court or to charge an offense which
objections shall be noticed by the court at any time during the pendency of the proceedings);
or
(3) Motions to suppress evidence; or
(4) Requests for discovery under Rule 16; or
(5) Requests for a severance or consolidation of changes or defendants under Rule 14.
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For the foregoing reasons, we hold that the Sixth Amendment does not entitle the defendant
to an adversarial hearing on the issuance of the search warrant.12 Thus, the trial court did not err in
denying the defendant’s motion to suppress the DNA evidence derived from the blood sample
obtained pursuant to the ex parte search warrant.
IV. Conclusion
The judgment of the Court of Criminal Appeals is affirmed. It appearing that Allen Prentice
Blye is indigent, the costs are taxed to the State of Tennessee, for which execution may issue if
necessary.
___________________________________
ADOLPHO A. BIRCH, JR., JUSTICE
12
W e express no opinion on the separate issue of whether an adversarial proceeding is required for a search
warrant authorizing more major medical procedures, e.g., forced surgery to recover a bullet fired by the victim. See
generally, W inston v. Lee, 470 U.S. 753 (1985).
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