State v. Howard Atkins ( 1999 )


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  •           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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