# FILED
June 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON
STATE OF TENNESSEE, ( FOR PUBLICA TION ( Appellee, ( Filed: June 22, 1998 ( ( v. ( Madison Criminal ( ( Hon. Whit LaFon, JOHNNY M. HENNI NG, ( Judge ( Appellant. ( No. 02S01-9707-CC-00065

For State-Appellee : For Defendant-Appellant : John Knox Walkup Hughie Ragan Attorney General & Repor ter Jackson, Tennessee Michael E. Moore Solicitor General Kenneth W. Rucker Assistant Attorney Gener al Nashville, Tennessee James G. Woodall District Attorney General Twenty-Sixth Judicial District Jackson, Tennessee Shaun A. Brown Assistant District A

ttorney General Jackson, Tennessee



### O P I N I O N

AFFIRMED. DROWOTA, J.-2- We granted this appeal primarily t o consider two issues : 1) whether the search warrant in thi s case is supported by pr obable cause and is otherwi se valid; and 2) whether an appellate court reviewing a pretrial ruling that a search warrant was validly ex

ecuted may consider the enti re record, including evidence submitted at tr ia l, in ad di ti on to

ev id en ce

su bm it te d a t t he pr et ri al su pp re ss io n h ea ri ng . We have determined that the searc h warrant issued in th is case is supported by probable cause and free from other def ects. As to the second issue, which is a question of first impression in Tennessee, we have deter mined 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. Accordingl

y, for the reasons that follow, the judgment of the Court of Criminal Appeals upholding the trial court’s denia l of the defendant’s motion to suppress is affirmed.

FACTUAL BA CKGROUND 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 ar rest, search, and seizure was the cul mination of several hours of sur veillance 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 J udicial District.
After receiving informati on from a confidential informant that Henni ng was selling crack cocai ne, Officer Caldwell positioned himself in a field across the road-3-

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, Caldwel l observed Henning appr oach the car, talk to the occupants for a short time, w alk to the side of his house, r eturn about four seconds later, again appro ach the car, and then exchang e something with the occupants. Fol lowing

the las t excha nge at a pproxi mately 4:30 p.m ., Henni ng left his home on foot.
During his absence, Officer Caldwell telephoned Cap tain Thomas A. Coleman, described the transac tions he had observed, and di rected Capt. Coleman to obtain a search w arrant for Henning’s res idence. Capt. Coleman prepared an affidavit, obtained the warrant, returned to a location near Henning’s residence with sev

eral other officers, and wai ted for Caldwell to cal l for execution of the warrant.
Henning returned at 5:00 p.m, and thereafte r, Caldwell observed two more exchanges before Henning again departed his residen ce in a vehicle at approximately 6:30 p.m. C aldwell maintained his position in the field across from Henning’s home for about twenty minutes after Henning departed , but eventually crossed the road and positione d himself so that he could observ e the west side of the house to which Henning had walked before each prior exchange had occurred. From that vantage point, C aldwell had observed three different vehicles arrive at Henning’s residence. Each time the occupants remained inside their cars1 Apparently one of the occupant s of the car i nvolved i n the exchange fl ed the scene on foot and the other departed the scene in the car.

-4- for a short time before approaching Henning’s house and knocki ng 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 approx imately 8:30 p.m., and shortl y thereafter, another car arrived at

his residence. Henning came outside and spoke to the driver and passenger of the vehicle. Caldw ell observed Henning go to a concrete block at the side of the house. D uring this activi ty, Caldwell cr

awled into Henning’s yard, and w

as lying on the gr

ound beside an abandoned car on the west side of the house. Cal dwell said he had been “v ery, very cl ose” to Henning and the occupants of the car. At that point, Caldwell called fo r backup assistance from Capt. Coleman and the other officers located a short distance from Henning’s residence. A fter making the call, Officer C aldwell stood and approached the defendant who was engaged in conversati on with one of the occupants of the car. Henning began to flee toward his residence, and Caldwell pursued him, stating that he k new it would be difficult to “keep up with w here the drugs were going

to be . . . if they got i n the house. . . .” Caldw ell 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. Caldwel l ordered Henning-5-

and the other occupants of the house to s it down. Henning sat on the sofa, and Caldwell observed

him throw something on the carpet and try to kic k it under the couch. Caldwell recovered the object, and a subsequent laboratory analysis revealed the substance to be .9 grams of cocaine. Other officer s assisting in the execution of the search w arrant found Mannitol, a substanc e 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 wal ked before each transaction occur red.
The defendant moved pretrial to suppress the e vidence seized as a result of the search. The motion was denied, and the case proceeded to trial. The jury found the defendant guilty of possessi on of cocaine with intent to s ell, possession of cocaine with intent to del iver, and possession of dr ug paraphernalia. The trial court merged the two coc aine possession verdic ts into a single conv

iction. The defendant was sentenced to twel ve years for the felony possession conviction and eleven months, and twenty-nine days for the misdemeanor drug paraphern alia conviction. The sentences w ere ordered to be served c oncurrently. The defendant appealed, raising numerous issues. The intermediate cour t affirmed the convictions, but remande d for resentencing because of a confli ct between the bench ruling and the judgment as to the applicable sentencing range. Th ereafter, we granted permission to appeal and now affirm the judg ment of the Court of Criminal Appeals.



### I. CONSTITUTIONAL VALIDITY OF THE SEA RCH WARRANT2 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).

-6- A. Probable Cau se Initially, the defendant contends that the af fidavit, upon which the search warrant was iss ued, did not establish probable cause because the affidavit failed to allege facts from which the credibility of the i nformant and the reliability of the information could be determined as i s constitutionally r equired in Tennessee by this Court’s decision in State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989). The State first responds that the affidav it contained facts from which the magistrate could determine the credibil ity of the informant and the reli ability of the information, and alternatively argues that any deficiencies in the aff idavit were remedied by the independent police corroboration outline d in the affidavit in this case. We agree.

The Fourth Amendment 2 to the United States Constitution requires that search warrants iss ue only “upon probable cause , supported by Oath or affirmation.” Article I, Section 7 of the Tennessee Constitution pr ecludes the issuance of warrants ex cept upon “evidence of the fact commit ted.” Therefore, under both the federal and state constitutions, no warrant i s to be issued except upon probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.E d.2d 527 (1983); State v. Jacumin , supra ; Tenn. Code Ann. § 40-6-103 (1997 R epl.). Probable cause has been defined as a r easonable ground for suspici on, supported by circumstance s indicative of an illegal act. Lea v. State , 181 Tenn. 378, 181 S.W.2d 35 1, 352 (1944).-7- In Tennessee, a finding of probable cau se supporting issuance of a search warrant must be based upon ev idence included in a wr itten 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 mag istrate can determine whether probabl e cause exists is an i ndispensable prerequisite to the issuance of a search war rant 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 w hich a neutral and detached magi strate, reading the affidavit in a common sense and practical ma nner, can find probable cause for the issuance of a search w arrant. State v. Bryan , 769 S.W.2d 208, 210 (Tenn. 1989). To ensure that the magi strate exercises ind ependent 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 co ntain hearsay information and nee d not reflect the direct personal observ

ations 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 cont aining hearsay informati on supplied by a confidential informant can not support a finding of probable cause unless it als o contains factual information concerning the informant’s basis of knowle dge and credibility

. Jacumin , 778 S.W.2d at 432, 436. While independent police corroboration can make up deficiencies in either prong, we have rec ognized that “each prong represents an independently important consideration th at must be separately considered and satisfied in some way.” Id . Appellate courts rev iewing the existence of probable cause to support issuance of a warrant may consider only-8-

the affidavit and may not conside r other evidence prov ided 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 g uiding principles, w e now consider whether the affidavit in this case sufficiently describes the informant’ s credibility and bas is of knowledge. The affidavit, in pertinent part, provides as follows: Personally appeared before me, C apt. Thomas Coleman, who makes oath that he has probable caus e for believing and does believe that Johnny Henn ing is in possession o f the following described property, to-wit: illegal narcotics, crack cocaine, pictures, ledgers, tapes, or reco rds of drug sales or rec ords of proceeds therefrom . . . . Affiant has been provided information by a reliable informant whose reliability has been established by provi ding information which has resulted in several ar

rest[s] in the past. Said i nformant was in the company of a subject who stated the intention to obtain crack cocaine and did go to the abov e described residence and di d enter the described residence and di d display crack cocai ne obtained within the residence. Investigators with the drug task force did observe five transacti ons of a type believed to be d rug sales. The resident of the dwelling , Mr. Henning has tw o prior arrest for possession of drugs with intent to sale[sic], and a vehicle seizure for possession of drugs. These tr ansactions were observ ed within the last 6 hours and the informant has been on the property within the last 72 hours. Affiant therefore asks that a warr ant issue to search the pers on of Johnny Henning and the premi ses herein described . . .[for] illegal narcotics crack cocai ne.
With respect to the informant’s basi s of knowledge, the a ffidavit contained specific allegations: “[s]aid informant was i n the com pany of a subject who stated the intention to obtain crack co caine and did go to the abov e described residence and did enter the described residence and did display crack c

ocaine obtained within the-9-

residence.” Theaffidavit also alleged that the informant had been on the premises i n the l ast 72 hours. The informant’s pers onal observation and know ledge of Henning’s activities satisfies the basis of knowledge pr ong of Jacumin

. See State v. Valentine , 911 S.W.2d 328, 33 0 (Tenn. 1995).

However, as the Court of Criminal Appeals recognized, the affidavit contains onlya conclusory allegation regarding the informant’s credibility: “a reliable informant whose reliability has been es tablish ed by providing i nformation which has result ed in several arrest[s] in the past.” Although there i s no specific allegation in the affidavit which, on its face, establishes the credibi lity of the informant, the independent police corroboration of the informant’s tip, explai ned in the affidavit, is sufficient t o establish the informant’s credibility. As Judge Wade, writing for the Court of Criminal Appeals, stated: While the affidavit here contains noth ing more than a conclusory attestmentof the re liabil ity of the info rmant, p olice had seen ‘fi ve transactio n s of what appeared to be drug s ales.’ Police learned tha t 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 withi n three days of the report by the informant, and that they had obser ved actions bythe defendant consistent with the sale of illegaldrugs, does provide the very kind of corr

oboration envisioned by the ruling in Jacumin

. We agree with the Court of Criminal Appeals that the independent police corroboration sufficiently established the informant’s credibili ty, and the affidavit in this case was sufficient to support a finding of probable caus e justifyingissuance of the search warrant.

B. General Warrant-10- The defendan t nex t contends that the search w arrant is unconstitutional because it failed to adequately specify the items to belocated during the searc h 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 w arrant must contai n 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 Tennes see Constitution prohibits generalwarrants, and, in addition, Tenn. Code Ann. § 40-6-103 (1997 Repl.), specifically requires that search warrants describe t he property to be seized with particularit

y. See Lea v. State , supra ; Hampton v. State , 148 Tenn. 155, 252 S.W. 1007 (1923 ).

The constitutional prohib ition against general warrants is designed to limit governmental intrusion upon a citizen’s priv acy and property

rights to o nly that sh own to the magistrate to be necessar y 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 reasonab ly ascertain and identify the things which are autho rized 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 des

cribed as to preclude the pos sibility of seizi ng any other. On the other hand, if the purpo se be to sei

ze not specified-11- property, but any property of a specified character whic h, by reason

of its character, and of the place wher e 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 impos

sible. 181 Tenn. at 382-83,181 S.W.2d at 352-53 (emphasis added).
The warrant issued

in this case authoriz

ed a search for “crack coc aine, illegal narcotics, pi ctures, records, ledgers, tapes or items that tend to memorialize [sic] drug sales and proceeds therefrom.” In our

view, the warr

ant describes the character of the property subject to seizure with sufficient particul arity “to enable the searcher to reasonably ascertain an d identify the things w hich 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 w arrant is not unconstituti onally general and the defendant’s claim is without merit.

C. Filing of the A

ffidavit The defendant n ext conte nds that the warrant w as invalid because the underlying affidavit was not attached to nor file d with the warrant.We disagree. While an affidavit must be retained in order toensure subsequent judici al review of the probable cause determination, there is no statute or rule i n Tennessee which requires an affidavit upon which a sea rch warrant is is sued to be attached o r otherwise kept with the warr ant. State v. Smith , 836 S.W.2d 137, 141 (Tenn. Cr im. App. 1992). Rule 41(c), Tenn. R. Crim. P., contains mandatory recording and filing requirements

forwarrants, but not for affidavits. The affida vit is not considered part-12-

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 . Therefo re , the fact that the affidavit here was not attached to the warrant is inconsequential. The magistratemaintained a copy of the affidavit and it was made
a part of the record at the heari ng on the defendant’s motion to suppress. There is
a printed reference on the se arch 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 t he w arrant issued. This issue is w ithout merit.



### II . MOTION TO SUPPRESS A. Ap pellate Review Even assuming thevalidity of the search warrant, the defendant next contends that the trial court erred i n denying his mot ion to suppress because the officers executing the warrant failed to comply with the federal and state knock and annou nce requirement

before entering the defendant’s home. Before considering the merits of this claim, we must

fi rs t determine whether our r eview of this issue ex

tends to the entire record or to only that proof offered at the h earing on the motion to suppress.

In this case, the trial court commented at the suppression heari ng thatthe only substantial issue raised by the motion to suppress was thesufficiency of the search warrant affidav it. Because the sufficiency of a sear ch warrant affidavit is

to be determined from the allegations contained in the affidavit alone, the State offered no3 Seldom willthis i ssue arise i n Tennessee. The denialof a motion to sup press is ver y often followed by entry

of a guil ty pl ea. Therefore, if an appeal is taken pursua nt to Tenn. R. Crim. P. 37, the record bef

ore the revi ewing court wi ll consi st only of the evi dence offered at the heari ng on the motion to suppress. If a motion t o suppress is gr

anted, th e prosecutio n is often times terminated.

-13- proof at the suppression hearing. O nly the defendant testified, and Henning said that Officer Caldwell did not “k

nock and announce,” but simply “barged” into hi s h ome. However, at trial, the State offered the testi monyof Officer Caldwell who related the circu mstances of the defendant’s arrest and the ex ecution of the search warr ant, which h ave been previously set forth herein. Henning contends that the Cou rt o f Criminal Appeals erred by consi dering the proof offered by th e State at trial when evaluatin g the co rrectness of the trial court’s ruling on the motion to suppress. According to the defendant, when evaluati ng a trial court’s den ial 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 Stat e, in con trast, 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 magistra te’s finding of probable cause are limi ted to the allegations contai ned in the affidavit supporting issuance of the warrant. Indeed, we previously have reaffirmed and applied this rule in this opinion. Howev er, our research has rev ealed no Tennessee decision regarding the evidence which an appel late court may con sider when reviewing a pretrial ruling on a motion to suppr ess that does not relate to the v alidity of asearch 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 majori ty rule is that-14-

appellate courts may consider evidence adduced at trial in evaluating the correctness of a pretrial ruling on a motion to sup press. This rule is w ell established and uniformly followed by the federal cour ts. 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) (warrantl ess entry); U.S. v. Trevino , 60 F.3d 333, 336 (7th Cir. 1995) (warrantless checkpoint

stop); U.S. v. Mar

tin , 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 sei zure); U.S. v. de Jesus-Rio s , 990 F.2d 672, 674, n. 2 (1st Ci r. 1993) (pretr ia l identification); U.S. v. Corral , 970 F.2d 719, 723 (10th Cir. 1992) (investigatory stop and w arrantless search); Washington v. U.S. , 401 F.2d 915, 920, n. 19 (D.C. Cir. 1968) (warrantless arr est); Rocha v. U.S. , 38 7 F.2d 1019, 1020 (9th Cir. 1967) (warrantless arrest).

Likewise, most state courts addressi ng the issue, agai n in a v ariety of contexts, also have held that an appellate court may c onsider the entire record when reviewing

the correctness of a trial court’s ruling on a pre tria l motion to suppress. State v. Randall , 38 5 P.2d 709, 710 (Ariz. 1963) (warrantless arr

est); State v. Whitaker , 578 A.2d 1031, 1033 (Conn. 1990) (v oluntariness 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) (inv entory search); State v. Chopin , 372 So.2d 1222, 1 22 4, n. 2 (La. 1979) (inves tigatory stop); State v. Parkinson , 389 A.2d 1, 10 (Me.-15-

1978) (warrantless arr est); Sta te 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)(inves tigatory stop); Carroll v. State , 938 P.2d 848, 850 (Wyo. 1997) (warra ntless arrest); Henryv. State , 468 So.2d 896, 899 (Ala. Crim. App. 1984 ) (volunt ariness of statement); Sayers v. State , 487 S.E.2d 437, 438 (Ga. App. 1997) (investigator y 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 identi ficatio n); Woo dson v. Commonwealth , 491 S.E.2d 743, 745 (Va. App. 1997) (w arrantless search). But see contra Trusty v. State , 521 A.2d 749, 755 (Md. 1987) (w arrantl ess 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. 199 5) (warrantless s earch); People v. Breault , 273 Cal. Rptr. 1 10 , 117 (Cal.App. 4 Dist. 1990 ) (warrantless s

earch); People v. Braithwaite , 568 N .Y.S.2d 135, 136 (N.Y.A.D. 2 Dept. 1991) (investigatory stop); Alexan de r

v. State , 305 P.2d 572, 576 (Ok. Crim. App. 1956) (voluntarines s of statement); Smith v. State , 840 S.W.2d 689, 69 1 (Tex. App. 1992) (investig at ory4 Though none of these deci sions address t he specifi c question at issue in this appeal - the evidence whi ch may be considered by an appella

te court r

eviewing a pretri al rul ing that a search warrant was val idly

executed - th e general pri nciple i s the same. Where, as here, a defenda nt 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 rul e. Likewi se, when suppressi on of evidence se ized i n a warrantl ess 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 t

o the warrant

requirement. In contrast , where evi dence is seiz ed pursuant to

a warrant, a nd the defendant seeks suppression on t he sole basis that th e issu ing ju dge erred in findingprobable cause t o support the warrant, the only ev idence which may be pr esented by t he 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 allegat ions in t he affidavi t. Li kewise, appel late court s reviewi ng a findi ng of probable cause ar

e limite d to the al legati ons contained i n the affi davit suppor ting i ssuance of the warrant. Our holding her ein does not al

ter nor abr

ogate thi s long-stand ing rul e of criminal proced ure.

-16- stop); see generallyLaFave, § 11.7(d). 4

We previously hav

e recognized that w

hen sup pre ssion of evidence seized pursuantto a search warrant i s advocated, the burden is upon th e accused to prove bya preponderance of

the evidence: (1) the

existence of a legitimat e 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 statut ory defect in the

search warrant or the searc h 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). C onversely, if suppres sion of evidence seized without a w arrant is sought, the burden is upon the State to prove that the search and seizure w as conducted pursuant to one of the ex ceptions tothe warrant requirement. Id . These principles are impor tant and must

guide the trial court’s decision upon a pretrial motion to suppress. However, in our vie w, the se principles do not requi re an appellatecourt, or a trial cour t consideringa motion for
new trial, to ignore trial evidence which rei nforces or negates the corr ectness of the pretrial ruling on the motion. To hold otherwise would exalt form over substance.-17- Certainl y, a defendant should not be convicted upon evidence that was seized in violation of the Fourth Amendment’s pro tection against unreasonable searc hes and seizures si mply beca use the il legality is e stablished by proof offered at trial, rather than proofoffered at the suppression hearing . Likewise, if proof adduced at trial establishes a lawful search or seizure, the evidence should not be excluded simplybecause the proof at the sup pression hearing di d not est ablish it s legality. This is particularly true in light of the primary purpose of the exclusionary rule which is t o deter police misconduct. State v. Huddleston , 924 S.W.2d 666, 676 (Tenn. 1996 ). Suppressing evidence lawfully seized simply becaus e the legality

of th e seizure was establ ished by proof introduced at t rial, rather than proof intr oduced 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, Ten n. R. App. P. To that end, the appellate courts of this Sta te are authorized to “grant the relief on the law and facts to whi ch the party is entitl ed or the proceeding otherwise requir es. . . .” Rule 36(a), Tenn. R. A pp. P. In our view, these rules contemplate that allegations of error should be evaluated in light of the entire record. Accordingly, w

e hold that in evaluating the correctness of a trial court’s ruling
on a pretrial motion to suppre ss, 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-18-

clarifi ed in State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). We reiterate that a n appellate court should uphold a trial court’s decision on a motion to suppress, unless the evidence in the

record preponderates agai nst the finding. “Questions of credi bility of witnesses, the wei ght and value of the evidenc e, and resolution of conflicts i n the evidence are matters entrusted to the trial judge as the trier of fact.” Id . The party prevailingin the trial court is entitled to the strongest legitimate view of the evidence,
as well as all reasonab le and legitimate inferences th at may be drawn from the evidence. Id . Upon consideration of the entire record in this case, we conclude,for the rea so ns that follow, that the ev idence does not preponderate agai nst the trial court’s denial of the defendant’s motion to suppress.

B. Knock and Announce Pursuantto constitutional and statutory mandates, befo re an officer executing
a search warrant makes a fo rced entry into an occupi ed residence, the officer generallymust knock on thedoor of the residence and announce hi s or her authority and purpose. Wilson v. Arkansas , 514 U.S. 927, 115 S.Ct. 1914, 131 L.E d.2d 976 (1995); Tenn. R. Cri m. P. 41(e); State v. Lee , 836 S.W.2d 126 (Tenn. Crim. App. 1991). To comply with this rule, officer s 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 adm itted to the residence after g iving proper notice, the officer

is authorized to “br

eak open any door or

window . . ., or a ny part thereof, . . . to the extent that it is reasonably necessary to execute the warrant and does not unnecessarily damage the property.” Tenn. R. Cri m. P. 41(e). This long standing principle der ives from th e common law which ge nerally protected a man’s house as “his castle of defe nse and asylum.” Wilson , 514 U.S. at 931, 115-19-

S.Ct. at 1916. The purpose of the “knock and announce” rule i s threefold. It provides protection from violence, both to the occup ants of the residence and to the enterin g law enforcement officers. Secondly, it protects the privacy interest that is inheren t in the home, and finally, it protects against the needl ess destruction of privat e propert y. Richardsv. Wisconsin , __ U.S. __, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1 997); 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 theofficer’s peril, or if an officer executing a warr

ant perceives

indications of flight or i ndicationsthat evidence is being destroyed. Ker v. California , 374 U.S. 23, 83 S .Ct. 162 3, 10 L.Ed.2d 726 (1963); State v. Fletcher , 789 S.W.2d 565 (Te nn. Crim. App. 1990). These are exigencies excus ing compliance. Id . Indeed, rec ently, the United State

s Supreme Court specifically held that law enforcement officials exec uting a search warr

ant may initiate a “no-knock” entry,if they have a reasonable suspicion that knocking and announcing their presence, under the partic ular circumstances of a case would be “dangerousor

futile, or that

it would inhibit the effective investigatio n of the crime by

. . . allowing the destruction of evidence.” Richards , __ U.S. __, 117S.Ct. at 1421- 22.
Appl ying t hese guiding principl es to the facts of this case we agree with the Court of Criminal Appeals that under the particular circumst ances of this case, compliance with the rul e was n ot required. Here, Officer Caldwell testified that

he
was hiding a short distance away and observed Henning comple te a drug transaction just outside his home. After calling for back up assi stance, Officer Caldwell decided-20-

to ex ecute the search warrant . When he stood and approached the defendant, Henning fled toward his residence, andCaldwell pursued him,stating that he knew it would be difficult to “keep up with where the dr ugs were going to be . . . if they got in the hous e. . . .” Cal dwell seize d Henning as he wa s en tering his residence, and they fell into the doorway of Henning’s residence. Officer Caldwell thenannounced he was a poli ce offi cer, with a search w arrant, and ordered Henning to sit on the couch. Henning sat down and att empted to kick crack cocai ne un der the sofa

. Officer Caldwell recov

ered 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 retreat ed inside his home. Considering these circumstances the officer’s failure to forma lly comply with the “knock and announce” rule w as excused in this case by the exigencies involved.

Moreover, the defendant’s warrantless arrest in this case was justif ied. 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 existsif the facts and circumstances within the officer’s knowledge at the time of the arrest, and of which the officer “had reasonably trustworthy informati on sufficientto warrant a prudent man in believing that the petitioner had committed or was commi tti ng 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 proh ibited by the Fourth Amendment absent probable cause an d exig en t 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 th e warrantless-21-

arrest. Probab le caus e arose from the confidential informant’ s tip, significant first
hand corroboration

of the ti p by Offi cer Cal dwell, and Officer Caldwell’s up-close observation of the last of what appeared to be coc aine sales. Exigent circumstances
arose when the defendant fled upon Officer Caldw ell’s app roach. Se e U.S. v. Santana , 427 U.S. 38, 42-4 3, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 3 00 (1976) (hot pursuit of a fleeing

fe lon justified warrantless arrest inside home). The record demonstrates that both the execution of the search warrant and the warrantless arrest in this case wer e co nstitutionally sound. A ccordingly, after r

eviewing the record, we conclude that the ev idence 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 prob able cause and was free fromother defects. Moreover, upon consideration of the evidence in this recor d, we have also determined that the trial court ap prop riately denied the defendant’s pretrial motion to suppress. Accordin gly, the judgment of the Court of Cri minal Appeals upholding the trial court’s denial of t he defendant’s motion to suppress and th e judgment of conviction is affirmed.

We a lso affirm the judgment of the Court of Cri minal Appeals in all other respects and accordingly remand this cause to the trial c ourt for resen tenc ing because of a conflict between the bench ruling and the judgment as to the applicable sentencing range. In imposing the appropriat e sente nce, the trial court should-22-

consider the terms of

Tenn. Code Ann. § 40-35-106, make any factual determinations necessary, and specify the applicable sentencing r ange.

______________________________ FRANK F. DROWOTA, III, JUSTICE

Concur: Anderson, C.J., and Holder, J. Separat e Concurr ing Opinio n By: Birch, J. and Reid, Sp. J.