### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Jul y 22, 200 3 S es sio n

STA TE OF TEN NES SEE v. THOM AS DE E HU SKEY

Appeal f romthe Cr im inal Cou rt for K nox Coun ty No. 51903 Richard R. Baum gartner , Judge

No. E2002-02317-CC A-R3- CD - F iled Jun e 1, 2005

The state ha s appea led the Knox CountyCriminal Court’s suppression of statements made to police by the de fe nd a nt, Th oma s D e e Hu sk e y , a ndof ite ms fou nd and se ize d f ro m hi s h ome . T he state contends that (1) the trial court erre d as a ma tter of law in suppressing the statements and ( 2) the trial
court e rre d in suppressing the items f ound at the home ( a) be cause the police a rre sted the def

endant in go o d f a ith r e li a n c e u p o n a c ap ia s w h ic h s u b s e q u e n tl y w a s d e c la r e d v o id a n d ( b ) b e c a u s e the defe ndant’s fathe r consente d to a sear ch of the defe ndant’s room. The de fenda nt asserts that if the state’s a ppeal is succ essful, then he conten d s t h at t h e trial court err ed in prior r ulings de ny ing suppression of his state ments and the items se ized f rom his home on other myriad g roun d s raised by the de fe nd a nt. We a ff

ir m th e tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and N OR MA M C G EE O G LE , J ., joined.

Paul G. Summers, Attorney Gene ral a nd Reporter; Gill R . Geldre ich and Joseph F. Whalen, As sis ta nt A tto rn e y s G e ne ra l; Ra nd a ll E. Ni c ho ls, Di stric t At torne y Ge ne ra l, fo r the app e lla nt, Sta te of Tenne ssee.

Her bert S. Moncier

and G re go ry P . I saac s, Knox ville, Tennesse e, for the appe llee, Thomas D. H u s k e y.

OP IN ION

The de fenda nt is charg ed with four c ounts of first deg ree murder. H is first trial ended in a mistrial because the j ury could not rea ch a unanimous verdict. Pending the re trial, this court enter ed

a n o pinio n in the de fe nd a nt’ s c on so lid a te d a pp e a l of mul tip le c on vic tio ns inc lud ing ra pe s, ag g ravat ed ra p es , aggr av at ed k i d n ap p i n g, es p ec i al l y aggr av at ed k i d n ap p ing, robbery , and ag g rava ted robbery . See State v. Thomas Dee Huskey , No. E1999-00438- CCA-R3-CD, Knox County(Tenn. Crim. App. J une 28, 2002), reh’ g denied, (Oc t. 11, 2002) (the ra pe ca ses). This court affirmed the-2-

d ef en d an t ’s co n v i ct i o n s fo r o ff en s es v er s u s t wo v i c t i m s b u tre v er s ed t h e c o n v i ct i o n s re gar d i n g a thi rd v i ct i m and re manded those c harg es for retria l. Some of the evidenc e re viewed and issues analy zed in that appeal a

re r eleva nt to the resolution of this case.

I n the r ap e ca s es, t he def endant c ontended that the trial court e rre d by not suppressing
state me nts he g a ve to l a w e nf or c e me nt o ff

ic e rs on No ve mbe r 9 , 1 0, a nd11 , 1 99 2. Th is co urt di d
not rea ch the merits of the suppression issues bec ause it concluded t hat t he trial court did not make adequate finding s of fac t f or appellate revie w under the circ umstances then exis ting. T h i s court stated:

For

example, the trial court has made no f indings re g arding members of law e nforc ement having contact with the def endant on Nove mber 4 and 5, 1992, in relation to L ieutenant L arry J ohnson’s testimony that th e de fe nd a nt i nit ia te d c on ta c t w ith him a nd TBI Ag e nt D a vid Dave nport on Novembe r 9
, 1 992. For instance, me eting s with the de fe nd a nt o n No ve mbe r 4 a nd 5 may c a st d ou bt u po n th e c re dib ili ty of L t

. Jo h n s o n ’ s t e sti mon y

re g ard ing the qu e sti on ing of the de fe nd a nt. I f t he suppression of t he st atements is raised upon the retrial of [the victim’s] case , the trial court should make complete f indin gs , and take pr oof if appr opriate, w ith reg ard to the issues surro u n ding the suppression of the state ments.

I d. slip op. at 56-57.

Also in the rape case s, the defe ndant contende d that the trial court erre d by not suppressing as evide nce the items seized du ri n g a s ea rc h o f his home. This court he ld that the sear ch wa rra nt obtained in Sevier County was invalid bec ause it fai l ed t o l i s t the name of the executing office r. Huskey , slip op. at 54. This court also held that the c apias issued by the Knoxvil le CityCourt upon which off icer s claimed the authority to ar rest the de fenda nt was void and invalid, there by making the def endant’ s arr est illeg al. Relative to a r emand of the ca se, this court stated:

I n the pre sent ca se, the trial c ourt’s application of b o t h t h e search incident to an ar

rest and th e plain view e x ceptions re quire that the defe ndant’s ar

rest be valid. Our holding that the ca pias upon which the def endant wa s arr ested i s void calls the trial court’s relianc e on these e x ceptions into question. Upon a retria l of [the victim’s] case , the trial court must ree x amine the pr opriety of the wa rra ntless searc h. I n th i s re gard, we note that a lthough the trial court found that the defe ndant’s father c onsented to the sea rch o f h i s home, it did not determine whether

the def endant’ s fat

h e r ’ s c o n s e n t t o s e arc h remove d the nee d for a

war rant. The trial court noted that the defe ndant’s pare nts ha d the rig ht to enter the defe ndant’s bedroom as re veale d by the de fe nd a nt’ s mo the r e nte ri ng the ro om to tur n dow n the ra dio or to-3- leave laundry

in the room but stated that it “just inc lude[d] that as [the

c ou rt ’s ] re c oll e c tio n o f the fa c ts i n th is c a se .” We do not f or e c los e the state fr om showing upon r emand that the se arc h was va lid.

I d. slip op. a t 55. Upon re mand of the r ape c ase, the parties a ddresse d the suppression issues re lative
to t h i s m u rder case . We note, though, that despite this court’s sug g estion reg arding the taking of additional proof, both the state and the de fenda nt considere d further proof unne cess a

r y an d reque sted the trial court to make its findings ba sed upon the e x isting record. I n separ ate or ders, the trial court g rante d the defe ndant’s motions to suppress his statements and the phy sical evide nce se ized from his home. Wi th eac h issue being separ ate a nd distinct, we will state the fa cts rele vant to eac h issue as the issue is discussed.

I. DE F EN DA NT ’S STA TEM EN TS

The state c ontends the trial court erre d in ruling tha t the investi gat i n g office rs did not

“ sc ru pu lou sly

ho no r” the de fe nd a nt’ s in vo c a tio n o f h is rig ht t o r e ma in s ile nt u nd e r the ru le

announce d in Mic higan v. Mosley
, 423 U.S. 96, 96 S. Ct. 321 (1975). I t a lso c ont en d s t h at the office rs did not reinitiate interr og ation of the de fenda nt on November 9 , 1992, in violation of Edwar ds v. Arizona, 451 U.S. 477, 101 S. C t. 1880 (1981). The defe ndant arg ues that the investigating of

fice rs did not “scrupulously honor” his invocation of hi s ri g ht to remain silent on Oc tob e r 2 1, 19 92 , a ndthat th e of fi c e rs ’ re ini tiatio n of co nta c t with him a ft e r he inv ok e d his rig ht t o

c ou ns e l on Oc tob e r 30, 19 92 , co ns titute s a viol a tio n o f E dw ard s. Th e de fe nd a nt m a int a ins that th e se violations more than support the trial c ourt’s finding that the state failed to car ry its burden to prove the de fe nd a nt’ s rig ht to r e ma in s ile nt w a s sc ru pu lou sly ho no re d, a ndhe a sse rt s th a t th e re c or d a lso supports a finding that the offic ers violated his rig ht to counsel by reinitiating contac t with him on November

4, 5, and 9, 1992. We c onclude that under the totality of the c ircumstance s, the rec ord does not preponde rate ag ainst the trial court’s finding that th e s t at e fa iled to car ry its burden of showing the def

endant va lidlywaived his F ifth Amendment rig hts by a pre pondera nce of

the

e vid e nc e be c a us e the inv e sti g a tin g of fi cers didno t “ sc ru pu lou sly ho no r” the de fe nd a nt’ s r ig ht t o

rema in silent and beca

use they reinitiated c ontacts and c ommunications with him on November 4, 5, and 9, 1992, af

ter he invoked his rig ht to counsel.

The primary

evidenc e re lating to the de fenda nt’s statements ca me from Lieutenant L arry J ohnson of the Knox Count y Sheriff’ s Depa

rtment. J ohnson testified at two pre trial hea ring s and at the trial re lative to the statements. I nitially
, though, we note that Knox CountySheriff’ s Detec tive Michae l Upchurc h testified that he wa s involved in the defe ndant’s a rr est on Octobe r 21, 1992, pursuant to a c apias issued by the Knoxvil le CityCourt C l erk. He said that the de fenda nt said he did not wish to answer a ny questions until they

g ot a war rant a nd that Upchur ch did not question the defe ndant af

ter this statement.

At a suppre ssion hearing on Marc h 25, 1996, Lt. J ohnson testified t hat he had been the hea d of the Homicide Division of the Knox C ounty Sheriff’ s Depa rtment in 1992. He sa id that he was-4-

investigating some homicides in East Knox C ounty and lea rned that the defe ndant was in the K nox C o u n t y j a i l

. H e n o t e d t h a th e h a d b e e n o u t o f t h e c o u n tr y w h e n t h e d e f e n d a n t w a s p l a c e d i n c u s t o d y.

Lt. J ohnson testified that, to his recollec tion, he, Det. Upchur ch, and Te nnessee Bur eau of I nvestig ation (TB I ) Ag ent David Da venport we nt to the jail on October 29, 1992, a nd talked to the defe ndant. He sa id that the jail did not have any rig hts waiver f

orms and that he r ead the defe ndant the Miranda

warnings f

rom a c ard. Johnson said that he talked to a “ person” the def endant identifie d as “Ky le.”

Lt. J ohnson identified a rig hts waiver f orm dated O ctober

30, 1992, at 5:00 p.m. He noted that Ag ent Dave nport had written on the form, “I do want a lawy er at this time, and w ill not answer any more que stions now.” He sa id he told the defe ndant, “I f y ou don’t have anything e lse to say
, . . . there ’s no point in us continuing to talk.”

Lt. J ohnson testified that the next ti me he talke d to the defe ndant, he wa s responding to the defe ndant’s sending word throug h a corr ectional office r that the def endant wanted to talk to him and De t. U pc hu rc h. He sa id h e a ndUp c hu rc h r e turned to the ja il, a dv ise d th e de fe nd a nt o f h is rig hts
, and aske d if he wa s sure he wanted to talk with them and without an attorney

. J ohnson identified

a ri g hts wa ive r fo rm date d Nov e mbe r 10, 19 92 , at 11: 45 a .m. He sa id that he expl a ine d th e ri g hts “very thoroug hly ” to the def

endant a nd that the def

endant sig ned the waiver. Joh n s o n identified another rig hts waiver form dated November 11, 1992, at 2: 10 p.m. He said the m eeting occur red at the re quest of the de fenda nt who had g otten word to a c orre ctional of fi cer to notify

J ohnson or Upchur ch that the defe ndant wished to ta lk w ith them. J ohnson said that he advise d the def endant of his rig hts and that the def endant sig ned the waiver form with the name “Phillip Daxx .”

Lt. J ohnson testified that during the conversations with the defe ndant, one of the def endant’ s “purported alter

eg os” would appe ar. H e said that in all t he conve rsations, he would start with Tom Huskey but that he would end up talking to “Ky le” or “Phillip Daxx .” He said the most ex tensive, detailed c onversations were w ith “Ky le,” who was the one who admitted involvement in the four murders a nd numerous ra pes. Johns on said that when the defe ndant said he w as s omeone e lse, John so n w ou ld a dv ise the m of the ir ri g hts a nd tha t “ the y a c kn ow le dg e d th a t th e y

un de rs too d th e m, and kept talking .”

Lt

. J o h n s o n i d en t i fi ed h i s n o t es re gar d i n g a s t at em en tgi v en b y t h e d ef en d an tan d a t en -p age transcript of a ty ped st atement, both obtained on November 9, 1992. He noted that the tape of the
statement re flec ted in his notes was bad. H e also identified a three -pag e statement date d November 11 , 1 99 2, a t 2: 15 p. m., g ive n b y the de fe nd a nt “ a

/k/ a P hi ll ip Da xx .” He sa id that so on a ft e r this statement, the de fenda nt was appointed c ounsel who t old him not to talk to the defendant without counsel pre sent. As for f urther c ontact with the def endant, Johnson said, “I

s erved some court capia ses on him after

that, but that was mere ly just advising him of some cha rg es ag ainst him.”

On cr oss-examination, L t. J ohnson testified that he re turned fr om his trip after the de fenda nt

was a rre sted and that only

one body had bee n fou nd near

Cahaba L ane. H e said that more bodies-5-

wer e foun d th a t w e e k

. H e a c k n o w le d g e d b e in g to ld th a t w h e n arr e s te d o n O c to b e r 2 1
, 1 992, the de fe nd a nt t oldde te c tiv e s tha t unle ss the y ha d a wa rr a nt, he didno t ha ve a nythi ng to s a y . H e sa id that Ag ent Dave nport joined them to inter view the defe ndant beca use he wa s investigating a Sevier Countyrape and old homicide. Johnson not ed that the October 30 rights wa iver form was sig ned by him, Davenport, Det. Upc hurch, a nd Det. Da rre ll J ohnson, who was investig ating one of the ho mic ide s. He sa id h e didno t atte mpt to g e t the de fe nd a nt an a tto rn e y a ft e r the de fe nd a nt’ s r e qu e st for one beca

use i t was not his place to do so. He said, howe ver, tha t he told the defe ndant that the telephone book w as full of a ttorney s and that the de fenda nt could call one if desired
, b ecause he would not be initiating any further contac t with the defe ndant.

Lt. J ohnson ide n t i fied a capia s dated Nove mber 9, 1992, whic h noted servic e on the defe ndant at 2:25 p.m. relative to the rape case s. The ca p i as wa s s i g ned by J ohnson and Ag ent Da ve np ort. Joh ns on sa id that he , D a ve np ort a nd De t. Up c hu rc h tal ke d w ith the de fe nd a nt, wh o s a id he did not know anything. Johnson said he ask ed t h e d efendant if he w anted c offe e or to use the bathroom or to stop talking with t h em. He sa id the defe ndant re plied he did not and re quested coff ee. Johnson said he and Da venport lef t the room and re turned with cof fee

.

Lt. Johnson testified that Det. Upchur ch then said he would like to introduce them to “Ky le.” J o h n s o n s ai d t h at t h ey t al k ed t o “K y l e” b u t t h at h e no t i ce d t h at t h e t ap e r ec o rd erwa s n o two rk i n g. He said that the def

endant “ came back,” complaining about a he adac he and sta ting that he did not know what ha

ppened w ith “Ky le.” Johnson said that “Ky le” r eturne d and they obtained a ta

ped
statement.

Lt. Joh ns on sa id that th e re a so n Ag e nt Da ve np ort join e d him o n N ov e mbe r 9 wa s b e c a us e of the Se vie r C ou nty

inv e sti g a tio ns

. He sa id the y se rv e d the c apia s a nd the de fe nd a nt s a id, “ Wai t jus t a min ute . We –I wan t to t a lk t o y ou a ll. L e t’ s ta lk. ” John so n s a id that he didno t r e c a ll Dave nport arriving with knowledg e that Johnson was going to serve the capia s. He stated, “ I was called by the court and told that one had been returne d, and I came up and g ot it, and Davenport and I went and served it.” He repeated t hat s erving the capias was the first time he had contac t with or any attempt to talk to the defe ndant since O ctober 30, 1992.

At a De cembe r 17, 1998 hearing, L t. J ohnson was questioned about his interviews with the defe ndant. He sa id that the interviews occurr ed in the J ail Captain’s office a nd that they tried to treat the d e f e n d a n t w ith r e s p e c t. Jo h n s o n te s ti f ie d th a t o n O c to b e r 2 9 o r 3 0
, 1 9 9 2
, in th e e v e n in g , the defe ndant was a dvised of his rig hts. He said that he and A g ent Dave nport left the r oom to ge t the defe ndant cof

fee , leaving the defe ndant with D et. Upchur ch. When the y returne d, Upchur ch said, “L arry , I would like to introduce y ou to Ky le.” J ohnson said that he and Dave nport took notes and that the defendant, as “Ky le,” ga ve a sta tement which pr ovided information re g arding the homicides on Cahaba

L ane.

Lt. J ohnson said that he did not talk to the defendant between October 30 and Nove mber 9, 1992. He sa id the other times he talke d to the defe ndant we re at t h e d efendant’s re quests, except when they

serve d a ca

pias on him on November 9.-6-

On cr oss-examination, L t. J ohnson was aske d if he t o l d the def endant a fter he reque sted a lawy er that the defe ndant could tell one of the jailers if he wanted to talk to the of fi cer s. J ohnson

re pli e d that the de fe nd a nt’ s re qu e st fo r a la wy e r w a s n ot w hat John so n w ou ld c a ll a re qu e st. He sa id that the def

endant a sked him if he thoug ht the defe ndant nee ded a lawy er and that he re plied that he d i d n o tk n o w , t h at i t w a s u p t o t h e d e f e n d a n t

. H e s a i d h e g o ta

t e l e p h o n e b o o k
, t u r n e d i tt o a t t o r n e ys in the y ellow pag es, and told the defe ndant to c all one if he desired. When a sked if he rec alled that on October

30, 1992, the def

endant sa id, “I do want a lawy er and will not answer a ny more que stions

no w, ” John so n re pli e d, “ to my re c oll e c tio n, no , sir , – we ll, no t just t o my re c oll e c tio n. I f h e ha d s a id that, I would have quit talking to him.” When asked abo u t the delay betwee n October

30 and November

9, J ohnson said that they wer e intervie wing various people , try ing to co rr o b orate what

“ Ky le ” ha d to ld the m. Joh ns on re c a lle d th a t N ov e mbe r 9 was the da y the y ha d s ome c apia se s to

serve on the def

endant a nd took him to t he Jail C aptain’s of fice for privacy . J ohnson said that they
ta lke d to “ Ky le ,” a ndhe re c a lle d ta lki ng brie fl y wi th “ Ti mothy ,” wh om he des cribe d a s a homosex ual. He sa id “Timothy ” cla imed to be protec ting the de fenda nt from “Ky le.”

Finally , Lt. J ohnson testified at the defe ndant’s trial on J anuary 28 and 29, 1999. He said that he wa s out of the country

when the first body was discovered near Cahaba L ane and that three more bodies wer e found the wee k afte r he r eturne d. He sa id that because three of the victims had prostitution arrests, detec tives in t er v i ew ed people conce rning who may have be en see n with the victims. He said that, among others, the de fenda nt’s name wa s mentioned.

Lt. J ohnson said he and A g ent Dave nport went to the Knox CountyJ ail around t h e end of Oc tob e r 1 99 2 to ta lk with the de fe nd a nt. He sa id he re a d the de fe nd a nt his Mir a nd a ri g hts . H e sa id that the defendant wanted t o know i f t here wer e any char g es pending and that he told the def endant there wer e not. H e s a idth e d e f e n d a n t s a id“ may

b e I o u g h t t o ta lk

to a la w y e r , ” w h ic h D a v e n p o rt

wr ote on the ri g hts waive r f orm. Joh ns on a dd e d th a t th e de fe nd a nt s a id that th e y “ mig ht w ishto speak w ith him l ater

if any char g es we re to be filed.”

Lt. J ohnson testified that the next conversa tion t o o kplace in the J ail Captain’s off ice on No ve mbe r 9 , 1 99 2, a t w hic h ti me the de fe nd a nt g a ve a state me nt t o h im, Ag e nt D a ve np ort a ndDe t. Up c hu rc h. John so n a lso no te d that state me nts we re take n fr om the de fe nd a nt on oth e r da y s a s w e ll

a n d i d e n t i f

i e d t h e mf

o r t h e j u r y.

On cr oss-examination, L t. J ohnson acknow ledg ed he had testified in Dec ember 1998 that he did not ca l l t h e defenda nt’s reque st for an attorney a re quest in that the defe ndant aske d him if he th o u g h t th e d e f

e n d a n t n e e d e d a n a tt o r n e y

. H e a ls o a c k n o w le d g e d b e in g a s k e d if th e d e f e n dant specific ally

reque sted the lawy er a nd his responding
, “To my rec ollection, no sir.” He explained that he had not e x pecte d to te stify at the Dec ember hearing and had none of his notes. He said that a fter the hea ring , he re viewed his material and rec og nized he had made a mistake about the de fenda nt’s reque st. In this re g ard, J ohnson also acknow ledg ed that he had pr eviously testified that Octobe r 30, 1992, was the f

irst time he had talked to the de fenda nt and that t h e d ef en dant talked to them as

“ Ky le ” a ndthat th e y

subseq ue ntl y

we re int e rv ie wi ng pe op le to c or ro bo rate wh a t “ Ky le ” ha d to ld them. J ohnson admitted that the date w as a mistake.-7-

Lt. J o h n son denied talking with the defe ndant on Octobe r 29, 1992, but he a cknowledg ed talking w ith the defe ndant on Octobe r 30 for fiftee n or twenty minutes. He said there was no tape

rec ording of that mee ting. He said, thoug h, that on the 30th, the def endant sa id, “When y ou g et . .

. some pape rwork, w hy , I may talk to y ou.” He said that the only time he took notes or tape d the de fe nd a nt w a s w he n t he def e nd a nt c la ime d to be so me on e e lse . A ft e r a re vie w o f the re c or ds
, including Ag ent Dave nport’s notes, J ohnson acknow ledg ed that he and D avenport talked with the defe ndant on Octobe r 29, 1992, from 10:05 a.m. until noon. He ac knowledg ed that towar d the end of the time, the de fenda nt was allowe d to call his pare nts and take a shower.

Lt. Joh ns on a c kn ow le dg e d th a t th e reco rd s r e fl e c te d th a t he , A g e nt D a ve np ort, andDe t. Upchur ch talked with the defendant on October 30 with the i nitial conversation lasting fr om 10:00

a .m. un til no on

. He sa id that th e y br ok e fo r l un c h a ndthat th e int e rr og a tio n r e su me d a t 12 :35 p. m.

a ndla ste d u nti l 2: 15 p. m. Joh ns on a c kn ow le dg e d tha t the de fe nd a nt s a id h e wa nte d to g o b a c k to his cell and thi nk. He said the records re flec ted that the def endant wa s broug ht out of the ce ll at 4:55 p.m. and told them that he wante d a lawy er be cause he did not know if he c ould trust them.

Lt. J ohnson acknow ledg ed rec ording a conver sation on November 10, 1992, which he ha d with Wi lliam Fletche r, a ja il inmate, in which J o h n s o n ref err ed to Fle tcher

seeing him, Age nt Dave nport and Det. Upchur ch on November 4 and 5, 1992, standing outside cell thi rtee n when they pu t the de fe nd a nt ba c k in the c e ll. John so n a c kn ow le dg e d th a t F le tc he r i nd ic a te d h e ha d s e e n th e m. John so n a dmi tte d th a t he a sk e d F le tc he r, “ Af te r h e wa s b ro ug ht b a c k to th e c e lls a ft e r tho se

occa sions, did he sit and talk to y ou about what we ha d talked to him about? ” Johnson denied that his c omments to Fletc her indicated he had be en questioning the def endant. He stated, “Well, y ou

c a n h a v e a c o n v e r s a t i o n a n d n o t

– y o u k n o w , n o t i n t e rr o g a t e s o m e o n e

. . . . A n d t h a t i s ba sic a lly what we wer e doing . We were talking to Mr. H uskey , just chitchatting w ith him.”

Lt. J ohnson testified t hat he did not ask t he defenda nt any questions about the homicide or anything e lse. When asked why h e we n t t o s ee the defe ndant on Novembe r 4 and 5 a fter the defe ndant re quested a n attorney , J ohnson replied, “ I h av e b ee n an officer

for thirty -one y ear s. . . . As the saying g oes, y ou can g et more w ith honey than y ou can with vineg ar.” He sa id he was be ing nice to the de fenda nt and was taking c are of his reque sts, suc h as telephone calls to his pare nts and showers. Joh n s o n al s o acknow ledg ed that Da venport’s note s ref lected that the defe ndant said he wanted to a sk some questions and, when a sked, that he w as willing to talk without a law y er.
Relative to serving the ca pias on Novembe r 9, 1992, Ag ent Dave nport’s notes provide :

Also, it should be noted that the Knox Coun t yAs sistant District Attorney

Bob Jolley , who was ha ndling these case s, had

re qu e ste d th a t th is a g e nt be a va ila ble to se rv e g randjury

ind ic tme nts

on Th oma s D. Hu sk e y

in an atte mpt

to s e e if he wi ll t a lk f

urthe r w ith this ag ent and L

t. J ohnson.-8-

J ohnson impli ed that he w as unaw are o f t h e n o t e. He said that they went to the jail to serve the capia s and that if the de fenda nt wanted to talk, they wer e g oing to be there to list en.

I n g ranting the def

endant’ s motion t o suppress the state ments he made on November 9, 10, and 11, 1992, the tria l court found

I n 1998 it was reve aled that ther e wa s considera bly m ore tha n “bac kg round informa ti on” discussed w ith the defe ndant at the October 29 and 30 me et ings w hen Ag ent Dave nport’s notes we re pr od uc e d th ro ug h f

urthe r d isc ov e ry

in pr e pa ratio n o f the mur de r t

ri a l. I n fa ct , it is obvi ous from the notes that ther e wa s substantial discussion relating to the murder case s leading up to the defe ndant’s invocation of his rig ht t o an at torney . Howeve r, there was no

rec onsideration of the motion to s uppress g iven p ri o r to the trial of the murder

case s based upon this information.

I n J anuary

of 1999, during the murder trial, L ieu t en ant J ohnson testified for the first time r eg arding the Novembe r 4 and 5, 1992 contac ts with the defendant. Although Lieutena n t J ohnson
te sti fi e d th a t no state me nts we re e lic ite d fr om the de fe nd a nt at th e se meeting s, he did indicate tha t the specific purpose of the contac t was to make sure that the def endant’ s needs we re be ing me t, a func tion

no rm a lly undertak e n b y

ja ile rs a ndno t in ve sti g a tor s. On c ro sse xami natio n, John so n ac kn ow le dg e d tha t “y ou c a n c a tc h mo re wi th honey than with vineg ar.”

Ba sed upon the e vidence , it is clear to this court that the de fe nd a nt m a de tw o in vo c a tio ns of his ri ghts unde r the F if th Amendment. The first invocation o cc urre d on October 21 when he ind ic a te d h is d e sir e to r e ma in s ile nt andc e a se qu e st ion ing un til investigators “had a

war rant.” The state a

rg ues that t his invocation

was e quivocal and indicated that the def endant wou l d d iscuss the

case s voluntarily upon the filing of char g es, in e ssence , an initiation of conta ct. The court finds this arg ument disinge nuous in light of the inve s tig ators’ r epeated (a t least four) contac ts, which wer e uninitiated b y t h e d e f e n d a n t , p r i o r

t o t h e N o v e m b e r 9 s e r v i c e o f t h e c ap i a s e s

. It is also clear

from the r ecor d that these c ontacts eith er d i s cussed the inv e sti g a tio ns dir e c tly

(O c tob e r 2 9 a nd30 ) or

we re un de rt ake n w ith the spec ific purpose and hope that the defen d an t would volunteer i nformation on his own (Nove mber 4 a nd 5). F ollowing e ach invocation, investig ators per sisted in repeated con t acts with the defe ndant culminating in the service of ca piases on Nove mber 9 a nd the e ns uin g c on fe ssi on s b y the de fe nd a nt. I t is a lso wo rthy to n ote-9- that th e se rv ic e of

pr oc e ss on No ve mbe r 9 wa s per so na lly do ne by Lt. J ohnson, Ag ent Dave nport and De t. Upchurc h
, at the dire ction of then Assistant District Attorney Gene ral Joll ey , in the h o pes that the defe ndant would cha ng e his mind and talk to them. . . .

As stated pre viously , it is clea r to this court that the def

endant invoked both of these rights, the f irst being his rig ht to remain silent on O c to b e r 2 1 a n d th e s e c o n d b e in g h is r ig h t to a n a tt orney on October 30. The court conclude s that on eac h occa sion the defe ndant exhibi ted his intention to exercise his F ifth Amendment privileg es. .

. . There is ample evidenc e bef ore this court that investigators failed to scrupulously

honor the de fenda nt’s invocation of rig ht s

. The subject matter of all interrog ations remaine d focuse d on the ra pe and murder inve stigatio n s throug hout the numerous police- initiated
contac ts with the defendant after the invocations occ urre d. . . . The
court c oncludes that the state has fa iled to meet its burden to show that the def

endant’ s rig hts wer e scrupulouslyhonored. D espite two invocati o n s , investigators continued to appr oach the defe ndant and either inter

rog ate him direc tly

or attempt to endea

r t hemselves to the defe ndant in hope s that he would discuss the investigations. I n light of the se ne w f

a c ts, the c ou rt

c a nnot c on c lud e that th e se state me nts

wer e voluntary

and self- initiated and not the produc t of “re peate d

e ff orts t o w e ar d ow n [th e defe nda nt’ s] r e sis ta nc e a ndmake him chang e his mind.” There fore
, having conclude d that the investig ators violated the def

endant’ s Fifth Amendme nt rig ht ag ainst selfinc ri min a tio n b y fai lin g to s c ru pu lou sly ho no r h is a sse rt ion s o f h is rig ht to cea se questioni ng and his rig ht to counsel, and further that the defe ndant’s stateme nts were not the result of his own initiated contac t with investigat o rs , t he def endant’ s motion t o suppress is here by GRANTED.

A t rial court’s fac tual finding s on a motion to suppress are conclusive on a ppeal unless the evidenc e pre ponderates ag ainst them. State v. Od o m , 928 S.W .2d 18, 23 (Tenn. 1996) ; State v. J ones, 802 S.W.2d 221, 223 (Tenn. Cri m. App. 1990). Que stions about the “cr edibilityof the witnesses, the we ight a nd v al u e o f t h e evidence, and r esolution of conflicts in the evide nce a re matters entr

usted to the t rial j udg e as the t rier of fac t.” Odom, 928 S.W.2d at 23. The application of the law to the fac ts as determined by the trial court is a question of law whic h is reviewe d de novo on appea l. State v. Year g an, 958 S.W.2d 626, 629 (Tenn. 1997). The preva iling party “is entitled
to th e s tr o n g e s t l e g i t i m a t e v i e w o f t h e e v i d e n c e a d d u c e d a t t h e s u p p r e s s i o n h e ar i n g a s w e l l a s a ll

rea sonable a nd leg itimate inf ere nces that may be draw n from the e vidence .” Odom, 928 S.W.2d at 23.-10-

I n this reg ard, the state notes that the tria l court made no finding s reg arding Lt. J o hnson’s interview w ith W illiam Fletcher . We also note the trial co u rt failed to c omply with this court’s

su g g e sti on in r e ma nd ing the ra pe c a se s th a t th e tr ia l c ou rt makesp e c if

ic fi nd ing s r e g ard ing wi tne ss

c re dib ili ty . H ow e ve r, the te no r of the tr ia l c ou rt ’s fi nd ing s r e fl e c t th a t it didno t f ull y a c c re dit J ohnson’s testimony . I n any event, we need not ig nore what was reve aled in the Fletc her inter view

a ndin Joh ns on ’s te sti mon y abo ut the int e rv iew. Mo re ov e r, we ne e d n ot i g no re the c ha ng e s in John so n’ s te sti mon y

wh e n c on fr on te d w ith Ag e nt D a ve np ort’ s n ote s.

A. Right to Remain Silent

The state c ontends that the def endant’ s rig ht to remain silent was “ scrup u l o u s l y honored” be c a us e the inv e sti g a tor s c ease d qu e sti on ing him e a c h ti me he a sse rt e d a

F if th A me nd me nt rig ht, they allowed a mple time to pass befor e any reinter rog ation, and they

g ave him fr esh sets of Mira nda

warnings before any

reinter rog ation. The de fenda nt responds that the multiple contac ts the investigators had with him violated the invocation of his Fifth Ame ndment rig ht to remain silent and that the re cord doe s not preponder ate a g ainst the trial court’s finding s.

Th e Un ite d Sta te s a nd Te nn e sse e Con sti tut ion s p ro te c t a su sp e c t f ro m “ be ing c omp e lle d to g ive e vid e nc e a g a ins t hi mse lf .” Stat e v. Berry , 1 41 S.W. 3d54 9, 57 6 ( Te nn . 2 00 4) (c iti ng U. S. Con st. a me nd . V ; T e nn . Co ns t. a rt . I , § 9)

. I f a su sp e c t is in c us tod y , the po lic e mus t fi rs t inf orm hi m of his Fifth Ame ndment rig hts in order for his confe ssion to be admissible as substantive evidenc e in the trial of the matter

. S ee M i ra n d a v

. Arizona, 384 U.S. 436, 86 S. Ct . 1602 (1966). Onc e informed of

those rig hts, a suspect may voluntarily

waive them and speak with the pol ice or he may invoke his Miranda right a g ainst compulsory self-inc rimination. I d. at 444-45, 86 S. Ct. at 1612; Sta te v. Crump , 8 34 S.W. 2d 26 5, 26 9 ( Te nn . 1 99 2) , c e rt . d e nie d, 11 3 S. Ct. 29 8 ( 19 92 ). “ Th e te st of voluntariness for confessions under Article I
, § 9 [of the Tennessee Const itution] is broade r and more prote ctive of individual rig hts than the test of vol untariness under t he Fifth Amendment.” I d. at 268 (citing State v. Smit h, 834 S.W .2d 915 (Tenn. 1992)). I f a suspect indi cate s in any manner that he wishes to re main silent, custodial interrog ation must cease . Miranda, 384 U .S. at 473-74, 86 S. Ct . at 16 27 (1 96 6) ; Cr

ump , 834 S.W. 2d a t 269. Af te r a sus pe c t invo ke s his rig ht t o r e ma in s ile nt, p o l i ce m ayn o tre s u m e c u s t o d i al i n t erro gat i o n u n l es s t h e d ef en d an t ’s ri gh tt o “c u to ff

q u es t i o n i n g” was “ scrupulously

honored

. ” Michig an v. Mosley , 423 U.S. 96, 104, 96 S. C t. 321, 326 (1975); Crump, 834 S.W .2d at 269. I n order to introduc e a de fenda nt’s confe ssion into evidence at the trial of the matter , the burden rests upon the s tate to demonstrate a valid waiver by a pre pondera nce of the evidenc e. See Colora do v. Connelly , 479 U.S. 157, 107 S. C t. 515 (1986).

We not e t h a ti n L e e v

. S t a t e , 5 6 0 S

. W

. 2 d 8 2
, 8 4 ( T e n n

. C r i m

. A p p

. 1 9 7 7 )
, t h i s c o u r th e ld under both the f

eder al and state constitutions t hat the state’ s burden was t o show a valid waiver by

c le ar andc on vin c ing e vid e nc e . L e e ha s n e ve r b e e n c ri tici z ed or ov erru le d. We a lso no te that in State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997), our supre me court citing Connelly held that the
state nee d only

show a va lid waiver by

a pre pondera nce of

the evidenc e. The court relied, how ever , on f e d e r a l c o n s ti tu ti o n a l la w a n d d id n o t a d d r e s s ar ti c le 1
, s e c ti o n 9 o f o u r c o n s ti tu ti o n o r L ee’ s-11-

c o n tr ar y h o l d i n g

. In a n y e v e n t , w e w i l l d e t e r m i n e w h e t h e r t h e s t a t e s h o w e d a

v a l i d w a i v e r

b y a preponde ranc e of the evidenc e.

I n Mosley
, the S upreme Court considere d when police could reexamine a suspec t who had previously

asserted his rig ht to remain silent. 423 U.S. at 96, 96 S. Ct . at 321. Mosley was a rre sted on robbery

char g es and a dvised of his Miranda rig hts. After invoking his rig ht to remain silent, the

arr e sti ng of

fi c e r p la c e d h im i n a de te nti on c e ll. Ap pr oximate ly tw o h ou rs la te r, a no the r o ff ic e r c a me to interview the defe ndant about an unrelated homi cide. He g ave the suspect anothe r set of Mira nda

warnings, a nd during the cour se of the subse quent interrog ation, Mosley made incriminating statements. I n revie wing the case under Mira nda, the Court conc luded that Mosley ’s invocation of his ri g ht t o r e ma in s ile nt h a d b e e n “ sc ru pu lou sly ho no re d” be c a us e “ [1] th e po lic e

. . . im me diate ly

cea sed the interr ogat i o n , [ 2 ] resumed questioning only afte r the pa ssag e of a

signific ant period of tim e a nd[3] th e pr ov isi onof a fr e sh se t of

wa rn ing s, a nd[4] r e stric te d th e se c on d in te rr og a tio n to

a crime that had not bee n a subjec t of the ea rlier inter rog ation.” I d. at 1 0 6
, 9 6 S

. C t

. at 3 2 7. The Co u rt n o ted that “whe re the police fa iled to honor a de cision of a pe rson in custody to cut off qu e sti on ing , e ith e r b y

re fu sin g to d isc on tin ue the int e rr ogati on up on re qu e st o r b y pe rs ist ing in repe ated e fforts to wear dow n his resistance and make h i m chang e his mind,” a c onstitut ional violation would occur. I d. at 105-06, 96 S. Ct. at 327. Howeve r, the Court also noted that Mira nda cannot “ sensibly

be re ad to cr eate a per

se prosc ription of i n d ef i n i t e duration upon any

further questioning by any police office r on any subject, once the per son in custody has indicate d a desire
to r e ma in sil e nt” be c a us e su c h a re a din g c ou ld i mpe rm iss ibl y c re a te “ a blank e t pr oh ibi tio n a g a ins t the taking of voluntary

statements or a

perma nent immunityfrom furt h er i nterrog ation.” I d. at 102-03, 96 S. Ct. 326.

The fe dera l c ircuit courts ha ve split in apply ing Mosley . The minority position hol ds that the
te st c on sti tut e s c on dit ion s p recedent to a s ho wi ng of a de fe nd a nt’ s v a lidwa ive r o f h is p re vio us ly invoked Fifth Amendment rights. I n other words, under this approa ch, unless all four c onditions are met, there can ne ver be a subseque nt showing of valid waiver . S ee Un i t ed States v. B arone , 968 F.2d 1378 ( 1st Cir. 1992) (holding that unde r “Mosley
, a court need de termine spec ifically whether there has bee n a volunt ary waiver only afte r t he government has carrie d its burden of showing that it complied with [ all of] the require d proce dures” ); ac cord V ujosevic v. Raff erty , 844 F.2d 1023, 10 28 -3 1 ( 3r d Ci r. 19 88 ) (h old ing that unde r Mos le y , the g ov e rn me nt fa ile d to de mon str a te a va lid

wa ive r w he n p oli c e didno t “ sc ru pu lous ly ho no r” the su sp e c t’ s in vo c a tio n o f h is rig ht t o r e ma in silent by reinter rog ating him about the same c rime).

The majority position conc ludes that the Mosley test does not cre ate a

per se rule but provides fac tors that a court should consider under a “totality of the circ umstances” approa ch. For example, in Weeks v. Ang elone, 176 F .3d 249, 267-268 (4th C ir. 1999), t he court determined that the Mosley Court stated fac tors to consider whe n determining whe ther the police had “sc rupulously honored” a suspect’s rig ht to “cut off questi oning,” not a bright l ine rule. Acc ord Unit ed States v. Schwe nsow, 15 1 F

. 3 d 6 5 0
, 6 5 9 ( 7 thCi r

. 1 9 9 8 ) ( r e c o g n iz in g th a t a s e c o n d in te r v ie w is n o t r e ndere d unconstitutional simply beca use it involved the same crime as previously discussed); United States

v. Mc Clin ton , 9 82 F .2 d 27 8, 28 2 (8th Cir . 1 99 2) (f oc us ing on wh e the r the po lic e “ pe rs ist e d in-12-

‘re peate d eff

orts to wea

r down the person’s resistanc e’ in order to chang e the person’ s version of the fac ts,” instead of on subject matter of the re interrog ation); United States v. Hsu, 852 F .2d 407, 410 (9 th C ir . 1 98 8) (h old ing that “ a n id e nti ty of su bje c t matte r i n th e fi rs t a ndse c on d in te rr og a tio ns is not sufficient, in an d o f i t self, to re nder the second inter rog ation unconstitutional”); cf. H atley v. State, 709 S.W .2d 812, 815 (Ark. 1986) (stating Mosley ’s importance is focused on “ strict adher ence to its di ctates of

scrupulously

honoring the def

endant’ s rig ht to remain silent” a nd finding the Court’s emphasis “on interrog ation about a differ ent crime is, w e believe, misplaced” ); State v. Stanley , 613 A.2d 788 (Conn. 1992) (r ejec ting the vie w that Mosley stands for the pr oposition t hat “t h e poli ce

c a n n e ver r ein ter rogate a su sp e c t, w ho ha s in vo ke d h is rig ht t o r e ma in s ile nt, re g ard ing the sa me crime a bout which he had ref

used t o talk”). Acc ording to the analy sis of t he W eeks court and other s in acc ordanc e with its interpre tation of Mos ley
, the relevant question to consider is whe ther unde r the “totality

of the c ircumstance s,” the police “scr upulouslyhonored” a suspec t’s rig ht to “ cu t off questioning.”

We ag ree with the majority of the c ircuit courts a nd conclude that reinter rog ation of a suspe ct

c o n c e r n i n g t h e s a m e s u b

j e c tm a t t e r d o e s n o tc o n s t i t u t e a p e r s e v i o l a t i o n o f

M i r a n d a u n d e r M o s l e y. Ho we ve r, we be lie ve it i s a n impo rt a nt f a c tor to co ns ide r und e r a “t ota lit y of the c ir c ums ta nc e s” te st. I n t hat regar d, we c on c lud e that be c a us e the of fi c e rs re int e rr og a te d th e de fe nd a nt a bo ut the sa me subject matter on at least three separ ate oc casions af t er h e i n voked his rig ht to remain silent and be c a us e the y

a tte mpt e d to c ur

ry fa vo r w ith the de fe nd a nt o n tw o oth e r o c c a sio ns by a llo wi ng him to show er and telephone family members, the office rs’ actions constituted a persistent eff ort to wear down the def

en d an t ’s resistanc e and “ make him cha ng e his mind.” Further, we conclude that the

re c or d pre po nd e rate s ag a ins t the tr ia l cou rt ’s imp lie d fin din g s tha t the No ve mbe r 4 and5 c on ta c ts did not include discussions a bout c rimes with the defe ndant. The rec ord ref lects that Lt

. J o hnson sp o k e t o W i l l i a m F l e t c h e r , a j a i l m a t e o f t h e d e f e n d a n t , a f

t e r t h e N o v e mb e r 4 a nd 5 c on ta c ts. J ohnson asked Mr. Fletc her w hether the def endant discusse d with him about what the detec tives had talked to the defe ndant on November 4 and 5. I t is sim ply unrea sonable to conc lude that J ohnson
was not re fer

ring to substantive conver sations he and the ot her detectives ha d with the defe ndant on No ve mbe r 4 a nd5. Th e re fo re , w e be lie ve that a ft e r the de fe nd a nt inv ok e d his ri g ht t o r e ma in s ile nt, the detec tives reque stioned him at least three additional times and m et wit h him on two other

oc c a sio ns wh e re , at th e le a st, the conve rs a tio ns c on c e rn e d th e sa me su bje c t matte r. Gi ve n th e se fa c ts, we ho ld that th e e vid e nc e do e s n ot p re po nd e rate a g a ins t th e tr ia l c ou rt ’s fi nd ing that th e state failed to mee t its burden of showing t h e d ef en d ant’s Fifth Amendment rig ht to remain silent was “scr upulouslyhonored.”

B. Rig ht to Counsel

Be cause the def

endant invoked his rig ht to c ounsel afte r he invoke d his right to re main silent

a n d b e c a u s e th e c o n s ti tu ti o n a l an a ly s is o f w h e n a v io lati o n o f

th e s e r ig h ts o c c u r s is d if

f e r e n t, w e n e xt

a dd re ss wh e the r the of

fi c e rs vio la te d th e de fe nd a nt’ s in vo c a tio n o f h is rig ht t o c ou ns e l. T he state

co n t en d s t h at t h e d ef

en d an t ’s i n v o ca t i o n o f h i s ri gh t t o co u n s el wa s n o t v i o l at ed b ec au s e ev en t h o u gh the investig ators re in i t i at ed contact with him on November 4, 5, and 9, no inter rog ation occur

red until the defenda nt initi ated a conver sation on November 9, indicating his willi ng ness to discuss the-13-

c ha rg e s a g a ins t hi m. T he de fe nd a nt c on te nd s th a t th e state ha s c on fu se d th e iss ue of its du ty to honor a suspe ct’s asse rted rig ht to rema in silent scrupulously under Mosley with its dut y

to have no further contac t in the absenc e of counsel afte r a suspect asserts his rig ht to the assistance of counse l under Edwar ds. He arg ues that the state violated his asserte d rig ht to counsel by initiating contac t wi th h im o n N ov e mbe r 4 , 5 , a nd9, c ulm inatin g in h is c on fe ssi on . We a g re e wi th the de fe nd a nt.

I n Miranda, the Court stated that if a suspect d u ri n g cu stodial interrog ation reque sts an attorney , “the inter

rog ation must cease until an attorney is present.” 384 U.S. at 474, 86 S. Ct . at 1627-28. When such a r equest is m ade and “the interrog ation continues wit hout the presence of an attorney and a statement is t ak en , a hea vy burden r ests on the g overnme nt to demonstrate that the defe ndant knowing ly

and intellige ntly

waived his privileg e ag ainst self-incrimination and his right to retaine d or appointed c ounsel.” I d. at 475, 86 S. Ct. at 1628 (emphasis added)

.

The Court in Edwar ds “re confirm[ed] these views and, to lend them substance, e mphasize[ d] that it is inco ns ist e nt w ith Mir a nd a a ndits pr og e ny

fo r the a uth oriti e s, a t th e ir ins ta nc e , to reinter rog ate a n acc used in custody if he has clea rly asserted his right to counsel.” 451 U .S. at 485, 101 S. Ct . at 1885. “[W] hen an a ccuse d has invoked his right to have c ounsel prese nt during custodial interrog ation, a valid wa iver of that rig ht cannot be e stablished by showing only

that he

re sp on de d to fu rthe r p oli c e -i nit ia te d c us tod ia l in te rr og a tio n even if he ha s b e e n a dv ise d o f h is ri gh t s

. ” I d

. at 484, 101 S. Ct. at 1884-85. Furthe r, a suspe ct “ha ving e x presse d his desire to dea l wi th the po lic e on ly

thr ou g h c ou ns e l, i s n ot s ub je c t to fu rthe r i nte rr og a tio n b y the a uth oriti e s u nti l counsel ha s been made available to him, unless the a ccuse d himself initiates further c ommunication, exchang es or c onversations with the police.” I d. at 484-85, 101 S. Ct. at 1885. The Court, howe ver, didno t su g g e st that po lic e c ou ld nev er u se inc ri min a tin g state me nts g ive n b y a su sp e c t w ho fi rs t invoked his rig ht to counsel. For example, the Court stated,

Had Edw ards i nitiated a mee ting . . . , nothing in the Fifth a nd F ou rt e ent h Am e nd me nts wo uldpr oh ibi t th e po lic e fr om m e re ly listenin g to h is v o lu n ta

r y , v o lu n te e r e d s tate me n ts a n d u s in g th em

a g a ins t hi m a t th e tr ia l. T he F if th Am endme nt rig ht i de nti fi e d in Miranda is the rig ht to have counse l present at any custodial interrog ation. Absent such interrog ation, there would have been no infring ement of the rig ht that Edwards invoked and there would be no

occa sion to determine whe ther ther e had be en a va lid waiver.

I d. at 485-86, 101 S. Ct. 1885 (emphasis adde d).

I n determining whe ther a valid waiver of a suspect’s invocation of hi s rig ht to counsel has

occur red, the proper

question is w hether “the acc used, not the police, re opened the dialog ue with the authorities. . . . [A] knowing and int ellige nt waiver cannot be found once the Fif th Amendment rig ht to counsel has be en invoked unless the a ccuse d initiates the rene wed c ontact.” I d. at 486 n.9, 101 S. Ct. at 1885 n.9 (empha sis added) ; see also Wyrick v. Fields, 459 U.S. 42, 45-46, 103 S. Ct. 394, 39 6 ( 19 82 ) ( statin g that a n a c c us e d w ho ha s prev io us ly a sse rt e d h is rig ht t o c ou ns e l mu st h ims e lf-14-

reinitiate a

“dialog u e wi t h t h e au thorities”); United States v. Whaley , 13 F.3d 963, 967 ( 6th Cir. 1994) (holding “an E dwar ds initi ation occur s when, without influence by the authorities, the suspec t sh ow s a wi lli ng ne ss a nd a de sir e to t a lk g e ne ra lly abo ut h is c a se ” ). I n Patte rs on v. I lli no is, 48 7 U .S. 2 8 5
, 2 9 1
, 1 0 8 S

. C t

. 2 3 8 9
, 2 3 9 4 ( 1 9 8 8 )
, t h e S u p r e m e C o u r t , c o m m e n t i n g o n a v a l i d w a i v e r b y a suspect who ha d inv o k ed h i s ri ght to counsel, noted, “H ad petitioner indicated he wanted the assista n c e o f

c o u n s e l, th e au th o r it ie s ’ in te r v ie w w ith h im w o u ldh a v e s to p p e d
, a n d f urther qu e sti on ing wo uld ha ve be e n fo rb idd e n (u nle ss pe tit ion e r c a lle d fo r su c h a s me e tin g ). ” (E mph a sis added)

. The Supreme Court has explained that E dwar ds “ser ves the purpose of providing ‘cle ar a nd unequivoca l’ g uidelines to the law enf orce ment profe ssion.” Arizona v. Roberson, 486 U.S. 675, 68 1- 82 , 1 08 S. Ct . 2 09 3, 20 98 (1 98 8) (q uo tin g F are v. Mi chael C.
, 44 2 U. S. 7 07 , 7 18 , 9 9 S. Ct. 2560, 2568 (1979))

.

“I f the police do subsequently initiate an enc ounter in the abse nce of counsel . . . , the suspect’ s statements are presumed involuntary and there fore inadmissible as substantive evide nce at trial, even w here the suspect executes a

waiver and his statements would be c onsidered volunta ry under tra ditional standards. This is ‘desig ned to pre vent po lic e fr om ba dg e ri ng a de fe nd a nt int o wa ivi ng his prev iousl y

asserted Miranda

rig hts.’”

McNe il v. W isconsin, 501 U.S. 171, 177, 111 S. C t. 2204, 2208 (1 9 91) (quoting Michig an v. Ha rv e y , 4 94 U. S. 3 44 , 3 50 , 1 10 S. Ct . 1 17 6, 11 80 (1 990)) . T he brig ht l ine ru le a nn ou nc e d in Edwar ds refl ec ts the Supreme Court’s conc ern that “if a suspe ct believe s that he is not capa ble of underg oing [cust o d i al ] q u estioning w ithout advice of c ounsel, then it is presumed that any subsequent wa iver that ha s come at the authorities’ behest, and not at t he suspec t’s own instigation, is itself the product of the ‘inhere ntly compelling pressure s’ and not the pure ly voluntary

choice of the suspect.” Roberson, 486 U.S. at 681
, 1 0 8 S

. C t

. at 2097-2098 (c itations omi tted). “O nce a suspect invokes the M iranda rig ht to counsel for interrog ation reg arding one off ense, he may

not be

re app ro a c he d r e g ard ing a ny of fe ns e un le ss c ou ns e l is pr e se nt. ” Mc Ne il, 50 1 U .S. a t 17 7, 11 1 S. Ct. at 2208.

I n O re g on v. B ra ds ha w, 46 2 U.S. 10 39 , 103 S. Ct. 283 0 (19 83 ), a ft e r i nv oking his ri g ht t o counsel, the suspe ct subsequently initiated a conver sation with police while being transporte d to a dif fe re nt de te nti on fa c ili ty wh e n he a sk e d the tr a ns po rt ing of fi c e r, “ Wha t is g oin g to h app e n to me

no w?” T he e ns uin g c on ve rs a tio n le d to a n in te rv ie w c omp le te wi th M ir a nd a wa rn ing s, re su lti ng in a poly g raph ex amination which led to the suspect making incriminating statements. A plura lityof the Court conclude d that the suspect validly waived his pr eviously asserted rig ht to counsel under the Edwa rds rule by

initiating a ne w conve rsation notwithstanding the fac t th at , t ec h n i cally , law enfor ceme nt initi ated c ontact with hi m by removing him from his ce ll for transportation. Bra dshaw, 462 U.S. at 1046-47, 103 S. Ct. at 2835. However , we note tha t while Br adshaw qualifies the Edwar ds brig ht line rule, eig ht of the Jus tices in that ca se still re quired that the def endant initiate the-15-

c on ve rs ati on or

c ommun ic a tio n. “ I f E dw ard s is to b e fu rthe r m od if ie d .

. . , it

is f or the Sup re me Court to do it.” United States v. Ortiz, 177 F.3d 108, 110 (1st Cir. 1999).

I n State v. Clay

brook, 736 S.W.2d 95 (Tenn. 1987), our supr eme court, c iting Edwa rds and Br adshaw , considere d whether a suspec t who had p re v iouslyinvoked his rig ht to counsel subsequently

made a valid waiver

by reinit i at i n g a conve rsation. The suspe ct initiallyreque sted counsel a fter an investigating office r noticed blood sta ins on his c lothing. L ater , while he wa s being led down a ha llway

in the detention fa cility , the suspect saw the district attorney g ener al and a sked to speak with him. During the ensuing questioning, the suspect wa ived his previously asserted rig ht to counsel and ma de a sta tement. C l ay b ro o k
, 7 3 6 S.W .2d at 102. The c ourt held the suspec t’s waiver was va lid. I d. at 103.

I n its response to the def endant’ s motion t o s u p p re s s , the state in the trial c ourt cited Br omfield v. Fr eema n, 923 F. Supp. 783 (E.D.N.C. 1996), f or the proposition that an investig ating office r who serves a w arr ant on a s u spect who pr eviously invoked his rig ht to counsel does not reinitiate c ontact under

the e x ce ption in Bradsha w. Under this view, a suspec t’s subsequent indication of a w illingness to talk about the c harg es and his resulting confession will not offend the Fifth Ame ndment so long a s a valid wa iver wa s obtained.

In Br o m fi el d
, t h e s u s p ec ti n v o k ed h i s ri gh tt o co u n s el

. T h er ea ft er , p o l i ce i n v est iga tors serve d f e l o n y m u r d e r w a r r a n t s o n t h e s u s p e c tw h i l e h e w a s i n c ar c e r a t e d i n t h e l o c a l d e t e n t i o n f a c i l i t y, hop in g th a t h e “ w o u ldc h o o s e to p r o v id e f u r th e r in f o r mati o n

. ” I n r e v ie w in g th e s u bsequent conviction, the court found

that se rv ic e of

su bs e qu e nt w arr a nts up on a n in c arc e rate d a c c us e d is

a norma l incident both of ar rest and custody . The c ontact that the police had with pe titioner when they serve d him with the second set of wa rr a nts , a lon g wi th any

“ inq uirie s o r s ta te me nts re la tin g to” thi s “routine inc ident of the custodial rela tionship,” could not violate the ri g ht t o c ou ns e l. E ve n w he re a su sp e ct has inv ok e d h is F if th Amendment rig ht ag ainst further uncounsele d interrog ation on any subject, the pol i ce “ar e fr ee to inform the suspect of the fac ts of the second inve stigation as long a s such communication does not constitute interrog ation. . . .” To the extent that petiti oner e x presse d a d e s ir e to g iv e th e p o li c e a th ir d in te r v ie w u p o n b e in g inf ormed of the war rants, the Court finds that it was the petitioner, not the police
, who “initiated” f

urther c ommunication.

Br omfield, 923 F. Supp. at 788.

We do not view Br omfield to be p er s u as i ve in the conte x t of the pre sent ca se. While the B ro mf ie ld c ou rt c on sid e re d th e se rv ic e of a wa rr a nt b y the ve ry same of fi c e r w ho ha d p re vio us ly int e rr og a te d th e de fe nd a nt a ro uti ne inc ide nt o f the c us tod ia l re la tio ns hip , w e no te that th e Sup re me-16-

Court ga ve but two examples of routine incide nt s o f t he custodial re lationship that would not be considere d an initiation of co n t ac t : a request for a drink of wate r or the use of a te lephone. See Br adshaw , 462 U.S. at 1045, 103 S. Ct . at 2835. The f acts o f Br ad shaw a lso stand as a third example: contacts nec essary to fac ilitate transportation of a detained suspect. However, w e dec line
to e xtra po la te fr om the se e xamp le s th a t th e inv e sti g a tin g o ffi c e rs in this c a se , w ho pr e vio us ly initiated contact with the defe ndant twice and whose primary purpose in ser ving the capia s on the de fe nd a nt w a s to ob ta in h is c on fe ssi on , d id n ot o ff e ndEd wa rd s w he n th e y

us e d the c apia s a s a

ru se with the fer vent desire that the defendant ask so much as “I have some questions about this” in order to reinterr og ate him in the abse nce of counsel.

We further

conclude that even if

the serving of such proce ss by the same inve stigators is not

a re initiation of contact under Edwar ds, the fac ts of the present case lead us to the conclusion that the investig ators viol ated the de fenda nt’s assertion of his right to counse l under Edwa rds by reinitiating contac t with him on November 4 and 5. These c ontacts we re unde rtake n by investigators be c a us e in the wo rd s o f L t. Joh ns on , y ou c a n g e t “ mor e wi th h on e y than wi th vin e g ar. ” Whil e thi s may indeed be a true statement and e ven a le g itimate law enf orce ment technique, w e conc lude that the investig ators violated the de fenda nt’s asserted rig ht to counsel under the Fif th Amendment by reinitiating contac t, communication, dialog ue, or me eting with him on November 4 and 5. B ased upon J ohnson’s i n t er v i ew wi t h W i l l i am Fl et ch eran d Ge n er al J o l l ey ’s co m m en t s t o Age n tDa v en p o rt about serving the ca

pias, we c onclude that the inve stigating of fice rs’ c ontact on November 4, 5, a nd 9 cannot be said to have arisen as a r outine incident of the c ustodial relationship as it was desig ned to elicit a co n fe s sion from the def endant. The se conta cts violated Edwa rds’ brig ht line rule, culminating in the de fenda nt’s confe ssion. Bec ause the defe ndant re mained in state c ustody during this entire period, we disce rn no attenuation of the constitutional violation. I ndeed, the defe ndant’s desire to talk g ener ally

about his case was the dire ct and pr ox imate re s u l t of the influenc e of the po lic e inv e sti g a tor s o n f ive se pa rate oc c a sio ns , andhis wa ive r c a nn ot b e sa id t o c omp ly wi th Edwar ds.

Edwar ds established a bright line r ule which the inve stigating of fice rs violated by

rei n itiating
contac t, communic at ion, dialogue and mee tings with the de fenda nt. I n order to comply

with the

c o n s t i t u t i o n a l m a n d a t e s , i f t h e s t a t e w a n t e d t o i n t e rr o g a t e t h e d e f e n d a n t o n N o v e m b e r9
, t e n d a ys afte r he r equeste d the as s i s t ance of counse l, it needed simply to provide him the attorney he reque sted. I n this re g ard, we conclude the evidenc e does not pr eponder ate a g ainst the trial court’s finding that the state failed to car ry its burden to show valid waive r.
II. ARREST, S EARCH, AND SEIZUR E

The state c ontends that the items seized from the de fenda nt’s home ar e admissible as

e vid e nc e be c a us e the po lic e arr e ste d th e de fe nd a nt i n g oo d f a ith re lia nc e up on a Kno x vi ll e City Court capias subse quently decla red void a nd beca

use the defe ndant’s fathe r conse nted to the sea rch of the de fe n d a n t ’ s r o o m

. T h e d e f e n d a n ta s s e r t s t h a tT e n n e s s e e d o e s n o t r e c o g n i z e a

g o o d f a i th exception and that one should not exist , in any event, whe n the state re lies upon a void capias. H e also notes the trial c ourt found that no conse nt to searc h was g iven.-17-

The evidenc e reg arding the defe ndant’s arr est and the sear ch of his home on Oc t o b er 2 1, 19 92 , w a s su mma

ri zedby thi s c ou rt

in the de fe nd a nt’ s r ape c a se a s f oll ow s:

At a F ebrua

ry 7, 1996 suppression hea ring , Knox C o u n t y

Sheriff’ s Detec tive Michae l Upchurc h testified that he wa s i n char g e of inv e sti g a tin g the ho mic ide s, wh ic h o c c ur re d n e ar C a ha

ba L a ne in Knoxvi lle in October

1992. His investigation caused him to focus on the de fe nd a nt a s a

su sp e c t, andhe c he c ke d f or ou tst a nd ing wa

rr a nts

a g a ins t the de fe nd a nt. He fo un d a n ou tst a nd ing c apia s fo r f a ilu re to appea r in Knoxvi lle Municipal Court on a cha rg e of sol i ci t at ion of prostitution. Knowing that the de fend an t had bee n employ ed at Tea g ues Statuary

in Sevier County , Detec tiv e Upc hurch a sked the Sevier County Sheriff’ s Depa rtment to ha ve an off

icer meet him and Detec tives Darr ell J ohnson, Dan Stewa rt, Mike Fr eema n, and Mike Grissom to arre st the defe ndant on the ca pias and for

questioning about t h e h o micides. They first went to the statuary and then proce eded to the de fenda nt’s pare nts’ mobile home, wher e De tective U p c h u r c h s a w a

tr u c k matc h in g a

d e s c r ip ti o n g iv e n in c o n ju n c tion

w i t h h i s i n v e s t i g a t i o n p ark e d i n t h e d r i v e w a y.

Detec tive Upchur ch testified that at 9:30 p.m., he and Of fice r J err y Huskey of the Sevier County Sheriff’ s Depa rtment went to the front door of

the mobile home and that the othe r off icer s went to the back door. Offic er H uskey was in uniform a nd had par ked his cruise r in front of the mobile home. The defe ndant’s mother a nswere d the door, and he and Of

fice r Huskey

iden t i fi ed themselves. De tective Upchur ch told her tha t he wante d to see the de fenda nt, that a court ha d is su e d a

c apia s f or the de fe nd a nt f

or failu re to a

pp e ar i n c ou rt , and that they

wer e taking the def

endant into custody at that time. Mr s. Hu sk e y

tol d h im that her hu sb a nda ndthe de fe nd a nt w e re in their beds a nd that she wo u l d g et the def endant. She invited them inside. The defenda nt came into the l iving room and asked w hat they wanted. D etec tive Upchur ch told him why they wer e ther e and that they wanted to talk to him. The defenda nt said, “F ine. I need to g et my shoes.” Detec tive Upchur ch tol d the defendant that he could ge t his shoe s but that the y would have to a ccompa ny him to his bedroom beca use he w as in custody

. The defenda nt ag ree d to this and walked ahea d of them down the ha llway

.

Detec tive Upchur ch testified that while he and Detec tive Stewart we re standing just insi de the door way of the de fenda nt’s bedroom, he saw a n orang e hay -baling rope on the defe ndant’s floor. He r ecog nized it as t he ty pe of rope used to bind the rape victims. As-18- the def endant sa t on his be d putting on his shoe s, Detec tive Upchur ch ill u minated a dr esser

with his flashlight and sa w a pa ir of women’ s

ea rr in g s a n d a n e c k la c e o n th e to p

. T h e d a y b e f o r e , one of the homicide victims’ boy friends had told him that the vi ct i m h ad

ear ring s in he r purse . He did not conf ront the def

endant with the r ope

a nd je we lry

a t th is p oin t. T he de fe nd a nt r e fu se d to sig n a c on se nt t o

se arc h f orm a ndwa s th e n tr a ns po rt e d to the Se vie r C ou nty Jail

.

Detec tive Upchur ch testified that De tective Stewa rt rema ined at the def

endant’ s bedroom doo r t o make sure that nothing wa s

mov e d. Th e oth e r d e te c tiv e s w a ite d in the ir un mark e d c ars

. Although the defe ndant’s father ha d g iven hi s consent to sea rch the whole re sidence , the Assistant Dist ri ct Att orney advised him by telephone that he should g et a se arc h war rant for t h e defenda nt’s bedroom. The Sevier County Sheriff’ s Offic e provide d him with a

sear ch w ar ra n t form. He c onsulted with the Assistant District Attorney ag ain and drafted the aff idavit and war

rant. He

a c kn ow le dg e d tha t he wa s not fa mil iar with Ru le 41 , T e nn . R. Cr im. P., but that he ha d underg one training rela ting to se arc h war rants and was familiar with probable c ause. N evertheless, at t h e t i me of the hearing, he had written only a fe w sear ch war

rants. He admitted that the sea rch w arr ant affi d av it did not m ention the jewe lry that he had

see n i n t h e defenda nt’s room. He sa id that he noted the jew elry on the lis t of ite ms fo r wh ic h he wa s se arc hin g be c a us e he ha d s e e n it in the room and kne w it was there

.

Detec tive Upchur ch testified that he told Of fice r Huskey

that he nee ded to g o to a judge o r m agi s trate to g et a se arc h war rant sig ne d, a ndOf

fi c e r H us ke y

a g re e d to tak e him . H e wa s ta ke n to Br uce B aker , who was introduced as a Sevier Countymag istrate. He handed the war

rant to Mr. B aker

and as k ed i f he neede d to do anything e l se bef

ore Mr . Ba

ker sig ned it. Mr. B aker signe d the

war rant, a nd Detec tive Upchur ch made three copies. He g ave one of the copies to Mr. B aker, and the othe r two copie s were for the de fe nd a nt andhis fathe r. On c e he ob ta ine d th e sig ne d s e arc h w arr a nt, he re turned t o the def

endant’ s pare nts’ home and c onducted the

se arc h. Whe n D e te c tiv e Ste wa rt pic ke d u p th e e arring s to ba g the m, Detec tive Upchur ch saw a b l o n de hair entwined with the ne cklac e and the ear

ring s. I n addition to the items f ound in the d efendant’s bedroo m, h e f

o u n d a k n if

e o n th e b a th r o o m s in k

. H e s a id th a t the de fe nd a nt’ s p are nts ne ver obje c te d to the se arc h o f the ir mob ile ho me , a ndthe de fe nd a nt n e ve r o bject ed to the of fi c e rs e nte ri ng his be dr oo m a t th e tim e of

his arr e st.-19- Detec tive Upchur ch testified that the defe ndant arrived at the Knox C ounty

J ail at 4:00 a.m. o n October 22. Detec tive Upchur ch was not at municipal c ourt when the defe ndant appea red and did not speak to a ny one assoc iated with that char g e. He did not consider the defe ndant to be under arr est for the death of Patricia Rose A nderson until the Knox CountyGra nd J ury returne d an indictment for that char g e.

Jer

ry Hu sk e y te st if ied that on Oc tob e r 2 1, 19 92 , h e wa s a patrolman with the S evier CountySheriff’ s Depa rtment, when Knox County o ff

i ce rs aske d him to help them in investi g ating the defe ndant. He c onfirmed the tr uth of his affida vit, which stated that the offic ers showe d him a folded capia s and told him t hat it was for the defen d a n t, b u t s a idth a t h e d idn o t r e a d it

. H e to o k th e m t o the statuary and then to the Huskey residenc e. He thought that the defe ndan t ’s father invited them inside. The def endant wa s not weari n g shoes when he first saw the de fenda nt. He hea rd the de te c tiv e s a sk the de fe nd a nt’ s fathe r if the y c ou ld s e arc h th e mob ile home. The de fenda nt’s fathe r ag ree d to let them sear ch but t old them that they would have to a sk the defe ndant abou t h i s room. The detec tives asked the de fenda nt i f they could sea

rch his room. The defe ndant said they

could not sear ch his r oom, and they g ot a sea rch

wa rr a nt. He did no t se e the de te c tiv e s v iol a te the de fe nd a nt’ s r ig hts
, and he be lieved that they acte d in a p rofessional manner. H e acknow ledg ed that his report states that he tra nsported the de fenda nt to the Kn ox Cou nty

lin e wh e re the de fe nd a nt w a s c ha rg e d w ith homicide.

Knox County Sheriff’ s Detec tive Daniel St ewa rt testified that on October

21, 1992, he went to the defe ndant’s house w ith Detective Up c hu rc h. Whe n th e de fe nd a nt wa lke d int o his pa re nts ’ l ivi ng ro om, Detec tive Upchur ch announc ed that th e defe ndant would be take n i n to custody

for f ailure to a

ppear in court. De tective Stewa rt considered t h e defe ndant to be in custody at that point. He said he

acc ompanied the de fenda nt to his bedroom for shoes or a sh i rt

. He was standing either in the door way or ju s t inside the room, and De t ec t i v e U p ch u rc h s t o o d b es i d e h i m

. He n o t i ce d a p i ec e o f o ra n ge ba ling t wi ne on the fl oo r b y the be d. De te c tiv e Ste wa rt sa id that a rh ine sto ne ne c kla c e wi th a ha ir e ntang le d in it a nda pa ir of c os tum e pearl ear ring s were found on a pie ce of furniture immediately on the l ef t throug h the doorway , but he did not remembe r if he sa w the jewelry when the de fenda n t was g etting his shoes or when they executed the se arc h wa rrant. The top of the piec e of f urniture wa s-20- cluttere d, and the j ew el ry was e ither on top of or ne ar the edg e of some newspa

pers. When the de fenda nt was take n to jail, Detective Stewart remained at the m obile home to ensure that the def endant’ s bedroom wa s not disturbed. He did not sear ch the r oom while the other off icer s were away . During that time, the defe ndant’s mother
enter ed the r oom to turn off a lig ht or radio, and as she le ft, the rope

c a ug ht o n h e r f

oo t a ndwa s d ra g g e d a

fe w i nc he s.

J essie Huske y , the def

endant’ s mother, testified that she w as

awa kened by knocking afte r 9:00 p.m. on October 21, 1992. When she opene d the door, men w ea ri n g police uniforms a sked if her hu sb a ndwa s th e re . Sh e sai d th at hewa s th e re a ndc a lle d f or him

. One of the m en as k ed i f the de fenda nt was there . She said y es and kn oc ke d o n th e wa ll a dja c e nt t o th e de fe nd a nt’ s bedr oom. S he did not ask the o ff

i cer s to come inside. The of fice rs stood in the door until her husband ar ose. When the def endant e ntere d the living r oom in h is p a ja ma bo tto ms, the of

fi c e rs wa lke d o ve r t o him. At that po int
, she went to he r bedroom to g et a house coat, a nd when she returne d, the offic ers a nd the def

endant we re g one. She never h ea rd the office rs ask he r husband f or permission t o sear ch their home or say that they wer e there t o arr est the def endant be cause he fa iled to appea r fo r c ou rt . T he de fe nd a nt h a d p re vio us ly tol d h e r that he we nt t o

c ou rt

. Mrs. Huskey

testified t h at s he wa s frig htened a nd nervous beca use the office rs had taken the de fenda nt. One off icer rema ined

s t an d i n g at t h e d ef

en d an t ’s b ed ro o md o o r. S h e d en i ed o ff er i n g a stool to t he off

icer , who stood the entire ti m e. T h e officer watche d her g o into the defe ndant’s bedr oom and aske d what she w as g oing to do. She told him that she wa s g oing to turn the radio off , which she did and then le ft the room. She noted that a che st of draw ers wa s built int o the wall in the defendant’s bedroom and that one could not see the chest unless he or she steppe d into t h e room. The office rs returne d and sea

rche d the t railer, but she did not hear he r husband g ive them permission t o sear ch. She did not know what was i n the defe ndant’s room be cause she neve r we nt in his room except to leave his clean laundry

on the bed.

Huskey , slip op. at 38-41.

I n the orde r g ranting the def endant’ s motion to suppress items seized from his bedroom, the trial cou r t f

o u n d th a t th e c o n s e n t g iv e n b y th e d e f e n d a n t’ s p ar e n ts to s e ar c h th e r e s id e n c e d id not include permission t o sear ch the de fenda nt’s bedroom. Howeve r, the trial c ourt consider ed the issue-21-

of conse nt to be irrele vant, bec ause it conclude d the officers had no lawful basis to be in t he Huske y residenc e. It noted that t h i s co u rt had held that the c apias upon whic h the def endant wa s arr ested

wa s n o tl ega l p ro ce s s an d wa s u n l aw fu l

. I ts t at ed
, i n p ar t , t h e f o l l o wi n g:

After th e o f f ic e r s h a d e n te r e d th e H u s k e y r e s id e n c e, defe ndant, Thomas De e Huske y , came out of his bedroom a nd was

a dv ise d b y

the of fi cers th at the y

ha d a wa rr a nt f or his arr e st. Def endant asked and was g iven permission to r eturn to his bedroom to g e t a pa ir of sh oe s, bu t was adv ise d th a t of fi c e rs wo uldha ve to

acc ompany him to the bedroom to which the defe ndant ag ree d. When the def endant we nt to his bedroom to put on his shoes the two off icer s who ac companied him obser ved certain items in his bedroom that they consid er ed to be e vidence in the criminal ca ses ag ainst Mr[.] Huskey , including a

piece of ora ng e twine a nd items of womens je we lry that w e re in p la in v ie w w ith in the ro om.

Ba sed on th e fa ct that this court found that the law enfor ceme nt of

fice rs wer e in posse ssion of a valid arr est war rant for the defen d ant, and that the items were in plain view of the off icer s du ri ng a la wf ul a rr e st o f the de fe nd a nt, the c ou rt fou nd that th e se ite ms w e re la wf

ull y se ize d inc ide nt to the arr e st. I n the app e a l of his rape convictions t h e d ef

endant r aised the issue of the def endant’ s

arr est and the va lidityof the c apias (a rre st warr ant) issued by

the Knoxvi lle CityCourt, which wa s the proce ss used to arr est the d e f e n d a n to n O c t o b e r

2 1
, 1 9 9 2
, i n S e v i e r

C o u n t y.
The Court of Criminal Appea ls further or dere d this trial court to re

e xami ne the va lid ity

of the se izur e of

the e vid e nc e no w at is sue i n l i gh to f t h at ru l i n g.

The ba sis upon whic h this court previously held that the evidenc e wa s proper ly

seized was pre mised on the fac t that law enfor ceme nt of

ficials had a lawful capia s (ar rest war rant) for the defe ndant, and that the evidence at issue was in plain view a nd seized incident to the lawful arr est of the defe ndant. The Court of Criminal Appea ls hav i n g now held that the a rre st warr ant was not va lid,

c om pl ete ly

c ha ng e s th e ratio na l f

or thi s c ou rt ’s prior

ru lin g on thi s iss ue . I f l a w e nf

or c e me nt o ff

ic e rs didno t ha ve a

va lidarr e st w arr a nt, they had no lawf

ul basis upon which to prese n t t h em s elves at the Huskey re s i d en ce and g ain admittance into the residenc e for the purpose of

serving that proce ss. Since the arr est of Mr. Huske y was unlawful, it naturally follows that evidenc e seized in plain view of the office rs during that arr est is likew ise unlawful and must be excluded.-22- Further, this court doe s not believe that l aw enfor ceme nt office r s c a n p r e s e n t th e ms e lv e s a t th e r e s id e n c e o f a c it iz e n and advise that c itiz en that they have a lawful a rre st wa rra nt for an

oc c up a nt o f the ho me , a ndthe n s e e k c on se nt to s e arc h th a t ho me inc ide nt t o th a t la wf

ul a rrest whe n in f

a c t th e un de rl y ing arr e st

war rant is unla wful. I n State v. Clark, 844 SW2d 597 (Tenn. 1992), another war rantless sea

rch c ase, our

Supr em e C ourt found that “conse nt to enter a nd sear ch a home will not be lig htly inferr ed, nor found by mere acquie scenc e to unlawf ul authority ”. Clark at 599.

There fore , this court arrives at the inesc apable conclusion that the evidenc e wa s not seized as part of a lawf u l ar re s t , nor wa s the
consent to s ea rc h that was obtaine d incident to that arr est valid. Def endan t ’s M otion to S uppress this Evidence is, theref ore, G RA NT ED

.

A. Go odF a ith

I n the rape cases, t his court held that the capias upon which the defendant was ar rested w as improperly

issued by the Knoxvil le CityCourt Clerk and wa s void because it did not ru n o r issue in the name of the S tate of Tenne ssee. Huskey
, slip op. at 50. I t also held that the sea rch w arr ant fo r the de fe nd a nt’ s h ome wa s in va lidbe c a us e it f a ile d to na me the of

fi c e r t o w ho m it

wa s is su e d in vio la tio n o f R ule 41 (c ), Te nn . R. Cr im. P. In th e pr e se nt c a se , th e state do e s n ot c on te st the se

ru lin g s. Ho we ve r, it c on te nd s that it sh ou ld be a llo we d to us e a s e vid e nc e the ite ms s e ize d a s a re su lt of the se arc h o f the de fe nd a nt’ s h ome . It a sse rt s th a t the of fi c e rs a c te d in g oo d f

a ith a ndwi th objectively

rea sonable re liance on the capia s purportedly issued by the Knoxvil le CityCourt for the defe ndant’s fa ilure to appe ar in c ourt. I t arg ues that the capia s was not invalid due to unlawf ul police conduct but due to judicial e rror

. The state essentially reque sts the court to adopt the “g ood faith”

e xce pti on to the e xclu sio na ry ru le a s w a s d on e in U nit e d St a te s v . L e on , 4 68 U. S. 8 97 , 1 04 S. Ct

. 3405 (1984). This e x ception would permit evidenc e seized in rea sonable, g ood faith re liance upon a search warr ant s ubsequently found t o be def ective to be introduced during the prosec ution’s case

in-chief

.

W e b e l i e v e a

s h o r th i s t o r y

o f t h e e x c l u s i o n ar y

ru l e r e l e v a n tt o t h i s c a s e i s a p p r o p r i a t e

. In Hug hes v. Sta te , 1 4 5 T e n n

. 5 4 4
, 2 3 8 S. W. 5 8 8 ( 1 9 2 2 )
, th e T e n n e s s e e Su p r e me Co u r t h e ldth at evidenc e obtained in violation of Article I , section 7 of the T ennesse e C o n s t i tution shoul d be excluded as evide nce. T he court stated:

The state, having throug h its ex ecutive r epre sentatives produc ed the evidenc e of a

violation of the l aw b y one of its citizens by means proh ibi te d b y

the Con sti tut ion , c a nn ot b e pe rm itt e d th ro ug h it s judicial tribunal to utili ze the wrong t h u s co mmitt ed ag ainst the citizen to punish the citizen f or his wrong ; for it was only by violating-23- his co nstitut ionally

protec ted rig hts that his wrong has bee n discovere d. I t is no answe r t o say that it matters not how a c itiz en’s sins have bee n found out. Security from unlawful sear ch is the rig ht g ua rante e d to the c iti zen , e ve n fo r the dis c ov e ry of the c iti zen ’s sin s. This rig ht we must protect, u n l es s we may with impunit y

disreg ard our oath to support and enforce the C onstitut ion. The e x perie nce of

our fo ref ather s with unlawful sea

rche s and seizures wa s deeme d by the people w ho fra med the Constit u t i o n s ufficie nt to warrant the provision by

which i n instances e ven the g uiltymight esc ape de te c tio n a ndpu nis hme nt.

I d. at 565-66, 238 S.W. at 594.

I n Hampton v. State, 148 Tenn. 155, 252 S.W . 1007 (1923), the f irst case to apply

the exclusionary

rule in Tenne ssee, the T ennesse e Supreme Court found defic iencies in the a ffidavit and

wa rr a nt w hic h it

a ttribu te d to the “ c are le ssn e ss” or “ ov e rs ig ht” of the ma g ist rate iss uin g the wa

rr a nt. Even thoug h it determined that “ [t ]he office rs ac ting in [the] case did so in g ood faith,” it held that the evidenc e seized under the i nvalid war rant should have been ex cluded. I d. at 161, 252 S.W . at 10 08 -0 9. I t sta te d tha t the re qu ir e me nts of the c on sti tut ion a ndstatut e s r e g ard ing se arc h w arr a nts and aff idavits w ere not dif

ficult and should be followed. We believe Hampton re flec ts a conc ern tha t both of fice rs and mag istrates must be vig ilant in ensuring that the re quirements of the constitution

a ndthe statut e s be fo llo we d. I n othe r wo rd s, the se c urity of c iti zen s in Ten ne sse e “ in the ir pe rs on s, h o u s e s , p ap e r s a n d p o s s e s s i o n s , f r o mu n r e a s o n ab l e s e ar c h e s a n d s e i z u r e s ” p r o v i d e d i n A r t i c l e I,

se c tio n 7 of

the Te nn e sse e Con sti tut ion pr ote c ts t h e m f r o m i n a p p r o p ri at ec on du c t by

the g ov e rn me nt, reg ardle ss of which a g ency or bra nch and of

whether issuance or

execution relate d.

The Te nnessee Supreme Court has c onsistentlyrec o gn i z ed that the sea rch a nd seizure require ments of the constitution and statutes are not difficult to f ollow. We note that in Evere tt v. State, 182 Tenn. 22, 28, 184 S.W.2d 43, 45 (1944), the court stated

The use of

print ed fo rms has made the proc ureme nt of a sea rch

war rant the me rest formality , considering the funda mental constitutiona l ri gh t which the sea rch inva des. Certa inly , this Court can do no le ss than to require that the fe w blank s p aces be filled in, and the other details of the f ormality be ca rried out with ca

re a nd prec ision.

Ev e n th e le g isl a tur e de a lt w ith the imp orta nc e of a c iti zen ’s ri g hts re qu ir ing ma g ist rate s to comply with the law. I n 1959, the following statute was e nacte d:

40 -5 1 8

. C o p i e s o f s e ar c h w arr a n t s r e q u i r e d

– E n d o r s e m e nt – E v i d en ce. – A ll magistrates, cler ks of court, judge s and any other person or persons whomsoeve r issuing se arc h war rants shall pre pare-24- an orig inal and two (2) exact copies of same one (1) of which shall be kept b y h i m as a pa

rt of his offic ial rec ords, and one (1) of which sh a ll b e le ft

wi th t he per so n o r p e rs on s o n w ho m sa id w arr a nt i s

serve d. The orig inal sear ch war rants shall be ser ved and r eturne d as pr ov ide d b y la w. Th e pe rs on or pe rs on s a s a fo re sa id w ho iss ue sa id

war rant s s h al l endorse the war rants showing the hour, date, and the name of the offic er to whom the w arr ants wer e deliver ed for execution, and the exact copy of such wa

rra nt and the end orsement the re on , s ha ll b e a dmi ssibl e in e vid e nc e in t he c ou rt s. F a ilu re to

c omp ly wi th this se c tio n s ha ll m ake a ny se arc h c on du c te d u nd e r s a id

war rant a n illega l searc h and seizure.

See 1959 Pub. Acts ch. 241. I n Talley v. State, 208 Tenn. 275, 278, 345 S.W.2d 867, 869 (1961), the Te nn e sse e Sup re me Cou rt state d tha t the int e nt of the statut e “ wa s to se c ur e the c iti zen a g a ins t

car elessness a nd abuse in the issuanc e and e x ecution of se arc h war rants.” ( Emphasis added)

.

I n 1978, Tenne ssee a dopted the Rules of Criminal Procedure which also de al with sear ch and seizure. Rule 41(c) provides esse ntially the same r equire ments as T.C.A. § 40-518:

I s s u a n c e ; C o n te n ts ; C o p ie s ; F a il u r e to c o mp ly

. ––A w arr a nt shall issue only

an af fidavit or af

fi d avit s sworn to befor e the mag istrate and e stablishing the g rounds of issuing the war rant. I f the mag istrate i s s at i s fied that g rounds for the application exist or that the re is p ro ba

ble c a us e to be lie ve that the y e xist, the ma g ist rate sh a ll issue a wa rra nt identify ing the property and naming or describing the person or place to be sea

rche d. The finding of pr obable c ause ma y be based upon he arsay

evidenc e in whole or in part. The sear ch wa rra nt shall be direc ted to and ser ved by the sherif f or a ny deputy sheriff of the county

wher ein issued. Any constable, or any other pe ace office r with authority

in the county . The sea

rch w arr ant shall command the peac e officer

to searc h forthwith the per son or place named f or the property specifie d. The mag istrate shall prepa re an orig inal and two
exact copies of the sear ch wa rra nt, one of whic h shall be kept by the

ma g is tr a te a s a p ar t o f h is o r h e r o f f ic ia l r e c o r d s , a n d o n e of which shall be left with the pe rson or pe rsons on whom the sea rch w arr ant is served. The mag istrate shall endor se upon t he search w arr ant the hour, date, and name of the off icer to whom the war

rant wa s delivere d for e x ecution; and the e x act c opy of the sea rch w arr ant and the endor sement there on shall be admissible evidenc e. Fa ilure of the mag istrate to make sa id orig inal and two copies of the sear ch wa rra nt or fa ilure to endorse there on the date and time o f issuance and the name of the offic er to whom issued, or t h e fa ilure of the se rving office r whe re possible to lea ve a c opy with the person or persons on-25- whom the sea

rch w arr ant is being serve d shall make a ny sear ch conducte d under sa id se arc h war rant a n illega l searc h and any seizure there under a n illega l seizure.

(Emphasis adde d). B eca

use of the c reat i o n o f this rule, T.C.A. § 40-518 wa s repe aled. See 1979 Pub . Ac ts Ch

. 399, §§ 1, 5; T .C. A. § 4 0- 51 8 ( re pe a le d) Compil e r’ s N ote s ( Sup p. 19 80 ); se e a lso Sta te v. Ste e le
, 89 4 S.W. 2d 31 8, 31 9 (T e nn . Crim. Ap p. 19 94 ) ( c on c lud ing that a sim ila r i nte nt e xists for Ru l e 41(c) as e x isted for T.C.A. § 40-518) . Considering the fore g oing, w e conc lude that adopting a g ood faith exception under the Tenne ssee Constitution would undul y reduc e the protec tions contemplated for o u r ci t izens bythe Tenne ssee Constitution, t he leg islature, and the Te nn e sse e Sup re me Cou rt

. As previously

noted, the state’ s brief doe s not directly rely on the sea

rch w arr ant, but upon the ca pias issued by

the Knoxvil le CityCourt Cler k. Given the historical intere st in ensuring that citizens be secur e ag ainst unrea sonabl e g overnme nt intrusion, we do not believe that the issuanc e of a c apias a ffor ds the state any g reater latitude than a

sear ch wa

rra nt.

I n a ny e ve nt, a s th e de fe nd a nt a

rg ue s, we c on c lud e that a

g oo d f a ith e xce pti on c a nn ot a

pp ly
to a void arr est war

rant or other arre st order issued by a person without issuance authority

. We are persua ded by

the ana ly sis in United St ates v. Scott, 260 F.3d 512 (6th Cir. 2001), in which the c ourt conclude d that a re tir ed Sequatc hie County Gene ral Sessions judge did not have the authority to issue the sea rch w arr ant in question. I n reje cting a cla im of g ood faith re liance, the court stated:

De sp ite the de rth o f c a se la w, we are c on fi de nt that L e on did not contemplate a

situation where a

war rant is i s s u ed bya per son lacking the re quisite leg al authorit y

. L eon pre supposed that the

war rant wa s issued by

a m ag istrate or judg e clothed in the pr oper le g a l auth ority , d e fi nin g the iss ue a s w he the r the excl us ion ary ru le applied to “e vide n c eo b ta

in e d by office rs ac ting in re asonable relianc e

on a sea rch w arr ant issu ed by

a deta ched and neutra l mag istrate but ultimately

found to be unsupporte d by pro b able cause.” L eon, 468 U.S. at 900, 104 S. Ct. 3405 (empha sis a dded). Indeed, L eon noted that it left “untouche d the proba ble-c ause s t an d ar d and the va rious require ments for a

valid war rant.” I d. at 923, 104 S. Ct. 3405. At the

c o r e o f t h e s e v ar i o u s r e q u i r e m e n t s i s t h a tt h e w arr a n tb e i s s u e d b y a neutra l and detac hed judicial off icer . See, e.g
., Shadwick v. City of Tampa, 407 U

. S. 3 4 5
, 3 5 0
, 9 2 S. Ct

. 2 1 9
, 3 2 L

. E d

. 2 d

. 7 8 3 ( 1 9 7 2 ). We ther e f

o r e h o ldth a t w h e n a

w arr a n t i s s ig n e d b y

s o me o n e w ho lacks the leg al authority nece ssary

to issue searc h war

rants, the

war rant is void ab initio.

Scott, 260 F.3d at 515.-26-

I n the def endant’ s rape case , this court conclude d that the Knoxvil le CityCourt Clerk did not have a uthority to issue the capia s. Huskey , slip op. at 51. As importantly , this court conclude d that the ca pias was void beca

use i t was iss ued in the name of the City of Knoxvil le and not the State of Tenne ssee. I d. slip op. at 50; See McL endon v. State, 92 Tenn. 520, 525, 22 S.W . 200, 202 (1893) (holding that a writ or ot her process that doe s not properly run in the name of the State is void upon its face ). We conc lude that the trial c ourt corr ectly suppressed the items se ized f rom the def

endant’ s residenc e.

B. Consent

Th e state a c kn ow le dg e s th a t th e tr ia l c ou rt fo un d th a t th e de fe nd a nt’ s f a the r’ s c on se nt t o

sear ch did not extend to the defenda nt’s bedroom. It claims, though, that whether Mr. Huskey
consente d to a search that did not include the def endant’ s bedroom “is disputed” and that its posit ion is that M r. Hus key

consente d to a sea

rch of the def endant’ s room. We note, howeve r, the trial

c ou rt ’s fi nd ing s w ill be su sta ined a s lo ng as the e vid e nc e do e s n ot p re po nd e rate a g a ins t th os e f i n d i n g s

. I n t h i s r e g ar d
, D e t e c t i v e U p c h u r c h ’ s t e s t i m o n y s u p p o r t s a

f i n d i n g o f c o n s e n twh ile Pa tr olm a n H us ke y ’s test im ony su pp orts a

fi nd ing of

no c on se nt t o s e arc h th e de fe nd a nt’ s r oo m. Under these c ircumstance s, we de fer to the tri al court who ha d the opportunity to observe the witnesses. We conc lude that the evide nce doe s not preponder ate a g ainst the trial court’s finding that the de fe nd a nt’ s p are nts didno t c on se nt t o a se arc h o f the de fe nd a nt’ s b e dr oo m.

Th e state a lso a sse rt s th a t e vid e nc e sh ow s th a t w he n th e of fi c e rs “ a sk e d” the de fe nd ant t o

c ome wi th the m, h e a g re e d to le t th e m accom pan y hi m to his be dr oo m in or de r f or him to g e t hi s shoes. They

assert that he did not object to the off icer s’ pre sence in his bedroom at that time. The problem with this arg ument is that the evi d en ce re flec ts that the office rs had a lrea dy told the defe ndant that he wa s in custody and that they would have to acc ompany him to his room in order to g e t hi s sh oe s. We b e lie ve the re c or d sup po rt s a f ind ing that th e de fe nd a nt a c qu ie sc e d to a uth or ity and did not voluntarily

consent to the off

icer s entering his r oom. See Bumpe r v. North Carolina, 391 U.S. 543, 549-50, 88 S. Ct. 1788, 1791-92 (1968); St ate v. Clark, 844 S.W.2d 597, 599 (Tenn. 1992) (“Consent to ente r and se arc h a home will not be li g htly inferr ed, nor found by mere acquie scenc e to unlawful authority .”).

III . D EF EN DA NT ’S OTHE R I SSU ES

The defe ndant states that if we reve rse the trial court’s ruling suppressing his statements or the evidenc e seized fr om his home, we should consider othe r grounds he raises f or suppre ssion of the statements or e vidence . Relative to his state ments, the defe ndant claims that his rights we re not waived and his statements were not ma de knowing ly
, voluntarily
, and intelligently beca use he w as mentally ill, il leg ally

arr ested, a nd illega lly

detained; that the statements wer e obtained in violation of his S i x t h Amendment rig ht to counsel; and that the stateme nts were obtained by investigators whose oaths of office wer e not filed in the Knox CountyClerk’s o ff i ce , there by

rende ring the investigators’ ac tions il leg al as Class C misdemeanors. See T.C.A. §§ 8-18-109, - 113.-27-

Re la tiv e to the ite ms s e ize d f ro m hi s h ome , th e defe nd ant c la ims that th e y we re ill e g a lly seized because their c riminal relevance w as not immediately appar ent and wa s only determined afte r the seizure. He a lso claims that the items were seized by criminal ac ts in that the investigator s had not filed their oaths of of

fice in the Knox C ounty

Clerk’s off

ice.

Obviously , our ruling in this case obviates a ny need to addre ss the issues the defe ndant ra ises

on ly a s a c on tin g e nc y . H ow e ve r, we a lso be lie ve that th e status of thi s c a se do e s n ot r e qu ir e us to addre ss t h e d ef

en d an t ’s issues reg ardle ss of our ruling . The state’ s appea l of a pre trial order suppressing evidenc e is ordinarily interlocutory in nature. See State v. Phill ips, 30 S.W .3d 372, 373 (Tenn. Crim. App. 2000) . Howeve r, if the “ substantive eff ect of the ruling results in a dismissal of the indictment,” the state may proce ed by

an appe al as of right unde r Rule 3(b), T .R.A.P. I d. On the other ha nd, beca

use a de fenda nt may

appea l an orde r denying suppr ession if convicte d, this court is not inclined to allow an interlocutory appea l in such a case. See State v. Hartsfield, 629 S.W .2d 907, 908 (Tenn. Crim. App. 1980) ; State v. Gawlas, 614 S.W.2d 74, 75 ( Tenn. Crim. App. 1980).

We a c kn ow le dg e , a s th e de fe nd a nt a lso no te s, thi s c ou rt ha d p re vio usly den ied h is int e rl oc uto ry

app e a l r e g ard ing ma ny

of the g ro un ds he raise s, statin g that the de fe nd a nt c ou ld r a ise them in this appeal as of

rig ht by the state. Howeve r, upon further consideration, we believe that the
nature of t his appea l does not lend i tself t o consideration of the de fenda nt’s issues that are unrelated to the issues raised by

the state.

CO NC LU SION

I n consideration of the fore g oing and the re cord a s a whole, we affirm the judgment of the
tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE