IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 22, 2003 Session

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

 Appeal from the Criminal Court for Knox County

No. 51903 Richard R. Baumgartner, Judge

No. E2002-02317-CCA-R3-CD - Filed June 1, 2005 

The state has appealed the Knox County Criminal Court’s suppression of statements made to police

by the defendant, Thomas Dee Huskey, and of items found and seized from his home. The state

contends that (1) the trial court erred as a matter of law in suppressing the statements and (2) the trial

court erred in suppressing the items found at the home (a) because the police arrested the defendant

in good faith reliance upon a capias which subsequently was declared void and (b) because the

defendant’s father consented to a search of the defendant’s room. The defendant asserts that if the

state’s appeal is successful, then he contends that the trial court erred in prior rulings denying

suppression of his statements and the items seized from his home on other myriad grounds raised

by the defendant. We affirm the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M.TIPTON,J., delivered the opinion of the court, in which GARY R.WADE,P.J., and NORMA

MCGEE OGLE, J., joined.

Paul G. Summers, Attorney General and Reporter; Gill R. Geldreich and Joseph F. Whalen,

Assistant Attorneys General; Randall E. Nichols, District Attorney General, for the appellant, State

of Tennessee.

Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellee, Thomas D.

Huskey.

OPINION

The defendant is charged with four counts of first degree murder. His first trial ended in a

mistrial because the jury could not reach a unanimous verdict. Pending the retrial, this court entered

an opinion in the defendant’s consolidated appeal of multiple convictions including rapes,

aggravated rapes, aggravated kidnapping, especially aggravated kidnapping, robbery, and aggravated

robbery. See State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, Knox County (Tenn.

Crim. App. June 28, 2002), reh’g denied, (Oct. 11, 2002) (the rape cases). This court affirmed the
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defendant’s convictions for offenses versus two victims but reversed the convictions regarding a

third victim and remanded those charges for retrial. Some of the evidence reviewed and issues

analyzed in that appeal are relevant to the resolution of this case. 

In the rape cases, the defendant contended that the trial court erred by not suppressing

statements he gave to law enforcement officers on November 9, 10, and 11, 1992. This court did

not reach the merits of the suppression issues because it concluded that the trial court did not make

adequate findings of fact for appellate review under the circumstances then existing. This court

stated:

For example, the trial court has made no findings regarding members

of law enforcement having contact with the defendant on November

4 and 5, 1992, in relation to Lieutenant Larry Johnson’s testimony

that the defendant initiated contact with him and TBI Agent David

Davenport on November 9, 1992. For instance, meetings with the

defendant on November 4 and 5 may cast doubt upon the credibility

of Lt. Johnson’s testimony regarding the questioning of the defendant.

If the suppression of the statements is raised upon the retrial of [the

victim’s] case, the trial court should make complete findings, and

take proof if appropriate, with regard to the issues surrounding the

suppression of the statements. 

Id. slip op. at 56-57.

Also in the rape cases, the defendant contended that the trial court erred by not suppressing

as evidence the items seized during a search of his home. This court held that the search warrant

obtained in Sevier County was invalid because it failed to list the name of the executing officer.

Huskey, slip op. at 54. This court also held that the capias issued by the Knoxville City Court upon

which officers claimed the authority to arrest the defendant was void and invalid, thereby making

the defendant’s arrest illegal. Relative to a remand of the case, this court stated:

In the present case, the trial court’s application of both the search

incident to an arrest and the plain view exceptions require that the

defendant’s arrest be valid. Our holding that the capias upon which

the defendant was arrested is void calls the trial court’s reliance on

these exceptions into question. Upon a retrial of [the victim’s] case,

the trial court must reexamine the propriety of the warrantless search.

In this regard, we note that although the trial court found that the

defendant’s father consented to the search of his home, it did not

determine whether the defendant’s father’s consent to search removed

the need for a warrant. The trial court noted that the defendant’s

parents had the right to enter the defendant’s bedroom as revealed by

the defendant’s mother entering the room to turn down the radio or to
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leave laundry in the room but stated that it “just include[d] that as [the

court’s] recollection of the facts in this case.” We do not foreclose

the state from showing upon remand that the search was valid. 

Id. slip op. at 55. Upon remand of the rape case, the parties addressed the suppression issues relative

to this murder case. We note, though, that despite this court’s suggestion regarding the taking of

additional proof, both the state and the defendant considered further proof unnecessary and requested

the trial court to make its findings based upon the existing record. In separate orders, the trial court

granted the defendant’s motions to suppress his statements and the physical evidence seized from

his home. With each issue being separate and distinct, we will state the facts relevant to each issue

as the issue is discussed.

I. DEFENDANT’S STATEMENTS

The state contends the trial court erred in ruling that the investigating officers did not

“scrupulously honor” the defendant’s invocation of his right to remain silent under the rule

announced in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975). It also contends that the

officers did not reinitiate interrogation of the defendant on November 9, 1992, in violation of

Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). The defendant argues that the

investigating officers did not “scrupulously honor” his invocation of his right to remain silent on

October 21, 1992, and that the officers’ reinitiation of contact with him after he invoked his right to

counsel on October 30, 1992, constitutes a violation of Edwards. The defendant maintains that these

violations more than support the trial court’s finding that the state failed to carry its burden to prove

the defendant’s right to remain silent was scrupulously honored, and he asserts that the record also

supports a finding that the officers violated his right to counsel by reinitiating contact with him on

November 4, 5, and 9, 1992. We conclude that under the totality of the circumstances, the record

does not preponderate against the trial court’s finding that the state failed to carry its burden of

showing the defendant validly waived his Fifth Amendment rights by a preponderance of the

evidence because the investigating officers did not “scrupulously honor” the defendant’s right to

remain silent and because they reinitiated contacts and communications with him on November 4,

5, and 9, 1992, after he invoked his right to counsel. 

The primary evidence relating to the defendant’s statements came from Lieutenant Larry

Johnson of the Knox County Sheriff’s Department. Johnson testified at two pretrial hearings and

at the trial relative to the statements. Initially, though, we note that Knox County Sheriff’s Detective

Michael Upchurch testified that he was involved in the defendant’s arrest on October 21, 1992,

pursuant to a capias issued by the Knoxville City Court Clerk. He said that the defendant said he

did not wish to answer any questions until they got a warrant and that Upchurch did not question the

defendant after this statement. 

At a suppression hearing on March 25, 1996, Lt. Johnson testified that he had been the head

of the Homicide Division of the Knox County Sheriff’s Department in 1992. He said that he was
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investigating some homicides in East Knox County and learned that the defendant was in the Knox

County jail. He noted that he had been out of the country when the defendant was placed in custody.

Lt. Johnson testified that, to his recollection, he, Det. Upchurch, and Tennessee Bureau of

Investigation (TBI) Agent David Davenport went to the jail on October 29, 1992, and talked to the

defendant. He said that the jail did not have any rights waiver forms and that he read the defendant

the Miranda warnings from a card. Johnson said that he talked to a “person” the defendant identified

as “Kyle.”

Lt. Johnson identified a rights waiver form dated October 30, 1992, at 5:00 p.m. He noted

that Agent Davenport had written on the form, “I do want a lawyer at this time, and will not answer

any more questions now.” He said he told the defendant, “If you don’t have anything else to say, .

. . there’s no point in us continuing to talk.” 

Lt. Johnson testified that the next time he talked to the defendant, he was responding to the

defendant’s sending word through a correctional officer that the defendant wanted to talk to him and

Det. Upchurch. He said he and Upchurch returned to the jail, advised the defendant of his rights,

and asked if he was sure he wanted to talk with them and without an attorney. Johnson identified

a rights waiver form dated November 10, 1992, at 11:45 a.m. He said that he explained the rights

“very thoroughly” to the defendant and that the defendant signed the waiver. Johnson identified

another rights waiver form dated November 11, 1992, at 2:10 p.m. He said the meeting occurred at

the request of the defendant who had gotten word to a correctional officer to notify Johnson or

Upchurch that the defendant wished to talk with them. Johnson said that he advised the defendant

of his rights and that the defendant signed the waiver form with the name “Phillip Daxx.”

Lt. Johnson testified that during the conversations with the defendant, one of the defendant’s

“purported alter egos” would appear. He said that in all the conversations, he would start with Tom

Huskey but that he would end up talking to “Kyle” or “Phillip Daxx.” He said the most extensive,

detailed conversations were with “Kyle,” who was the one who admitted involvement in the four

murders and numerous rapes. Johnson said that when the defendant said he was someone else,

Johnson would advise them of their rights and that “they acknowledged that they understood them,

and kept talking.”

Lt. Johnson identified his notes regarding a statement given by the defendant and a ten-page

transcript of a typed statement, both obtained on November 9, 1992. He noted that the tape of the

statement reflected in his notes was bad. He also identified a three-page statement dated November

11, 1992, at 2:15 p.m., given by the defendant “a/k/a Phillip Daxx.” He said that soon after this

statement, the defendant was appointed counsel who told him not to talk to the defendant without

counsel present. As for further contact with the defendant, Johnson said, “I served some court

capiases on him after that, but that was merely just advising him of some charges against him.” 

On cross-examination, Lt. Johnson testified that he returned from his trip after the defendant

was arrested and that only one body had been found near Cahaba Lane. He said that more bodies
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were found that week. He acknowledged being told that when arrested on October 21, 1992, the

defendant told detectives that unless they had a warrant, he did not have anything to say. He said

that Agent Davenport joined them to interview the defendant because he was investigating a Sevier

County rape and old homicide. Johnson noted that the October 30 rights waiver form was signed

by him, Davenport, Det. Upchurch, and Det. Darrell Johnson, who was investigating one of the

homicides. He said he did not attempt to get the defendant an attorney after the defendant’s request

for one because it was not his place to do so. He said, however, that he told the defendant that the

telephone book was full of attorneys and that the defendant could call one if desired, because he

would not be initiating any further contact with the defendant. 

Lt. Johnson identified a capias dated November 9, 1992, which noted service on the

defendant at 2:25 p.m. relative to the rape cases. The capias was signed by Johnson and Agent

Davenport. Johnson said that he, Davenport and Det. Upchurch talked with the defendant, who said

he did not know anything. Johnson said he asked the defendant if he wanted coffee or to use the

bathroom or to stop talking with them. He said the defendant replied he did not and requested

coffee. Johnson said he and Davenport left the room and returned with coffee.

Lt. Johnson testified that Det. Upchurch then said he would like to introduce them to “Kyle.”

Johnson said that they talked to “Kyle” but that he noticed that the tape recorder was not working.

He said that the defendant “came back,” complaining about a headache and stating that he did not

know what happened with “Kyle.” Johnson said that “Kyle” returned and they obtained a taped

statement. 

Lt. Johnson said that the reason Agent Davenport joined him on November 9 was because

of the Sevier County investigations. He said they served the capias and the defendant said, “Wait

just a minute. We–I want to talk to you all. Let’s talk.” Johnson said that he did not recall

Davenport arriving with knowledge that Johnson was going to serve the capias. He stated, “I was

called by the court and told that one had been returned, and I came up and got it, and Davenport and

I went and served it.” He repeated that serving the capias was the first time he had contact with or

any attempt to talk to the defendant since October 30, 1992. 

At a December 17, 1998 hearing, Lt. Johnson was questioned about his interviews with the

defendant. He said that the interviews occurred in the Jail Captain’s office and that they tried to treat

the defendant with respect. Johnson testified that on October 29 or 30, 1992, in the evening, the

defendant was advised of his rights. He said that he and Agent Davenport left the room to get the

defendant coffee, leaving the defendant with Det. Upchurch. When they returned, Upchurch said,

“Larry, I would like to introduce you to Kyle.” Johnson said that he and Davenport took notes and

that the defendant, as “Kyle,” gave a statement which provided information regarding the homicides

on Cahaba Lane. 

Lt. Johnson said that he did not talk to the defendant between October 30 and November 9,

1992. He said the other times he talked to the defendant were at the defendant’s requests, except

when they served a capias on him on November 9. 
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On cross-examination, Lt. Johnson was asked if he told the defendant after he requested a

lawyer that the defendant could tell one of the jailers if he wanted to talk to the officers. Johnson

replied that the defendant’s request for a lawyer was not what Johnson would call a request. He said

that the defendant asked him if he thought the defendant needed a lawyer and that he replied that he

did not know, that it was up to the defendant. He said he got a telephone book, turned it to attorneys

in the yellow pages, and told the defendant to call one if he desired. When asked if he recalled that

on October 30, 1992, the defendant said, “I do want a lawyer and will not answer anymore questions

now,” Johnson replied, “to my recollection, no, sir, – well, not just to my recollection. If he had said

that, I would have quit talking to him.” When asked about the delay between October 30 and

November 9, Johnson said that they were interviewing various people, trying to corroborate what

“Kyle” had told them. Johnson recalled that November 9 was the day they had some capiases to

serve on the defendant and took him to the Jail Captain’s office for privacy. Johnson said that they

talked to “Kyle,” and he recalled talking briefly with “Timothy,” whom he described as a

homosexual. He said “Timothy” claimed to be protecting the defendant from “Kyle.”

Finally, Lt. Johnson testified at the defendant’s trial on January 28 and 29, 1999. He said that

he was out of the country when the first body was discovered near Cahaba Lane and that three more

bodies were found the week after he returned. He said that because three of the victims had

prostitution arrests, detectives interviewed people concerning who may have been seen with the

victims. He said that, among others, the defendant’s name was mentioned.

Lt. Johnson said he and Agent Davenport went to the Knox County Jail around the end of

October 1992 to talk with the defendant. He said he read the defendant his Miranda rights. He said

that the defendant wanted to know if there were any charges pending and that he told the defendant

there were not. He said the defendant said “maybe I ought to talk to a lawyer,” which Davenport

wrote on the rights waiver form. Johnson added that the defendant said that they “might wish to

speak with him later if any charges were to be filed.” 

Lt. Johnson testified that the next conversation took place in the Jail Captain’s office on

November 9, 1992, at which time the defendant gave a statement to him, Agent Davenport and Det.

Upchurch. Johnson also noted that statements were taken from the defendant on other days as well

and identified them for the jury.

On cross-examination, Lt. Johnson acknowledged he had testified in December 1998 that he

did not call the defendant’s request for an attorney a request in that the defendant asked him if he

thought the defendant needed an attorney. He also acknowledged being asked if the defendant

specifically requested the lawyer and his responding, “To my recollection, no sir.” He explained that

he had not expected to testify at the December hearing and had none of his notes. He said that after

the hearing, he reviewed his material and recognized he had made a mistake about the defendant’s

request. In this regard, Johnson also acknowledged that he had previously testified that October 30,

1992, was the first time he had talked to the defendant and that the defendant talked to them as

“Kyle” and that they subsequently were interviewing people to corroborate what “Kyle” had told

them. Johnson admitted that the date was a mistake.
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Lt. Johnson denied talking with the defendant on October 29, 1992, but he acknowledged

talking with the defendant on October 30 for fifteen or twenty minutes. He said there was no tape

recording of that meeting. He said, though, that on the 30th, the defendant said, “When you get . .

. some paperwork, why, I may talk to you.” He said that the only time he took notes or taped the

defendant was when the defendant claimed to be someone else. After a review of the records,

including Agent Davenport’s notes, Johnson acknowledged that he and Davenport talked with the

defendant on October 29, 1992, from 10:05 a.m. until noon. He acknowledged that toward the end

of the time, the defendant was allowed to call his parents and take a shower. 

Lt. Johnson acknowledged that the records reflected that he, Agent Davenport, and Det.

Upchurch talked with the defendant on October 30 with the initial conversation lasting from 10:00

a.m. until noon. He said that they broke for lunch and that the interrogation resumed at 12:35 p.m.

and lasted until 2:15 p.m. Johnson acknowledged that the defendant said he wanted to go back to

his cell and think. He said the records reflected that the defendant was brought out of the cell at 4:55

p.m. and told them that he wanted a lawyer because he did not know if he could trust them. 

Lt. Johnson acknowledged recording a conversation on November 10, 1992, which he had

with William Fletcher, a jail inmate, in which Johnson referred to Fletcher seeing him, Agent

Davenport and Det. Upchurch on November 4 and 5, 1992, standing outside cell thirteen when they

put the defendant back in the cell. Johnson acknowledged that Fletcher indicated he had seen them.

Johnson admitted that he asked Fletcher, “After he was brought back to the cells after those

occasions, did he sit and talk to you about what we had talked to him about?” Johnson denied that

his comments to Fletcher indicated he had been questioning the defendant. He stated, “Well, you

can have a conversation and not – you know, not interrogate someone . . . . And that is basically

what we were doing. We were talking to Mr. Huskey, just chitchatting with him.”

Lt. Johnson testified that he did not ask the defendant any questions about the homicide or

anything else. When asked why he went to see the defendant on November 4 and 5 after the

defendant requested an attorney, Johnson replied, “I have been an officer for thirty-one years. . . .

As the saying goes, you can get more with honey than you can with vinegar.” He said he was being

nice to the defendant and was taking care of his requests, such as telephone calls to his parents and

showers. Johnson also acknowledged that Davenport’s notes reflected that the defendant said he

wanted to ask some questions and, when asked, that he was willing to talk without a lawyer.

Relative to serving the capias on November 9, 1992, Agent Davenport’s notes provide:

Also, it should be noted that the Knox County Assistant

District Attorney Bob Jolley, who was handling these cases, had

requested that this agent be available to serve grand jury indictments

on Thomas D. Huskey in an attempt to see if he will talk further with

this agent and Lt. Johnson. 
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Johnson implied that he was unaware of the note. He said that they went to the jail to serve the

capias and that if the defendant wanted to talk, they were going to be there to listen. 

In granting the defendant’s motion to suppress the statements he made on November 9, 10,

and 11, 1992, the trial court found

In 1998 it was revealed that there was considerably more than

“background information” discussed with the defendant at the

October 29 and 30 meetings when Agent Davenport’s notes were

produced through further discovery in preparation of the murder trial.

In fact, it is obvious from the notes that there was substantial

discussion relating to the murder cases leading up to the defendant’s

invocation of his right to an attorney. However, there was no

reconsideration of the motion to suppress given prior to the trial of

the murder cases based upon this information.

In January of 1999, during the murder trial, Lieutenant

Johnson testified for the first time regarding the November 4 and 5,

1992 contacts with the defendant. Although Lieutenant Johnson

testified that no statements were elicited from the defendant at these

meetings, he did indicate that the specific purpose of the contact was

to make sure that the defendant’s needs were being met, a function

normally undertaken by jailers and not investigators. On crossexamination, Johnson acknowledged that “you can catch more with

honey than with vinegar.”

Based upon the evidence, it is clear to this court that the

defendant made two invocations of his rights under the Fifth

Amendment. The first invocation occurred on October 21 when he

indicated his desire to remain silent and cease questioning until

investigators “had a warrant.” The state argues that this invocation

was equivocal and indicated that the defendant would discuss the

cases voluntarily upon the filing of charges, in essence, an initiation

of contact. The court finds this argument disingenuous in light of the

investigators’ repeated (at least four) contacts, which were uninitiated

by the defendant, prior to the November 9 service of the capiases. It

is also clear from the record that these contacts either discussed the

investigations directly (October 29 and 30) or were undertaken with

the specific purpose and hope that the defendant would volunteer

information on his own (November 4 and 5). Following each

invocation, investigators persisted in repeated contacts with the

defendant culminating in the service of capiases on November 9 and

the ensuing confessions by the defendant. It is also worthy to note
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that the service of process on November 9 was personally done by Lt.

Johnson, Agent Davenport and Det. Upchurch, at the direction of then

Assistant District Attorney General Jolley, in the hopes that the

defendant would change his mind and talk to them. . . .

As stated previously, it is clear to this court that the defendant

invoked both of these rights, the first being his right to remain silent

on October 21 and the second being his right to an attorney on

October 30. The court concludes that on each occasion the defendant

exhibited his intention to exercise his Fifth Amendment privileges. .

. . There is ample evidence before this court that investigators failed

to scrupulously honor the defendant’s invocation of rights. The

subject matter of all interrogations remained focused on the rape and

murder investigations throughout the numerous police-initiated

contacts with the defendant after the invocations occurred. . . . The

court concludes that the state has failed to meet its burden to show

that the defendant’s rights were scrupulously honored. Despite two

invocations, investigators continued to approach the defendant and

either interrogate him directly or attempt to endear themselves to the

defendant in hopes that he would discuss the investigations. In light

of these new facts, the court cannot conclude that these statements

were voluntary and self-initiated and not the product of “repeated

efforts to wear down [the defendant’s] resistance and make him

change his mind.” Therefore, having concluded that the investigators

violated the defendant’s Fifth Amendment right against selfincrimination by failing to scrupulously honor his assertions of his

right to cease questioning and hisright to counsel, and further that the

defendant’s statements were not the result of his own initiated contact

with investigators, the defendant’s motion to suppress is hereby

GRANTED.

A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the

evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.

Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the

witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are

matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The application

of the law to the facts as determined by the trial court is a question of law which is reviewed de novo

on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). The prevailing party “is entitled

to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from the evidence.” Odom, 928 S.W.2d at

23.
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In this regard, the state notes that the trial court made no findings regarding Lt. Johnson’s

interview with William Fletcher. We also note the trial court failed to comply with this court’s

suggestion in remanding the rape cases that the trial court make specific findings regarding witness

credibility. However, the tenor of the trial court’s findings reflect that it did not fully accredit

Johnson’s testimony. In any event, we need not ignore what was revealed in the Fletcher interview

and in Johnson’s testimony about the interview. Moreover, we need not ignore the changes in

Johnson’s testimony when confronted with Agent Davenport’s notes.

A. Right to Remain Silent

The state contends that the defendant’s right to remain silent was “scrupulously honored”

because the investigators ceased questioning him each time he asserted a Fifth Amendment right,

they allowed ample time to pass before any reinterrogation, and they gave him fresh sets of Miranda

warnings before any reinterrogation. The defendant responds that the multiple contacts the

investigators had with him violated the invocation of his Fifth Amendment right to remain silent and

that the record does not preponderate against the trial court’s findings. 

The United States and Tennessee Constitutions protect a suspect from “being compelled to

give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn. 2004) (citing U.S.

Const. amend. V; Tenn. Const. art. I, § 9). If a suspect is in custody, the police must first inform him

of his Fifth Amendment rights in order for his confession to be admissible as substantive evidence

in the trial of the matter. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Once

informed of those rights, a suspect may voluntarily waive them and speak with the police or he may

invoke his Miranda right against compulsory self-incrimination. Id. at 444-45, 86 S. Ct. at 1612;

State v. Crump, 834 S.W.2d 265, 269 (Tenn. 1992), cert. denied, 113 S. Ct. 298 (1992). “The test

of voluntariness for confessions under Article I, § 9 [of the Tennessee Constitution] is broader and

more protective of individual rights than the test of voluntariness under the Fifth Amendment.” Id.

at 268 (citing State v. Smith, 834 S.W.2d 915 (Tenn. 1992)). If a suspect indicates in any manner

that he wishes to remain silent, custodial interrogation must cease. Miranda, 384 U.S. at 473-74, 86

S. Ct. at 1627 (1966); Crump, 834 S.W.2d at 269. After a suspect invokes his right to remain silent,

police may not resume custodial interrogation unless the defendant’s right to “cut off questioning”

was “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326 (1975);

Crump, 834 S.W.2d at 269. In order to introduce a defendant’s confession into evidence at the trial

of the matter, the burden rests upon the state to demonstrate a valid waiver by a preponderance of

the evidence. See Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515 (1986).

We note that in Lee v. State, 560 S.W.2d 82, 84 (Tenn. Crim. App. 1977), this court held

under both the federal and state constitutions that the state’s burden was to show a valid waiver by

clear and convincing evidence. Lee has never been criticized or overruled. We also note that in

State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997), our supreme court citing Connelly held that the

state need only show a valid waiver by a preponderance of the evidence. The court relied, however,

on federal constitutional law and did not address article 1, section 9 of our constitution or Lee’s
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contrary holding. In any event, we will determine whether the state showed a valid waiver by a

preponderance of the evidence.

In Mosley, the Supreme Court considered when police could reexamine a suspect who had

previously asserted his right to remain silent. 423 U.S. at 96, 96 S. Ct. at 321. Mosley was arrested

on robbery charges and advised of his Miranda rights. After invoking his right to remain silent, the

arresting officer placed him in a detention cell. Approximately two hours later, another officer came

to interview the defendant about an unrelated homicide. He gave the suspect another set of Miranda

warnings, and during the course of the subsequent interrogation, Mosley made incriminating

statements. In reviewing the case under Miranda, the Court concluded that Mosley’s invocation of

his right to remain silent had been “scrupulously honored” because “[1] the police . . . immediately

ceased the interrogation, [2] resumed questioning only after the passage of a significant period of

time and [3] the provision of a fresh set of warnings, and [4] restricted the second interrogation to

a crime that had not been a subject of the earlier interrogation.” Id. at 106, 96 S. Ct. at 327. The

Court noted that “where the police failed to honor a decision of a person in custody to cut off

questioning, either by refusing to discontinue the interrogation upon request or by persisting in

repeated efforts to wear down his resistance and make him change his mind,” a constitutional

violation would occur. Id. at 105-06, 96 S. Ct. at 327. However, the Court also noted that Miranda

cannot “sensibly be read to create a per se proscription of indefinite duration upon any further

questioning by any police officer on any subject, once the person in custody has indicated a desire

to remain silent” because such a reading could impermissibly create “a blanket prohibition against

the taking of voluntary statements or a permanent immunity from further interrogation.” Id. at

102-03, 96 S. Ct. 326. 

The federal circuit courts have split in applying Mosley. The minority position holds that the

test constitutes conditions precedent to a showing of a defendant’s valid waiver of his previously

invoked Fifth Amendment rights. In other words, under this approach, unless all four conditions are

met, there can never be a subsequent showing of valid waiver. See United States v. Barone, 968

F.2d 1378 (1st Cir. 1992) (holding that under “Mosley, a court need determine specifically whether

there has been a voluntary waiver only after the government has carried its burden of showing that

it complied with [all of] the required procedures”); accord Vujosevic v. Rafferty, 844 F.2d 1023,

1028-31 (3rd Cir. 1988) (holding that under Mosley, the government failed to demonstrate a valid

waiver when police did not “scrupulously honor” the suspect’s invocation of his right to remain

silent by reinterrogating him about the same crime).

The majorityposition concludes that the Mosley test does not create a per se rule but provides

factors that a court should consider under a “totality of the circumstances” approach. For example,

in Weeks v. Angelone, 176 F.3d 249, 267-268 (4th Cir. 1999), the court determined that the Mosley

Court stated factors to consider when determining whether the police had “scrupulously honored”

a suspect’s right to “cut off questioning,” not a bright line rule. Accord United States v. Schwensow,

151 F.3d 650, 659 (7th Cir. 1998) (recognizing that a second interview is not rendered

unconstitutional simply because it involved the same crime as previously discussed); United States

v. McClinton, 982 F.2d 278, 282 (8th Cir. 1992) (focusing on whether the police “persisted in
-12-

‘repeated efforts to wear down the person’s resistance’ in order to change the person’s version of the

facts,” instead of on subject matter of the reinterrogation); United States v. Hsu, 852 F.2d 407, 410

(9th Cir. 1988) (holding that “an identity of subject matter in the first and second interrogations is

not sufficient, in and of itself, to render the second interrogation unconstitutional”); cf. Hatley v.

State, 709 S.W.2d 812, 815 (Ark. 1986) (stating Mosley’s importance is focused on “strict adherence

to its dictates of scrupulously honoring the defendant’s right to remain silent” and finding the Court’s

emphasis “on interrogation about a different crime is, we believe, misplaced”); State v. Stanley, 613

A.2d 788 (Conn. 1992) (rejecting the view that Mosley stands for the proposition that “the police

can never reinterrogate a suspect, who has invoked his right to remain silent, regarding the same

crime about which he had refused to talk”). According to the analysis of the Weeks court and others

in accordance with its interpretation of Mosley, the relevant question to consider is whether under

the “totality of the circumstances,” the police “scrupulously honored” a suspect’s right to “cut off

questioning.”

We agree with the majority of the circuit courts and conclude that reinterrogation of a suspect

concerning the same subject matter does not constitute a per se violation of Miranda under Mosley.

However, we believe it is an important factor to consider under a “totality of the circumstances” test.

In that regard, we conclude that because the officers reinterrogated the defendant about the same

subject matter on at least three separate occasions after he invoked his right to remain silent and

because they attempted to curry favor with the defendant on two other occasions by allowing him

to shower and telephone familymembers, the officers’ actions constituted a persistent effort to wear

down the defendant’s resistance and “make him change his mind.” Further, we conclude that the

record preponderates against the trial court’s implied findings that the November 4 and 5 contacts

did not include discussions about crimes with the defendant. The record reflects that Lt. Johnson

spoke to William Fletcher, a jailmate of the defendant, after the November 4 and 5 contacts.

Johnson asked Mr. Fletcher whether the defendant discussed with him about what the detectives had

talked to the defendant on November 4 and 5. It is simply unreasonable to conclude that Johnson

was not referring to substantive conversations he and the other detectives had with the defendant on

November 4 and 5. Therefore, we believe that after the defendant invoked his right to remain silent,

the detectives requestioned him at least three additional times and met with him on two other

occasions where, at the least, the conversations concerned the same subject matter. Given these

facts, we hold that the evidence does not preponderate against the trial court’s finding that the state

failed to meet its burden of showing the defendant’s Fifth Amendment right to remain silent was

“scrupulously honored.”

B. Right to Counsel

Because the defendant invoked his right to counsel after he invoked his right to remain silent

and because the constitutional analysis of when a violation of these rights occurs is different, we next

address whether the officers violated the defendant’s invocation of his right to counsel. The state

contends that the defendant’s invocation of his right to counsel was not violated because even though

the investigators reinitiated contact with him on November 4, 5, and 9, no interrogation occurred

until the defendant initiated a conversation on November 9, indicating his willingness to discuss the
-13-

charges against him. The defendant contends that the state has confused the issue of its duty to

honor a suspect’s asserted right to remain silent scrupulously under Mosley with its duty to have no

further contact in the absence of counsel after a suspect asserts his right to the assistance of counsel

under Edwards. He argues that the state violated his asserted right to counsel by initiating contact

with him on November 4, 5, and 9, culminating in his confession. We agree with the defendant.

In Miranda, the Court stated that if a suspect during custodial interrogation requests an

attorney, “the interrogation must cease until an attorney is present.” 384 U.S. at 474, 86 S. Ct. at

1627-28. When such a request is made and “the interrogation continues without the presence of an

attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the

defendant knowingly and intelligently waived his privilege against self-incrimination and his right

to retained or appointed counsel.” Id. at 475, 86 S. Ct. at 1628 (emphasis added). 

The Court in Edwards “reconfirm[ed] these views and, to lend them substance, emphasize[d]

that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to

reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U.S. at 485,

101 S. Ct. at 1885. “[W]hen an accused has invoked his right to have counsel present during

custodial interrogation, a valid waiver of that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation even if he has been advised of his

rights.” Id. at 484, 101 S. Ct. at 1884-85. Further, a suspect “having expressed his desire to deal

with the police only through counsel, is not subject to further interrogation by the authorities until

counsel has been made available to him, unless the accused himself initiates further communication,

exchanges or conversations with the police.” Id. at 484-85, 101 S. Ct. at 1885. The Court, however,

did not suggest that police could never use incriminating statements given by a suspect who first

invoked his right to counsel. For example, the Court stated, 

Had Edwards initiated a meeting . . . , nothing in the Fifth and

Fourteenth Amendments would prohibit the police from merely

listening to his voluntary, volunteered statements and using them

against him at the trial. The Fifth Amendment right identified in

Miranda is the right to have counsel present at any custodial

interrogation. Absent such interrogation, there would have been no

infringement of the right that Edwards invoked and there would be no

occasion to determine whether there had been a valid waiver.

Id. at 485-86, 101 S. Ct. 1885 (emphasis added).

In determining whether a valid waiver of a suspect’s invocation of his right to counsel has

occurred, the proper question is whether “the accused, not the police, reopened the dialogue with the

authorities. . . . [A] knowing and intelligent waiver cannot be found once the Fifth Amendment right

to counsel has been invoked unless the accused initiates the renewed contact.” Id. at 486 n.9, 101

S. Ct. at 1885 n.9 (emphasis added); see also Wyrick v. Fields, 459 U.S. 42, 45-46, 103 S. Ct. 394,

396 (1982) (stating that an accused who has previously asserted his right to counsel must himself
-14-

reinitiate a “dialogue with the authorities”); United States v. Whaley, 13 F.3d 963, 967 (6th Cir.

1994) (holding “an Edwards initiation occurs when, without influence by the authorities, the suspect

shows a willingness and a desire to talk generally about his case”). In Patterson v. Illinois, 487 U.S.

285, 291, 108 S. Ct. 2389, 2394 (1988), the Supreme Court, commenting on a valid waiver by a

suspect who had invoked his right to counsel, noted, “Had petitioner indicated he wanted the

assistance of counsel, the authorities’ interview with him would have stopped, and further

questioning would have been forbidden (unless petitioner called for such as meeting).” (Emphasis

added).

The Supreme Court has explained that Edwards “serves the purpose of providing ‘clear and

unequivocal’ guidelines to the law enforcement profession.” Arizona v. Roberson, 486 U.S. 675,

681-82, 108 S. Ct. 2093, 2098 (1988) (quoting Fare v. Michael C., 442 U.S. 707, 718, 99 S. Ct.

2560, 2568 (1979)). 

“If the police do subsequently initiate an encounter in the absence of

counsel . . . , the suspect’s statements are presumed involuntary and

therefore inadmissible as substantive evidence at trial, even where the

suspect executes a waiver and his statements would be considered

voluntary under traditional standards. This is ‘designed to prevent

police from badgering a defendant into waiving his previously

asserted Miranda rights.’” 

McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S. Ct. 2204, 2208 (1991) (quoting Michigan v.

Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 1180 (1990)). The bright line rule announced in

Edwards reflects the Supreme Court’s concern that “if a suspect believes that he is not capable of

undergoing [custodial] questioning without advice of counsel, then it is presumed that any

subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation,

is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of

the suspect.” Roberson, 486 U.S. at 681, 108 S. Ct. at 2097-2098 (citations omitted). “Once a

suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be

reapproached regarding any offense unless counsel is present.” McNeil, 501 U.S. at 177, 111 S. Ct.

at 2208.

In Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830 (1983), after invoking his right to

counsel, the suspect subsequently initiated a conversation with police while being transported to a

different detention facility when he asked the transporting officer, “What is going to happen to me

now?” The ensuing conversation led to an interview complete with Miranda warnings, resulting in

a polygraph examination which led to the suspect making incriminating statements. A plurality of

the Court concluded that the suspect validly waived his previously asserted right to counsel under

the Edwards rule by initiating a new conversation notwithstanding the fact that, technically, law

enforcement initiated contact with him by removing him from his cell for transportation. Bradshaw,

462 U.S. at 1046-47, 103 S. Ct. at 2835. However, we note that while Bradshaw qualifies the

Edwards bright line rule, eight of the Justices in that case still required that the defendant initiate the
-15-

conversation or communication. “If Edwards is to be further modified . . . , it is for the Supreme

Court to do it.” United States v. Ortiz, 177 F.3d 108, 110 (1st Cir. 1999).

In State v. Claybrook, 736 S.W.2d 95 (Tenn. 1987), our supreme court, citing Edwards and

Bradshaw, considered whether a suspect who had previously invoked his right to counsel

subsequently made a valid waiver by reinitiating a conversation. The suspect initially requested

counsel after an investigating officer noticed blood stains on his clothing. Later, while he was being

led down a hallway in the detention facility, the suspect saw the district attorney general and asked

to speak with him. During the ensuing questioning, the suspect waived his previously asserted right

to counsel and made a statement. Claybrook, 736 S.W.2d at 102. The court held the suspect’s

waiver was valid. Id. at 103.

In its response to the defendant’s motion to suppress, the state in the trial court cited

Bromfield v. Freeman, 923 F. Supp. 783 (E.D.N.C. 1996), for the proposition that an investigating

officer who serves a warrant on a suspect who previously invoked his right to counsel does not

reinitiate contact under the exception in Bradshaw. Under this view, a suspect’s subsequent

indication of a willingness to talk about the charges and his resulting confession will not offend the

Fifth Amendment so long as a valid waiver was obtained. 

In Bromfield, the suspect invoked his right to counsel. Thereafter, police investigators served

felony murder warrants on the suspect while he was incarcerated in the local detention facility,

hoping that he “would choose to provide further information.” In reviewing the subsequent

conviction, the court found 

that service of subsequent warrants upon an incarcerated accused is

a normal incident both of arrest and custody. The contact that the

police had with petitioner when they served him with the second set

of warrants, along with any “inquiries or statements relating to” this

“routine incident of the custodial relationship,” could not violate the

right to counsel. Even where a suspect has invoked his Fifth

Amendment right against further uncounseled interrogation on any

subject, the police “are free to inform the suspect of the facts of the

second investigation as long as such communication does not

constitute interrogation. . . .” To the extent that petitioner expressed

a desire to give the police a third interview upon being informed of

the warrants, the Court finds that it was the petitioner, not the police,

who “initiated” further communication.

Bromfield, 923 F. Supp. at 788.

We do not view Bromfield to be persuasive in the context of the present case. While the

Bromfield court considered the service of a warrant by the very same officer who had previously

interrogated the defendant a routine incident of the custodial relationship, we note that the Supreme
-16-

Court gave but two examples of routine incidents of the custodial relationship that would not be

considered an initiation of contact: a request for a drink of water or the use of a telephone. See

Bradshaw, 462 U.S. at 1045, 103 S. Ct. at 2835. The facts of Bradshaw also stand as a third

example: contacts necessary to facilitate transportation of a detained suspect. However, we decline

to extrapolate from these examples that the investigating officers in this case, who previously

initiated contact with the defendant twice and whose primary purpose in serving the capias on the

defendant was to obtain his confession, did not offend Edwards when they used the capias as a ruse

with the fervent desire that the defendant ask so much as “I have some questions about this” in order

to reinterrogate him in the absence of counsel. 

We further conclude that even if the serving of such process by the same investigators is not

a reinitiation of contact under Edwards, the facts of the present case lead us to the conclusion that

the investigators violated the defendant’s assertion of his right to counsel under Edwards by

reinitiating contact with him on November 4 and 5. These contacts were undertaken by investigators

because in the words of Lt. Johnson, you can get “more with honey than with vinegar.” While this

may indeed be a true statement and even a legitimate law enforcement technique, we conclude that

the investigators violated the defendant’s asserted right to counsel under the Fifth Amendment by

reinitiating contact, communication, dialogue, or meeting with him on November 4 and 5. Based

upon Johnson’s interview with William Fletcher and General Jolley’s comments to Agent Davenport

about serving the capias, we conclude that the investigating officers’ contact on November 4, 5, and

9 cannot be said to have arisen as a routine incident of the custodial relationship as it was designed

to elicit a confession from the defendant. These contacts violated Edwards’ bright line rule,

culminating in the defendant’s confession. Because the defendant remained in state custody during

this entire period, we discern no attenuation of the constitutional violation. Indeed, the defendant’s

desire to talk generally about his case was the direct and proximate result of the influence of the

police investigators on five separate occasions, and his waiver cannot be said to comply with

Edwards. 

Edwards established a bright line rule which the investigating officers violated by reinitiating

contact, communication, dialogue and meetings with the defendant. In order to comply with the

constitutional mandates, if the state wanted to interrogate the defendant on November 9, ten days

after he requested the assistance of counsel, it needed simply to provide him the attorney he

requested. In this regard, we conclude the evidence does not preponderate against the trial court’s

finding that the state failed to carry its burden to show valid waiver. 

II. ARREST, SEARCH, AND SEIZURE

The state contends that the items seized from the defendant’s home are admissible as

evidence because the police arrested the defendant in good faith reliance upon a Knoxville City

Court capias subsequently declared void and because the defendant’s father consented to the search

of the defendant’s room. The defendant asserts that Tennessee does not recognize a good faith

exception and that one should not exist, in any event, when the state relies upon a void capias. He

also notes the trial court found that no consent to search was given. 
-17-

The evidence regarding the defendant’s arrest and the search of his home on October 21,

1992, was summarized by this court in the defendant’s rape case as follows:

At a February 7, 1996 suppression hearing, Knox County Sheriff’s

Detective Michael Upchurch testified that he was in charge of

investigating the homicides, which occurred near Cahaba Lane in

Knoxville in October 1992. His investigation caused him to focus on

the defendant as a suspect, and he checked for outstanding warrants

against the defendant. He found an outstanding capias for failure to

appear in Knoxville Municipal Court on a charge of solicitation of

prostitution. Knowing that the defendant had been employed at

Teagues Statuary in Sevier County, Detective Upchurch asked the

Sevier County Sheriff’s Department to have an officer meet him and

Detectives Darrell Johnson, Dan Stewart, Mike Freeman, and Mike

Grissom to arrest the defendant on the capias and for questioning

about the homicides. They first went to the statuary and then

proceeded to the defendant’s parents’ mobile home, where Detective

Upchurch saw a truck matching a description given in conjunction

with his investigation parked in the driveway.

Detective Upchurch testified that at 9:30 p.m., he and Officer

Jerry Huskey of the Sevier County Sheriff’s Department went to the

front door of the mobile home and that the other officers went to the

back door. Officer Huskey was in uniform and had parked his cruiser

in front of the mobile home. The defendant’s mother answered the

door, and he and Officer Huskey identified themselves. Detective

Upchurch told her that he wanted to see the defendant, that a court

had issued a capias for the defendant for failure to appear in court,

and that they were taking the defendant into custody at that time.

Mrs. Huskey told him that her husband and the defendant were in

their beds and that she would get the defendant. She invited them

inside. The defendant came into the living room and asked what they

wanted. Detective Upchurch told him why they were there and that

they wanted to talk to him. The defendant said, “Fine. I need to get

my shoes.” Detective Upchurch told the defendant that he could get

his shoes but that they would have to accompany him to his bedroom

because he was in custody. The defendant agreed to this and walked

ahead of them down the hallway. 

Detective Upchurch testified that while he and Detective

Stewart were standing just inside the doorway of the defendant’s

bedroom, he saw an orange hay-baling rope on the defendant’s floor.

He recognized it as the type of rope used to bind the rape victims. As
-18-

the defendant sat on his bed putting on his shoes, Detective Upchurch

illuminated a dresser with his flashlight and saw a pair of women’s

earrings and a necklace on the top. The day before, one of the

homicide victims’ boyfriends had told him that the victim had

earrings in her purse. He did not confront the defendant with the rope

and jewelry at this point. The defendant refused to sign a consent to

search form and was then transported to the Sevier County Jail.

Detective Upchurch testified that Detective Stewart remained

at the defendant’s bedroom door to make sure that nothing was

moved. The other detectives waited in their unmarked cars.

Although the defendant’s father had given his consent to search the

whole residence, the Assistant District Attorney advised him by

telephone that he should get a search warrant for the defendant’s

bedroom. The Sevier County Sheriff’s Office provided him with a

search warrant form. He consulted with the Assistant District

Attorney again and drafted the affidavit and warrant. He

acknowledged that he was not familiar with Rule 41, Tenn. R. Crim.

P., but that he had undergone training relating to search warrants and

was familiar with probable cause. Nevertheless, at the time of the

hearing, he had written only a few search warrants. He admitted that

the search warrant affidavit did not mention the jewelry that he had

seen in the defendant’s room. He said that he noted the jewelry on

the list of items for which he was searching because he had seen it in

the room and knew it was there.

Detective Upchurch testified that he told Officer Huskey that

he needed to go to a judge or magistrate to get a search warrant

signed, and Officer Huskey agreed to take him. He was taken to

Bruce Baker, who was introduced as a Sevier County magistrate. He

handed the warrant to Mr. Baker and asked if he needed to do

anything else before Mr. Baker signed it. Mr. Baker signed the

warrant, and Detective Upchurch made three copies. He gave one of

the copies to Mr. Baker, and the other two copies were for the

defendant and his father. Once he obtained the signed search warrant,

he returned to the defendant’s parents’ home and conducted the

search. When Detective Stewart picked up the earrings to bag them,

Detective Upchurch saw a blonde hair entwined with the necklace

and the earrings. In addition to the items found in the defendant’s

bedroom, he found a knife on the bathroom sink. He said that the

defendant’s parents never objected to the search of their mobile

home, and the defendant never objected to the officers entering his

bedroom at the time of his arrest.
-19-

Detective Upchurch testified that the defendant arrived at the

Knox County Jail at 4:00 a.m. on October 22. Detective Upchurch

was not at municipal court when the defendant appeared and did not

speak to anyone associated with that charge. He did not consider the

defendant to be under arrest for the death of Patricia Rose Anderson

until the Knox County Grand Jury returned an indictment for that

charge.

Jerry Huskey testified that on October 21, 1992, he was a

patrolman with the Sevier County Sheriff’s Department, when Knox

County officers asked him to help them in investigating the

defendant. He confirmed the truth of his affidavit, which stated that

the officers showed him a folded capias and told him that it was for

the defendant, but said that he did not read it. He took them to the

statuary and then to the Huskey residence. He thought that the

defendant’s father invited them inside. The defendant was not

wearing shoes when he first saw the defendant. He heard the

detectives ask the defendant’s father if they could search the mobile

home. The defendant’s father agreed to let them search but told them

that they would have to ask the defendant about his room. The

detectives asked the defendant if they could search his room. The

defendant said they could not search his room, and they got a search

warrant. He did not see the detectives violate the defendant’s rights,

and he believed that they acted in a professional manner. He

acknowledged that his report states that he transported the defendant

to the Knox County line where the defendant was charged with

homicide.

Knox CountySheriff’s Detective Daniel Stewart testified that

on October 21, 1992, he went to the defendant’s house with Detective

Upchurch. When the defendant walked into his parents’ living room,

Detective Upchurch announced that the defendant would be taken

into custody for failure to appear in court. Detective Stewart

considered the defendant to be in custody at that point. He said he

accompanied the defendant to his bedroom for shoes or a shirt. He

was standing either in the doorway or just inside the room, and

Detective Upchurch stood beside him. He noticed a piece of orange

baling twine on the floor by the bed. Detective Stewart said that a

rhinestone necklace with a hair entangled in it and a pair of costume

pearl earrings were found on a piece of furniture immediately on the

left through the doorway, but he did not remember if he saw the

jewelry when the defendant was getting his shoes or when they

executed the search warrant. The top of the piece of furniture was
-20-

cluttered, and the jewelry was either on top of or near the edge of

some newspapers. When the defendant was taken to jail, Detective

Stewart remained at the mobile home to ensure that the defendant’s

bedroom was not disturbed. He did not search the room while the

other officers were away. During that time, the defendant’s mother

entered the room to turn off a light or radio, and as she left, the rope

caught on her foot and was dragged a few inches.

Jessie Huskey, the defendant’s mother, testified that she was

awakened by knocking after 9:00 p.m. on October 21, 1992. When

she opened the door, men wearing police uniforms asked if her

husband was there. She said that he was there and called for him.

One of the men asked if the defendant was there. She said yes and

knocked on the wall adjacent to the defendant’s bedroom. She did

not ask the officers to come inside. The officers stood in the door

until her husband arose. When the defendant entered the living room

in his pajama bottoms, the officers walked over to him. At that point,

she went to her bedroom to get a housecoat, and when she returned,

the officers and the defendant were gone. She never heard the

officers ask her husband for permission to search their home or say

that they were there to arrest the defendant because he failed to appear

for court. The defendant had previously told her that he went to

court.

Mrs. Huskey testified that she was frightened and nervous

because the officers had taken the defendant. One officer remained

standing at the defendant’s bedroom door. She denied offering a

stool to the officer, who stood the entire time. The officer watched

her go into the defendant’s bedroom and asked what she was going

to do. She told him that she was going to turn the radio off, which

she did and then left the room. She noted that a chest of drawers was

built into the wall in the defendant’s bedroom and that one could not

see the chest unless he or she stepped into the room. The officers

returned and searched the trailer, but she did not hear her husband

give them permission to search. She did not know what was in the

defendant’s room because she never went in his room except to leave

his clean laundry on the bed.

Huskey, slip op. at 38-41.

In the order granting the defendant’s motion to suppress items seized from his bedroom, the

trial court found that the consent given by the defendant’s parents to search the residence did not

include permission to search the defendant’s bedroom. However, the trial court considered the issue
-21-

of consent to be irrelevant, because it concluded the officers had no lawful basis to be in the Huskey

residence. It noted that this court had held that the capias upon which the defendant was arrested

was not legal process and was unlawful. It stated, in part, the following:

After the officers had entered the Huskey residence,

defendant, Thomas Dee Huskey, came out of his bedroom and was

advised by the officers that they had a warrant for his arrest.

Defendant asked and was given permission to return to his bedroom

to get a pair of shoes, but was advised that officers would have to

accompany him to the bedroom to which the defendant agreed. When

the defendant went to his bedroom to put on his shoes the two officers

who accompanied him observed certain items in his bedroom that

they considered to be evidence in the criminal cases against Mr[.]

Huskey, including a piece of orange twine and items of womens

jewelry that were in plain view within the room.

Based on the fact that this court found that the law

enforcement officers were in possession of a valid arrest warrant for

the defendant, and that the items were in plain view of the officers

during a lawful arrest of the defendant, the court found that these

items were lawfully seized incident to the arrest. In the appeal of his

rape convictions the defendant raised the issue of the defendant’s

arrest and the validity of the capias (arrest warrant) issued by the

Knoxville City Court, which was the process used to arrest the

defendant on October 21, 1992, in Sevier County.

The Court of Criminal Appeals further ordered this trial court to reexamine the validity of the seizure of the evidence now at issue in

light of that ruling.

The basis upon which this court previously held that the

evidence was properly seized was premised on the fact that law

enforcement officials had a lawful capias (arrest warrant) for the

defendant, and that the evidence at issue was in plain view and seized

incident to the lawful arrest of the defendant. The Court of Criminal

Appeals having now held that the arrest warrant was not valid,

completely changes the rational for this court’s prior ruling on this

issue. If law enforcement officers did not have a valid arrest warrant,

they had no lawful basis upon which to present themselves at the

Huskey residence and gain admittance into the residence for the

purpose of serving that process. Since the arrest of Mr. Huskey was

unlawful, it naturally follows that evidence seized in plain view of the

officers during that arrest is likewise unlawful and must be excluded.
-22-

Further, this court does not believe that law enforcement

officers can present themselves at the residence of a citizen and

advise that citizen that they have a lawful arrest warrant for an

occupant of the home, and then seek consent to search that home

incident to that lawful arrest when in fact the underlying arrest

warrant is unlawful. In State v. Clark, 844 SW2d 597 (Tenn. 1992),

another warrantless search case, our Supreme Court found that

“consent to enter and search a home will not be lightly inferred, nor

found by mere acquiescence to unlawful authority”. Clark at 599.

Therefore, this court arrives at the inescapable conclusion that

the evidence was not seized as part of a lawful arrest, nor was the

consent to search that was obtained incident to that arrest valid.

Defendant’s Motion to Suppress this Evidence is, therefore,

GRANTED.

A. Good Faith

In the rape cases, this court held that the capias upon which the defendant was arrested was

improperly issued by the Knoxville City Court Clerk and was void because it did not run or issue

in the name of the State of Tennessee. Huskey, slip op. at 50. It also held that the search warrant

for the defendant’s home was invalid because it failed to name the officer to whom it was issued in

violation of Rule 41(c), Tenn. R. Crim. P. In the present case, the state does not contest these

rulings. However, it contends that it should be allowed to use as evidence the items seized as a result

of the search of the defendant’s home. It asserts that the officers acted in good faith and with

objectively reasonable reliance on the capias purportedly issued by the Knoxville City Court for the

defendant’s failure to appear in court. It argues that the capias was not invalid due to unlawful police

conduct but due to judicial error. The state essentially requests the court to adopt the “good faith”

exception to the exclusionary rule as was done in United States v. Leon, 468 U.S. 897, 104 S. Ct.

3405 (1984). This exception would permit evidence seized in reasonable, good faith reliance upon

a search warrant subsequently found to be defective to be introduced during the prosecution’s casein-chief. 

We believe a short history of the exclusionary rule relevant to this case is appropriate. In

Hughes v. State, 145 Tenn. 544, 238 S.W. 588 (1922), the Tennessee Supreme Court held that

evidence obtained in violation of Article I, section 7 of the Tennessee Constitution should be

excluded as evidence. The court stated:

The state, having through its executive representatives produced the

evidence of a violation of the law by one of its citizens by means

prohibited by the Constitution, cannot be permitted through its

judicial tribunal to utilize the wrong thus committed against the

citizen to punish the citizen for his wrong; for it was only by violating
-23-

his constitutionally protected rights that his wrong has been

discovered. It is no answer to say that it matters not how a citizen’s

sins have been found out. Security from unlawful search is the right

guaranteed to the citizen, even for the discovery of the citizen’s sins.

This right we must protect, unless we may with impunity disregard

our oath to support and enforce the Constitution. The experience of

our forefathers with unlawful searches and seizures was deemed by

the people who framed the Constitution sufficient to warrant the

provision by which in instances even the guilty might escape

detection and punishment.

Id. at 565-66, 238 S.W. at 594.

In Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923), the first case to apply the

exclusionary rule in Tennessee, the Tennessee Supreme Court found deficiencies in the affidavit and

warrant which it attributed to the “carelessness” or “oversight” of the magistrate issuing the warrant.

Even though it determined that “[t]he officers acting in [the] case did so in good faith,” it held that

the evidence seized under the invalid warrant should have been excluded. Id. at 161, 252 S.W. at

1008-09. It stated that the requirements of the constitution and statutes regarding search warrants

and affidavits were not difficult and should be followed. We believe Hampton reflects a concern that

both officers and magistrates must be vigilant in ensuring that the requirements of the constitution

and the statutes be followed. In other words, the security of citizens in Tennessee “in their persons,

houses, papers and possessions, from unreasonable searches and seizures” provided in Article I,

section 7 of the Tennessee Constitution protects them from inappropriate conduct by the government,

regardless of which agency or branch and of whether issuance or execution related.

The Tennessee Supreme Court has consistently recognized that the search and seizure

requirements of the constitution and statutes are not difficult to follow. We note that in Everett v.

State, 182 Tenn. 22, 28, 184 S.W.2d 43, 45 (1944), the court stated

The use of printed forms has made the procurement of a search

warrant the merest formality, considering the fundamental

constitutional right which the search invades. Certainly, this Court

can do no less than to require that the few blank spaces be filled in,

and the other details of the formality be carried out with care and

precision.

Even the legislature dealt with the importance of a citizen’s rights requiring magistrates to

comply with the law. In 1959, the following statute was enacted:

40-518. Copies of search warrants required – Endorsement –

Evidence. – All magistrates, clerks of court, judges and any other

person or persons whomsoever issuing search warrants shall prepare
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an original and two (2) exact copies of same one (1) of which shall be

kept by him as a part of his official records, and one (1) of which

shall be left with the person or persons on whom said warrant is

served. The original search warrants shall be served and returned as

provided by law. The person or persons as aforesaid who issue said

warrants shall endorse the warrants showing the hour, date, and the

name of the officer to whom the warrants were delivered for

execution, and the exact copy of such warrant and the endorsement

thereon, shall be admissible in evidence in the courts. Failure to

comply with this section shall make any search conducted under said

warrant an illegal search and seizure.

See 1959 Pub. Acts ch. 241. In Talley v. State, 208 Tenn. 275, 278, 345 S.W.2d 867, 869 (1961),

the Tennessee Supreme Court stated that the intent of the statute “was to secure the citizen against

carelessness and abuse in the issuance and execution of search warrants.” (Emphasis added). 

In 1978, Tennessee adopted the Rules of Criminal Procedure which also deal with search and

seizure. Rule 41(c) provides essentially the same requirements as T.C.A. § 40-518:

Issuance; Contents; Copies; Failure to comply.–– A warrant

shall issue only an affidavit or affidavits sworn to before the

magistrate and establishing the grounds of issuing the warrant. If the

magistrate is satisfied that grounds for the application exist or that

there is probable cause to believe that they exist, the magistrate shall

issue a warrant identifying the property and naming or describing the

person or place to be searched. The finding of probable cause may be

based upon hearsay evidence in whole or in part. The search warrant

shall be directed to and served by the sheriff or any deputy sheriff of

the county wherein issued. Any constable, or any other peace officer

with authority in the county. The search warrant shall command the

peace officer to search forthwith the person or place named for the

property specified. The magistrate shall prepare an original and two

exact copies of the search warrant, one of which shall be kept by the

magistrate as a part of his or her official records, and one of which

shall be left with the person or persons on whom the search warrant

is served. The magistrate shall endorse upon the search warrant the

hour, date, and name of the officer to whom the warrant was

delivered for execution; and the exact copy of the search warrant and

the endorsement thereon shall be admissible evidence. Failure of the

magistrate to make said original and two copies of the search warrant

or failure to endorse thereon the date and time of issuance and the

name of the officer to whom issued, or the failure of the serving

officer where possible to leave a copy with the person or persons on
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whom the search warrant is being served shall make any search

conducted under said search warrant an illegal search and any seizure

thereunder an illegal seizure.

(Emphasis added). Because of the creation of this rule, T.C.A. § 40-518 was repealed. See 1979

Pub. Acts Ch. 399, §§ 1, 5; T.C.A. § 40-518 (repealed) Compiler’s Notes (Supp. 1980); see also

State v. Steele, 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994) (concluding that a similar intent exists

for Rule 41(c) as existed for T.C.A. § 40-518). Considering the foregoing, we conclude that

adopting a good faith exception under the Tennessee Constitution would unduly reduce the

protections contemplated for our citizens by the Tennessee Constitution, the legislature, and the

Tennessee Supreme Court.

As previously noted, the state’s brief does not directly rely on the search warrant, but upon

the capias issued by the Knoxville City Court Clerk. Given the historical interest in ensuring that

citizens be secure against unreasonable government intrusion, we do not believe that the issuance

of a capias affords the state any greater latitude than a search warrant. 

In any event, as the defendant argues, we conclude that a good faith exception cannot apply

to a void arrest warrant or other arrest order issued by a person without issuance authority. We are

persuaded by the analysis in United States v. Scott, 260 F.3d 512 (6th Cir. 2001), in which the court

concluded that a retired Sequatchie County General Sessions judge did not have the authority to issue

the search warrant in question. In rejecting a claim of good faith reliance, the court stated:

Despite the derth of case law, we are confident that Leon did

not contemplate a situation where a warrant is issued by a person

lacking the requisite legal authority. Leon presupposed that the

warrant was issued by a magistrate or judge clothed in the proper

legal authority, defining the issue as whether the exclusionary rule

applied to “evidence obtained by officers acting in reasonable reliance

on a search warrant issued by a detached and neutral magistrate but

ultimately found to be unsupported by probable cause.” Leon, 468

U.S. at 900, 104 S. Ct. 3405 (emphasis added). Indeed, Leon noted

that it left “untouched the probable-cause standard and the various

requirements for a valid warrant.” Id. at 923, 104 S. Ct. 3405. At the

core of these various requirements is that the warrant be issued by a

neutral and detached judicial officer. See, e.g., Shadwick v. City of

Tampa, 407 U.S. 345, 350, 92 S. Ct. 219, 32 L.Ed.2d. 783 (1972).

We therefore hold that when a warrant is signed by someone who

lacks the legal authority necessary to issue search warrants, the

warrant is void ab initio. 

Scott, 260 F.3d at 515.
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In the defendant’s rape case, this court concluded that the Knoxville City Court Clerk did not

have authority to issue the capias. Huskey, slip op. at 51. As importantly, this court concluded that

the capias was void because it was issued in the name of the City of Knoxville and not the State of

Tennessee. Id. slip op. at 50; See McLendon v. State, 92 Tenn. 520, 525, 22 S.W. 200, 202 (1893)

(holding that a writ or other process that does not properly run in the name of the State is void upon

its face). We conclude that the trial court correctly suppressed the items seized from the defendant’s

residence.

B. Consent

The state acknowledges that the trial court found that the defendant’s father’s consent to

search did not extend to the defendant’s bedroom. It claims, though, that whether Mr. Huskey

consented to a search that did not include the defendant’s bedroom “is disputed” and that its position

is that Mr. Huskey consented to a search of the defendant’s room. We note, however, the trial

court’s findings will be sustained as long as the evidence does not preponderate against those

findings. In this regard, Detective Upchurch’s testimony supports a finding of consent while

Patrolman Huskey’s testimony supports a finding of no consent to search the defendant’s room.

Under these circumstances, we defer to the trial court who had the opportunity to observe the

witnesses. We conclude that the evidence does not preponderate against the trial court’s finding that

the defendant’s parents did not consent to a search of the defendant’s bedroom.

The state also asserts that evidence shows that when the officers “asked” the defendant to

come with them, he agreed to let them accompany him to his bedroom in order for him to get his

shoes. They assert that he did not object to the officers’ presence in his bedroom at that time. The

problem with this argument is that the evidence reflects that the officers had already told the

defendant that he was in custody and that they would have to accompany him to his room in order

to get his shoes. We believe the record supports a finding that the defendant acquiesced to authority

and did not voluntarily consent to the officers entering his room. See Bumper v. North Carolina, 391

U.S. 543, 549-50, 88 S. Ct. 1788, 1791-92 (1968); State v. Clark, 844 S.W.2d 597, 599 (Tenn. 1992)

(“Consent to enter and search a home will not be lightly inferred, nor found by mere acquiescence

to unlawful authority.”).

III. DEFENDANT’S OTHER ISSUES

The defendant states that if we reverse the trial court’s ruling suppressing his statements or

the evidence seized from his home, we should consider other grounds he raises for suppression of

the statements or evidence. Relative to his statements, the defendant claims that his rights were not

waived and his statements were not made knowingly, voluntarily, and intelligently because he was

mentally ill, illegally arrested, and illegally detained; that the statements were obtained in violation

of his Sixth Amendment right to counsel; and that the statements were obtained by investigators

whose oaths of office were not filed in the Knox County Clerk’s office, thereby rendering the

investigators’ actions illegal as Class C misdemeanors. See T.C.A. §§ 8-18-109, -113.
-27-

Relative to the items seized from his home, the defendant claims that they were illegally

seized because their criminal relevance was not immediately apparent and was only determined after

the seizure. He also claims that the items were seized by criminal acts in that the investigators had

not filed their oaths of office in the Knox County Clerk’s office. 

Obviously, our ruling in this case obviates any need to address the issues the defendant raises

only as a contingency. However, we also believe that the status of this case does not require us to

address the defendant’s issues regardless of our ruling. The state’s appeal of a pretrial order

suppressing evidence is ordinarily interlocutory in nature. See State v. Phillips, 30 S.W.3d 372, 373

(Tenn. Crim. App. 2000). However, if the “substantive effect of the ruling results in a dismissal of

the indictment,” the state may proceed by an appeal as of right under Rule 3(b), T.R.A.P. Id. On

the other hand, because a defendant may appeal an order denying suppression if convicted, this court

is not inclined to allow an interlocutory appeal 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 acknowledge, as the defendant also notes, this court had previously denied his

interlocutory appeal regarding many of the grounds he raises, stating that the defendant could raise

them in this appeal as of right by the state. However, upon further consideration, we believe that the

nature of this appeal does not lend itself to consideration of the defendant’s issues that are unrelated

to the issues raised by the state.

CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgment of the

trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE