# FILED
January 7, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9708-CR-00365 Appellee, ) ) Davidson County V. ) ) Honorable Tho mas H. Shriver, Jud ge ) RODNEY FORD, ) (Aggravated Robbery) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jay Norman John Knox Walkup 213 Third Ave. N. Attorney General & Reporter Nashville, TN 37201 Daryl J. Brand Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. (Torry) Johnson III District Attorney General Kymberly Haas Assistant District A

ttorney General Washington Sq., Suite 500 222 Second Ave. N. Nashville, TN 37201-1649 OPINION FILED: ___________________
REMANDED FOR EVIDENTIARY HEA RING WITH INSTRUCTIONS
PAUL G. SUMM ERS, Judge

O P I N I O N1 Our Sup reme C ourt has re cently held that “in eva luating the correctn ess of a tri al court's ruling on a pretri al motion to suppress, ap pellate courts may consi der the proof adduced both at the suppression hearing and at trial.” State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998).

-2- The defendant was convicted by a jury of three counts of agg ravated robbery. He was s

entenced as a range I standard offender to three concurrent terms of eight years. In this direct appeal, the defendant c ontends that the trial court erred in denying

his motion to suppress ev idence. Upon our review of both the suppression hearing and the trial, 1 we remand this matter for furth er proceedings consistent w ith this opinion.

FACTS Although the defendant does not direc tly challenge the suffici ency of the evidence, a brief recitati on of the facts is necessary. On February 8, 1994, Kay Krantz, the co-owner of Kwik Kash Pawn, was working in the shop. Grady Morris and Timothy Guinn entered wi th handguns. Morris kn ocked Krantz to the floor behind the counter and repeatedly threatened to kill her. H e took cash out of the cash drawer. Krantz

did not see a third person but learned from a customer that he had seen three men driving away. She testified that approximately $33,000 worth of jewelry, handguns, and money was stolen during the robbery. Morris was the only person she saw actually take things.
One day in early May

1994, Kim Hill was w

orking with Melo nie Rose and Jack Garland in Capitol View Pawn. A car pu lled alongside the buildi ng, a man got out, and the car left. The man enter ed the store and asked to see some c ar speakers. His beeper then w ent off; he left, and immediately thereafter Guinn, Morris, a nd a man named La wrence Seg ing came in,all armed w ith 9 mm. pistols. Guinn put his gun to Hill's head and Morris put his gun to Garland's head. Seging went to the jewelry showcase. Rose then came out of her office and got between Hill and Guinn. Guinn refused to releas e Hill and demanded money. Rose ope ned the register a nd gave him the mo ney. The phone rang, and Guinn turned the gun on Rose.After taking the money, Gui nn ordered the two women to get down on the floor, which they did. Guinn threatened to kill-3- them both. Eventually the men left. Rose testified that approx imately $40,000 worth of jewelry

and three to five hundred doll ars in cash were taken . Neither Rose nor Hill could i dentify the defendant as having been in the store during the robbery, but Hill te

stified that the man who had come i n right before was the same size, color, and build as the defendant and had the same hair.

On June 14, 1994, Detective R icky Roll of the Metr o Police Department obtained an arrest warr ant for Grady Morris.Later that day, Morri s was spotted driving an automobile. Several officers followe d him until he stopped at the defendant's residence on Boatner Dr ive. Detective H arold Dean Heaney testified tha t he “[h]ad no id ea” whose residen ce this was at the tim e. Although the record does not contain the arrest warrant, Det ective Roll testified at the suppression hearing that they had Morris' home addr ess. Morris also l ived on Boatner Drive, “dow

n the street” from the defendant.

The officers watched Morris enter the defendant's residence. Detectives Heaney and Roll went to the front door and announced themselv es. No one opened the door but they heard someon e in the house running. The defendant exited th e back do or, at which point he met severa l office rs includi ng Detect ive Norris Tarkington with his gun drawn. An officer asked the defendant if Morris was inside and he replied, “Yes.” The defendant further told th em that his younger brother might also be inside. Detecti ves Roll, Heaney, and Bill Stroud entered the house through the back door and arrested Morri s. Detective Stroud then searched the house for other per sons. During this se

arch, Stroud located some jewelry ly

ing on a bed. The defendant was tak en to the bedroom and, upon being shown the jew elry, stated that it w

as his bedroom. Heaney adv ised the defendant of his rights, and the de fendant made incriminating statement s. The defendant was then placed under ar rest.-4- The defendant told the officers that “he w as selling the jew

elry for Grady Morris” and told them ther e was more jewelry

in the room. Detective Stroud then searched the room and found more jewelry as well as numerous pawn tickets in the defendant's and Morris' names.He also found some business car ds and other literature connected t o various pawn shops.Stroud found no cash in the defendant's house.

The defendant also told the officers that he k new about the guns and knew where Morris and Guinn had put them. The defendant sub sequently accompanied the officers to this location bu t no guns were found. The police then returned to the defendant's house ( with the defendant), and he then accompanied them to Morris' house. The off icers obtained consent to search Morris' house and found more jewelry and a large amount of cash. Afte r this search, the officers took the defend ant to the Criminal Justice Center.
After arriving ther

e, Heaney readvised the defendant of his rights, and the defendant indicated that he was still willing to talk. Heaney testified that he “asked [the defendant] if he wouldn' t mind just to write dow n the places that he had robbed and, also, to diagr am [them] out for me.” Thirty to for ty-five minutes later, Heaney returned an d collected a handwritt en document labelled (by the defendant) “Confession” and two hand-drawn maps. Heaney testified that the diagrams were consi stent with the lay- outs of the two pawn shops. The defendant 's “Confession ” set forth the f ollowing:

Quick Cash Pawn. Grad y Morris and Timothy

Guinn went into Quick Cash Pawn while I waited outside in the car. After about 5 min[utes] pas sed I thought somethi ng had went wrong and I e ntered. Grady & Timothy were the only

ones I observed, but I hear d a woman on the floor (I never saw). I told them to hurry up and I took 3 of the cases of jewel ry and came out. About 20 seconds a fter me t he two fol lowed and we drove o ff. Capitol View Pawn. I was supposed to go in and just look around; after about 2 min[utes] Tim and Grady came in with the guns along with Larry Segance [sic] (unarmed) and drew down on the workers. Larry-5- began to take the jewelry and then I began to help him. Next, we left. ( I did not know this paw n shop was to be robbed on that day .) This document concludes with the defendant's signature and the d ate, “6/14.”

The officers did not have a search warrant for the defendant's res idence. At the suppression hearing , the defendant testified that the officers had not asked his consent to enter the house. This testimony w as uncontroverted. ANAL YSIS In its order denying the defendant's motion to suppress, the trial court addressed only the propri ety of the “protective s weep” conducted by Detective Stroud in searching the house for other persons. The trial court did no t address the warrantless entry

into the defendant's residence although this issue was raised and briefed by the defendant. Accordingly, our review of this issue is de
novo . See, e.g. , State v. Dougherty , 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996).

The Fourth Amendment to the United States Constitution provides

that “[t]he right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” See also Tenn. Const. art. I, § 7. Acc ordingly, warr

antless searches and seiz ures within a home are presumpti vely unreasonable. See Payton v. New York , 445 U.S. 573, 586 (1980); State v. Bartram , 925 S.W.2d 227, 229-30 (Tenn. 1996). Absent consent or exigent circumstances, police officer s may not seek the subject of an arrest warrant in the home of a third person without f irst obtaining a search warrant. See Steagald v. United State s , 451 U.S. 204, 216 (1981); State v. Patterson , 966 S.W.2d 435, 441-42 (Tenn. Crim. App. 1997). Ex igent circumstances may be found in three situations: “(1) when the off icers [are] in hot pursuit of a fleeing suspect;(2) when the suspect r epresent[s] an immediate threat to the arresting officers or the public; and (3) when immediate po lice action [is] necessary

to prevent the destructi on of vital evidence or thwart the-6- escape of known criminals.” Jones v. Lewis , 874 F.2d 1125, 1130 (6th Cir. 1989). But, “[t]he mere existence of these circumstances do es not necessarily validate a warrantl ess search. . . . There must be a showing by those asserting the exception [to the req uirement of a warrant] that th e exigencies of the situation made the search impera tive. The burden is on those seeking the exception to show the need.” Bartram , 925 S.W.2d at 230. T his burden is a “heavy” one. Welsh v. W isconsin , 466 U.S. 740, 749-50 (1984); State v. Clark , 844 S.W.2d 597, 59 9 (Tenn. 1992).

The state makes no contention that the of ficers obtained the defendant's consent prior to entering his house. Rather, it mer ely references in a footnote to its brief that “Detective Roll's testimony was not clear as to whether or not Ford gave permission for detec tives to enter [his] home. ” The record of the motion to suppress reveals th e followin g exchange between t he trial co urt and De tective Roll: The Court: And did he -- do y ou know if [the defendant] gave any permiss ion to go in and get Morris? Detective Roll: (No audible response). The Court: Or, did anybody ask him for permission? Detective Roll: Well, there again, that conversation had taken plac e with Sergeant Stromat before I guess -- The Court: Heaney was in the back, too? Detective Roll: Heaney was around there and so was -- uh -- Detective Tarkington.

. . . . Detective Roll: But,Detective Stroud and I didn't come to around back until . . . a short period of time

. . . there w

as some interaction between Mr. Ford and the other group back there. The Cour t: Okay. So . . . Strom at says Ford says Morris

is in the house? Detective Roll: R ight.2 Detective Tarkington testi fied that the i nformation they had on Morris was t hat he had been “involved in an armed robbe ry earlier, several days, or maybe even weeks earli er ” (emphasis added).

3 The state does not argue, and the record does not sup port, the existence of either of the other two types of e

xigent circumstances--that the suspect posed an immediate threat, or that he was going to escape o r destroy eviden ce. See Jones , 874 F.2d at 1130. -7- The Court: And, you and Stroud go in to get him. Detective Roll: Yes, sir. We do not agree that this testimo ny is unclear; it is simply unhelpful. Moreover, “[c]onsent to enter and searc h a home will not be lig htly inferred, nor found by mere acquiescence to unlawful authority.” Clark , 844 S.W.2d at 599. None of the involved detectives ever testified that they had gotten the defendant 's consent to enter his residence. Indeed, the only evidence in the record on this issue is to the contrary

.
Since there is no proof that the de fendant consented to the entry and search of his home, the state argues that the of ficers' actions were acceptable because “exigent cir

cumstances were present” in that the officers were “in hot pursuit of a dangerous indiv idual.” We disagree. Although law enforcement officers may enter homes without search warrants w hen they are in “hot purs uit” of a fleeing suspect, see United States v. Santana , 427 U.S. 38, 42-43 (1976), there is no proof in the recor d before us that Morris w as “fleeing” anyone or anything. Not only

was there no proof that Mor ris had just committed a cr ime, 2 Detective Roll testi

fied that Morris had had a cour t date on June 14 and that they began surveillance when he was spotted “leaving the courtroom.” Cf. Welsh , 466 U.S. at 740 (holding that “the claim of hot pursuit is unconvincing [whe re] there was not immediate or c ontinuous pursuit of the petitioner from the scene of a crime.”). Nor w

as there any proof that Morr is knew he was being

followed when he entered the defendant's house or that he did so in an attempt to evade the officers following him. It is the state's burden to demon strate why the officers did not obtain a search war rant prior to entering

the defendant's home, and they can point to no evidence in the record which justifies their decision to ignore this constitutional requir

ement. 3 The warrantless entry into the defendant's residence4 This evidence wo uld inclu de all of t he jewelr

y collect ed in the d efendant's house, th e pawn tickets, the pho

tographs made of these items by t he police, the prop

erty inventory made by t he police, and the business cards and ot her literature co nnected to various pawn shops.

5 The defendant also made a video-taped st atement. Due to a tapin g error, however, the videotape is unin telligible and was not pla yed for the jury. -8- and the subsequent search w ere, therefore, in violation of his constitutional rights.
Where evidence has been obtained directly or derivatively

from an illegal search, the exclusionar y rule may operate to bar its admissibility

. See Wong Sun v. United States , 371 U.S. 471, 484-85 (1963); Clark , 844 S.W.2d at 600. “However, it has

long been recognized

that evidence obtained by means genuinely independent of the cons titutional violation i s not subject to the exclusionary rule.” Clark , 844 S.W.2d at 600.

In this case, the evidence that the defendant wants suppress ed includes the jewelry and rel ated items found in his home and his s ubsequent oral statements and written confess ion. We agree that the property found by the police in the defendant's home inci dent to their arrest of Morr is, together with the statements made by the defendant when con fronted with these items, should have been suppressed. This ev idence was obtained as a di rect result of the officers' illegal entry into the defendant's home and their subsequent search thereof. 4

This is not all of the eviden ce against the defendant, howev er. After arresting him in his home, the police eventually took the defendant down to the Criminal Justice Center. He subsequently si gned a waiver of ri ghts and provided a written statement in which he admitted to participating in the robberies of Kwik Kash Pawn and Capit ol View Pawn . He also pr ovided dia grams of these two establishments. 5 What remains to be determ ined, then, is whether this evidence is “fruit of the poisonous tree” and must therefore also be suppress ed. See Brown v. Illinois , 422 U.S. 590, 602-03 (1975); Wong Sun , 371 U.S. at 484-86;6 One such intervening circumstance fol lowing an illegal arrest is the rel ease of the defendant on bail and his subs equent voluntar y return to the police station to make a statem ent. See Wong Sun , 371 U.S. at 491. An other circum stance may be the defendant's “co nsultation with an attorn ey, relative, friend,

or priest prior t

o the time a statement i s given.” Huddleston , 924 S.W.2d at 675.

-9- see also State v. Huddleston , 924 S.W.2d 666, 674 (Tenn. 1996). In other words, we must determi ne whether the defendant's self-l abeled “confession” was obtained by exploitati on of the illegal entry and search, or whether i t resulted from “an intervening ind ependent act of a free will” s ufficient to “purge the primary taint of the unlawful invasion.” Wong Sun , 371 U.S. at 486.

The ques

tion wh ether a c

onfessio n is the

product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind ar e too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to tur n on . . . [the] talismanic test [of whether the defendant received Miranda warnings prior to making his confession.] Brown , 422 U.S. at 603. Thus, in determi ning whether the taint has been purged, four factors must be consi dered: (1) whether the accused received Mirandawarnings; (2) th e period of time between the arr est and the confession; (3) the presence of intervening circumstances; 6 and finally, of particular significance, (4) the pur pose and flagrancy of the official misconduct. See Brown , 422 U.S. at 603-04 . The pro secution has the bu rden of p roving, by a preponderance of the evidence, the admissibility of the chal lenged evidence. See Huddleston , 924 S.W.2d at 675.
Unfortunately, the record before us is simply insuffici ent with respect to the circumstances surrounding the defendant's written conf ession for this Court to apply these four factors and det ermine whether it too shoul d have been suppressed. Accordingl y, we must remand this matter to the trial court t o conduct a further evidentiar y hearing for the purpose of determining whether the defendant's confession should have been suppressed pursuant to the exclusionary rul e. If the trial court finds that the confession must be suppressed, it may grant a new t rial and suppress all of the evidence obtained from the7 This would include any te stimony about the video-t aped statement he gave at th e Criminal Justice Center.

8 Aggravated robbery is “th e intentional o r knowing theft of pro perty from the person of anot her by violence or putti ng the person in fear” when it is “[a]ccompli shed with a deadly weapon or by display of any article us ed or fashioned to lead the victim to re asonably believ e it to be a deadly weapon.” T.C .A. § 39-13-402(a )(1); see also T.C.A. § 39-11 -402 (“A perso n is criminally res ponsible for an offense committed by the conduct of another if: . . . (2) Acti ng with intent t o promote or assist the commission of the offense, or to benefit in the proceeds or results of t he offense, the person solicits, directs, aids, or a ttempts to aid anothe r person to com mit the offense .”).

9 In light of our disposition of this matter, we need not address the “protecti ve sweep” conducted in the defendan t's home. -10- defendant's house as well as all of his oral statements, 7 his written confession, and the two diagrams that he drew in conjunction w ith the confession. See State v. Crabtree , 655 S.W.2d 173, 17 9 (Tenn. Crim. App. 1983) (where trial court erroneously excluded

evidence at the hearing on the motion to suppress, matter remanded for another hearing w ith instructions to gr

ant a new trial if motion should then be granted). We hold, howev er, that if the confession is found admissible, then it, together with the testimony of Krantz, Hill, and Rose, is suffic ient to up hold all t hree con victions o f aggravat ed robbe ry. 8
The judgment below is v acated and this matter is remanded for further proceedings in accordanc e with this opinion. 9

__________________________ PAUL G. SUMMERS, Ju dge

CONCUR:

_____________________________ JOSEPH M. TIPT ON, Judge

_____________________________ JOE G. RILEY, Judge