IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 25, 2013 Session

STATE OF TENNESSEE v. CHERYL REBECCA NORWOOD

Appeal from the Criminal Court for Monroe County

No. 11-325 Carroll L. Ross, Presiding Judge

No. E2012-02218-CCA-R9-CD - Filed November 15, 2013

The defendant (along with several co-defendants) was indicted on eight counts of a ten-count

indictment: one count of first degree murder; one count of conspiracy to commit first degree

murder; one count of arson; two counts of tampering with evidence; one count of theft of

property valued at $10,000 or more; one count of abuse of a corpse; and one count of credit

card fraud. Prior to trial, the trial court granted the defendant’s motion to suppress three

statements given to police after the defendant was “voluntarily” detained. The State sought

and received permission to file an interlocutory appeal. Upon review, we conclude that the

defendant was, in fact, arrested when she was detained but that her arrest was supported by

probable cause. We further conclude that the defendant was given sufficiently prompt

judicial review of the officer’s probable cause determination. For these reasons, the trial

court’s order granting the defendant’s motion to suppress is reversed, and the case is

remanded for further proceedings consistent with this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court is

Reversed and Remanded.

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, and ROGER A. PAGE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Steven Bebb, District Attorney General; and James H. Stutts, Assistant District

Attorney General, for the appellant, State of Tennessee.

W. Tyler Weiss, Madisonville, Tennessee (on appeal); and Randy George Rogers and

Matthew Rogers, Athens, Tennessee (at trial); for the appellee, Cheryl Rebecca Norwood.

OPINION
FACTS AND PROCEDURAL HISTORY

On September 7, 2011, the defendant, Cheryl Rebecca Norwood, and three codefendants were indicted by a Monroe County grand jury on ten counts stemming from their

alleged involvement in the murder of the victim, her romantic partner, Tony Presley. The

defendant was specifically charged with one count of conspiracy to commit murder in

violation of Tennessee Code Annotated section 39-12-103, a Class A felony; one count of

first degree (premeditated) murder in violation of Tennessee Code Annotated section 39-13-

202; one count of abuse of a corpse in violation of Tennessee Code Annotated section 39-17-

312(a), a Class E felony, two count of tampering with evidence in violation of Tennessee

Code Annotated section 39-16-503; Class C felonies; one count of arson in violation of

Tennessee Code Annotated section 39-14-301(a)(1), a Class C felony; one count of theft of

property valued at $10,000 or more in violation of Tennessee Code Annotated section 39-14-

103, a Class C felony; and one count of fraudulent use of a credit card in violation of

Tennessee Code Annotated section 39-14-118(a), a Class A misdemeanor. Prior to her trial,

the defendant filed a motion to suppress three videotaped statements she gave to the police.

In the first interview, which lasted one hour and twenty-six minutes and was conducted on

April 13, 2011, the defendant claimed that the victim had left at 3:00 a.m. on April 8, 2011,

in the company of two Hispanic men named Pepe and Don Juan, and that she had no idea of

his present whereabouts. In the second interview, which lasted an hour and forty-five

minutes and was conducted on April 14, 2011, the defendant acknowledged arguing with the

victim and being present in the home when he was killed but placed the blame for the killing

on her co-defendants, Mr. Nicolas Ronnie Dean Jones and Mr. John Tyler, the former of

which she claimed shot the victim and the latter of which she claimed tried to kill the

wounded victim by striking him in the head with a skillet. In the final interview, which

lasted an hour and twenty-two minutes and occurred on April 15, 2011, the defendant

admitted to stabbing the victim in the neck with a kitchen knife after he was shot.

At a pretrial hearing held on July 5, 2012, the trial court heard evidence concerning

the defendant’s motion to suppress. Detective Brannon testified that he interviewed the

defendant during the course of an investigation into the victim’s disappearance. He testified

that he initially became interested in speaking with the defendant because, as the victim’s

reputed live-in girlfriend, he believed that the defendant might have been the last person to

see the victim before his disappearance. His desire to speak with the defendant only

increased when the victim’s house was discovered burned to the ground. He testified that

during the course of his investigation, he became aware that some property left in the

victim’s care—specifically, a white Ford Mustang registered to a Mr. Jim Bivins—was

missing. He testified that the Ford Mustang “was entered into the National Crime

Information Center, NCIC, listed as a stolen vehicle.” Detective Brannon testified that he

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was aware that officers in Georgia subsequently “made contact with that vehicle,” but that

he was unaware of the specifics of that contact. Detective Brannon testified that the

defendant eventually gave three different statements to police, and he was present for the last

two of those statements.

On cross-examination, Detective Brannon testified that he was involved in the

investigation of a house fire that occurred on Sunday, April 10, 2011. In conjunction with

that investigation, members of his department requested a search warrant of an address on

Cane Creek Mountain Road on April 13, 2011. After receiving the warrant, members of the

Tennessee Bomb and Arson Division and a cadaver-sniffing dog arrived at that address.

Officer Kevin Heaton, formerly of the Commerce City Police Department in Georgia,

testified that at 12:58 a.m. on the morning of April 12, 2011, he stopped a vehicle that was

being driven by the defendant because it had run a stop sign. He testified that Ms. Tammy

Carter and Mr. Gregory Carter were passengers in the vehicle. He testified that during the

course of the stop, he noticed that the vehicle bore two different license plates—a permanent

plate and a temporary plate that was visible through the back window. He testified that he

ran both license plates through the system, and neither one came back as “on file.” When he

checked the vehicle’s VIN number, he discovered that the vehicle had been reported stolen.

He testified that when he asked the dispatcher to confirm the report, the dispatcher began

“kind of going back and forth with Monroe County investigators, and . . . I just told them to

give them my number and I would talk to them directly.”

Officer Heaton testified that he spoke with Detective Travis Jones of the Monroe

County Sheriff’s Department. He testified that Detective Jones informed him that the

defendant was a suspect in a homicide investigation. He testified that he was informed that

no warrant for the defendant’s arrest had been issued. Officer Heaton testified that Detective

Jones asked him to positively identify the defendant by taking a picture of her and sending

the picture to his cell phone. Officer Heaton testified that he complied with this request. He

testified that afterward, Detective Jones asked him if he would get the defendant’s consent

to go to the police department and wait for Monroe County police officers to drive down

from Tennessee to interview her. Officer Heaton testified that he asked for the defendant’s

consent, and after receiving it, he placed all three of the Mustang’s occupants in the back of

his cruiser and transported them back to the police station. He also testified that he called

a tow truck to tow the Mustang to the police station’s parking lot—an area that also served

as the police impound lot.

Officer Heaton testified that when they arrived back at the police station, he had the

defendant placed in a holding cell. He testified that he was familiar with the station’s

holding cell because he had “slept in it before.” While on the stand, Officer Heaton was

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shown pictures of one of the station’s holding cells, which he authenticated, and which were

entered into evidence. He testified that the defendant was kept in the holding cell until

Detective Jones arrived approximately three hours later, and it was his belief that the

defendant eventually left in the company of the Monroe County Sheriff’s Department.

Officer Heaton acknowledged the existence of a property receipt for a Ford Mustang

indicating that the vehicle arrived around 1:00 a.m. on April 12, 2011, and was retrieved on

May 17, 2011, by Mr. Bivins. Officer Heaton testified that he ticketed the defendant for

running the stop sign, but he did not charge the defendant for driving a stolen vehicle.

Officer Heaton testified that driving a stolen vehicle was a felony in Georgia.

On cross-examination, Officer Heaton testified that the defendant presently had a

bench warrant for failure to appear on her traffic citation. Officer Heaton testified that the

State of Georgia permitted the State of Tennessee to extradite individuals accused of

felonies. He also testified that it was still possible for Georgia to charge the defendant with

driving a stolen vehicle.

On redirect examination, Officer Heaton testified that he did not lock the defendant’s

holding cell door, and he did not know if anyone else had done so. He testified that Mr.

Carter was placed in a different holding cell, while Ms. Carter was permitted to stay in the

lobby. He estimated that the defendant stayed in the holding cell “probably three or four

hours.” In response to further questioning from the court, Officer Heaton testified that when

he spoke with Detective Jones, he offered to arrest the defendant for running the stop sign

so that he could hold her for him, but Detective Jones asked him to get the defendant’s

consent instead. He testified that he did not know if he would have arrested the defendant

if she had not consented to wait for the investigators, and he indicated that he would have

deferred to Detective Jones on the issue.

Officer Travis Jones of the Monroe County Sheriff’s Department testified that he

interviewed the defendant in conjunction with an investigation into a fire. He testified that

the interview was recorded, and the defendant executed a Miranda waiver prior to the

interview. He testified that he read the defendant her rights, and that the defendant appeared

to understand them when she signed the form. Officer Jones testified that the defendant

never indicated that she wished to exercise her rights during this interview. Officer Jones

testified that he interviewed the defendant again sometime later. He testified that he again

read the defendant her rights, and the defendant executed another Miranda waiver. Officer

Jones testified that at some point during this second statement, the defendant indicated that

she wanted a lawyer. He testified that in response to her request, he stopped the interview.

Officer Jones testified that, as he was leaving to go home after the second interview,

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he was informed by the corrections staff that the defendant wanted to speak with him again.

Officer Jones testified that he asked for the defendant to be brought back. Once she arrived,

he read the defendant her Miranda rights again, and she executed another waiver. He

testified that he doubled-checked with the defendant to make sure that she still did not want

an attorney prior to starting the third and final interview. He testified that the defendant

never indicated that she wished to exercise her rights during the final interview.

In response to questions from the court, Officer Jones testified that the second

interview lasted approximately an hour and a half before the defendant indicated that she

wished to have an attorney. He estimated that the defendant’s third interview lasted around

two hours. Officer Jones testified that the defendant never indicated thatshe was tired during

any of her interviews and never asked for any clarification concerning her Miranda rights.

On cross-examination, Officer Jones testified that when the defendant was returned

from Georgia, she was placed in a holding cell in the Monroe County jail. He testified that

he allowed the defendant to rest for several hours before interviewing her later in the

morning. He testified that, after the interview, he returned her to her holding cell. He

interviewed her again on the following morning, and it was during this interview that the

defendant requested an attorney. Officer Jones testified that the defendant was again

returned to her holding cell. He testified that he requested a search warrant following this

interview. He testified that the defendant was charged with first degree murder two days

later. He testified that the defendant had not been charged with anything at the time of her

first and second interviews.

Officer Conway Mason of the Monroe County Sheriff’s Office testified that he was

the officer tasked with retrieving the defendant from Georgia to assist with a fire

investigation. He testified that he left between 10:00 p.m. and midnight in a black

Expedition belonging to the Sheriff’s Office. He testified that there was no cage in the

vehicle or partition separating the front seats from the back seats. He testified that he arrived

in Georgia, he made contact with the defendant, who told him that she was willing to return

to Tennessee with him. He testified that the defendant was not handcuffed or shackled and

that she slept most of the return trip. He testified that they stopped at one point and had

breakfast. Officer Mason testified that the defendant was taken to the jail when they arrived

back in Tennessee because it was not yet daylight. He testified that he never told the

defendant she was under arrest and never restrained the defendant in any way. This

concluded his contact with the defendant.

On cross-examination, Officer Mason testified that the defendant was sleeping in a

holding cell when he arrived in Georgia. He testified that he did not put the defendant in a

holding cell when they arrived in Tennessee but that he believed someone else had done so.

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He testified that there were no warrants on the defendant when he picked her up, but he had

been advised that the defendant was in a car belonging to the victim that had been reported

stolen. When asked if he would have allowed the defendant to leave if she had attempted to

do so in Georgia, the witness replied that he would have called Detectives Brannon and Jones

for additional direction. When asked if the defendant could have left the holding cell in

Monroe County jail if she had chosen to do so, Officer Mason testified that “[t]hat would

have been up to [the defendant]” because she wasn’t charged, but she would have needed to

contact Detective Brannon or Detective Jones first. On further cross-examination, Officer

Mason testified that it was not common practice to allow an individual to “just walk out of

jail” if they were “put on a 48-hour hold.”

On re-direct examination, Officer Mason testified that all individuals who indicate that

they are willing to speak with the Monroe County Sheriff’s Office are taken to the Monroe

County jail. Officer Mason testified that the defendant agreed to come back and speak with

the officers and did so voluntarily. He testified that at the time of the defendant’s interviews,

all interviews were conducted in the Monroe County jail in the Sheriff’s office. He testified

that the Sheriff’s office was not a cell and had a conference table.

On re-cross examination, Officer Mason was asked why, if the defendant’s presence

was completely voluntary, did he “take her to the 48-hour hold and put her down [t]here in

Monroe County Jail?” Officer Mason replied that he “didn’t put the hold on her” and that

the defendant had been awake for some time and needed a place to sleep. He testified that

“we don’t want her sleeping out in the front lobby, so that was just a place that was

convenient for us and her . . . .” When asked about a particular locked door that appeared

to confine the defendant, Officer Mason testified that at the time of the defendant’s

interviews, that door was not yet up, but there was a different door that was used that could

be opened and closed at will. However, the witness testified that there was a second

“locked,” “big metal or steel” door separating the holding cells that required a key to access.

Officer Mason testified that the jail’s “holding cells” served multiple purposes, including

“drunk tank cells” and “visitation booths.”

After receiving this testimony, the court requested additional authority concerning

whether it is permissible to detain someone for forty-eight hours for investigatory purposes

and, if not, whether any statements so obtained could nonetheless be deemed voluntary in

light of the fact that the defendant was locked in a jail cell for much of that period. The

hearing was then concluded.

On August 8, 2012, the trial court granted the defendant’s motion to suppress all three

videotaped statements. In its written order, the trial court explained the State’s theory of the

case—that on April 7, 2011, the victim was murdered in his home, and after his death his

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home was burned, his car was stolen, and attempts were made to dispose of his body. The

trial court reviewed the testimony from the hearing, as well as an intake document from the

Sheriff’s Department indicating that the defendant was to be placed on an “48-hour hold per

716.” The trial court observed that incriminating evidence against the defendant was

1

gleaned from all three videotaped statements conducted during the “48-hour hold,” and the

defendant was eventually charged with multiple offenses pertaining to the homicide.

In suppressing the statements, the trial court relied on this court’s decision in State v.

Bishop, in which this court criticized the concept of a “48-hour hold” and explained that “the

‘48-hour hold’ does not exist in our constitutional pantheon of acceptable practices” and “is

patently unconstitutional and subjects any evidence acquired to suppression.” State of

Tennessee v. Courtney Bishop, No. W2010-01207-CCA-R3-CD, 2012 Tenn. Crim. App.

LEXIS 171, at *24 (Tenn. Crim. App. Mar. 14, 2012), perm. app. granted, State v. Bishop,

2012 Tenn. LEXIS 522 (Tenn. Aug. 15, 2012). After considering the law and reviewing the

evidence, the trial court found as a factual matter that the defendant was arrested in Georgia

without probable cause, and further found that even if probable cause had existed, “there

should either have been extradition proceedings or a waiver of extradition signed for by the

defendant before she could have been removed to the [S]tate of Tennessee.”

The State filed a motion to rescind the trial court’s order on the grounds that the

Bishop case did not yet have legal authority because the State’s Rule 11 application for

permission to appeal in that case was still pending before the Tennessee Supreme Court and

2

because, it argued, the State had not yet had an opportunity to be heard and present proof

concerning the voluntariness of the defendant’s confession. The trial court held an additional

pretrial hearing on August 10, 2012, at which time the State called Detective Douglas

Brannon to the stand once again. Detective Brannon testified that he examined records from

the Sheriff’s Department concerning when the vehicle driven by Ms. Norwood had been

reported stolen. Detective Brannon testified that the vehicle was entered into the National

Crime Information Center on April 12, 2011, at 10:46 p.m. He testified that records reflected

that Ms. Norwood’s first interview was conducted on April 13, 2011, at roughly an hour and

twenty minutes after 5:23 p.m. He testified that records reflected that Ms. Norwood’s second

interview occurred later that same night, on April 14, 2011, at 12:43 a.m. He testified that

by the second interview, police executing a search warrant had discovered as-yet-unidentified

human remains at the crime scene.

Detective Brannon testified that he obtained warrants on a regular basis, and that to

 There is testimony in the record that “716 ” was the call sign for Officer Conway Mason. 1

 As noted above, said application was subsequently granted. 2

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his knowledge, the clerk’s office was not open after 5:00 p.m. on Monday through Friday.

He testified that the defendant was charged on April 14, 2011.

On cross-examination, Detective Brannon testified that he was not aware of any

written policy at the Monroe County Sheriff’s Department concerning “48-hour holds.” He

testified that he had recently heard that he was not supposed to put people on “48-hour

holds.” Detective Brannon testified that “48-hour holds” had been used in investigations in

the past. Detective Brannon also testified that someone in the clerk’s office was usually

available 24 hours, but sometimes, at the clerk’s preference, officers would wait until the

morning to conduct business. He testified that when a “hold” was used, it was normally

“where we’ve reached the conclusion that there is a charge, or something has, had occurred

to where it needs to be clarified the charge, what the proper charge would be, and who needs

to be charged with one, if anybody.” He testified that “holds” were “beyond investigation.”

However, under additional questioning, Officer Brannon conceded that a hold could be

placed on an individual while they were “in the midst of the investigative stage.” Officer

Brannon testified that the notation on the defendant’s intake form concerning the “48-hour

hold” would have been placed there by the jailer. He testified that “in actuality some of” the

reason the defendant was placed on 48-hour hold was to effectuate her arrest.

After receiving this evidence, the trial court denied the State’s motion. On September

17, 2012, this Court granted the State’s request for an interlocutory appeal of the trial court’s

order suppressing the defendant’s videotaped statements pursuant to Rule 9 of the Tennessee

Rules of Appellate Procedure. Satisfied that the matter is properly before us, we proceed to

consider the propriety of the trial court’s order.

ANALYSIS

The State claims that the trial court erred by granting the defendant’s motion to

suppress. We review a trial court’s decision concerning a motion to suppress under the

standard established in State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). See, e.g, State v.

Brotherton, 323 S.W.3d 866 (Tenn. 2010). A trial court’s factual findings will be upheld so

long as the evidence does not preponderate against them. Odom, 928 S.W.2d at 23.

“Questions of 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.” Id. “The

party prevailing in the trial court 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 that evidence.” Id. “[O]ur review of a trial court’s application of law

to the facts is conducted under a de novo standard of review.” R. D. S. v. State, 245 S.W.3d

356, 362 (Tenn. 2008).

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At the outset, we note that during this process both parties have largely abandoned

their original positions, and some arguments have been made for the first time on

appeal—consequently, we are presented with many arguments and counter-arguments that

the trial court neither heard nor considered prior to issuing its written order. The State now

argues that the trial court erred by suppressing the defendant’s videotaped statements not

because the defendant was not yet under arrest and made the voluntary decision to travel

back home, but rather because there was probable cause to arrest the defendant for driving

a stolen vehicle at the time she was taken into custody in Georgia, and consequently her

arrest was supported by probable cause. While acknowledging that the defendant was

transported from Georgia to Tennessee without the benefit of formal extradition proceedings,

the State argues that the defendant effectively consented to the transfer by voluntarily

agreeing to return to Tennessee to speak with the officers, and there is no constitutional

requirement that officers utilize formal extradition proceedings to effectuate a transfer. The

appellee continues to maintain that the officers arrested the defendant in Georgia without

probable cause, but now adds that, even if probable cause existed, the State violated the

defendant’s constitutional rights not because of anything having to do with extradition, but

because it failed to provide her with a prompt judicial probable cause determination when

she arrived in Tennessee.

After thorough review, we hold that the State is correct that the police officers had

probable cause to arrest the defendant for driving a stolen vehicle in Georgia, and that

consequently her initial arrest was lawful. We further conclude that the State provided the

defendant with a judicial hearing concerning probable cause with sufficient haste to satisfy

constitutional norms. Consequently, we reverse the order of the trial court suppressing the

defendant’s statements and remand the matter to the trial court for further proceedings.

I. PROBABLE CAUSE TO ARREST THE DEFENDANT

The State argues that the trial court erred by determining that the defendant was

arrested without probable cause. In considering this claim, we are mindful that both the

federal and state constitutions protect citizens against unreasonable searches and seizures.

See U.S. CONST. AMEND. IV (“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be violated.”);

TENN. CONST, Art. 1, Sec. 7 (“[T]he people shall be secure in their persons, houses, papers

and possessions, from unreasonable searches and seizures.”). A warrantless seizure is

presumed to be unreasonable—and any resulting evidence may be subject to suppression

under the well-known exclusionary rule—unless the State demonstrates that the seizure at

issue was conducted pursuant to one of the narrowly-defined exceptions to the warrant

requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). A full-scale arrest

supported by probable cause is an exception to the warrant requirement. See e.g., Beck v.

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Ohio, 379 U.S. 89, 91 (1964) (“Whether th[e] arrest was constitutionally valid depends . . .

upon whether, at the moment the arrest was made, the officers had probable cause to make

it . . . .”); State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (“[F]ull-scale arrest . . . must be

supported by probable cause.”). “To determine whether an officer had probable cause to

arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether

these historical facts, viewed from the standpoint of an objectively reasonable police officer,

amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting

Ornelas v. United States, 517 U.S. 690, 696 (1996)); see also State v. Richards, 286 S.W.3d

873, 879 (Tenn. 2009) (“[A]rrest is supported by probable cause only if the facts,

circumstances, and reliable information known to the officers will warrant a prudent person’s

belief that the suspect has committed an offense.”).

We have little difficulty concluding that the facts known to Officer Heaton at the time

he stopped the defendant in Georgia would have warranted a prudent person’s belief that the

suspect had committed an offense. Officer Heaton testified that: (1) he personally observed

the defendant run a stop sign; (2) when he ran the license tags on the vehicle, those tags were

not “in the system;” and (3) when he ran the vehicle’s identification number through the

NCIC, the vehicle came back as reported stolen. On these facts, a reasonable person would

believe that the suspect had committed at least three offenses—the mostserious of which was

driving a stolen vehicle, a felony. For purposes of our analysis, it is immaterial that the

officers in question did not believe that they were, in fact, arresting the defendant, nor does

it matter that the officers did not attempt to justify their actions based on the presence of

probable cause. An officer’s subjective belief concerning whether an arrest is being

effectuated is not dispostive of the constitutional inquiry, which is an objective one based on

a reasonable person standard. See e.g. State v. Williams, 185 S.W.3d 311, 318 (Tenn. 2006)

(“[T]he litmus test is the objective belief of a reasonable person in the position of the

defendant, not that of the officer.”).

The defendant argues that probable cause was lacking because there is no evidence

concerning whether the individual who reported the vehicle stolen was a “citizen-informant,”

whose veracity is presumed for probable cause purposes, see State v. Echols, 382 S.W.3d

266, 279 (Tenn. 2012) (“[I]f an ordinary citizen provides information relied upon for

probable cause, no showing of the informant’s basis of knowledge or veracity is required.”),

or an informant from the “criminal milieu,” whose basis of knowledge and credibility must

be demonstrated, see id. The defendant points out that our Supreme Court has held that “[i]n

the absence of any information as to whether an anonymous informant is a citizen-informant,

the reliability of the informant may not be presumed.” Id. However, in this case we are

dealing with issue of the credibility of a crime victim, not an informant. The cases on which

the defendant bases his argument deal with the constitutional analysis to be applied to

anonymous tipsters, not crime victims. Neither the federal nor the state constitution requires

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that crime victims be presumed untrustworthy for legal purposes until police officers can

prove their trustworthiness by other means. Victims who report stolen property are not

anonymous, and the potential for negative consequences to attend the filing of a false police

report is well-known. The defendant’s attempt to conflate the two vastly different situations

would, if adopted, essentially require police officers to routinely run background checks on

crime victims before using the information given to them by the victim to investigate the

crime. The law does not require such a nonsensical result. The testimony reflects that the

vehicle at issue in this case was reported stolen based on information provided by the titleowner of record. Upon discovering a different individual behind its wheel, officers were

permitted to take the driver into custody.

II. PROMPT JUDICIAL DETERMINATION OF PROBABLE CAUSE

The defendant further argues that the trial court’s decision should be upheld because

her constitutional rights were violated when officers failed to provide her with prompt

judicial review concerning the officer’s probable cause determination. Individuals who are

arrested absent a warrant have the right to prompt judicial review of the arresting officer’s

decision. See, e.g,. Gerstein v. Pugh, 420 U.S. 103, 125 (1975); State v. Huddleston, 924

S.W.2d 666, 671 (Tenn. 1996). “[J]udicial determinations of probable cause within 48 hours

of arrest will, as a general matter, comply with the promptness requirement. . . .” County of

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). When an arrested individual has not

received a probable cause determination within forty-eight hours of his or her arrest, the

burden shifts to the government to demonstrate extraordinary circumstances. See id.

Because the defendant raised this argument for the first time on appeal, the State has

not responded to the argument. From the record, however, it is far from clear that the time

between the defendant’s arrest and the time that the defendant received her judicial

determination of probable cause exceeded forty-eight hours. Officer Heaton testified that

3

he stopped the defendant’s vehicle—which, as we have concluded, culminated in the

defendant’s arrest—at approximately 1:00 a.m. on April 12, 2011. However, there is other

testimony and evidence in the record that the vehicle at issue was not reported stolen until

10:46 p.m. on April 12, 2011. Obviously, both of these facts cannot be correct. If the

defendant was in fact arrested around 1:00 a.m. on April 13, 2011 (the following day), the

remaining time schedule attested to by Detective Brannon (arriving back in Tennessee at 5:23

p.m. on April 13, 2011, having an initial interview an hour and twenty minutes later, and

having a second interview at 12:45 a.m. on April 14, 3011) makes sense. Moreover, no

witness testified that the defendant was held for an entire day in Georgia prior to being

As this argument was not presented to the trial court, the trial court made no factual finding on the 3

subject.

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picked up. Officer Heaton himself acknowledged when he testified that he had been awake

for thirty hours, and the transcript reflects that he failed to respond to some questions during

his testimony. Considering the record as a whole, we conclude that the defendant was

detained beginning in the early morning hours of April 13, 2011.

The affidavit of complaint and probable cause determination is dated April 14, 2011,

but no time is recorded on that document. However, regardless of when it was signed on that

date, it would be less than forty-eight hours following the defendant’s arrest. Consequently,

the defendant’s judicial review is presumptively prompt, and there is nothing appearing in

the record to rebut that presumption. The defendant claims that the officers acted in bad faith

by intentionally delaying their decision to seek a warrant to assist in the investigation, but

there is no testimony in the record supporting that assertion.

Even if our determination concerning the date of the defendant’s arrest were to be

proven erroneous, the forty-eight hour rule would not be exceeded by much, and there were

certainly unusual circumstances present in this case. First, the defendant had to be

transported from Georgia to Tennessee—a trip of some hours, according to record

testimony—before the judiciary in Tennessee could take any action to protect the defendant’s

constitutional rights. Second, the defendant’s police detention was, as far as any of the actors

involved knew, entirely voluntary. While courts engaging in retroactive scrutiny of the entire

situation may easily conclude that an individual locked in multiple jails cells over an

extended period was, in fact, under arrest, the fact remains that both the police and the

defendant appeared to have operated under the erroneous assumption that the defendant’s

participation in these activities was entirely voluntary. Such a fundamental mutual mistake

surely qualifies as an extraordinary circumstance, and the defendant’s far-from-reluctant

participation in the entire course of conduct surely mitigates any constitutional concerns that

might arise from any potential de minimis violation on the “48-hour test” imposed by

McLaughlin that might have occurred.

Although we hold that the defendant’s constitutional rights were not violated on these

unusual facts (and consequently that suppression of none of her statements is warranted), we

would add that even had a constitutional violation of the prompt-judicial-determination-ofprobable-cause-requirement occurred, any suppression of defendant’s first two statements

would still be unwarranted. It is plain from the record that the defendant’s first two

statements to police occurred within forty-eight hours of her initial detention even if that

detention had begun on April 12. Any violation of the prompt-judicial-determination-ofprobable-cause-requirement that could be found on these facts would not occur until fortyeight hours after her de jure arrest, when the burden would shift to the State to explain the

delay. Her statements cannot be “fruit of the poisonous tree” if no tree had yet been planted.

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CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and this case

remanded to proceed consistent with this opinion .

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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