# FILED
September 2, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE JULY 1996 SESS ION

STATE OF TENNESSEE, ) NO. 01C01-9511- CR-00377 ) Appellant ) DAVID SON C OUNTY ) V. ) HON. SETH NO RMAN, JU DGE ) JAMES A. HEARN, ) (Suppression) ) Appellee ) )
CONCURR ING OPINION I concur fully with the result reached by the Court that the evidence in th is case must be suppress ed. I disag ree however with the holding t hat the State’s fai lure in the trial court to argue the existence of exigent circumstances preclu des consideration in this court of that argument due t o a waiver. I believ e this Court

should be free to examine the validity of a search using any appropriate legal analysis where the record in the case per mits us to do s o. The problem in this case is not that the State has waived as such the argument that ex igent cir cumstances warrant a depart ure from the knock and announce rule; but rather the failure to litigate this issue be low has left this court with a record which is insufficient for us to conclud e that an unannou nced entry was appropr iate.

The S tatecit es t he ca se of State v. Gabbard , 877 P.2d 1217 (Or. App. 19 94); for the propositi on that a belief on th e part of officers executing a se arch war rant that a methamphetamine lab may be on the premise s to be searche d is, standingalone, sufficient to create exigent circumstances thereby creating an exception to the knock and announce rule. However, I do not read Gabbard as holding this at all.1 It is i nter esti ng thatin t he tr ial court poli ce test if ied t hat i n fact they had knocked and announced before e nter ing t he appel lee’ s resi dence. On appeal the St ate t akes the r atherinconsi stent posit ion t hat l aw enforcement f ears of a n explo sion war rant ed an unannounced en try . I f pol ice testimony below is to be believed, officers did not beli eve an una nnounc ed entry was nece ssary for t heir prot ecti on. 2 In Gabbard the offices receiv ed information the day

of the search that the defendant and another w ere in the pro cess of cooking methamphetamine. In addi tion, they recal led and ver ified that they had an outstanding arrest warrant for the i ndividual allegedly with defendant an d had a descrip tion of that person’ s car w hich was parked at defendant’s resi dence. When the officers went to i nvestig ate, defendant came out of a lighted she d and clothing had the smell of PC P, a precurso r to methamphetamine, and the officer observed t hat the defendant appeared un der the influence of methamphetamine. The court found that thi s information cons tituted probable cause t o look throug h the cracks in the shed walls whe re the officer observed an o perating methamphet amine lab. The cour t further observ

ed that exig ent circumstances

existed onl y if the officer ha d probable cause to believe the methamphetamine lab was operating at the time as t he exigent circumstanc es exception was triggered only if there was an immediate danger of explosion an d this danger ex isted only

if an operating lab weresuddenly s hut down at th e wrong time. The court found this p robable cause by the officer’s obse rvation of the defendant when he came out of the shed. 877 P.2d at 1219, 1221, 1222.

Thus, the level of knowledg e of the police as to the potential danger to themselves an d others w as far greater than a mere beli ef that a methamphetamine lab might be on the premises.

In contrast to Gabbard , the State’s fail ure in the instant case to ra ise below the issue of the ex istence of exi gent circ umstances, w hile not str ictly a waiver of that issue, has resulted in a record reflecti ng only a belief on the part of officers that a methamphetamine lab mightbe in the resi dence. 1 In my opini on that belief standi ng3

alon e is in suf fici ent t o cre ate t he exi gent circu msta nces nece ssary t o jus tif y a departure from the k nock and announce r ule.
Even if polic e were certain that a methamph etamine laboratory was present in Appellant’s r

esidence, in my

opinion that st anding alone w ould not, as the S tate suggests, justify a blanket exception to the knock an d announce rule. Only recently the United States

Supreme Court h as rejected t he notion that the F ourth Amendment permits blanke t exceptions to the knock and announce rule. I n Richards v. Wiscon sin , ___U.S. ___, 117 S.Ct. 1 416 (1997); the Court held tha t the reasonableness of each “no knock” e ntry for the purpose of execut ing a searc h warrant must be judged under the particula r circumst ances of each case. The Court noted that “[I]f a per se exception were allow ed for each categ ory of cri minal investigation that included a considerable- albeit hypot hetical-ri sk of danger to officers or destr uction of evid ence, the knock-and-announ ce element of the Fourth Amendment ’s reasonableness requirement would be meaningless.” Id. at 1420-21.

I therefore concur

in the judg ment of the Court.

_____________________________ JERRY L. SMITH, JUDG E