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

STATE OF TENN ESSEE, ) ) NO. 01C01-9708-CR-00365 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, RODNEY FORD, ) JUDGE ) Appellant. ) (Aggravate d Robbery)

DISSENTING OPINION
I respectfully disagr

ee with the majority’s conclusi on that there was an ill egal entryinto the defendant’s home. Because I believe the entry into the residenc e and the seizure of property w ere proper, I furthe rdisagree that the matter sho uld be remanded for further proceedings to dete rmine the admissibi lit y of the written confession. I would affirm the ju dgment of the trial court. The majority concludes that there were no

exigent circumstances that would justify the entry. I disagr

ee. The testimony at

the suppression hearing r evealed that at the time Morris entered the residence on Boatner Drive, the officers were unaware who actually resided ther e. Specifical ly, they d id not know that this w as the defendant’s residence. The officers appr oached the premises and knockedon the front door, which they had e ver y r ight to do. They then heard “ running.” The defendant exite d the rear of the premises. The rec ord does not indicate that the defendant told the officers it was hi s residence. The officers call ed for Morris, but he did not respond even though the officers knew he was inside. The

officers opened
a door at the rear of the premises , announced who they w ere and again calle d for Morris. Again, Morris failed to respond. At that point they entered the pr emises and subsequently apprehended M orris. The officers had a n arres t warrant on Morri s for a very serious and violent offense; namely; aggravate d robbery. In determining whether exigent

circumstances exist forentry into premises to make an arrest, the gravity of the underlying offense2

is an important factor. Welsh v. Wisconsin , 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2 d 732 (1 984). Furthermore, based upon the officers’ investigati on of the underlyingoffense, Morris was reasonably believed to be armed; he was reasonably believed to be in the premises being entered; and the entry w as made pe aceab ly. See Dorman v. Uni ted Sta tes , 435 F.2d 385 (D.C. Cir. 1970) (a case analyzed in Welsh v. W isconsin ). Of equal importance was the ability of Morris to hide or destroy the physical evidence relating t o the prio r robbery. Knowi ng that Mo rris is inside and i s not responding to the calls of the officers, are the officers then expected to leave him in the premises while one o f their n umber ap plies fo r and poss ibly s ecures a search warrant two hours later? This does not seem reasonable to me. A “common sense” approach described in Welsh leads me to the conclusion that the entry was proper ly based upon exigent circumstanc es. Welsh , 466 U.S. at 753, 104 S.Ct. at 2099

. Ha ving found the entry to be proper, I would further find the s earch an d seizure of the physical evidence t o be justified under the “protec tive sweep” doctri ne. There were articulable facts whic h, taken together

with the rational infer

ences from those facts, would warrant a reasonably prudent

police officer

to believe that the area to be swept harbored an indi vidual posing a danger to t hose on the a rrest scene. Maryland v. Buie , 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The officers were informed that someone else was inside. Furthermore, the officers were seeking to arrest someone thought to be a dangerous felon. They were aware that the felon allegedly h ad accomplices in the commissi on of the underlying violent offense whic h involved stolen weapons. The officers had a right to conduct the protecti ve sweep for theirown safety. The evidence found in plain view was properly admissible in evidence. For these reasons, I respec tfully dissent.

___________________________ JOE G. RILEY, JUDGE