### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. RODNEY FORD Direct Appeal from the Criminal Court for Davidson County

No. 95-A-582; 583 Steve R. Dozier, Judge

No. M1999-01078-CCA-R3-CD - Decided April 27, 2000

Defendant

was convicted by a jury of three counts of aggravated robbery. Subsequently, on direct appeal this court held that the search of defendant's home w as i llegal. We held that all physical evidencegained through the search of the residence as wellas defendant's verbal statements when confronted

with this evidence should have been suppressed. Additionally, this court remanded the case to the trial court for a determination as to the legality of defendant's subsequen t wri tten confession at the police station. On remand, the trial court held the statement was admissible. After thoroughly reviewing the record, we reverse the decision of the trial court and

remand for a new trial, with instructions that the written statement be suppressed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Remanded RILEY, J., delivered the opinion of the court, in which GLENN, J. and ACREE, Specia l J. joined. Thomas Jay Norman, Nashville, Tennessee, for the appellant, Rodney Ford.
Michael E. Moore, Solicitor General, Clinton J. Morgan, Assistant Attorney Genera l, Victor S

. Johnson III., District Attorney General, and Kymber ly Haas , Assistant Distric t Attorney Gener

al, for the appellee, State of Tennessee.

OPINION

BACKGROUND
On June 14, 1994, Detective Ricky Roll of the Nashvi lle Metrop olitan Police Department obtainedan arrest warrant for Grady Morri s who w as wanted for a series of aggravated robberies committed at

area pawn shops. Detectives followed Morris to a residence which they later le arned belonged to the defendant; knocked at the front door; and immediately heard “someone running.” Several of the detectives went to the back of the house where they encountered the defendant. The defendant was told to lie on the gr

ound and was aske

d who was in the hous

e. Defendant sta

ted his “baby brother” might be in the hous e. When asked if Mo

rris was in the house, defendant responded1 The undersigned judge dissented, believing the seizure to be prop er under the

exigent circumstances doctrine. The state did not seek permission to appeal.
-2- affi rma tiv ely. The detectives t hen entered the house and arrested Morris. Thereafter, detectives searched the house for other

persons and subsequently discovered stolen jewelry lying on a bed. The detectives retrieved the defendant and brought him to the upstairs bedroom where the jewelry was found. Defendant was advised of his rights. Defendant stated “I ain’t taking this by my self,” and indicated the jewelry was stolen in the “pawn shop robberies.”
Whiledefendant was st

ill upstairs, Detec

tive Norris Tarki

ngton again re

ad him his rights and askedif he was willing

to talk without an attorney. When defendant agreed, the detec tive continued to question him, and defendant eventually admitted his participation in one of the “pawn shop robberies.” In addition, defendant directed detectives to further evidence linking him to the “pawn shop robberies.” Defendant also stated that he knew where there

were guns which had been taken in the robberies. Two detectives escorted the defendant to the location where he claimed the guns were hidden, but no guns were recovered.
Be fo re being transfer

red to the police s

tation, the detec

tives returned th

e defendant to his homewhere he brief

ly spoke with his mother. Onc e at the station, the

defendant was r

ead his rights andexecuted a written waiver of those rights. While detectives interviewed Morris, the defendant was left alone and Detec tive H aney aske d him to write out his in volvement in the ro

bberies. Defendant

wrot e a self-titled “confession” in which he implicated himself in the “pawn shop” robberies. He gave a

detailed acc ount of his involvement and included specific diagrams of the robberies.

PROCEDURAL POSTURE
Defendant

was convicted

by a jury of three counts of a ggravated robbery. Subsequently on direct appeal, this cour

t held that the search o

f defendant's

homewas illegal. See State v. Rodney Ford , C.C.A. No. 01C01-9708-CR-00365, 1999 WL 5437 (Tenn. Crim. App. Jan. 7, 1999). 1 We held that all physical evidence gained through the sear ch of the residence

, and all verbal st

atements made by the defendant at the residence when confronted w ith t his physical evidence, should have been suppressed. Ford , 19 99 W L 543 7, a t *4 . Ad dit ion all y, this court remanded the case to the trial court for a determinationas to the legality of defendant's subsequent written confession. Ford, 1999 WL 5437, at *5. In its opi nion, this court instructed the trial court to consider the following four factors in determining wh ether defenda

nt’s written state

me nt must be suppressed pursuant to the exclu si onary

rule: “(1) whether the accused received Miranda warnings; (2) th e period of time between the search and

the confession; (3) the pres ence of i nte rven ing c irc ums tan ces; and fin all y, of particular significance (4) the purpose and flagrancy of the official misconduct.” Ford , 1999 WL 5437, at *5 ( quoting Brown v. Illi nois , 422 U.S. 590, 603-604 (1975)). On remand, the trial court
held the statement was not affected by the prior illegality; was properl y obtain ed; and was-3-

admissible. This appeal followed.

STANDARD OF REVI EW
The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this court unless the evidence contained in the record pr eponde rates against them. State v. Carter , 988 S.W.2d 145, 149 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility

of the witnesses,

determine the weight and value to be afforded the evidence and resolve any conflicts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, this court is not bound by the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). Determin

ing whet her the written confession was the “fruit” of the illegal search and improperly-obtained

statements at the residence requires us to apply the law to the facts as found by the trial court. This is

a question of law w

hich this court re

views de novo . Id. ; State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997). When we apply the law to the facts as found by the trial court, we concl ude the written confession was the “fruit” of the illegal search and improperly -obt aine d statements.

FOUR-PRONG ANALYSIS The test for determining the admissibility of a confession elicited from an illegal search or seizure is the “fruit of the poisonous tree” a

nalysis, as o

pposed to the volunt

ariness test. Brown v. Illinois , 422 U.S. at 591-592; State v. Huddelston , 924 S.W.2d 666, 674 (Tenn. 1996). “Under the ‘fruit of the poisonous tree’ analysis, the focus is on whether the evidence was obta ined by exploitation of the Fourth Amendment illegality.” Huddleston , 924 S.W.2d at 674 ( quoting , Wong Sun v. United States , 371 U .S. 4 71, 48 8 (196 3)). In making this determination the primary question is “whether [the statement] was sufficiently an act of free will to pu rg e the primary taint of the unl awful invasion.” Brown , 422 U.S. at 598 ( quoting , Wong Sun v. United States , 371 U.S. a t 486)); see also , State v. Johnson , 980 S.W.2d 414, 424 (Tenn. Crim. App. 1998). The burden of proving the admissibility

of the challenged evidence by a preponder ance of the evidence rests on the prosecution. Huddleston , 924 S.W.2d at 675.
On remand, this court instructedthe trial court to use the analysis applied by both the United States Supreme Court in Brown and the Tennessee Supreme Court in Huddleston

. Thus, on remand the trial court co

nsidered the foll

owing: (1) the presence or absence of Miranda warnings; (2) the temporal proximity of the search and the confession; (3) the presence of i nte rven ing c irc ums tan ces; and fin all y, of particular significance, (4)the purpose and flagrancy of the official misc

onduct. Huddleston , 924 S.W.2d at 674-675. Therefore, in o

ur review of the

trial court’s judg

ment, we will look to t

hese factors.-4- A. Miranda Warnings
It is undisputed that defendant received Miranda warnings before his initial, verbal statements; before he was questioned by Detective Tarkington; and before he signed a written waiver of his rights and is sued the written confession. Thus, this factor weighs in favor of the State. However, Miranda warnings alone do not per se authorize t h e admission of the subsequent confession. Brown , 422 U.S. at 603. B. Temporal Proximity Weighing in favor

of suppression is the temporal proximity of the search and statements at the residence with the defendant’s subsequent written confession. In Brown the S up reme Court found that, because the defendant had made one statement he believed to be admissible, the second statement was tainted as well. 422 U.S. at 605. The Court noted that defendant’s co

operation with the officers was based

on his “anticipation of leniency.” Id. at 605 n.12. The Court held that such expectations “bolstered the pressures” for defen dant to give the second statement, or “at least vitiated any incentive on his part to avoid self-incrimination.” Id.
The defendant’s written confession was given only four to five h o urs after the initial “illegality.”

Defendant was in custody for the entire period; continuedto make broad incriminating statements; and turned over additional evidence. Furthermore, the defendant’s police station confession contained essen tially the same information he had given in the verbal statements which this court previously ordered suppressed. Thus, there is no indica tion that adequate

time elapsed to allow the defend

ant to formulate “fre

e will” suf fic ien t to rem ove the tai nt c aus ed b y the ill egal ity. This factor weighs heavily in favor of suppression. C. Intervening Circumstances
The state argues that the defendant’s conversation withhis mother and the time spent alone at the police station a

re both interveni

ng circumstanc

es sufficient to all ow the formation of “free will.” The State argues that even though defendant was detained, consultation with his mother prior to the statement weighs in its favor. See Huddleston , 924 S.W.2d 675. However, Detective Haney testified that defend ant’s conversation with his mother was “ve

ry brief.” The state has fai

led to carry its burden of showing sufficient intervening circumstances to undermine the inference that the writte n police sta

tion confession was tainted by the Fourth Amendment violation. This factor weighs heavily in favor of suppression. D. Flagrancy of Misconduct
In the origi nal opinion filed by this court, the dec

ision to suppress wa

s not unanimous. Relying on Welch v. Wisconsin

, 466 U.S. 740 (1984), the dissent found that the search was proper based upon exigent circumstances; the search and seizure of the physica l evidence was justified2 As previously noted, the state did not seek permission to appeal to the Tennessee Supreme Court. -5- under the “protective

sweep doctrine; ” and the evidenc e was found in pla

in view and, t hus, was admissible. See Ford , 1999 WL 5437, at *6-7. 2
Whilethe lack of unanimity as to the suppression of the search does not foreclose the issue of whether or not there was flagrant misconduct, it does weigh in favor of finding no such f lagrancy existed. The police were

unaware the defendant lived at the house in question and were seeking t

o arrest a person thought

to be a dangerous felon. Further more, the detect

ives attempted to e

xtricate the suspect without entering the house, but he refused to exit. Relying on these facts, we conclude there was no flagrant misconduct. Thus, this factor weighs in favor of the State.

NATURE OF THE ILLEGA LITY
This ca se is factually

unique in that the de

fendant’s state

ments were the fr

uit of an illega l search versus an illega

l arrest or illegal detention . Thus, even though we remanded to the trial court to analyze this c ase under th e four-pron g Brown and Huddleston holding s, we r ecognize that thi s approach has been critici

zed “when the ‘poi

sonous tree’ is

an il legal search.” See generally, 5 Lafave, Search and Seizure § 11.4(c) (3d ed.1996).
Whilewe are w ary of ju mping into the quagmire of a complicated Fourth Amendment analysis, and certainly

stop sh ort of adopt ing a new test, we do note the distinct legal difference betweena confession which results from an illegal arrest and one which r esults f rom an illegal search. This distinction is e specially relevant in cases where the illegal sea rch produces evidence which is presented to

the defendant in

an attempt to gain a confession. The defendant’s realization that the “cat is out of the bag” clearly is significant in enc ouragingthe defendant to speak. 5 Lafave, § 11.4(c) at 273.
The giving of Miranda warnings does not brea k the ca sual chain when a defendant is presented with illegally

-obtained in

crimi nating evidence which he believes to be admissible, and confesses shortly thereafter. See 5 Lafave, § 11.4(c) at 273-274. The more contemporary doctrine appears to establish that giving the defendan t Miranda warnings will not break the causa

l chain betweenan illegal search and a subsequent confession, since they do not ad vise the de fendant whether the evidence he is confronted with was unlawfully obtained. Id. at 274.
Sim ila rly, where the taint is a productive illegal search, Brown’s temporal proximity factor adds l ittle insi ght into the question of whether defendant’s confession is the “fruit” of the initial ill egal ity. See 5 Lafave, §11.4(c) at 273. Where incriminatingevidence is seized, regardless of the time frame between the illegal search and the subsequent confession, t he potential remains for3 The state indicated to the trial court that it would be unable to proceed without the

written confession. Upon remand, this determination will have to be made by the state. It is not appropriate for this court to order a dismissal.
-6- aut hor iti es t o el ici t a c onf ess ion thr ough exp loi tat ion of t he i lle gali ty.

DUAL ILLEGALITY
We further note that

the nature of the illegality in this case is extremely unique

. This court previously

concluded the search was illegal and ordered suppression not only of the physical evidence, but also the defen dant’s statements

at his residence. Thus, a dual illegality preceded the writte n conf

ession at the police station. The giving of Miranda warnings to remove the taint becomes even more attenuated where, as in the present case, the defendant believes he has already giventhe same information in an admissible confession. See United States v. Patino , 830 F.2d 1413, 1419 (7 th Cir. 1987). Having been confronted with the illegal evidence and hav ing g ive n im pro perl yobtaineda dmissio ns, we are simply unable to conclude that the state has met its burden of establishing that the subsequent written confession was purged of the primary taint of the unlawful activities.

CONCLUSION
We conclude that the state failed to meet its burden of showing the written confession was a sufficient act of

free will to purge the primary taint of the illegality . The written confession was a fruit of the illegal search and i mproperly-obtained statements made at defendant’s residence

. Therefore, the judgment of the trialcourt is REVERSED

. This case is REMANDED for a new trial with specific instructions to suppress defendant’s written confession. 3