### IN THE SUPREME COURT OF TENNESSEE AT JACKSON (HEARD AT MEMPHIS) STATE OF TENNESSEE v. DON EDWARD CARTER Appeal from the Circuit Court for McNairy County No. 917 Jon Kerry Blackwood, Judge

No. W1997-00248-SC-R11-CD - Decided April 17, 2000

FOR PUBLICATION

This appeal arises f

rom the incarce

ration of an indivi

dual for over 72 h

ours without his

having been brought before a magistrate and without probable cause having been judicially determined. Don Edward Carter, the defendant, was arrested without a warrant and held for more than 72 hours. At no time during this period was he taken before a magistrate. He confessed while in c ustody. Following his

indictmentupon two counts of f irst degree murd

er (premeditate

d), Carter moved

to suppressthe confession on constitutional grounds and on the ground that Tenn. R. Crim. P. 5(a) had been violated. The trial court r efused to suppre

ss the confession,

and it was admitted into evidence. The ju ry convicted Car

ter of both counts,

and he was senten

ced to concurre

nt terms of lif

e imprisonment. On appeal, the Court of Criminal Appeals affirmed thetrial court’s ruling admitting the confession into evidence, the convictions, and the sentences. The issue before this Court i

s the admissibility

of Carter’s confession . Alt hough we conclude that Carter’s rig

hts under the Fourth Amendment

to the United States Constitution and Te nn. R. Crim. P. 5(a) were violated, we have determinedthat

his confession was properly admitted into evidence. Accordingly, the judgment of the trial court and the Court of Criminal Appeals is affirmed.
Tenn. R. App. P. 11 Appeal by Permission from Appellate Court to Supreme C ourt; Judgment of the Court of Criminal Appeals Affirmed
B I RCH , J., delivered the opinion of the court, in which ANDERSON , C.J., and D ROWOTA , H OL DER , AND B ARKER , JJ., joined.
C. Michael Robbins,

Memphis, Tennessee, Gary F. Antrican, District Public Defender, Somerville, Tennessee, and Jeanie Kaes s, Assistant Public D efender, Somer

ville, Tennessee

, for the appella

nt, Don Edward Carter.
Michael E. Moo re, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.
OPINION1 Oral argument was hea rd in this case on November 17, 1999, in Memphis, Shelby County, Tennessee, as part of this Court’s S.C.A.L.E.S. ( S upreme C ourt A dvancing L egal E d u cation for S tudents) project

. 2 Carter concedes that this arrest, albeit without a warrant, was based on the existence o f probable cause.

3 Carter was charged with killing Audie Carter and Nellie Carter.
-2- I
Don Edward Carter,

the defendant, w

as arrested with

out a w arrant and held for more than 72 hours. At no time during this period was he tak

en before a mag

istrate. He conf

essed while in cus tod y. Thus, the issue we decidetoday is the admissibility of his confession obtained under those circumstances. 1 Although we have concluded that Carter’s rights under the Fourth Amendment to the United States Constitution and Tenn. R. Crim. P. 5(a) were violated, we have, for the reasons stated below, determined that his confession was properly admitted into evidence.Accordingly, the judgment of the trial court and the Court of Criminal Appeals is affirmed.
Because Carter does not challe nge the sufficiency of the convicting evidence, we wi

ll recite only the facts developed at the suppression hearing we deem necessary in the resolution of the issue before us.
II
Carter was incarcerated without a warrant 2 on Sunday, Ma

rch 24, 1996, at ap

proximately 2:45 p. m. T he next day, warrants charging him with first degr ee murder were issued. 3 On Wednesday, March 27, 1996, while still incarcerated, Carter confe ssed. Following his indictment upon tw o counts o f f

irst degree murder (premeditated), Carter moved to suppress the confession on constitutional grounds and on the ground that Tenn. R. Crim. P. 5(a) had

been violated. The trial court refused to suppress the confession, and it was admitted into evidence during the trial of the cause. The jury convicted Carter of both counts, and he wa s sentenced to concurrent terms of life imprisonment. On direct appea l, the Court of Crimin

al Appeals affirmed the trial court’s rul in g admitting the confession into evidence, the convictions, and the sentences.
Carter c hiefly contends that he was held in custody for more than 72 hours without an appropriate

determination of probable cause. His insistence, therefor e, is that his Fourth A mendment rights were violated by the extended incarceration without a judicial determination of probable cause and that the extended incarceration produced the confession. He urges that the confession, obtained under these circumstances, be suppressed from evidence.-3- III
When reviewing a trial court’s ruling on a motion to suppress, “[q]uestions of credibility of the witnesses, the we

ight and value of

the evidence, a

nd resolution of co

nflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Statev. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party in the trial court is a

fforded the “strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that

evidence.” State v. Keith , 978 S.W. 2d 861, 864 (Tenn. 1998 ) (citing O dom , 928 S.W. 2d at 23). The findings of a trial court in a suppression hearing are upheld unles s t he evidence pre ponderates ag

ainst those findings. Id. (citation omitted) . “The applicatio n of the law to the f

acts found by

the trial court, however, is a question of law which this Court reviews de novo.” State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).
IV
A
The Fourth Amendment

requires a promp

t judicial determin

ation of probable

cause as a prerequisite

to the extended detention of an individual after a warrantless arrest. Gerstein v. Pugh , 420 U.S. 103, 114, 125, 95 S. Ct. 854, 863, 869, 43 L. Ed. 2d 54, 65, 72 (1975). Absent a bona fide emergency

or extraordinary circumstance, a judicial determination of probable cau se is “prompt” if it occurs within 48 hours. Riverside v. McL aughlin , 500 U.S. 44, 56-7, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49, 63 (1991). In mak ing a judicial determination of probable cause, a full, adversarial proceeding is unnecessary. Gerstein , 420 U.S. at 118-22, 95 S. Ct. at 865-67, 43 L. Ed. 2d at 68-70. This is so because the s

tandard for prob

able cause for prolonged d

etention is

the same as the standard fo r determ ining probable c ause for arres

t--a standard “

traditionally

decided . . . by

a magistrate in a nonadversary proceeding on hearsa y and written testimony. . . .” Gerstein , 420 U.S. at 120, 95 S. Ct. at 866, 43 L. Ed. 2d at 69.
The United States Supre

me Court has deter

mined that the issua

nce of a valid

arrest warrant satisfies the requirement that there must be a judicial determination of probable cause for extended detention. Baker v. McCollan , 443 U.S. 137, 143, 99 S. Ct. 2689 , 2694, 61 L. Ed . 2d. 433, 441 (1979). As the United States Supreme Court reasoned in Baker :

[s]ince an adversary hearing is not required,and since the probablecause standard for pretrial detention is the same as that for arrest , a person arrested pursuant to a wa rra nt issued by a magistrate on a s howing of probable cause is not constitutionally entitled to a sepa rat e judicial de termination that th ere is probable c

ause to detain him pending trial.4 In Gerstein , the United States S upreme Court note

d that: [t]he use of an informal procedure is justified not only by the lesser conseque nc es of a probable cause determination but also by the natur e of the determination itself. It does not require the f in e resolution of conflicting ev id ence t hat a reasonable-doubt or even preponderance

standard demands, and credibility determinations are seldomc ru cial in deciding wh ether the eviden

ce supports a reasonable beli

ef in guilt. 420 U.S. at 121, 95 S. Ct. at 867, 43 L. Ed. 2d at 69.

5 The affidavits to the arrest warrants read, “Don Carter AKA ‘PeeWee’ d

id killNellie Carter. This was a premeditated and intent ional act a

nd a violation of TCA 39 13 202" and “Don Carter AKA ‘PeeWee’ did kil

l Audie Carter. This was a premeditated and intentional act in violation of TCA 39 13 202.” The State concedes in its brief that the “affidavit[s] admittedly on . . . [their] face

. . . [do] not establi

sh probable

cause. . . .” Given the State’s concession, there is no need to further examine the suff

iciency of the wa

rrants. -4- 443 U.S. at 143, 99 S. Ct. at 2694, 61 L. Ed. 2d. at 441. 4
In this case, arre

st warrants were issued approximately 24 hours after Carter had been taken int o custody. As noted, a valid warrant satisfies the requirement of a judicial deter mination o f probable cause. Here, h

owever, the State

concedes that the affidavit portion of the warrants did not establish probable cause. 5 Thus, Carter’s detention for over 48 hours without a val id probable caus

e determination wa

s in violation of the F

ourth Amendment.
We must now determine whether, under the circumstanc

es, Carter’s confession should have been suppressed. In Huddleston v. State , this Court determined that when a person confesses after havi ng be en detained for m ore than 48 hours f

ollowing an arr

est without a warr

ant and without a judicial determination of probable cause, the confession should be excluded unless the prosecution establishes that the confessi on “‘was suffic

iently an act of free will to purge the primary taint of the unlawful invasion.’” 924 S.W.2d 666 (Tenn. 1996) (quoting Brown v. Illi nois , 422 U.S. 590, 599, 95 S. Ct. 2 254, 2 261, 4 5 L. Ed. 2d 4 16, 424 (19 75) . Fo ur f act ors guid e th e is sue of ad mis sib ili ty: “(1) the presence or absence of Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presenceof intervening circumstances; and finally, of particular sig nificance, (4) the purpose and flagrancy of the off icial misconduct.” Huddleston , 924 S.W.2d at 674-75 (citing Brown , 422 U.S. at 603-04, 95 S. Ct. at2261-62, 45 L. Ed. 2d at 427). The burden

is on the State to prove by a preponderance of the evidence the admissibility of a confession ob taine d under the circumstances here presented. Id. at 675.6 Huddleston , 924 S.W.2d at 675 (“Although t hat factor is

not determinative, it indicates that the defendant was a

ware of his Fif

th Amendment rights a

gainst self-incr

imination which is a threshold factor weighing, to some extent, in favor of attenuation.”).

7 There is conflicting testimony over the number of times Carter met wi

th his mother and with whomhe additionally me t. Paul Ervin, the She

riff for McNair

y County, te stified that Carter met withhis mother and other relatives on more than one occasion. Ervin later testified that Carter met withhis mother, other relatives, and friends. On the other hand, Carter testified that he m

et with his mother more than once, but he was uncertain if he had met with anyone else . There is also conflicting testi mony co ncerning Carter’s ability to successfully make telephone calls. Carter testified that when he tried to call Rhonda Carter, his cousin, or Robert Stacey, a family friend, he discovered

their telephones were “blocked.” Rhond a Carter testified that she did not authorize a block to be put on her telephone. Stacey also testified that he had not authorized a telephone block. Ervin testified, on the other hand, that Rhonda Carter did not want to talk to Don Carter, and he thus infor med her that her telephone could be blocked. Therefore, the telephone was blocked at he r request. Ervin also testified that he did not remember discussing a telephone block with Stacey, but if one was put on his telephone it was at Stacey’s request. Regardless, Carter testified that he was able to call his brother

and spoke to him on a

t least two occasi

o ns. Despite th

is conflicting testimony, w e believe that Carter’s visits with at least his mother and his calls to his brother are sufficient intervening circumstances to purge the taint of his illegal detainment. Additionally, the trial c ourt, whi ch was in the best position to weigh the evidence and assess the credibility of the witnesses ruled against suppression. This conclusion suggests that the court fully accre dited th e -5- Here, Carter was given Miranda warnings when he was arrested. He was also informed of his Miranda

rights prior to

his confession. This factor, though not conclusive, 6 weighs in favor of admission. Next, we consider

the temporal proximi

ty of the ar

rest toCarter’s confession. This inquiry focuses on the pointat which the statement was given relative to the detention. Id. If a confession is made during a period

of lawful detention, the confession is not a product of any

illegality and is notsuppressed. Id. However, “[o]nce the detention becomes unlawful, thepressure to conf ess likely increases with each moment of continuing illegal detention.” Id. Here, Carter co nfessed a fter 72 hours of detention without a valid judicial determination of probable cause. This factor, then, weighs in favor of suppression.
Whether the presence of

intervening cir

cumst ance s purged the taint of Carter’s illegal detention is the next consideration. An intervening circumstance, sufficient to purge the taint of an illegal detention, may involve the detainee’s “consultation with an attorney, r

elative, friend

, or priest prior to the time a statement is given.” Id. Here, Carter me t privately at the jail with his

mother and other relatives on more thanone occasion. Th ese visits occurr

ed outside establi

shed visiting hour

s. Moreover, Carter was give n the opportunity

to make telephone calls that were unrestricted as to the person called or

number of calls ma

de. He used this opp

ortunity to sp

eak with his brothe

r at least twice. 7 In our view, Carter’s visits and telephone calls constitute intervening circumstancesevidence offered by the State and is entitled to great deference. See State v. Crutcher , 989 S.W.2d

295, 299 (Tenn. 1999) (citation omitted).

8 The State urges this Court to find that Carter’s confession was properly admitted under the “good faith” exceptio

n to the exclusiona

ry rule establishe

d in th e United States Supreme Court deci sion of United States v. Leon . 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Although Carter’s claims are based solely on the Un ited States Constitution, th ere is no reason t

o addressthe applicability of the good faith exception because we have found that Carter’s confession was properly admitted at trial under Fourth Amendment jurisprud ence. Moreover, this Court has
-6- sufficient to purge the taint of his detention. This factor, therefore, weighs aga inst suppression. Finally, we consider the purp ose and flagrancy o

f the official misc

onduct. The questi

on is whet her the illegality, in this case unlawful detention, was purposeful or flagrant. Id. at 67 6

. Considering this question, this Court in Huddleston , as well as the United States Su preme Court in McLaughlin , focused on the reason for the continued detention of the arrestee; that is, whether the individual was being held with out probable cau

se “for the purpo

se of gathering additional evidence to justify the arrest. . . .” McLau gh lin , 500 U.S. at 56, 111 S. Ct. at 1670, 114 L. Ed. 2d at 63; Huddleston , 924 S.W.2d at 676. In Huddleston , we determined that the arresting officer did not have probable cause to arrest the defendant and that the defendant “was detained so that the police ‘could continue the investigation and develop additional evidence.’” Huddleston , 924 S.W.2d at 676; see Brown , 422 U.S. at 605, 95 S. Ct. at 2262, 45 L. Ed. 2d at 428 (w here the Court not

ed that the arre

st of the defend ant was “‘for inv estigation’ or for

‘questioning’” a

nd therefore “[

t]he arrest, bot

h in design and in execution, was investigatory.”).
Here, Carter concede

s that probable ca

use existed for th

e initial warran

tle ss arrest. Moreover , there is no evidence that Carter was held for the purpose of gathering additional evidence or for other investigatory purposes. Finally, the officer having obtained an arre st warrant (albeit invalid) one day after C arter’s warrantless arrest, suggests the absence of purposeful misconduct. Indeed, Carter concedes the lack of evide nce of purposef

ul misc onduct. Thus, this factor w eighs against suppression.
This c oncession notwithstanding, Carter insists that he w as detained under “harsh” condition s and that he was purpos

ely subjected to th

ese conditions so

that he would be coerced to confess. For example, he says that he was locked in a single-person cell with the light always on, he was denied toiletpaper, and, despite the officer’s knowledge of his mental histor

y, he was denied h

is prescribed medications. This evidence, however, does not bear on whether the officers had ulterior reasons f or the unlawful detentio

n. In other words,

their treatment of Carter while he was detained is irrelevant in determining if their conduct falls within the Huddlestondefinition. Accordingly, after co nsi dering the above factors, we conclude that Carter’s confession, although made while Carte r was held in violat

ion of the Fourth Ame

ndment, was not

the product of the unlawful detention. 8yet

to adopt the exception, and wedecline to addre ss its validity under the Tennessee Constitution until the issue is squarely presented.

9 In its brief the State concedes a violation of Tenn. R. Crim. P. 5(a) noting that “[n]othing in the record in this

case shows that th

e delay of three

full busines s days in taking Carter before a magistrate

following his warr

antless arrest, a s required by Tenn. R. Crim. P. 5(a), was necessary based on any articulated reason.”
-7- B
To determine whether

Carter’s confession was obtained in violation of Tenn. R. Crim. P. 5(a) and, if so, the effect upon admissibility, we must again resort to the Huddleston analysis. Tennessee Rules of Criminal Pro

cedure 5(a) pr

ovides that: Any person arrested except upon a capias pursuant to an indictment or prese nt ment shall be taken without unnecessary delay before the nearest appropriate mag

istrate of the county from which the warrant for arrest issued, or the county in which the alleged offense occurred if the arrest was made without a warrant unless a citation is issued pursuant to Rule 3.5.
Tenn. R. Crim. P. 5(a) (emphasis added). This Court has held that if an individu al is not brought before a magistrate within 72 hours, there has bee n “un necessary delay.” See Huddleston , 924 S.W.2d at 670. Therefore

, because Carter was held w

ithout having been

taken before a

magistrate within 72 hours, there was unnecessary delay within the definition of Tenn. R. Crim. P. 5(a). 9 Having found “unnecess

ary delay,” we m

ust next determine its effect upon th e admissibility of the confession. A confession is not necessarily excluded f rom evide nce simply because it was obtained during a period of “unnecessary delay.” Id. Rather, a confession is excluded “only if an examination of the totality of the circumstances reveals that the

. . . [confession] wa

s not voluntarily given.” Id. In determining if a confession was voluntary, courts are to consider the following:

the age of the accused; his lack of education or his intelligence level; the extent of

his previous experience

with the police; the repeated and prolongednature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnec essary d elay in bringing him before a magistrate before he gave the confession; whether the accused was injured[,] intoxicated or drugged, or

in ill health when he gave the statement; whether the accused was deprived of food, sleep or medical attention; whether the accused was ph ysical ly abused; and whether the suspect was threatened with abuse.-8-

Id. at 671 (citing State v. Readus , 764 S.W.2d 770, 774 (Tenn. Crim. App. 1988). Thus, “the focus on unnecessary delay should not be solely on the length of the delay, but rather on the circumstances of the delay and their effect on the accused.” Huddleston 924 S.W.2d at 671. Applying the above

factors to this ca

se, the Court of Cri

minal Appeals note

d that:
at the time of . . . [Carter’s] confession . . . [he] was 28 years of age and had a high school education. He had no prior involvement with the police. Although . .

. [Carter] had d

eclined to make [a] statement

. . . prior to his conf

ession, his confes sion was not the re sult of repeated and prolongedinterrogation. [Carter] . . . requested to speak withthe sheriff at approximately 8:00 p.m. [Carter] signed a written wa iver at 9:19 p.m. and signed his sworn statement at 9:38 p.m. I n addition to receiving . . . [his] M iranda r ights just prior to the conf ession, . . . [Carter] ha

d been given the Mi

randa rights o

n prio r occasions. There is no showing that [Carter] did not understand these rights. The period of time between the issuance of the arrest warrant and the confession consisted of appr oxim ately three (3) days. [Carter] . . . was not intoxicated at the time of the confession, nor was he under the influ

ence of any drug

s. Moreover, the Court of Criminal Appeals found that altho ugh Carter had taken medication for depression prior to

his arrest, he had not taken any medication during the period of detention prior to confessing. There is, however, no proof that Carter’s medication was purposefully withheld,and there was no showing that Carter was incompetent. Additionally, Carter presented no evidence that he had been deprived of f ood, slee p, or medical atte ntion. Finally, Carte

r was neither phy

sically abusednor threatened with such abuse. Thus , the C ourt of Criminal Appeals found Carter’s confession was not a product of unnecessary delay.
On the other hand, there are factors in this case which weigh in favor of suppressi on. For example, Carter’s age and experience with law enforcement and, if true, his placement in solitary confinement

with a light constantly on and with no toilet paper constitute such factors. We agree, nonetheless,

with the Court of

Criminal Appeals that given the totality of the circumstances, Carter knowingly

and voluntarily waived his rights and confessed. Thus, we conclude that Car te r’s confession was not a product of the unnecessary delay in bringing him before a m agist rate. Therefore, his

confession was pr

operly admitted a

t trial.

V-9-

For the reasons arti

c ulated above, Carter’s confession was properly admitted at trial. We, therefore, af

firm the decision o

f the Court of Crimin

al Appeals. Costs of this appeal are assessed to the State of Tennessee.