# FILED
March 26, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9809- CC-00295 Appellee, ) ) Haywood County V. ) ) Honorable Dick Jerman, Jr., Judge ) HOWARD KA

REEM ATKINS , ) (Possession of Schedule VI

) With Intent) Appellant. ) )

FOR THE APPE LLANT: FOR THE APPELLEE:
TOM W. CRIDER JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter JOYCE DIANE STOOTS JOHN ROSS D YER Assistant Public Defender Assistant Attorney General 107 South Court Square Criminal Justice Div ision Trenton, TN 38382 425 Fifth Avenue North Nashville, TN 37243 CLAYBURN PEEPLES District Attorney General 110 College, Suite 200 Trenton, TN 38382

OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIA MS, Judge-2- 

### O P I N I O N
In the Circuit Court of Ha ywood County, Tennessee , the defendant, Howard K. Atkins, ple

aded guilty to possess ion of a schedule VI controlled substance with intent to s ell or deliver. On a certified question of law , the defendant appeals the trial court’s denying his pre-trial motion to suppress evidence. We AFFIRM the trial cour t’s judgment.

BACKGROUND The defendant states the issue as f ollows: Whether the trial judge committed error of prejudicial dimensions by failing t o suppress the items seiz ed pursuant to law enforcement officers executing a search warrant for defendant’s home without giv ing notice and making an unannounced forcible entry i nto the premises when no exigent circumstanc

es existed to justify said lack of notice and unannounced forcible entry in violation of defe ndant’s Fourth Amendment rights. The trial judge’s Order certifies the question under Tenn. R. Crim. P. 37(b)(2)(i):

An appeal lies from any order or judgment in a criminal proceeding where the l aw provides for such a ppeal, and from any

judgmen t of conv

iction : . . . (2 ) Upon a

plea of guilty or nolo cont

ender if: (i) Defendant entered i nto a plea agreement under Rule 11(e) but explicitly r

eserved with the consent of the state and of the court the right to appeal a certified question of law that is dispositive of the case. However, the defendant cit es Tenn. R. Crim. P. 37(b)( 2)(iv), which

addresses an appeal from a plea not subject to any agreement with the state: An appeal lies from any order or judgment in a cr iminal proceeding w

here the law provide

s for such appeal, and from any judgmen t of conv

iction : . . . (2 ) Upon a

plea of guilty or no lo conten der if: . . . (iv) Defen dant expl icitly reserved with the c

onsent of the court the right t o appeal a certified question of law that is dispositive of the case. Under this authority, an appeal does not require per mission from the state. The Judgment incorporates the Or der by reference, and that Or der satisfies either standard because it comprises (1) a statement of the certified q uestion, sufficient to “clearly identi fy the scope and the limits of the legal issue reserv ed”;-3- (2) consent to the appeal from the trial judge and from the state; and (3) accord from the trial judge and from the s tate on the dispositive nat ure of the question. See State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988); see also Tenn. R. Crim. P. 37, advisory

comm’n cmts. [1997]. Further, this Court agrees that, on the submitted record, the cert ified question is disposi tive: suppression of the evidence would dispos e of the state’s case. See State v. Curtis , 964 S.W.2d 604, 609 (Tenn. Crim. App. 1997) ( Peace officers violating the “knock and announce” rule during sear ch warrant executi on risk “the exclusi on of any evidence seized under c olor of the warrant.”). See generally State v. Harris , 919 S.W.2d 619, 621 (Tenn. Crim. App. 1995) (Suppressi on of evidence found in a residence during an all egedly invalid s earch necessitated dismiss al.). The appeal is properly before t his Court.

Pursuant to a narcotics inv estigation, Investig ator Billy Blackw ell of the Haywood County Sher

iff’s Department obtained a search w arrant for the defend ant’s pre mises. Bl ackwell sup ervised exe cution of the warran t. Two officers approached the premises from th e rear as Blackwell and two other officers approached the front.

The two officers in the rear adv ised Blackwell v

ia radio that someone apparently saw the officer s from a back window of the pr emises and ran from the window. These officers g ave no further information to Bla ckwell regardi ng the actions, description, or location of this unknown per son. Blackwell approa ched the front of the residence. The main front doo r was open, but the storm doo r was closed. Blackwell observed several people inside the residence. He opened the storm door and “advi sed that [he] had a search wa rrant--it was the Sheriff’s Department with a s earch warrant” as he e ntered. Blackwell s tated that he entered the residence and commenced his search because he feared that t he person observed in the re ar of the house might destroy illegal narcotics. The-4- officers charged the defendant f or possession of suspected narcotics found in the residence.

STANDA RD OF REVIEW A trial court’s determination of fact at a suppression hea ring “is presumptively correct on appeal.” State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). This Court upholds a trial court’s decision “unless the evidence in the record preponderates against the finding.” State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). “‘Questi ons of credibility of w itnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.’” Id. “The party prevail ing in the trial court is entitled to the strongest view of the evidence, as well as all reasonable and legitimate inferences that may be drawn from the evidence.” Id. This Court does apply law de novo to the trial cour t’s findings of fact. See State v. Yeager , 958 S.W.2d 626, 629 (Tenn. 1997).

ANAL YSIS The Fourth Amendment of the United States C onstitution requires reasonableness analysis on judicial review of state peace officers’ noncompliance with a “knoc k and announce” rule during search warrant execution. See Curtis , 964 S.W.2d at 609. T he “knock and announce” rule explicitly appli es to search warrant s ervice in Tennessee:
If after notice of his authority and purpose a peace officer is not granted admittance, or i n the absence of anyone with authority to grant admi ttance, a peace officer with a s earch warrant may break ope n any door or window of a building or vehicle, or any par

t thereof, described to be searc hed in the warrant to the extent

that it is reasonably necessary to execute the warrant a nd does not unnecessarily damage the prope rty. Tenn. R. Crim. P. 41(e). Abs ent exigent circumstan ces, simultaneous announcement and entry is unacce ptable, and the serving officer must “wait a-5- reasonable period of time” after announ cement before entering. See State v. Lee , 836 S.W.2d 126, 128 (Tenn. Crim. App. 1991). A l aw enforcement officer executing a search w

arrant must generally

give notice of (1) hi s authority (i.e., status as a peace officer) and (2) the purpose of his presence. See Curtis , 964 S.W.2d at 609. This rule protects occupants and officers from violence, protect s privacy, and prev

ents needless destruction of pro perty. See id. “The state has the burden of establishing facts and circumstances whic h constitute exigent circumstances,” and these al leged circumstances must r ise above “general fears” or “‘mere hunch or suspicion.’” Id. at 610. Factors potentiall y establishing exigent circumstances

include: (a) a person within the dwelling knows of the officer’s authori ty and p urpose; (b) the officers have a j ustifie d belief someone within the dwelling is i n immedi ate peril of bodil y harm; (c) the officers have a justified bel ief those inside the dwelling are aw

are of their presence and are eng aged in escape or the destruction of evidence ; (d) a person inside the dwelling is ar

med and is either likely to use the weapon or become violent; or (e) the person inside the dwelling has threatened an officer’s safety, pos sesses a criminal recor d reflect ing vi olent te ndencies, or ha s a ver ified re putatio n of a violent nature. Id. (emphasis added). The submitted question challeng es the state’s articulated exigent circumstances: Did Officer B lackwell justifiabl y believe that persons

inside the residence were awar

e of the officer’s presence and wer e engaged in the destruction of evidence?
Illegal narcotics are susceptible to destruction. However, this susceptibility does no

t automatically constit ute exigent circumstan ces. See United States v. Bates , 84 F.3d 790, 796 (6th Cir. 1996); see also Richards v. Wisconsin , 117 S.Ct. 1416, 1417, 1420 (1997) ( Felony drug inv

estigations do not receive blanket ex

ception from the “knock and announce” requirements under Fourth Amendment reasonablenes s analysis.). Absent sounds of evidence being destroy ed, officers serving a s earch warrant pursuant to a narcotics investigation and hearing music inside the premises may not force-6- entry without comply

ing with the rule. See State v. Fletcher , 789 S.W.2d 565, 566 (Tenn. Crim. App. 1990). F urther, compliance wit h the “knock and announce” rule is not exc used by the main door of a resi dence being open, with the screen door closed. See Lee , 836 S.W.2d at 129.
Conversely, off icers with a search warra nt for narcotic s who hear running, scuffling, and loud noise after ide ntifying themselves “ may readily conclude that the drugs are being destroyed or flushed down the toilet” and may immediately force entry. Keith v. State , 542 S.W.2d 839, 841 (Tenn. Crim. App. 1976). Cumulative circumstance s may constitute exig ency. In Henning , 975 S.W.2d at 300, an officer with a search warrant observed the defendant conclude a drug transaction outside the premi ses to be searched. The defendant fled from the officer’s approach, and the officer sei zed the defendant in the doorway . The officer identified himself and his purp ose and observed the defendant attempt to kick cocaine under a sofa. The Tennessee Su preme Court affirmed that these circumstances cumulatively articulated a threat of destruction to any narcotics evidence in the premises a nd therefore excused compliance with the “knock and announce” rule. See Henning , 975 S.W.2d at 300.
A recent case presents facts s imilar to this appeal. In Curtis , 964 S.W.2d at 607 (Tenn. Crim. App. 1997), peac e officers obtained a search w arrant for crystal methamphetamine. As officer s approached the residence for ex ecution of the warrant, o ne officer cla imed he saw “a silho uette . . . of a h uman being” through a window. The silhouette allegedly closed a window and d isappeared “fairly quickly.” Id. The officer could state neither the gender of the silhouette nor the area of the residence in which it was stand ing. Officer safety and evidence preservati on concerns motivated an ex pedited entrance, and they entered the residence wi thout performing a “knock and an nounce.”-7- In Curtis , the trial court found no ex igent circumstances and g ranted the defendant’s motion to suppress ev idence. See id. at 607, 608. The trial court questi oned the credibi lity o f the obse rving

officer’ s alleg ed perce ption of a silhouette. On appeal, the stat e, as moving party, did not provide the req uisite prepond erance o

f eviden ce. This

Court n oted tha

t the offi cer cou ld not i dentify the gender of the silhouette, in what portion of the residenc e he saw the silhouette, or to what por tion of the dwelling the s ilhouette was going “rather rapidly.” Further , no evidence in the recor d supported the officer’s alleg ation that the person in the residence r esponsible for the silhouette r ecognized the identity or the purpose of the officers. The arti culated concerns were t hus “generalized fears” and not exigent ci rcumstances. Id. at 611.

In the instant case the state receives the benefit of the trial court’s presumption of correctness. The defendant must show by a prepondera nce of evidence that the circumst ances of service did not mer it the finding of an exigency. The tri al court found no Fourth Amendment v iolation because that court found that the state met its bur den of showing exige nt circumstances. The record submitted to this Court does not constitute a prepond erance of evidence from which one might overcome the presumption granted to the trial court’s holding. The record supports the trial court’s concluding that the off icer’s concerns were reasonabl e and justified immediate entry . The issue is without merit.

CONCLUSION The judgment below is AFFIRMED.

____________________________ JOHN EVERETT W ILLIAMS, Judge-8- CONCUR:

_____________________________ DAVID G. HAYES, Jud ge

_____________________________ JOE G. RILEY, Judge