Opinion
No. 01C01-9511-CR-00377.
September 2, 1997.
DAVIDSON COUNTY, HON. SETH NORMAN, JUDGE, (Suppression).
AFFIRMED
FOR THE APPELLEE
Donald Dawson.
FOR THE APPELLANT
John Knox Walkup, Attorney General and Reporter, Ellen H. Pollack, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, Sharon Brox, Assistant District Attorney General.
Opinion
The State of Tennessee appeals an order of the Davidson County Criminal Court sustaining the appellee's motion to suppress evidence. The State argues on appeal that the trial court erred when it excluded evidence obtained as a result of a valid search of the appellee's home. Having reviewed the record on appeal, we affirm the action of the trial court.
On April 5, 1994, at approximately 7:00 p.m., officers of the Metropolitan Nashville Police Department and the Tennessee Bureau of Investigation went to the appellee's residence for the purpose of executing a search warrant. The testimony as to what occurred at the time the warrant was executed is conflicting. The Metropolitan Nashville police officer in charge of the search, James P. Buck, testified that he remained in the front yard of the residence while a TBI team made the initial entry, followed closely by a chemical disposal team from the Metropolitan Nashville Police Department. Buck testified that when the TBI team reached the front door of the residence, a member of that team announced, "Police" and "Search Warrant," paused, and then broke down the appellee's unlocked front door. A battering ram was used to break through the doorway into the house. The TBI team was immediately followed by a chemical disposal team, which was there to dispose of potentially volatile substances thought to be present in connection with suspected methamphetamine production.
The record on appeal does not contain the search warrant or the affidavit in support of the warrant. However, testimony at the suppression hearing revealed that a confidential informant had advised police that he had observed some form of chemical apparatus inside of the appellee's residence, and further, that undercover police officers had purchased methamphetamine at the appellee's residence.
As it turned out, there were no volatile substances present on the premises. The "chemical apparatus" was some antique chemistry equipment appellee's wife, an employee of Vanderbilt University, had been given by the school. It was kept by appellee in a display case.
The appellee, on the other hand, testified that just before the police entered his home, he and two friends were in his living room visiting with soft music playing in the background. He testified that he and his friends were located about eight to ten feet from the front door and could have easily heard if the police had announced their presence prior to entry and could have also heard a knock on the door or a ring of his doorbell. He testified that he heard nothing prior to the forced entry. The appellee's two friends also testified at the suppression hearing, confirming the appellee's testimony. The trial court chose to accredit the testimony of the appellee and his two friends over that of Officer Buck and found that the police did not properly knock and announce their presence before entering the house. Thus, finding the search was executed in violation of Rule 41(e) of the Tennessee Rules of Criminal Procedure, the trial court suppressed the evidence obtained as a result thereof.
The State does not contest the trial court's ruling that the police did not properly knock and announce before entering the residence. Indeed, the only issue raised in this appeal is whether the search fell under the exigent circumstances exception to the knock and announce rule. See State v. Lee, 836 S.W.2d 126 (Tenn.Crim.App. 1991). In response, the appellee contends that the State waived its right to raise this issue on appeal because it did not make the exigent circumstances argument at the suppression hearing. We agree.
Pursuant to Rule 12 of the Tennessee Rules of Criminal Procedure, the appellee filed a timely motion to suppress the evidence obtained as a result of the search. The trial court thereafter conducted an extensive evidentiary hearing in order to determine whether the knock and announce rule was violated. At that hearing, the State simply contended that the evidence supported a finding that the police did in fact knock and announce prior to the police entering the appellee's home. At no time during the hearing did the State contend that exigent circumstances existed which would obviate the officers' duty to knock and announce prior to a forced entry. Issues that are not presented or litigated in the trial court are considered waived for purposes of appeal. State v. Burtis, 664 S.W.2d 305, 310 (Tenn.Crim.App. 1983); See State v. Strickland, 885 S.W.2d 85, 88 (Tenn.Crim.App. 1994).
Because the State failed to raise the issue of the existence of exigent circumstances before the trial court, the trial court obviously made no finding of fact on that issue. Therefore, this Court, which is appellate only, is precluded from making such a factual determination, and the issue is therefore waived.
The trial court is affirmed.
______________________________ WILLIAM M. BARKER, JUDGE
CONCUR BY:
_________________________________ DAVID H. WELLES, JUDGE
_________________________________ JERRY L. SMITH, JUDGE
CONCURRING OPINION
I concur fully with the result reached by the Court that the evidence in this case must be suppressed. I disagree however with the holding that the State's failure in the trial court to argue the existence of exigent circumstances precludes consideration in this court of that argument due to a waiver. I believe this Court should be free to examine the validity of a search using any appropriate legal analysis where the record in the case permits us to do so. The problem in this case is not that the State has waived as such the argument that exigent circumstances warrant a departure from the knock and announce rule; but rather the failure to litigate this issue below has left this court with a record which is insufficient for us to conclude that an unannounced entry was appropriate.
The State cites the case of State v. Gabbard, 877 P.2d 1217 (Or.App. 1994); for the proposition that a belief on the part of officers executing a search warrant that a methamphetamine lab may be on the premises to be searched is, standing alone, 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.
In Gabbard the offices received information the day of the search that the defendant and another were in the process of cooking methamphetamine. In addition, they recalled and verified that they had an outstanding arrest warrant for the individual allegedly with defendant and had a description of that person's car which was parked at defendant's residence. When the officers went to investigate, defendant came out of a lighted shed and clothing had the smell of PCP, a precursor to methamphetamine, and the officer observed that the defendant appeared under the influence of methamphetamine. The court found that this information constituted probable cause to look through the cracks in the shed walls where the officer observed an operating methamphetamine lab. The court further observed that exigent circumstances existed only if the officer had probable cause to believe the methamphetamine lab was operating at the time as the exigent circumstances exception was triggered only if there was an immediate danger of explosion and this danger existed only if an operating lab were suddenly shut down at the wrong time. The court found this probable cause by the officer's observation of the defendant when he came out of the shed. 877 P.2d at 1219, 1221, 1222.
Thus, the level of knowledge of the police as to the potential danger to themselves and others was far greater than a mere belief that a methamphetamine lab might be on the premises.
In contrast to Gabbard, the State's failure in the instant case to raise below the issue of the existence of exigent circumstances, while not strictly a waiver of that issue, has resulted in a record reflecting only a belief on the part of officers that a methamphetamine lab might be in the residence. In my opinion that belief standing alone is insufficient to create the exigent circumstances necessary to justify a departure from the knock and announce rule.
It is interesting that in the trial court police testified that in fact they had knocked and announced before entering the appellee's residence. On appeal the State takes the rather inconsistent position that law enforcement fears of an explosion warranted an unannounced entry. If police testimony below is to be believed, officers did not believe an unannounced entry was necessary for their protection.
Even if police were certain that a methamphetamine laboratory was present in Appellant's residence, in my opinion that standing alone would not, as the State suggests, justify a blanket exception to the knock and announce rule. Only recently the United States Supreme Court has rejected the notion that the Fourth Amendment permits blanket exceptions to the knock and announce rule. In Richards v. Wisconsin, ___U.S. ___, 117 S.Ct. 1416 (1997); the Court held that the reasonableness of each "no knock" entry for the purpose of executing a search warrant must be judged under the particular circumstances of each case. The Court noted that "[I]f a per se exception were allowed for each category of criminal investigation that included a considerable-albeit hypothetical-risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless." Id. at 1420-21.
I therefore concur in the judgment of the Court.
_____________________________ JERRY L. SMITH, JUDGE