Opinion
No. E2002-00137-CCA-R3-CD.
January 16, 2003.
Direct Appeal from the Criminal Court for Hamilton County; No. 230642, 230643; Stephen M. Bevil, Judge.
Affirmed.
Lee Davis, Chattanooga, Tennessee, for the Appellant, Harold Jackson, Jr.
Paul G. Summers, Attorney General Reporter; John H. Bledsoe, Assistant Attorney General; William H. Cox, District Attorney General; and Christopher Poole, Assistant District Attorney General, for the Appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Gary R. Wade, P.J., and Robert W. Wedemeyer, J., joined.
OPINION
Following his jury convictions for official misconduct and evidence tampering, the defendant appealed the trial court's denial of his motion to suppress evidence which he alleged had been obtained as a result of a warrantless entry and search of his apartment. Because the record demonstrates that the defendant voluntarily produced the evidence and consented to its seizure without a warrant, we affirm the trial court.
The sole issue before us on appeal is whether the trial court should have suppressed evidence that the defendant insists was obtained as a result of a warrantless entry and search of his apartment. The trial court ruled that an investigating officer's use of a pass key to gain entry into the defendant's apartment constituted an unreasonable search and seizure, in violation of the Fourth Amendment to the United States Constitution, but that the evidence was, nonetheless, admissible because it would have been inevitably discovered. On appeal, the state defends the trial court's invocation of the inevitable discovery doctrine, but it also posits that, at any rate, the defendant expressly consented to the entry of his residence and the resultant confiscation of evidence. As we shall explain, the evidence at issue was properly admitted in the state's prosecution, and we therefore affirm the trial court's denial of the defendant's motion to suppress.
I
The facts in this case are, by and large, undisputed. In the early morning hours of October 27, 1999, a gang-related shooting occurred in the parking lot of the Voyager Club on Tunnel Boulevard in Chattanooga. The victim, Lawrence Duke, died at the scene. The following day, the body of Duke's assailant, Samuel Petty, was found behind a house a few blocks from the lounge. Petty had a lethal, self-inflicted gunshot wound to the head and a second gunshot wound to his leg.
At the time of these violent incidents, Harold Jackson, Jr., the defendant, was a fourteen-year veteran officer with the Chattanooga Police Department. His assigned patrol area was sector C-14, which did not include the Voyager Lounge. The defendant, however, had an agreement with the owner of the lounge. Without police department approval and while on duty, the defendant would periodically leave his patrol sector, drive by the lounge, and make "spot checks," thereby providing a recognizable law-enforcement presence in the immediate vicinity. The lounge owner paid the defendant $50 per evening for the spot checks.
As fate would have it, the defendant was in the vicinity of the lounge when Petty shot Duke. The defendant heard the gunshot. Knowing that he was outside of his assigned district without permission, the defendant did not report the shooting, but he went to the scene. The defendant encountered a crowd in the lounge's parking lot, and he observed Duke's lifeless body. Some people in the crowd were screaming, and others were pointing to the back of the lounge as the direction where the shooter had gone. The defendant walked in the indicated direction. The lighting conditions in the back of the building were poor, and as the defendant made his way, he drew his weapon.
At trial, the defendant testified that, with his weapon drawn, he scanned the area looking for the suspect. The defendant said that he decided to return to his vehicle; but when he turned, he stumbled. As he fell, according to the defendant, his weapon accidently discharged. The defendant professed no knowledge of what, if anything, his bullet may have struck. After the defendant recovered, he resumed his trek to the police cruiser and left the area.
At trial, the defendant testified that he was afraid of being suspended from work or terminated from the police force. Therefore, instead of remaining at the scene and reporting what had happened, the defendant attempted to stage a coverup. He quickly came under suspicion, however, by the officers who were later dispatched to investigate the shooting. Witnesses advised the officers that the defendant had been in the area around the time of the shooting. In addition, after Petty's body was discovered, other witnesses reported seeing a police officer chase after and shoot Petty.
In response to questioning by his immediate supervisor and other investigators, the defendant initially fabricated an explanation that he had departed his assigned sector for the purpose of getting a sandwich; he did not disclose his arrangement with the lounge owner, his presence in the area when the shooting actually occurred, his pursuit of the suspect, or the discharge of his firearm. This explanation was embellished after the defendant was ordered to write out a memorandum stating why he had been out of district and what he had been doing. The defendant wrote that he received a phone call about the shooting and that he went to the lounge to check on a friend. Some people at the scene showed him the direction in which the suspect had fled, and he searched unsuccessfully for awhile before leaving to return to his patrol sector.
The defendant's accounts did not allay police concerns, particularly after Petty's body was found and the bullet in his leg was recovered. Uncertainty and suspicion about the leg wound then intensified when the defendant called in sick and did not report for duty the next evening. Detectives Tim Carroll and Mike Mathis were dispatched to the defendant's apartment. The detectives gained entry to the apartment and found the defendant inside. They asked for and the defendant turned over to them his service weapon and several rounds of ammunition. The detectives issued a replacement firearm to the defendant and scheduled an interview with him the following morning. The detectives submitted the defendant's firearm to the Tennessee Bureau of Investigation's Crime Lab for ballistics testing and comparison with the bullet removed from Petty's leg.
The investigators never recovered the bullet that caused the fatal head wound. Evidently, however, the investigators were satisfied by the autopsy results that the gunshot to Petty's head was self-inflicted. The uncertainty centered on how Petty received the gunshot wound to his leg.
The defendant arrived late for his scheduled interview. Detective Carroll warned the defendant that they would find out through ballistics testing whether he had fired his weapon. The defendant then admitted that his gun had accidently discharged when he fell while searching for the suspect. The defendant claimed that he was too embarrassed to report the discharge. When asked if he had cleaned the firearm, the defendant told the detectives that he had wiped off the gun with a cloth to remove the dirt from his fall.
The next day, October 30, the TBI reported to the detectives that the bullet recovered from Petty's leg had been fired from a model 5906 Smith Wesson, the same type of weapon collected from the defendant. The ballistics examiner could not, however, determine if the defendant's gun had fired the recovered bullet because the gun barrel had been altered by someone inserting a metal object into the muzzle producing gouge marks that altered the rifling of the barrel. Armed with this new information, the detectives executed a search warrant for the defendant's apartment on Sunday, October 31. The defendant was present, and the officers informed him that they were looking for an instrument or tool that would have caused the damage to the gun barrel. The defendant said that he would show the officers what he used to clean the gun, and from his bedroom he produced a brown tee shirt and a police department badge.
At trial, the state presented testimony from a firearms expert who demonstrated the correct way to strip and clean a semi-automatic pistol, such as carried by the defendant. The expert had never heard of anyone appropriately cleaning out a gun barrel by inserting the end of a badge.
The defendant subsequently resigned from the Chattanooga Police Department and obtained substitute employment in Atlanta, Georgia with a personal security/body guard service.
II
For the defendant's actions and omissions, the Hamilton County Grand Jury returned indictments charging official misconduct, in violation of Code section 39-16-402, and evidence tampering, in violation of Code section 39-16-503. See Tenn. Code Ann. §§ 39-16-402(a)(4),-503(a)(1) (1997).
39-16-402. Official misconduct. (a) A public servant commits an offense who, with intent to obtain a benefit or to harm another, intentionally or knowingly:
(3) Refrains from performing a duty that is imposed by law or that is clearly inherent in the nature of the public servant's office or employment[.]
39-16-503. Tampering with or fabricating evidence. (a) It is unlawful for any person, knowing that an investigation or official proceeding is pending or in progress, to:
(1) Alter, destroy, or conceal any record, document or thing with intent to impair its veracity, legibility, or availability as evidence in the investigation or official proceeding[.]
The prosecution's theory for official misconduct was based on the defendant's failure, inter alia, to summon an ambulance for Duke who had been shot in the parking lot, to report the homicide when it occurred, to advise that he was in pursuit of a suspect, to establish a crime scene, and to remain at the scene to provide information and assistance to the investigators assigned to the case. The intended benefit to the defendant was preserving his employment with the police department. As for evidence tampering, the state relied on the damage to the gun barrel, which prevented the TBI from conclusively matching the bullet from Petty's leg with the test-fired bullets from the defendant's weapon. The defense theory was that although the defendant admittedly exercised poor judgment, his mistakes did not rise to the level of criminal conduct. The defendant insisted that he ultimately admitted his mistakes and fully cooperated with the investigating officers. The defendant also insisted that he never criminally tampered with his service weapon; rather, he merely cleaned it using a badge.
Pretrial, the defendant moved to suppress his service weapon, seized by the officers who entered his apartment, and to suppress the subsequent ballistics testing and all other fruits derived therefrom. The trial court conducted an evidentiary hearing and denied the motion. At trial, the jury rejected the defense theory and found the defendant guilty as charged. The trial court sentenced the defendant to four years for the Class C evidence-tampering conviction and to one year for the Class E official misconduct conviction. The trial court ordered service of the sentence by placing the defendant on supervised probation for five years, with 150 days of community service.
The defendant moved for a new trial, raising the suppression issue. The motion was denied, and the defendant timely appealed.
III
We now turn to the evidence elicited at the suppression hearing regarding the circumstances surrounding the officers' entry into the defendant's apartment and the subsequent confiscation of the defendant's service weapon.
After the body of Petty, the suspect in Duke's shooting, was discovered, Lieutenant Angel contacted Sergeants Mathis and Carroll and briefed them about his concerns that the defendant had been at the scene when Duke's shooting occurred and that the defendant was being untruthful about his involvement. The lieutenant assigned the officers to conduct an independent investigation of the defendant's activities.
Sergeant Mathis testified at the suppression hearing that as part of his investigation, he decided to interview the defendant later that evening when the defendant reported for work. When, however, Sergeant Mathis contacted the police department to find out when the defendant would come on duty, he learned that the defendant had reported in sick. From the department, Sergeant Mathis got the address of the defendant's apartment complex but not the specific apartment number.
Mathis and Carroll drove to the apartment complex, found the defendant's patrol car, and called the defendant's home telephone number. Mathis left an urgent message on the answering machine for the defendant to contact him. A neighbor in the apartment complex assisted the officers in identifying the defendant's particular apartment. The officers knocked on the defendant's door repeatedly, but no one answered. Mathis made another unsuccessful attempt to reach the defendant by telephone, at which point Mathis testified that he "grew concerned about Officer Jackson's safety." Because the defendant had called in sick, department policy required him to be at home. Mathis explained that if the defendant thought he was responsible for Petty's death, the defendant "might do something to himself or harm himself."
Later, Mathis and Carroll contacted Officer Robert Evans, the defendant's close friend, and asked Evans to meet them to see if he could get the defendant to answer the door. Evans came, but he was equally unsuccessful. Evans then procured a pass key from a security officer at the apartment complex and announced that he was going to enter and check on the defendant. Mathis testified that he was opposed to using the pass key to gain entry, but Evans was undeterred. Mathis observed Evans put the key in the door, open the door, and yell, `Hey, Harold. Harold, it's Robert." The defendant appeared and explained that he had been sleeping. Evans told the defendant that Mathis and Carroll had been trying to get him to come to the door, whereupon the defendant said, "Well, ya'll come on in."
The men went inside, and the defendant went to the bedroom to change clothes. When the defendant returned, Mathis explained that he needed to take the defendant's service weapon to perform ballistics comparisons in an effort to eliminate any question that the defendant was involved in the shooting. Mathis testified that the defendant indicated that turning over the gun was not a problem because the gun was police department property. Mathis followed the defendant into the bedroom where the defendant retrieved the weapon and gave it to Mathis. Before leaving, Mathis issued the defendant another service weapon.
In response to questioning by the trial court, Mathis testified that he did not obtain a search warrant before going to the defendant's apartment because he was informed that the service weapon was city property and that he was allowed to confiscate it. Mathis also insisted that although one of the purposes in going to the apartment was to obtain the gun, he would not have conducted a search for the gun. Had the defendant told him to leave, Mathis said that he would have considered other alternatives for obtaining the weapon.
When the case went to trial, Sergeant Carroll testified about his investigation of the defendant's activities on the evening of the shooting. Regarding the defendant's weapon, the state elicited from Carroll only that he went to the defendant's apartment and that after locating the defendant, the officers obtained the service weapon.
The defendant testified at trial. On cross examination, the defendant attempted to emphasize his cooperation with the officers by suggesting that when the officers knocked on the apartment door, he invited them in and turned over the gun when the officers asked for it. On redirect examination, the trial court ruled that by going into the defendant's cooperation with the officers, the defendant had opened the door for the state to show that the defendant had not answered his apartment door and to show more particularly how the weapon was recovered. See State v. Johnson, 743 S.W.2d 154, 159 (Tenn. 1987) (rebuttal testimony appropriate to contradict false impression created by defendant that he was cooperating voluntarily with investigating authorities).
IV A. Standard of Review
When reviewing a trial court's findings of fact and conclusions of law on a motion to suppress evidence, we are guided by the standard of review set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, "a trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise." Id. at 23. However, when the trial court does not set forth its findings of fact upon the record of the proceedings, we will decide on our own where the preponderance of the evidence lies. Fields v. State, 40 S.W.3d 450, 457 n. 5 (Tenn. 2001); see also Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). As in all cases on appeal, "the prevailing party in the trial court is afforded the `strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.'" See State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). Furthermore, we review the trial court's conclusions of law under a de novo standard without according any presumption of correctness to those conclusions. See, e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). Last, we are mindful that in evaluating the correctness of a trial court's ruling on a pretrial motion to suppress, appellate courts may consider proof adduced both at the suppression hearing and at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
B. Warrantless Entry of Residence
At the conclusion of the suppression hearing, the trial court ruled that gaining entry to the defendant's apartment by use of a pass key was a violation of the Fourth Amendment. Pursuant to the testimony presented, the trial court said that no exigent circumstances had been shown to justify the warrantless entry. The officers, for example, were not in hot pursuit of fleeing a felon, and they did not have reason to believe that the defendant was about to destroy evidence inside the dwelling. Although the officers may have had a hunch that something was wrong, the trial court found that the officers lacked a legitimate reason to suspect that the defendant was a danger either to himself or anyone else.
The trial court's findings and analysis are well supported and correct in our view. The Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution guarantees that citizens shall be free from unreasonable searches and seizures. These guarantees exist to "safeguard the privacy and security of individuals against arbitrary invasions of government officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730 (1967); see State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). Nowhere is a citizen's expectation and right to privacy greater than when in his or her own home, so much so that a bedrock principle of Fourth Amendment law is that "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380 (1980).
The state argues that the officers' entry into the apartment was proper because the men were invited inside by the defendant. This argument begs the initial question as to the propriety of using the pass key to open the locked door. The Fourth Amendment paints a bright line at the entrance to the dwelling. The Supreme Court has emphasized, "Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 590, 100 S.Ct. at 1382; see Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 1758 (1968) ("An unannounced intrusion into a dwelling is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially opened door, open a locked door by use of a passkey, or . . . open a closed but unlocked door.").
C. Consent
Once the officers gained entry to the defendant's apartment, they were able to obtain the defendant's service weapon. The trial court ruled that "of course, once inside, obtaining the weapon, would be the fruits of the poisonous tree in violation of the Fourth Amendment protection against unreasonable searches and seizures."
The state insists that the defendant invited the officers to come inside his apartment, after which he voluntarily consented to the relinquishment of his service weapon.
Although the use of the pass key to open the door was, as the trial court found, an unreasonable search and seizure, the evidence is uncontradicted that the defendant invited the officers to come inside the apartment. Sergeant Mathis testified at the suppression hearing that Officer Evans opened the apartment door and yelled for the defendant. When the defendant appeared in the hallway, Officer Evans told the defendant that Sergeants Mathis and Carroll had been trying to summon the defendant to the door. At that point, the defendant said, "Well, ya'll come on in."
When voluntary and knowing consent is extended to enter a residence, a warrant is not required. See United States v. Matlock, 415 U.S. 164, 169-70, 94 S.Ct. 988 (1974); State v. Wilson, 990 S.W.2d 726, 730 (Tenn.Crim.App. 1998). Because the officers in this case did not seek the defendant's permission to come inside his apartment, it could be argued that consent is not an issue. Consent, however, has been found in situations involving an implied request for entry. See State v. Steven Lloyd Givens, No. M2001-00021-CCA-R3-CD, slip op. at 3 (Tenn.Crim.App., Nashville, Nov. 29, 2001) (defendant's mother, knowing that the officer was looking for her son, voluntarily invited the officer into her home and directed him to her son; warrantless entry proper based on consent), perm. app. denied (Tenn. 2002); State v. Miles Mateyko, No. 01C01-9806-CC-00268 (Tenn.Crim.App. 1999) (defendant opened trailer door in response to officer's knocking; defendant advised that officer had come to look into welfare of children; defendant said "okay" or "come in" and then backed away to allow officer to enter; based on defendant's consent, entry into trailer was reasonable), aff'd in part, rev'd in part on other grounds, 53 S.W.3d 666 (Tenn. 2001).
The defendant's invitation in this case, "Well, ya'll come on in," was unequivocal and, in our opinion, constituted consent for the warrantless entry. The defendant knew the identity of the people gaining entry to his apartment, and nothing in the record suggests that the invitation was anything other than voluntary and knowing.
In the more typical situation, the purpose of law enforcement gaining entry to a dwelling is to actively search for someone or some type of evidence. Absent a warrant, the issues often become whether consent to search the premises was obtained and whether the search exceeded the scope of the consent obtained. In this case, however, no search ensued; Sergeant Mathis testified, in fact, that it was not his intention to conduct a search for the gun and that had the defendant ordered them to leave, Mathis would have had to resort to other avenues for obtaining the weapon. Pursuant to the testimony elicited, Sergeant Mathis told the defendant at the time that Mathis wanted the service weapon so it could be submitted for ballistics testing and that Mathis would be issuing the defendant a replacement service weapon. The defendant responded by retrieving the weapon from his bedroom and turning it over to Mathis.
We have searched for a similar fact pattern, and our research has led us to State v. Linda Hinkle, No. 03C01-9902-CR-00061 (Tenn.Crim.App., Knoxville, Dec. 10, 1999). In that case, federal and state agents went to the defendant's house to deliver a package addressed to the defendant. Slip op. at 3. The defendant declined to accept the package, but permitted the postal agent to open it. Id. Approximately one-half pound of marijuana was inside the package. Id. As the agents were opening the package they noticed that the defendant repeatedly put her hands inside her pockets. Id. The agents asked her to take her hands out of her pockets. Id. When the defendant again put her hand in her left pants pocket, one agent asked her "to show him that she did not have a weapon in her pocket." Id.. In response, the defendant removed her hand from her pocket and produced nine foil packets of valium. Id.
Our court framed the issue as "whether [the defendant's] action in displaying the contraband can be considered as a consent to search of her person." Id. at 6. We concluded that "the defendant freely and voluntarily produced the contraband and waived her constitutional right to a search warrant." Id. at 7(emphasis added).
Consent, to be valid, "must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion." . . . In the case at bar, the defendant's action in displaying the contraband was a very unequivocal and specific act. She did not question the officers or offer to explain why she continued to put her hands in her pockets. She did not complain that she did not understand the agents' request or that she was tricked into showing the contraband. Finally, there was no evidence that she was under duress or that the agents coerced her into displaying the contraband.
Id. at 6-7 (citation omitted).
The trial court in this case made no specific findings regarding the validity of the defendant's voluntary retrieval of the weapon and submission to Sergeant Mathis. Our review of the record persuades us that the preponderance of the evidence, see Fields, 40 S.W.3d at 457 n. 5, demonstrates, as in Hinkle, that the defendant freely and voluntarily produced his service weapon, thereby waiving his constitutional right to a search warrant. The defendant was told why the officers wanted his service weapon. The defendant did not attempt to evade the request, and no duress or coercion is evident in the record before us. We are further bolstered in our conclusion by the defendant's efforts at trial to persuade the jury that he voluntarily cooperated with the officers' investigation by, inter alia, surrendering his weapon when requested.
The last aspect of the defendant's consent that should be mentioned is the Fourth Amendment interplay between the earlier apartment entry and the subsequent seizure. "Where a Fourth Amendment violation precedes consent, the validity of the consent depends on whether it was sufficiently an act of the free will, i.e. whether it was voluntary in fact." United States v. Lowe, 999 F.2d 448, 451 (10th Cir. 1993), quoted in State v. Chester Lee Jenkins, No. E2001-01173-CCA-R9-CD, slip op. at 10 (Tenn.Crim.App., Knoxville, Mar. 8, 2002). For the reasons set forth above, we are convinced that the defendant was exercising his free will when he retrieved and turned over the weapon to Sergeant Mathis.
Consequently, we are of the opinion that the defendant freely and voluntarily consented both to the officers' entry into his apartment and to their ensuing seizure of the service weapon, thereby defeating grounds for suppressing the evidence.
D. Inevitable Discovery
Because further appellate review may follow our decision, see State v. Pendergrass, 13 S.W.3d 389, 395 (Tenn.Crim.App. 1999), perm. app. denied (Tenn. 2000), our final task is to review the trial court's determination that suppression of the service weapon was not required pursuant to the inevitable discovery doctrine.
Under the inevitable discovery doctrine, illegally obtained evidence is admissible when the evidence would have inevitably been discovered by lawful means. See State v. Patton, 898 S.W.2d 732, 735 (Tenn.Crim.App. 1994) (citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984)). The trial court in this case reasoned that the doctrine applied because
where Officer Jackson is a police officer, when he got over his sickness, either that day, there's nothing to indicate to the court that he was not going back to work, only that he was sick on that particular occasion. He had not been terminated at that time, at least this court doesn't have any information in that regard, so there's no reason for this court to believe that he wasn't going back to work and there's no reason that he wouldn't have had his service revolver[,] . . . and they could have legitimately taken it at that time.
We are not convinced that the doctrine accommodates the trial court's reasoning.
Proof of inevitable discovery "involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment." Nix, 467 U.S. at 444 n. 5, 104 S.Ct. at 2509 n. 5. Nix involved the disappearance of a ten-year-old child in Des Moines, Iowa. Id. at 434-35, 104 S.Ct. at 2504. A search of the area where the child was last seen was underway, and the defendant, a suspect, was arrested in Davenport and transported to Des Moines. Id. at 435, 104 S.Ct. at 2504-05. During the trip, officers initiated a conversation with the defendant, which resulted in the defendant making incriminating statements and guiding the police to the child's body. Id. at 435-36, 104 S.Ct. at 2505. The defendant's statements were ruled inadmissible, but the prosecution was allowed to offer evidence concerning the location and condition of the body under the theory that had the search continued, the body would have been discovered within a short time in the same condition as actually found. Id. at 437-40, 104 S.Ct. at 2506-07.
In Nix, specific evidence was adduced that the body inevitably would have been discovered. Agent Ruxlow of the Iowa Bureau of Investigation testified that he had organized and directed approximately 200 volunteers who were searching for the child's body. Id. at 448, 104 S.Ct. at 2511. The agent explained that he had "marked off highway maps . . . in grid fashion, divided the volunteers into teams of four to six persons, and assigned each team to search specific grid areas." Id. at 449, 104 S.Ct. at 2511. The child's body was found two and one-half miles from where the search had stopped after the defendant identified the location. Id. at 449, 104 S.Ct. at 2512. Based on earlier progress in searching, there was testimony that the search party would have discovered the body in an additional three to five hours had the search continued. Id. at 449, 104 S.Ct. at 2512. "On this record," the Supreme Court concluded, "it is clear that the search parties were approaching the actual location of the body, and we are satisfied, along with three courts earlier, that the volunteer search teams would have resumed the search had Williams not earlier led the police to the body and the body inevitably would have been found." Id. at 449-50, 104 S.Ct. at 2512.
The need for "demonstrated historical facts capable of ready verification or impeachment," id. at 444 n. 5, 104 S.Ct. at 2509 n. 5, was illustrated by this Court's opinion in State v. Carpenter, 773 S.W.2d 1 (Tenn.Crim.App. 1989). In that case, the defendant bludgeoned a store manager in connection with a robbery. The defendant confessed to the murder and disclosed that he had deposited into a trash dumpster a bloody shirt and vest that he had been wearing at the time. The clothing was recovered from the dumpster on March 29. The trial court suppressed the defendant's statements but allowed the state to introduce the clothing under the theory that the defendant had abandoned the clothing. Id. at 1-7.
On appeal, this court rejected abandonment as a basis for admitting the clothing. The state argued, in the alternative, that the clothing was admissible under the doctrine of inevitable discovery. The state, however, was unable to factually demonstrate the inevitability of the discovery.
The defendant's shirt and vest were found in the March 29th search. The defendant established at the suppression hearing that the trash would have been picked up on March 30th for transport to the landfill. Herrell [the co-defendant] provided the confirming information on April 1st. The defendant contends that if either the independent source rule or inevitable discovery doctrine apply, they are to be applied strictly when the evidence is obtained through wrongful conduct; "it is insufficient to show that it could have been found independently, it must be shown that it would have been." U.S. v. Palumbo, 742 F.2d 656, 660 (1st Cir. 1984)[.] See U.S. v. Guarino, 610 F. Supp. 371 (D.C.R.I. 1984).
In this instance, the landfill operator testified that on March 30, 1985, the contents of the trash dumpster were taken to the landfill on Rutledge Pike in Knox County. The state argues that with this information, law enforcement officials, given the will and the manpower, eventually would have found the clothing by going through the freshest part of the landfill.
The record, however, does not indicate that the landfill operator necessarily knew which portion of the landfill had been used most recently, how much trash would have been deposited there over a period of two days, or whether a search of the area, by the sheer magnitude of the trash deposited, would have been successful.
The state's argument that the evidence would have inevitably been discovered by the state is not supported by the record. There is no clear indication that the shirt and vest could have been found no matter how great the effort. We therefore hold that the items themselves were wrongly admitted into evidence.
What strikes us as troublesome in this particular case is that the question of inevitability turns not upon the law enforcement efforts underway at the time of the illegality but, instead, hinges on what the defendant might or might not have done had Mathis and Carroll not made a surprise appearance at his apartment that night. To be sure, the defendant, armed with his service revolver, might have reported for duty on his next scheduled shift. It is very possible, however, that the defendant would have disposed of the incriminating weapon rather than risk its confiscation when next he reported for work — if, in fact, he ever returned to duty.
Although the inevitably of the discovery of the firearm is arguable, on balance we believe that the state has not carried its burden to show that the inevitable discovery doctrine applies under these circumstances.
V
For the reasons stated above, the motion to suppress was properly denied on the basis that the defendant freely and voluntarily produced his service revolver when requested by Sergeant Mathis. Although on different grounds, we therefore affirm the trial court's denial of the defendant's motion to suppress and affirm the conviction and judgment.