        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 7, 2012

                 STATE OF TENNESSEE v. BRADLEY HAWKS

              Direct Appeal from the Circuit Court for Crockett County
                        No. 3916    Clayburn Peeples, Judge


                No. W2011-01749-CCA-R3-CD - Filed January 2, 2013


The appellant, Bradley Hawks, pled guilty in the Crockett County Circuit Court to possession
of .5 grams or more of a Schedule II controlled substance, methamphetamine, with intent to
sell and received an eight-year sentence to be served in confinement. As part of the plea
agreement, the appellant reserved a certified question of law, namely whether exigent
circumstances justified law enforcement’s searching his residence without a warrant. Based
upon the record and the parties’ briefs, we conclude that evidence of exigent circumstances
does not exist in this case. Therefore, the appellant’s conviction is reversed, and the case is
remanded to the trial court for further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed,
                            and the Case is Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.

Jamie Kay Berkley, Trenton, Tennessee, for the appellant, Bradley Hawks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Garry G. Brown, District Attorney General; and Hillary Lawler Parham, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The record reflects that in June 2007, the Crockett County Grand Jury indicted the
appellant for possession of .5 grams or more of methamphetamine with intent to sell,
manufacturing methamphetamine, domestic assault, and two counts of child abuse and
neglect. The appellant filed a motion to suppress all evidence obtained as a result of the
police searching his residence, arguing that the police did not have probable cause for the
search and that the warrantless search was illegal. Relevant to this appeal, the appellant also
argued that exigent circumstances did not exist to exempt the police from obtaining a search
warrant.

        The trial court held an evidentiary hearing. At the hearing, the prosecutor stated to
the trial court, without any explanation, that “we’re arguing a plain view case and we’re
prepared to go forward on that.” Captain Eric Uselton of the Crockett County Sheriff’s
Department, testified that at the time of the search, he was a lab-certified special agent with
the West Tennessee Violent Crimes and Drug Task Force. On April 10, 2007, a domestic
violence call was placed from the appellant’s residence, and police officers went to the home.
When they arrived, they smelled a very strong odor. They could not identify the odor, so they
evacuated the appellant’s wife and children and sent them to the emergency room for testing.
The appellant was not present. The officers moved away from the house and called Captain
Uselton to the scene. Captain Uselton stated that when he arrived at the residence, he could
smell anhydrous ammonia and starter fluid from the road, which was about one hundred
yards away from the house. He said he and other lab-certified officers wore “air packs” and
entered the home through the back door because “the back door was standing wide open . .
. and that was where the smell was coming from.” Captain Uselton made sure the appellant
was not inside the residence. Then he came out of the house, took off his air pack, and
determined that the smell was coming from an Igloo cooler beside a garbage can near the
back door. He opened the cooler and found a white chalky powder that was soaking in
anhydrous ammonia. He described the cooler as “somewhat active in itself as a one pot
method of cooking methamphetamine.”

       On cross-examination, Captain Uselton testified that when he arrived at the scene, the
police officers were waiting for him “at a distance” from the home. He spoke to the officers
and learned the appellant was not present. Captain Uselton said that he entered the house and
looked for the appellant “because we didn’t know where he was and to see where the smell
was coming from.” When he came out of the residence, he found the cooler by the back
door. The cooler contained Sudafed wrapped in coffee filters soaking in anhydrous
ammonia, starter fluid, and camp fuel. Captain Uselton also searched an outbuilding on the
property and found two jars that contained small amounts of starter fluid, an ingredient for
manufacturing methamphetamine.

      The trial court did not address whether the evidence was admissible under the plain
view doctrine. Instead, the trial court stated as follows:

                     I think under the circumstances the officers did

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                      only what they could be expected to do. Safety
                      considerations were such that they would have
                      been remiss to have done anything else, so I’m
                      overruling the Motion[.]

       Subsequently, the appellant pled guilty to possession of .5 grams or more of
methamphetamine with intent to sell, a Class B felony, and received a sentence of eight years
in confinement. Pursuant to the plea agreement, he reserved a certified question of law as
to whether the search and his arrest violated the United States and Tennessee Constitutions.
On direct appeal, this court held that the certified question failed to identify the scope and
limits of the legal issue reserved and dismissed the appeal. State v. Bradley Hawks, No.
W2008-02657-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 157, at *14 (Jackson, Feb. 19,
2010), perm. to appeal denied, (Tenn, 2010).

       The appellant filed a pro se petition for post-conviction relief, arguing that trial
counsel’s failure to preserve the certified question of law rendered his guilty plea
involuntary. After an evidentiary hearing, the post-conviction court agreed with the appellant
and granted the petition. Thereafter, the appellant re-entered his guilty plea to possession of
.5 grams or more of methamphetamine with intent to sell and properly reserved the certified
question of law which is now before this court.

                                         II. Analysis

        The appellant contends that the trial court should have granted his motion to suppress
because the warrantless search of his home was illegal. He contends that the search did not
fall within the exigent circumstances exception to the warrant requirement because his home
had been evacuated when law enforcement discovered the incriminating evidence. Therefore,
law enforcement had no reason to proceed with the warrantless search. The State does not
address whether exigent circumstances existed in this case but argues that the trial court
properly denied the motion because the evidence was in plain view of officers legally entitled
to be at the home in response to a call for assistance. We conclude that the trial court erred
by denying the appellant’s motion to suppress.

       In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the

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State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, a warrantless search is considered presumptively
unreasonable, thus violative of constitutional protections. See State v. Walker, 12 S.W.3d
460, 467 (Tenn. 2000). The recognized exceptions to the requirement include (1) a search
incident to an arrest, (2) the plain view doctrine, (3) a consent to the search, (4) a Terry stop
and frisk, and (5) the existence of exigent circumstances. State v. Berrios, 235 S.W.3d 99,
104 (Tenn. 2007). Exigent circumstances related to the warrantless search of a residence
include (1) hot-pursuit, (2) to thwart escape, (3) to prevent the imminent destruction of
evidence, (4) in response to an immediate risk of serious harm to the police officers or others,
and (5) to render emergency aid to an injured person or to protect a person from imminent
injury. State v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008). Moreover, our supreme court
has explained as follows:

              Exigent circumstances are those in which the urgent need for
              immediate action becomes too compelling to impose upon
              governmental actors the attendant delay that accompanies
              obtaining a warrant. Thus, in assessing the constitutionality of
              a warrantless search, the inquiry is whether the circumstances
              give rise to an objectively reasonable belief that there was a
              compelling need to act and insufficient time to obtain a warrant.
              The exigency of the circumstances is evaluated based upon the
              totality of the circumstances known to the governmental actor at
              the time of the entry. Mere speculation is inadequate; rather, the
              State must rely upon specific and articulable facts and the
              reasonable inferences drawn from them. The circumstances are
              viewed from an objective perspective; the governmental actor’s
              subjective intent is irrelevant. The manner and the scope of the
              search must be reasonably attuned to the exigent circumstances
              that justified the warrantless search, or the search will exceed
              the bounds authorized by exigency alone. Where the asserted
              ground of exigency is risk to the safety of the officers or others,
              the governmental actors must have an objectively reasonable
              basis for concluding that there is an immediate need to act to
              protect themselves and others from serious harm.



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Id. at 723-24. It is the State’s burden to demonstrate the existence of exigency. See State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       In Meeks, a motel patron called the police to report a strong odor. 262 S.W.3d at 714.
The caller also complained about burning eyes and headaches. Id. An officer went to the
motel, met with the caller, and recognized the “unmistakable” smell of a methamphetamine
laboratory coming from the room next door. Id. When backup officers arrived, the officers
went to the suspect room. Id. They heard voices in the room and knocked on the door, but
no one answered. Id. The officers decided to enter the room due to the “dangers posed by
manufacturing methamphetamine” and obtained a key from the manager. Id. at 715.
However, when they tried to open the door, the door would not open completely due to a
chain lock, and a large cloud of fumes escaped through the partially opened door. Id. The
officers decided to kick open the door. Id. Inside, they found the two defendants, one of
whom was unconscious, and an active methamphetamine laboratory. Id. The defendants
were removed from the scene, and the officers obtained a search warrant based upon the
information they had obtained from their warrantless entry into the room. Id. During the
subsequent search, the officers found methamphetamine and various parts of a
methamphetamine laboratory. Id. at 715-16. The defendants were indicted for
manufacturing methamphetamine, possessing methamphetamine, and possessing drug
paraphernalia. Id. at 716. They filed a motion to suppress, arguing that the warrantless entry
was not justified by exigent circumstances. Id. The trial court granted the motion. Id.
However, this court reversed the trial court, holding that the defendants’ actions had
presented an immediate threat to public safety. Id.

       On appeal to our supreme court, the supreme court described methamphetamine
laboratories as “highly dangerous,” noting that

              [i]n addition to being highly combustible, the vapors or fumes
              that are generated in the production of methamphetamine pose
              further dangers. For example, exposure to the toxic fumes or
              vapors produced during the manufacture of methamphetamine,
              some of which are carcinogenic, can cause serious inhalation
              injuries to those at the laboratory site and sometimes even to
              neighbors.

Id. at 725. The court also noted that some jurisdictions have adopted a per se rule that the
discovery of an active methamphetamine laboratory creates an exigent circumstance that does
not require a search warrant while other jurisdictions have determined that the exigency is
based on whether the location of the laboratory creates a danger to others such as neighbors,
law enforcement officials, and the individuals manufacturing the methamphetamine. Id. at

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725-26. Regardless, “the scope of a permissible warrantless search remains limited to the
scope of the exigency.” Id. at 726. Our supreme court concluded that the facts in Meeks
clearly supported the existence of exigent circumstances and “provided the officers with an
objectively reasonable basis for concluding that there was an immediate need to act to protect
themselves and others from serious harm.” Id. at 726, 727.

       Turning to the instant case, we initially note that the appellant does not claim that law
enforcement officers lacked probable cause to believe methamphetamine was being produced
in the appellant’s home. Instead, his argument focuses entirely on whether exigent
circumstances existed to justify the warrantless search. The appellant argues that exigent
circumstances did not exist because the house had been “cleared,” the entering officers were
wearing safety equipment, and there was no immediate harm to the officers or others.

       The facts in this case are significantly different from the facts in Meeks. Granted, the
odor of anhydrous ammonia and starter fluid was strong and could be smelled from a
significant distance. However, by the time Captain Uselton arrived at the scene, police
officers had removed the appellant’s family from the home, had determined that the appellant
was not present, and were waiting “a distance” away. Captain Uselton arrived and searched
the home again but did not find anyone inside. It was the State’s burden to show the
existence of exigent circumstances. However, unlike Meeks, the State did not present any
evidence about the dangers the strong odor or the soaking Sudafed posed to Captain Uselton,
other officers at the scene, the appellant’s neighbors, or anyone in the surrounding vicinity.
Therefore, we conclude that the proof fails to show the existence of exigent circumstances
that exempted law enforcement from searching the residence without a warrant.

       Regarding the State’s claim that the trial court properly denied the motion to suppress
because the evidence was admissible under the plain view doctrine, items fall within the
“plain view” exception to the warrant requirement if (1) the seized items were in the officer’s
plain view, (2) the officer was rightfully in the position from which he or she viewed the
items, and (3) the items had an incriminating nature that was immediately apparent to the
officer. State v. Cothran, 115 S.W.3d 513, 524-25 (Tenn. Crim. App. 2003). The State
argues that the officers were “legally entitled to be at the home in response to a call for
assistance” and that the odor “had an incriminating nature immediately apparent to the officer
based upon his experience.” However, Captain Uselton and the other lab-certified officers
were not at the home in response to a call for assistance. They had been summoned to the
scene by the original police officers who responded to the call and smelled the strange odor.
Moreover, we have already determined that exigent circumstances did not exist to justify
Captain’s Uselton’s entering the home without a warrant. Therefore, Captain Uselton was
not rightfully in the position from which he discovered the evidence. The “plain view” view
exception to the warrant requirement does not apply.

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                                     III. Conclusion

       Based upon the record and the parties’ briefs, we conclude that the trial court should
have granted the appellant’s motion to suppress. The appellant’s conviction is reversed, and
the case is remanded to the trial court for further proceedings consistent with this opinion.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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