          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            JANUARY 1999 SESSION
                                                         FILED
                                                          March 26, 1999

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 02C01-9809-CC-00295
      Appellee,                  )
                                 ) Haywood County
V.                               )
                                 ) Honorable Dick Jerman, Jr., Judge
                                 )
HOWARD KAREEM ATKINS,            ) (Possession of Schedule VI
                                 ) With Intent)
      Appellant.                 )
                                 )



FOR THE APPELLANT:                  FOR THE APPELLEE:


TOM W. CRIDER                       JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

JOYCE DIANE STOOTS                  JOHN ROSS DYER
Assistant Public Defender           Assistant Attorney General
107 South Court Square              Criminal Justice Division
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 WILLIAMS,
Judge
                                  OPINION

       In the Circuit Court of Haywood County, Tennessee, the defendant,

Howard K. Atkins, pleaded guilty to possession of a schedule VI controlled

substance with intent to sell 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 court’s judgment.



                                  BACKGROUND

       The defendant states the issue as follows:

              Whether the trial judge committed error of prejudicial
              dimensions by failing to suppress the items seized pursuant
              to law enforcement officers executing a search warrant for
              defendant’s home without giving notice and making an
              unannounced forcible entry into the premises when no
              exigent circumstances existed to justify said lack of notice
              and unannounced forcible entry in violation of defendant’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 law provides for such appeal, and
               from any judgment of conviction: . . . (2) Upon a plea of
               guilty or nolo contender if: (i) Defendant entered into a plea
               agreement under Rule 11(e) but explicitly reserved 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 cites 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 criminal
              proceeding where the law provides for such appeal, and
              from any judgment of conviction: . . . (2) Upon a plea of
              guilty or nolo contender if: . . . (iv) Defendant explicitly
              reserved with the consent of the court the right to appeal a
              certified question of law that is dispositive of the case.


Under this authority, an appeal does not require permission from the state. The

Judgment incorporates the Order by reference, and that Order satisfies either

standard because it comprises (1) a statement of the certified question, sufficient

to “clearly identify the scope and the limits of the legal issue reserved”;


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(2) consent to the appeal from the trial judge and from the state; and (3) accord

from the trial judge and from the state on the dispositive nature 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 certified question is dispositive: suppression of the

evidence would dispose 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 search warrant execution risk “the exclusion of any

evidence seized under color of the warrant.”). See generally State v. Harris, 919

S.W.2d 619, 621 (Tenn. Crim. App. 1995) (Suppression of evidence found in a

residence during an allegedly invalid search necessitated dismissal.). The

appeal is properly before this Court.



       Pursuant to a narcotics investigation, Investigator Billy Blackwell of the

Haywood County Sheriff’s Department obtained a search warrant for the

defendant’s premises. Blackwell supervised execution of the warrant. Two

officers approached the premises from the rear as Blackwell and two other

officers approached the front.



       The two officers in the rear advised Blackwell via radio that someone

apparently saw the officers from a back window of the premises and ran from the

window. These officers gave no further information to Blackwell regarding the

actions, description, or location of this unknown person. Blackwell approached

the front of the residence. The main front door was open, but the storm door

was closed. Blackwell observed several people inside the residence. He

opened the storm door and “advised that [he] had a search warrant--it was the

Sheriff’s Department with a search warrant” as he entered. Blackwell stated that

he entered the residence and commenced his search because he feared that the

person observed in the rear of the house might destroy illegal narcotics. The




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officers charged the defendant for possession of suspected narcotics found in

the residence.



                              STANDARD OF REVIEW

       A trial court’s determination of fact at a suppression hearing “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). “‘Questions of credibility of 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.’” Id. “The party prevailing 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 court’s findings of fact. See State

v. Yeager, 958 S.W.2d 626, 629 (Tenn. 1997).



                                      ANALYSIS

       The Fourth Amendment of the United States Constitution requires

reasonableness analysis on judicial review of state peace officers’

noncompliance with a “knock and announce” rule during search warrant

execution. See Curtis, 964 S.W.2d at 609. The “knock and announce” rule

explicitly applies to search warrant service in Tennessee:



               If after notice of his authority and purpose a peace officer is
               not granted admittance, or in the absence of anyone with
               authority to grant admittance, a peace officer with a search
               warrant may break open any door or window of a building or
               vehicle, or any part thereof, described to be searched in the
               warrant to the extent that it is reasonably necessary to
               execute the warrant and does not unnecessarily damage
               the property.


Tenn. R. Crim. P. 41(e). Absent exigent circumstances, simultaneous

announcement and entry is unacceptable, and the serving officer must “wait a



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reasonable period of time” after announcement before entering. See State v.

Lee, 836 S.W.2d 126, 128 (Tenn. Crim. App. 1991). A law enforcement officer

executing a search warrant must generally give notice of (1) his 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, protects

privacy, and prevents needless destruction of property. See id. “The state has

the burden of establishing facts and circumstances which constitute exigent

circumstances,” and these alleged circumstances must rise above “general

fears” or “‘mere hunch or suspicion.’” Id. at 610. Factors potentially establishing

exigent circumstances include:

              (a) a person within the dwelling knows of the officer’s
              authority and purpose; (b) the officers have a justified belief
              someone within the dwelling is in immediate peril of bodily
              harm; (c) the officers have a justified belief those inside the
              dwelling are aware of their presence and are engaged in
              escape or the destruction of evidence; (d) a person inside
              the dwelling is armed and is either likely to use the weapon
              or become violent; or (e) the person inside the dwelling has
              threatened an officer’s safety, possesses a criminal record
              reflecting violent tendencies, or has a verified reputation of
              a violent nature.

Id. (emphasis added).


       The submitted question challenges the state’s articulated exigent

circumstances: Did Officer Blackwell justifiably believe that persons inside the

residence were aware of the officer’s presence and were engaged in the

destruction of evidence?



       Illegal narcotics are susceptible to destruction. However, this

susceptibility does not automatically constitute exigent circumstances. 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 investigations do

not receive blanket exception from the “knock and announce” requirements

under Fourth Amendment reasonableness analysis.). Absent sounds of

evidence being destroyed, officers serving a search warrant pursuant to a

narcotics investigation and hearing music inside the premises may not force

                                        -5-
entry without complying with the rule. See State v. Fletcher, 789 S.W.2d 565,

566 (Tenn. Crim. App. 1990). Further, compliance with the “knock and

announce” rule is not excused by the main door of a residence being open, with

the screen door closed. See Lee, 836 S.W.2d at 129.



       Conversely, officers with a search warrant for narcotics who hear running,

scuffling, and loud noise after identifying 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 circumstances may constitute exigency. In Henning, 975 S.W.2d at

300, an officer with a search warrant observed the defendant conclude a drug

transaction outside the premises to be searched. The defendant fled from the

officer’s approach, and the officer seized the defendant in the doorway. The

officer identified himself and his purpose and observed the defendant attempt to

kick cocaine under a sofa. The Tennessee Supreme Court affirmed that these

circumstances cumulatively articulated a threat of destruction to any narcotics

evidence in the premises and therefore excused compliance with the “knock and

announce” rule. See Henning, 975 S.W.2d at 300.



       A recent case presents facts similar to this appeal. In Curtis, 964 S.W.2d

at 607 (Tenn. Crim. App. 1997), peace officers obtained a search warrant for

crystal methamphetamine. As officers approached the residence for execution

of the warrant, one officer claimed he saw “a silhouette . . . of a human being”

through a window. The silhouette allegedly closed a window and disappeared

“fairly quickly.” Id. The officer could state neither the gender of the silhouette

nor the area of the residence in which it was standing. Officer safety and

evidence preservation concerns motivated an expedited entrance, and they

entered the residence without performing a “knock and announce.”




                                         -6-
         In Curtis, the trial court found no exigent circumstances and granted the

defendant’s motion to suppress evidence. See id. at 607, 608. The trial court

questioned the credibility of the observing officer’s alleged perception of a

silhouette. On appeal, the state, as moving party, did not provide the requisite

preponderance of evidence. This Court noted that the officer could not identify

the gender of the silhouette, in what portion of the residence he saw the

silhouette, or to what portion of the dwelling the silhouette was going “rather

rapidly.” Further, no evidence in the record supported the officer’s allegation that

the person in the residence responsible for the silhouette recognized the identity

or the purpose of the officers. The articulated concerns were thus “generalized

fears” and not exigent circumstances. 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 preponderance of

evidence that the circumstances of service did not merit the finding of an

exigency. The trial court found no Fourth Amendment violation because that

court found that the state met its burden of showing exigent circumstances. The

record submitted to this Court does not constitute a preponderance 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 officer’s

concerns were reasonable and justified immediate entry. The issue is without

merit.



                                     CONCLUSION

The judgment below is AFFIRMED.




                                               ____________________________
                                              JOHN EVERETT WILLIAMS, Judge




                                            -7-
CONCUR:



_____________________________
DAVID G. HAYES, Judge



_____________________________
JOE G. RILEY, Judge




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