                                                                                           01/16/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  May 14, 2019 Session

         STATE OF TENNESSEE v. SAMANTHA GRISSOM SCOTT

                  Appeal from the Circuit Court for Warren County
                   No. 18-CR-1805 Larry B. Stanley, Jr., Judge
                      ___________________________________

                           No. M2018-01852-CCA-R3-CD
                       ___________________________________

CAMILLE R. MCMULLEN, J., dissenting.

        I dissent from the dismissal of this appeal. The majority contends that the certified
question is not dispositive of the case because “even if the Defendant’s consent to search
the home was constitutionally invalid and exigent circumstances did not exist, the
evidence would have been inevitably discovered.” The majority rests its decision on the
theory that the deputies could have obtained and executed a search warrant to search the
Defendant’s home for the third-party arrestee, Dishman, which would have eventually
revealed the drug-related evidence. I believe that the majority misapprehends the
inevitable discovery doctrine in rejecting the certified question in this case. See United
States v. Quinney, 583 F.3d 891, 894-95 (6th Cir. 2009) (reversing denial of motion to
suppress evidence seized from defendant’s residence without a warrant based on
misapplication of inevitable discovery doctrine after recognizing that finding the
evidence admissible simply because the agents could have obtained a warrant would have
totally obviated the warrant requirement); State v. Cothran, 115 S.W.3d 513, 525 (Tenn.
Crim. App. 2003) (“Proof of inevitable discovery ‘involves no speculative elements but
focuses on demonstrated historical facts capable of ready verification or impeachment.’”)
(quoting Nix v. Williams, 467 U.S. 421, 444 n.5 (1984)). Applying the inevitable
discovery doctrine, as the majority has done here, would render virtually every Fourth
Amendment determination certified pursuant to Rule 37 meaningless. Regardless, based
on this record, the inevitable discovery doctrine does not defeat the dispositive nature of
the certified question in this case.

       The inevitable discovery doctrine states that “[i]f the prosecution can establish by
a preponderance of the evidence that the information ultimately or inevitably would have
been discovered by lawful means[,] then the deterrence rationale has so little basis that
the evidence should be received.” Nix, 467 U.S. at 444 (emphasis added). As explained
in Hudson v. Michigan,
       “independent” or “inevitable” discovery refers to discovery that did occur
       or that would have occurred (1) despite (not simply in the absence of) the
       unlawful behavior and (2) independently of that unlawful behavior. The
       government cannot, for example, avoid suppression of evidence seized
       without a warrant (or pursuant to a defective warrant) simply by showing
       that it could have obtained a valid warrant had it sought one. See, e.g.,
       Coolidge v. New Hampshire, 403 U.S. 443, 450-451, 91 S.Ct. 2022, 29
       L.Ed.2d 564 (1971) (emphasis added). Instead, it must show that the same
       evidence “inevitably would have been discovered by lawful means.” Nix v.
       Williams, 467 U.S., at 444, 104 S.Ct. 2501 (emphasis added). “What a
       man could do is not at all the same as what he would do.” Austin, Ifs And
       Cans, 42 Proceedings of the British Academy 109, 111-112 (1956).

547 U.S. 586, 616 (2006).

      The inevitable discovery exception rests upon the principle that the remedial
purposes of the exclusionary rule are not served by suppressing evidence discovered
through a “later, lawful seizure” that is “genuinely independent of an earlier, tainted one.”
Murray v. United States, 487 U.S. 533, 542 (1988) (emphasis added); see also id., at 545,
(Marshall, J., joined by Stevens and O’Connor, JJ., dissenting) (“When the seizure of the
evidence at issue is ‘wholly independent of’ the constitutional violation, then exclusion
arguably will have no effect on a law enforcement officer’s incentive to commit an
unlawful search.” (footnote omitted)).

        To begin, the record herein contains no evidence that the deputies had probable
cause to believe that the intended arrestee was at the Defendant’s house at the time that
they arrived there. See Steagald v. United States, 451 U.S. 204, 212 n.6 (1981). In
particular, the record is devoid of any evidence indicating why the White County
Sheriff’s Department believed the intended arrestee would be at the Defendant’s home on
December 20, 2017, and Deputy Tyler Glenn admitted that he had no independent
information concerning the intended arrestee. The record is likewise devoid of any
evidence regarding the nature of the outstanding warrants or the dangerousness of the
intended arrestee. It shows only that the intended arrestee could be potentially armed,
which apparently is not unusual in rural, Warren County. With this limited information,
a total of nine deputies surrounded the Defendant’s house with guns drawn and ordered
her out of her home repeatedly with loudspeakers until the Defendant relented and exited
her house twenty to thirty minutes later. The Defendant testified that she felt threatened
and frightened and that she had no choice but to come out of the house. She also said that
she panicked after seeing all the officers with guns pointed at her home. Although
Deputy Derek Bowles apparently believed that co-defendant Bell was the intended

                                            -2-
arrestee, Deputy Bowles did not testify at the suppression hearing, and there was no
testimony providing the description of the intended arrestee or Bell.

        Based on the above facts, the drug-related evidence would not have been
inevitably discovered in the Defendant’s house pursuant to a search warrant because: (1)
the Defendant’s initial seizure was illegal, see United States v. Thomas, 430 F.3d 274,
277 (6th Cir. 2005)1; State v. Holly N. Hilliard, No. E2015-00967-CCA-R3-CD, 2017
WL 3738470, at *8 (Tenn. Crim. App. Aug. 29, 2017); (2) all evidence obtained pursuant
to this illegal seizure is tainted and cannot be used in an affidavit for a search warrant, see
Florida v. Royer, 460 U.S. 491, 507-08 (1983); Holly N. Hilliard, 2017 WL 3738470, at
*10; State v. Linda Greene, 2009 WL 3011108, at *9 (Tenn. Crim. App. Sept. 22, 2009);
and (3) any affidavit for a search warrant that did not include the evidence obtained
pursuant to the illegal seizure would have failed to set forth facts from which a
reasonable conclusion might be drawn that the intended arrestee was in the place to be
searched. Steagald, 451 U.S. at 214 n.7 (“Specifically, absent exigent circumstances[,]
the magistrate, rather than the police officer, must make the decision that probable cause
exists to believe that the person or object to be seized is within a particular place” and
any deprivation of a third party’s interest in the privacy of his home must be based on “an
independent showing that a legitimate object of a search is located in the third party’s
home.”); State v. Tuttle, 515 S.W.3d 282, 300 (Tenn. 2017); State v. Smith, 868 S.W.2d
561, 572 (Tenn. 1993).

        Given that the Defendant’s consent was not voluntary and that the exigent
circumstances rule and the inevitable discovery doctrine do not apply, the Defendant’s
certified question is, in fact, dispositive. Moreover, in addressing the merits of the
certified question, I would have expressly concluded that the Defendant’s consent was
constitutionally invalid and that exigent circumstances did not exist. Kentucky v. King,
563 U.S. 452, 469 (2011) (when officers gain entry to premises by means of an actual or
threatened violation of the Fourth Amendment, the exigent circumstances rule does not
apply); State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005) (concluding that because “the
deputies created the exigent circumstances by approaching the defendants’ residence and

       1
            In Thomas, the Sixth Circuit recognized that “a consensual encounter at the doorstep may
evolve into a ‘constructive entry’ when the police, while not entering the house, deploy overbearing
tactics that essentially force the individual out of the home.” 430 F.3d at 277; see United States v.
Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984) (holding that a “constructive entry” occurred when a
suspect emerged from a house “in response to coercive police conduct”); United States v. Saari, 272 F.3d
804, 809 (6th Cir. 2001) (concluding that the Fourth Amendment was violated when officers “summoned
Defendant to exit his home and acted with such a show of authority that Defendant reasonably believed
he had no choice but to comply”).


                                                 -3-
alerting the defendants” as to their presence, “the warrantless entry in this case was not
supported by exigent circumstances and violated both the federal and state
constitutions”); State v. Rodney Ford, No. 01C01-9708-CR-00365, 1999 WL 5437, at *4
(Tenn. Crim. App. Jan. 7, 1999) (holding that State failed to carry its burden of
demonstrating why the officers did not obtain a search warrant prior to entering third-
party defendant’s home and noting that there was no evidence in the record to justify the
officers’ decision to ignore this constitutional requirement). Because I would have
reversed the decision of the trial court and dismissed the Defendant’s convictions, I
respectfully dissent.



                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




                                          -4-
