         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE              FILED
                      OCTOBER 1998 SESSION
                                                    January 7, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk

STATE OF TENNESSEE,        )
                           ) C.C.A. No. 01C01-9708-CR-00365
     Appellee,             )
                           ) Davidson County
V.                         )
                           ) Honorable Thomas H. Shriver, Judge
                           )
RODNEY FORD,               ) (Aggravated Robbery)
                           )
     Appellant.            )




FOR THE APPELLANT:         FOR THE APPELLEE:

Jay Norman                 John Knox Walkup
213 Third Ave. N.          Attorney General & Reporter
Nashville, TN 37201
                           Daryl J. Brand
                           Assistant Attorney General
                           425 Fifth Avenue North
                           Nashville, TN 37243-0493

                           Victor S. (Torry) Johnson III
                           District Attorney General

                           Kymberly Haas
                           Assistant District Attorney General
                           Washington Sq., Suite 500
                           222 Second Ave. N.
                           Nashville, TN 37201-1649


OPINION FILED: ___________________


REMANDED FOR EVIDENTIARY HEARING WITH INSTRUCTIONS


PAUL G. SUMMERS,
Judge




                           OPINION
         The defendant was convicted by a jury of three counts of aggravated

robbery. He was sentenced as a range I standard offender to three concurrent

terms of eight years. In this direct appeal, the defendant contends that the trial

court erred in denying his motion to suppress evidence. Upon our review of both

the suppression hearing and the trial, 1 we remand this matter for further

proceedings consistent with this opinion.

                                                 FACTS

         Although the defendant does not directly challenge the sufficiency of the

evidence, a brief recitation of the facts is necessary. On February 8, 1994, Kay

Krantz, the co-owner of Kwik Kash Pawn, was working in the shop. Grady Morris

and Timothy Guinn entered with handguns. Morris knocked Krantz to the floor

behind the counter and repeatedly threatened to kill her. He took cash out of the

cash drawer. Krantz did not see a third person but learned from a customer that

he had seen three men driving away. She testified that approximately $33,000

worth of jewelry, handguns, and money was stolen during the robbery. Morris

was the only person she saw actually take things.



         One day in early May 1994, Kim Hill was working with Melonie Rose and

Jack Garland in Capitol View Pawn. A car pulled alongside the building, a man

got out, and the car left. The man entered the store and asked to see some car

speakers. His beeper then went off; he left, and immediately thereafter Guinn,

Morris, and a man named Lawrence Seging came in, all armed with 9 mm.

pistols. Guinn put his gun to Hill's head and Morris put his gun to Garland's

head. Seging went to the jewelry showcase. Rose then came out of her office

and got between Hill and Guinn. Guinn refused to release Hill and demanded

money. Rose opened the register and gave him the money. The phone rang,

and Guinn turned the gun on Rose. After taking the money, Guinn ordered the

two women to get down on the floor, which they did. Guinn threatened to kill



         1
          Our Sup reme C ourt has re cently held that “in eva luating the correctn ess of a tri al court's
ruling on a pretrial motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

                                                    -2-
them both. Eventually the men left. Rose testified that approximately $40,000

worth of jewelry and three to five hundred dollars in cash were taken. Neither

Rose nor Hill could identify the defendant as having been in the store during the

robbery, but Hill testified that the man who had come in right before was the

same size, color, and build as the defendant and had the same hair.



       On June 14, 1994, Detective Ricky Roll of the Metro Police Department

obtained an arrest warrant for Grady Morris. Later that day, Morris was spotted

driving an automobile. Several officers followed him until he stopped at the

defendant's residence on Boatner Drive. Detective Harold Dean Heaney

testified that he “[h]ad no idea” whose residence this was at the time. Although

the record does not contain the arrest warrant, Detective Roll testified at the

suppression hearing that they had Morris' home address. Morris also lived on

Boatner Drive, “down the street” from the defendant.



       The officers watched Morris enter the defendant's residence. Detectives

Heaney and Roll went to the front door and announced themselves. No one

opened the door but they heard someone in the house running. The defendant

exited the back door, at which point he met several officers including Detective

Norris Tarkington with his gun drawn. An officer asked the defendant if Morris

was inside and he replied, “Yes.” The defendant further told them that his

younger brother might also be inside. Detectives Roll, Heaney, and Bill Stroud

entered the house through the back door and arrested Morris. Detective Stroud

then searched the house for other persons. During this search, Stroud located

some jewelry lying on a bed. The defendant was taken to the bedroom and,

upon being shown the jewelry, stated that it was his bedroom. Heaney advised

the defendant of his rights, and the defendant made incriminating statements.

The defendant was then placed under arrest.




                                        -3-
       The defendant told the officers that “he was selling the jewelry for Grady

Morris” and told them there was more jewelry in the room. Detective Stroud then

searched the room and found more jewelry as well as numerous pawn tickets in

the defendant's and Morris' names. He also found some business cards and

other literature connected to various pawn shops. Stroud found no cash in the

defendant's house.



       The defendant also told the officers that he knew about the guns and

knew where Morris and Guinn had put them. The defendant subsequently

accompanied the officers to this location but no guns were found. The police

then returned to the defendant's house (with the defendant), and he then

accompanied them to Morris' house. The officers obtained consent to search

Morris' house and found more jewelry and a large amount of cash. After this

search, the officers took the defendant to the Criminal Justice Center.



       After arriving there, Heaney readvised the defendant of his rights, and the

defendant indicated that he was still willing to talk. Heaney testified that he

“asked [the defendant] if he wouldn't mind just to write down the places that he

had robbed and, also, to diagram [them] out for me.” Thirty to forty-five minutes

later, Heaney returned and collected a handwritten document labelled (by the

defendant) “Confession” and two hand-drawn maps. Heaney testified that the

diagrams were consistent with the lay-outs of the two pawn shops. The

defendant's “Confession” set forth the following:

              Quick Cash Pawn. Grady Morris and Timothy Guinn
              went into Quick Cash Pawn while I waited outside in
              the car. After about 5 min[utes] passed I thought
              something had went wrong and I entered. Grady &
              Timothy were the only ones I observed, but I heard a
              woman on the floor (I never saw). I told them to hurry
              up and I took 3 of the cases of jewelry and came out.
              About 20 seconds after me the two followed and we
              drove off.

              Capitol View Pawn. I was supposed to go in and just
              look around; after about 2 min[utes] Tim and Grady
              came in with the guns along with Larry Segance [sic]
              (unarmed) and drew down on the workers. Larry


                                         -4-
               began to take the jewelry and then I began to help
               him. Next, we left. (I did not know this pawn shop
               was to be robbed on that day.)

This document concludes with the defendant's signature and the date, “6/14.”



         The officers did not have a search warrant for the defendant's residence.

At the suppression hearing, the defendant testified that the officers had not

asked his consent to enter the house. This testimony was uncontroverted.

                                      ANALYSIS

         In its order denying the defendant's motion to suppress, the trial court

addressed only the propriety of the “protective sweep” conducted by Detective

Stroud in searching the house for other persons. The trial court did not address

the warrantless entry into the defendant's residence although this issue was

raised and briefed by the defendant. Accordingly, our review of this issue is de

novo. See, e.g., State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App.

1996).



         The Fourth Amendment to the United States Constitution provides that

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated.” See

also Tenn. Const. art. I, § 7. Accordingly, warrantless searches and seizures

within a home are presumptively unreasonable. See Payton v. New York, 445

U.S. 573, 586 (1980); State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996).

Absent consent or exigent circumstances, police officers may not seek the

subject of an arrest warrant in the home of a third person without first obtaining a

search warrant. See Steagald v. United States, 451 U.S. 204, 216 (1981); State

v. Patterson, 966 S.W.2d 435, 441-42 (Tenn. Crim. App. 1997). Exigent

circumstances may be found in three situations: “(1) when the officers [are] in

hot pursuit of a fleeing suspect; (2) when the suspect represent[s] an immediate

threat to the arresting officers or the public; and (3) when immediate police

action [is] necessary to prevent the destruction of vital evidence or thwart the



                                          -5-
escape of known criminals.” Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir.

1989). But, “[t]he mere existence of these circumstances does not necessarily

validate a warrantless search. . . . There must be a showing by those asserting

the exception [to the requirement of a warrant] that the exigencies of the

situation made the search imperative. The burden is on those seeking the

exception to show the need.” Bartram, 925 S.W.2d at 230. This burden is a

“heavy” one. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); State v. Clark,

844 S.W.2d 597, 599 (Tenn. 1992).



        The state makes no contention that the officers obtained the defendant's

consent prior to entering his house. Rather, it merely references in a footnote to

its brief that “Detective Roll's testimony was not clear as to whether or not Ford

gave permission for detectives to enter [his] home.” The record of the motion to

suppress reveals the following exchange between the trial court and Detective

Roll:

              The Court: And did he -- do you know if [the
              defendant] gave any permission to go in and
              get Morris?

              Detective Roll: (No audible response).

              The Court: Or, did anybody ask him for
              permission?

              Detective Roll: Well, there again, that
              conversation had taken place with Sergeant
              Stromat before I guess --

              The Court: Heaney was in the back, too?

              Detective Roll: Heaney was around there
              and so was -- uh -- Detective Tarkington.

              ....

              Detective Roll: But, Detective Stroud and I
              didn't come to around back until . . . a short
              period of time . . . there was some
              interaction between Mr. Ford and the other
              group back there.

              The Court: Okay. So . . . Stromat says
              Ford says Morris is in the house?

              Detective Roll: Right.


                                    -6-
                 The Court: And, you and Stroud go in
                 to get him.

                 Detective Roll: Yes, sir.

We do not agree that this testimony is unclear; it is simply unhelpful. Moreover,

“[c]onsent to enter and search a home will not be lightly inferred, nor found by

mere acquiescence to unlawful authority.” Clark, 844 S.W.2d at 599. None of

the involved detectives ever testified that they had gotten the defendant's

consent to enter his residence. Indeed, the only evidence in the record on this

issue is to the contrary.



        Since there is no proof that the defendant consented to the entry and

search of his home, the state argues that the officers' actions were acceptable

because “exigent circumstances were present” in that the officers were “in hot

pursuit of a dangerous individual.” We disagree. Although law enforcement

officers may enter homes without search warrants when they are in “hot pursuit”

of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43 (1976),

there is no proof in the record before us that Morris was “fleeing” anyone or

anything. Not only was there no proof that Morris had just committed a crime,2

Detective Roll testified that Morris had had a court date on June 14 and that they

began surveillance when he was spotted “leaving the courtroom.” Cf. Welsh,

466 U.S. at 740 (holding that “the claim of hot pursuit is unconvincing [where]

there was not immediate or continuous pursuit of the petitioner from the scene of

a crime.”). Nor was there any proof that Morris knew he was being followed

when he entered the defendant's house or that he did so in an attempt to evade

the officers following him. It is the state's burden to demonstrate why the officers

did not obtain a search warrant prior to entering the defendant's home, and they

can point to no evidence in the record which justifies their decision to ignore this

constitutional requirement.3 The warrantless entry into the defendant's residence

         2
           Detective Tarkington testified that the information they had on Morris was that he had been
“involved in an armed robbe ry earlier, several days, or maybe even weeks earlier” (emphasis added).

        3
          The state does not argue, and the record does not support, the existence of either of the
other two types of exigent circumstances--that the suspect posed an immediate threat, or that he was
going to escape o r destroy eviden ce. See Jones, 874 F.2d at 1130.

                                                 -7-
and the subsequent search were, therefore, in violation of his constitutional

rights.



          Where evidence has been obtained directly or derivatively from an illegal

search, the exclusionary rule may operate to bar its admissibility. See Wong

Sun v. United States, 371 U.S. 471, 484-85 (1963); Clark, 844 S.W.2d at 600.

“However, it has long been recognized that evidence obtained by means

genuinely independent of the constitutional violation is not subject to the

exclusionary rule.” Clark, 844 S.W.2d at 600.



          In this case, the evidence that the defendant wants suppressed includes

the jewelry and related items found in his home and his subsequent oral

statements and written confession. We agree that the property found by the

police in the defendant's home incident to their arrest of Morris, together with the

statements made by the defendant when confronted with these items, should

have been suppressed. This evidence was obtained as a direct result of the

officers' illegal entry into the defendant's home and their subsequent search

thereof.4



          This is not all of the evidence against the defendant, however. After

arresting him in his home, the police eventually took the defendant down to the

Criminal Justice Center. He subsequently signed a waiver of rights and provided

a written statement in which he admitted to participating in the robberies of Kwik

Kash Pawn and Capitol View Pawn. He also provided diagrams of these two

establishments. 5 What remains to be determined, then, is whether this evidence

is “fruit of the poisonous tree” and must therefore also be suppressed. See

Brown v. Illinois, 422 U.S. 590, 602-03 (1975); Wong Sun, 371 U.S. at 484-86;


          4
            This evidence would include all of the jewelry collected in the defendant's house, the pawn
tickets, the photographs made of these items by the police, the property inventory made by the police,
and the business cards and other literature connected to various pawn shops.

          5
         The defendant also made a video-taped statement. Due to a taping error, however, the
videotape is unin telligible and was not pla yed for the jury.

                                                  -8-
see also State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996). In other

words, we must determine whether the defendant's self-labeled “confession” was

obtained by exploitation of the illegal entry and search, or whether it resulted

from “an intervening independent act of a free will” sufficient to “purge the

primary taint of the unlawful invasion.” Wong Sun, 371 U.S. at 486.

                 The question whether a confession is the product of a
                 free will under Wong Sun must be answered on the
                 facts of each case. No single fact is dispositive. The
                 workings of the human mind are too complex, and the
                 possibilities of misconduct too diverse, to permit
                 protection of the Fourth Amendment to turn on . . . [the]
                 talismanic test [of whether the defendant received
                 Miranda warnings prior to making his confession.]

Brown, 422 U.S. at 603. Thus, in determining whether the taint has been

purged, four factors must be considered: (1) whether the accused received

Miranda warnings; (2) the period of time between the arrest and the confession;

(3) the presence of intervening circumstances; 6 and finally, of particular

significance, (4) the purpose and flagrancy of the official misconduct. See

Brown, 422 U.S. at 603-04. The prosecution has the burden of proving, by a

preponderance of the evidence, the admissibility of the challenged evidence.

See Huddleston, 924 S.W.2d at 675.



        Unfortunately, the record before us is simply insufficient with respect to

the circumstances surrounding the defendant's written confession for this Court

to apply these four factors and determine whether it too should have been

suppressed. Accordingly, we must remand this matter to the trial court to

conduct a further evidentiary hearing for the purpose of determining whether the

defendant's confession should have been suppressed pursuant to the

exclusionary rule. If the trial court finds that the confession must be suppressed,

it may grant a new trial and suppress all of the evidence obtained from the




        6
           One such intervening circumstance following an illegal arrest is the release of the defendant
on bail and his subs equent voluntar y return to the police station to make a statem ent. See Wong Sun,
371 U.S. at 491. An other circum stance may be the defendant's “co nsultation with an attorn ey,
relative, friend, or priest prior to the time a statement is given.” Huddleston, 924 S.W.2d at 675.

                                                  -9-
defendant's house as well as all of his oral statements, 7 his written confession,

and the two diagrams that he drew in conjunction with the confession. See State

v. Crabtree, 655 S.W.2d 173, 179 (Tenn. Crim. App. 1983) (where trial court

erroneously excluded evidence at the hearing on the motion to suppress, matter

remanded for another hearing with instructions to grant a new trial if motion

should then be granted). We hold, however, that if the confession is found

admissible, then it, together with the testimony of Krantz, Hill, and Rose, is

sufficient to uphold all three convictions of aggravated robbery.8



        The judgment below is vacated and this matter is remanded for further

proceedings in accordance with this opinion.9




                                                       __________________________
                                                       PAUL G. SUMMERS, Judge



CONCUR:




_____________________________
JOSEPH M. TIPTON, Judge




_____________________________
JOE G. RILEY, Judge


        7
         This would include any testimony about the video-taped statement he gave at the Criminal
Justice Center.

          8
            Aggravated robbery is “the intentional or knowing theft of property from the person of another
by violence or putting the person in fear” when it is “[a]ccomplished with a deadly weapon or by
display of any article us ed or fashioned to lead the victim to re asonably believ e it to be a deadly
weapon.” T.C .A. § 39-13-402(a )(1); see also T.C.A. § 39-11 -402 (“A perso n is criminally res ponsible
for an offense committed by the conduct of another if: . . . (2) Acting with intent to promote or assist
the commission of the offense, or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids, or a ttempts to aid anothe r person to com mit the offense .”).

        9
        In light of our disposition of this matter, we need not address the “protective sweep”
conducted in the defendant's home.

                                                  -10-
