        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 9, 2015

            STATE OF TENNESSEE v. CHRISTOPHER WILSON

                 Appeal from the Criminal Court for Shelby County
                      No. 1400109    W. Mark Ward, Judge


                No. W2015-00699-CCA-R9-CD - Filed April 21, 2016
                        _____________________________

THOMAS T. WOODALL, P.J., concurring.

       I concur in the majority opinion. Since the State requested that this court defer its
ruling until our state supreme court issues a ruling in a separate case where the State has
urged adoption of a “good faith exception” to Art. I, section 7 of the Constitution of
Tennessee, I feel compelled to respectfully express my opinion on this issue.

       I respectfully believe that the United States Supreme Court participated in a most
egregious example of judicial activism when it filed its opinion in United States v. Leon,
468 U.S. 897, 82 L.Ed.2d 677 (1984). I agree that it is well settled that the exclusionary
rule as it applies to the Fourth Amendment of the United States Constitution is not a
personal constitutional right to the man or woman whose Fourth Amendment rights are
violated by the government. Leon, 468 U.S. at 906. It is, instead, a judicially created
remedy to protect the Fourth Amendment rights of individuals. Id. However, it is
obvious that a constitutional right without an effective remedy for violation of that right
is nothing more than an unenforceable objective on a piece of paper.

        My opinion of the ruling in Leon was initially developed when I read the very first
sentence of the opinion of the Court, which stated the precise issue presented, while
knowing that the ruling did in fact modify the exclusionary rule to take away any remedy
for the clear violation of Mr. Leon’s Fourth Amendment rights. The sentence states,

             This case presents the question whether the Fourth Amendment
        exclusionary rule should be modified so as not to bar the use in the
        prosecution’s case in chief of evidence obtained by the officers acting in
        reasonable reliance on a search warrant issued by a detached and neutral
        magistrate but ultimately found to be unsupported by probable cause.

Id. at 900. (emphasis added)
       The Supreme Court went to great lengths to dismiss arguments that the
exclusionary rule could ever, even possibly, encourage judges or judicial magistrates to
more carefully look for the existence of probable cause in affidavits submitted by law
enforcement agents. See id. at 916-17. This is a conclusion with which I am totally
unable to agree.

        In essence the Supreme Court in Leon approved the use of a search warrant that
was invalid because no probable cause existed to justify the search. Under Leon a court
may ignore the Fourth Amendment if the government agents (who sought the search
warrant and provided all the information) failed to establish probable cause to search, but
relied in “good faith” that a judicial magistrate (who in rural areas of Tennessee may not
be an attorney or even a graduate of law school) concludes that probable cause exists for
the government to search a person’s home, vehicle, or person.

       As noted in the learned trial judge’s ruling, quoted in the majority opinion, the
Supreme Court has extended the “good faith” exception to police conduct as a result of
relying on a “presumptively valid” statute later declared unconstitutional, Illinois v. Krull,
480 U.S. 340, 107 S.Ct. 1160 (1987), and to a search conducted in a “reasonable” and
“objective” reliance on binding appellate precedent. To me, a constitutionally invalid
search warrant and an unconstitutional statute are void ab initio, and cannot logically
justify an illegal search or seizure by a government agent at any time. Reliance on
“binding appellate precedent,” later overruled, is not what is addressed in the case sub
judice, and would be better determined by an appellate court’s determination of
retroactive applicability of a decision overruling prior appellate precedence.

       Article I, section 7 of the Constitution of Tennessee provides:

        That the people shall be secure in their persons, houses, papers and
        possessions, from unreasonable searches and seizures; and that general
        warrants, whereby an officer may be commanded to search suspected
        places, without evidence of the fact committed, or to seize any person or
        persons not named, whose offences are not particularly described and
        supported by evidence, are dangerous to liberty and ought not to be
        granted. (emphasis added)

       It is very significant to me that the framers of our state’s constitution clearly stated
that any searches or seizures of persons which are contrary to the protections afforded by
the Constitution of Tennessee “are dangerous to liberty.”


                                              2
      I close my concurring opinion with a long quote from a 1979 opinion of our
supreme court authored by Chief Justice Henry:

              We are bound by the interpretation given to the United States
        Constitution by the Supreme Court of the United States. This is
        fundamental to our system of federalism. The full, final, and
        authoritative responsibility for the interpretation of the federal
        constitution rests upon the Supreme Court of the United States. This is
        what the Supremacy Clause means. However, as to Tennessee’s
        Constitution, we sit as a court of last resort, subject solely to the
        qualification that we may not impinge upon the minimum level of
        protection established by the Supreme Court interpretations of the
        federal constitutional guarantees. But state supreme courts, interpreting
        state constitutional provisions, may impose higher standards and
        stronger protections than those set by the federal constitution. It is
        settled law that the Supreme Court of a state has full and final power to
        determine the constitutionality of a state statute, procedure, or course of
        conduct with regard to the state constitution, and this is true even where
        the state and federal constitutions contain similar or identical provisions.
        Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975);
        Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 85 S.Ct. 493,
        13 L.Ed.2d 439 (1965). Thus, although state courts cannot interpret their
        state constitution so as to restrict the protections afforded by the federal
        constitution, as interpreted by the United States Supreme Court, they
        may expand protections on the basis of a textually identical state
        constitutional provision.

             If this were not true the frictions of federalism would be fierce
        and frustrating and state supreme courts would be reduced to mere
        conduits through which federal edicts would flow.

Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979) (bold emphasis added)

      It is my sincere hope that our supreme court is never “reduced to [a] mere
conduit[] through which [the] federal edicts” of the “good faith exception” would ever
flow.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE


                                             3
