           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

                    STATE OF TENNESSEE v. RODNEY FORD

                Direct Appeal from the Criminal Court for Davidson County
                         No. 95-A-582; 583 Steve R. Dozier, Judge



                   No. M1999-01078-CCA-R3-CD - Decided April 27, 2000


Defendant was convicted by a jury of three counts of aggravated robbery. Subsequently, on direct
appeal this court held that the search of defendant's home was illegal. We held that all physical
evidence gained through the search of the residence as well as defendant's verbal statements when
confronted with this evidence should have been suppressed. Additionally, this court remanded the
case to the trial court for a determination as to the legality of defendant's subsequent written
confession at the police station. On remand, the trial court held the statement was admissible. After
thoroughly reviewing the record, we reverse the decision of the trial court and remand for a new
trial, with instructions that the written statement be suppressed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Remanded

RILEY, J., delivered the opinion of the court, in which GLENN, J. and ACREE, Special J. joined.

Thomas Jay Norman, Nashville, Tennessee, for the appellant, Rodney Ford.

Michael E. Moore, Solicitor General, Clinton J. Morgan, Assistant Attorney General, Victor S.
Johnson III., District Attorney General, and Kymberly Haas, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                            OPINION


                                         BACKGROUND

       On June 14, 1994, Detective Ricky Roll of the Nashville Metropolitan Police Department
obtained an arrest warrant for Grady Morris who was wanted for a series of aggravated robberies
committed at area pawn shops. Detectives followed Morris to a residence which they later learned
belonged to the defendant; knocked at the front door; and immediately heard “someone running.”
Several of the detectives went to the back of the house where they encountered the defendant. The
defendant was told to lie on the ground and was asked who was in the house. Defendant stated his
“baby brother” might be in the house. When asked if Morris was in the house, defendant responded
affirmatively. The detectives then entered the house and arrested Morris. Thereafter, detectives
searched the house for other persons and subsequently discovered stolen jewelry lying on a bed. The
detectives retrieved the defendant and brought him to the upstairs bedroom where the jewelry was
found. Defendant was advised of his rights. Defendant stated “I ain’t taking this by myself,” and
indicated the jewelry was stolen in the “pawn shop robberies.”

        While defendant was still upstairs, Detective Norris Tarkington again read him his rights and
asked if he was willing to talk without an attorney. When defendant agreed, the detective continued
to question him, and defendant eventually admitted his participation in one of the “pawn shop
robberies.” In addition, defendant directed detectives to further evidence linking him to the “pawn
shop robberies.” Defendant also stated that he knew where there were guns which had been taken
in the robberies. Two detectives escorted the defendant to the location where he claimed the guns
were hidden, but no guns were recovered.

       Before being transferred to the police station, the detectives returned the defendant to his
home where he briefly spoke with his mother. Once at the station, the defendant was read his rights
and executed a written waiver of those rights. While detectives interviewed Morris, the defendant
was left alone and Detective Haney asked him to write out his involvement in the robberies.
Defendant wrote a self-titled “confession” in which he implicated himself in the “pawn shop”
robberies. He gave a detailed account of his involvement and included specific diagrams of the
robberies.


                                   PROCEDURAL POSTURE

        Defendant was convicted by a jury of three counts of aggravated robbery. Subsequently on
direct appeal, this court held that the search of defendant's home was illegal. See State v. Rodney
Ford, C.C.A. No. 01C01-9708-CR-00365, 1999 WL 5437 (Tenn. Crim. App. Jan. 7, 1999).1 We
held that all physical evidence gained through the search of the residence, and all verbal statements
made by the defendant at the residence when confronted with this physical evidence, should have
been suppressed. Ford, 1999 WL 5437, at *4. Additionally, this court remanded the case to the trial
court for a determination as to the legality of defendant's subsequent written confession. Ford , 1999
WL 5437, at *5. In its opinion, this court instructed the trial court to consider the following four
factors in determining whether defendant’s written statement must be suppressed pursuant to the
exclusionary rule: “(1) whether the accused received Miranda warnings; (2) the period of time
between the search and the confession; (3) the presence of intervening circumstances; and finally,
of particular significance (4) the purpose and flagrancy of the official misconduct.” Ford, 1999 WL
5437, at *5 (quoting Brown v. Illinois, 422 U.S. 590, 603-604 (1975)). On remand, the trial court

held the statement was not affected by the prior illegality; was properly obtained; and was

               1
                 The undersigned judge dissented, believing the seizure to be proper under the
       exigent circumstances doctrine. The state did not seek permission to appeal.

                                                 -2-
admissible. This appeal followed.


                                    STANDARD OF REVIEW

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Carter, 988 S.W.2d 145, 149 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this court
is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.
1998). Determining whether the written confession was the “fruit” of the illegal search and
improperly-obtained statements at the residence requires us to apply the law to the facts as found by
the trial court. This is a question of law which this court reviews de novo. Id.; State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997). When we apply the law to the facts as found by the trial court, we
conclude the written confession was the “fruit” of the illegal search and improperly-obtained
statements.


                                   FOUR-PRONG ANALYSIS

         The test for determining the admissibility of a confession elicited from an illegal search or
seizure is the “fruit of the poisonous tree” analysis, as opposed to the voluntariness test. Brown v.
Illinois, 422 U.S. at 591-592; State v. Huddelston, 924 S.W.2d 666, 674 (Tenn. 1996). “Under the
‘fruit of the poisonous tree’ analysis, the focus is on whether the evidence was obtained by
exploitation of the Fourth Amendment illegality.” Huddleston, 924 S.W.2d at 674 (quoting, Wong
Sun v. United States, 371 U.S. 471, 488 (1963)). In making this determination the primary question
is “whether [the statement] was sufficiently an act of free will to purge the primary taint of the
unlawful invasion.” Brown, 422 U.S. at 598 (quoting, Wong Sun v. United States, 371 U.S. at
486)); see also, State v. Johnson, 980 S.W.2d 414, 424 (Tenn. Crim. App. 1998). The burden of
proving the admissibility of the challenged evidence by a preponderance of the evidence rests on the
prosecution. Huddleston, 924 S.W.2d at 675.

         On remand, this court instructed the trial court to use the analysis applied by both the United
States Supreme Court in Brown and the Tennessee Supreme Court in Huddleston. Thus, on remand
the trial court considered the following:

       (1) the presence or absence of Miranda warnings; (2) the temporal proximity of the
       search and the confession; (3) the presence of intervening circumstances; and finally,
       of particular significance, (4) the purpose and flagrancy of the official misconduct.
       Huddleston, 924 S.W.2d at 674-675.

Therefore, in our review of the trial court’s judgment, we will look to these factors.


                                                  -3-
                                       A. Miranda Warnings

        It is undisputed that defendant received Miranda warnings before his initial, verbal
statements; before he was questioned by Detective Tarkington; and before he signed a written waiver
of his rights and issued the written confession. Thus, this factor weighs in favor of the State.
However, Miranda warnings alone do not per se authorize the admission of the subsequent
confession. Brown, 422 U.S. at 603.

                                      B. Temporal Proximity

        Weighing in favor of suppression is the temporal proximity of the search and statements at
the residence with the defendant’s subsequent written confession. In Brown the Supreme Court
found that, because the defendant had made one statement he believed to be admissible, the second
statement was tainted as well. 422 U.S. at 605. The Court noted that defendant’s cooperation with
the officers was based on his “anticipation of leniency.” Id. at 605 n.12. The Court held that such
expectations “bolstered the pressures” for defendant to give the second statement, or “at least vitiated
any incentive on his part to avoid self-incrimination.” Id.

        The defendant’s written confession was given only four to five hours after the initial
“illegality.” Defendant was in custody for the entire period; continued to make broad incriminating
statements; and turned over additional evidence. Furthermore, the defendant’s police station
confession contained essentially the same information he had given in the verbal statements which
this court previously ordered suppressed. Thus, there is no indication that adequate time elapsed to
allow the defendant to formulate “free will” sufficient to remove the taint caused by the illegality.
This factor weighs heavily in favor of suppression.

                                  C. Intervening Circumstances

         The state argues that the defendant’s conversation with his mother and the time spent alone
at the police station are both intervening circumstances sufficient to allow the formation of “free
will.” The State argues that even though defendant was detained, consultation with his mother prior
to the statement weighs in its favor. See Huddleston, 924 S.W.2d 675. However, Detective Haney
testified that defendant’s conversation with his mother was “very brief.” The state has failed to
carry its burden of showing sufficient intervening circumstances to undermine the inference that the
written police station confession was tainted by the Fourth Amendment violation. This factor weighs
heavily in favor of suppression.

                                   D. Flagrancy of Misconduct

       In the original opinion filed by this court, the decision to suppress was not unanimous.
Relying on Welch v. Wisconsin, 466 U.S. 740 (1984), the dissent found that the search was proper
based upon exigent circumstances; the search and seizure of the physical evidence was justified



                                                  -4-
under the “protective sweep doctrine;” and the evidence was found in plain view and, thus, was
admissible. See Ford, 1999 WL 5437, at *6-7.2

         While the lack of unanimity as to the suppression of the search does not foreclose the issue
of whether or not there was flagrant misconduct, it does weigh in favor of finding no such flagrancy
existed. The police were unaware the defendant lived at the house in question and were seeking to
arrest a person thought to be a dangerous felon. Furthermore, the detectives attempted to extricate
the suspect without entering the house, but he refused to exit.

       Relying on these facts, we conclude there was no flagrant misconduct. Thus, this factor
weighs in favor of the State.


                                NATURE OF THE ILLEGALITY

        This case is factually unique in that the defendant’s statements were the fruit of an illegal
search versus an illegal arrest or illegal detention. Thus, even though we remanded to the trial court
to analyze this case under the four-prong Brown and Huddleston holdings, we recognize that this
approach has been criticized “when the ‘poisonous tree’ is an illegal search.” See generally, 5
Lafave, Search and Seizure § 11.4(c) (3d ed.1996).

        While we are wary of jumping into the quagmire of a complicated Fourth Amendment
analysis, and certainly stop short of adopting a new test, we do note the distinct legal difference
between a confession which results from an illegal arrest and one which results from an illegal
search. This distinction is especially relevant in cases where the illegal search produces evidence
which is presented to the defendant in an attempt to gain a confession. The defendant’s realization
that the “cat is out of the bag” clearly is significant in encouraging the defendant to speak. 5 Lafave,
§ 11.4(c) at 273.

       The giving of Miranda warnings does not break the casual chain when a defendant is
presented with illegally-obtained incriminating evidence which he believes to be admissible, and
confesses shortly thereafter. See 5 Lafave, § 11.4(c) at 273-274. The more contemporary doctrine
appears to establish that giving the defendant Miranda warnings will not break the causal chain
between an illegal search and a subsequent confession, since they do not advise the defendant
whether the evidence he is confronted with was unlawfully obtained. Id. at 274.

         Similarly, where the taint is a productive illegal search, Brown’s temporal proximity factor
adds little insight into the question of whether defendant’s confession is the “fruit” of the initial
illegality. See 5 Lafave, §11.4(c) at 273. Where incriminating evidence is seized, regardless of the
time frame between the illegal search and the subsequent confession, the potential remains for


               2
                As previously noted, the state did not seek permission to appeal to the Tennessee
        Supreme Court.

                                                  -5-
authorities to elicit a confession through exploitation of the illegality.


                                       DUAL ILLEGALITY

        We further note that the nature of the illegality in this case is extremely unique. This court
previously concluded the search was illegal and ordered suppression not only of the physical
evidence, but also the defendant’s statements at his residence. Thus, a dual illegality preceded the
written confession at the police station. The giving of Miranda warnings to remove the taint
becomes even more attenuated where, as in the present case, the defendant believes he has already
given the same information in an admissible confession. See United States v. Patino, 830 F.2d 1413,
1419 (7th Cir. 1987). Having been confronted with the illegal evidence and having given improperly-
obtained admissions, we are simply unable to conclude that the state has met its burden of
establishing that the subsequent written confession was purged of the primary taint of the unlawful
activities.


                                           CONCLUSION

        We conclude that the state failed to meet its burden of showing the written confession was
a sufficient act of free will to purge the primary taint of the illegality. The written confession was
a fruit of the illegal search and improperly-obtained statements made at defendant’s residence.
Therefore, the judgment of the trial court is REVERSED. This case is REMANDED for a new trial
with specific instructions to suppress defendant’s written confession.3




                3
                  The state indicated to the trial court that it would be unable to proceed without the
        written confession. Upon remand, this determination will have to be made by the state. It
        is not appropriate for this court to order a dismissal.

                                                  -6-
