             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE                   FILED
                                  JULY 1996 SESSION
                                                                   September 2, 1997

                                                                   Cecil Crowson, Jr.
                                                                    Appellate C ourt Clerk


STATE OF TENNESSEE,                       )       NO. 01C01-9511-CR-00377
                                          )
       Appellant                          )       DAVIDSON COUNTY
                                          )
V.                                        )       HON. SETH NORMAN, JUDGE
                                          )
JAMES A. HEARN,                           )       (Suppression)
                                          )
       Appellee                           )
                                          )


                                CONCURRING OPINION

       I concur fully with the result reached by the Court that the evidence in this case

must be suppressed. I disagree however with the holding that the State’s failure in the

trial court to argue the existence of exigent circumstances precludes consideration in

this court of that argument due to a waiver. I believe this Court should be free to

examine the validity of a search using any appropriate legal analysis where the record

in the case permits us to do so. The problem in this case is not that the State has

waived as such the argument that exigent circumstances warrant a departure from the

knock and announce rule; but rather the failure to litigate this issue below has left this

court with a record which is insufficient for us to conclude that an unannounced entry

was appropriate.



       The State cites the case of State v. Gabbard, 877 P.2d 1217 (Or. App. 1994);

for the proposition that a belief on the part of officers executing a search warrant that a

methamphetamine lab may be on the premises to be searched is, standing alone,

sufficient to create exigent circumstances thereby creating an exception to the knock

and announce rule. However, I do not read Gabbard as holding this at all.
       In Gabbard the offices received information the day of the search that the

defendant and another were in the process of cooking methamphetamine. In addition,

they recalled and verified that they had an outstanding arrest warrant for the individual

allegedly with defendant and had a description of that person’s car which was parked

at defendant’s residence. When the officers went to investigate, defendant came out

of a lighted shed and clothing had the smell of PCP, a precursor to

methamphetamine, and the officer observed that the defendant appeared under the

influence of methamphetamine. The court found that this information constituted

probable cause to look through the cracks in the shed walls where the officer

observed an operating methamphetamine lab. The court further observed that exigent

circumstances existed only if the officer had probable cause to believe the

methamphetamine lab was operating at the time as the exigent circumstances

exception was triggered only if there was an immediate danger of explosion and this

danger existed only if an operating lab were suddenly shut down at the wrong time.

The court found this probable cause by the officer’s observation of the defendant

when he came out of the shed. 877 P.2d at 1219, 1221, 1222.



       Thus, the level of knowledge of the police as to the potential danger to

themselves and others was far greater than a mere belief that a methamphetamine

lab might be on the premises.



       In contrast to Gabbard, the State’s failure in the instant case to raise below the

issue of the existence of exigent circumstances, while not strictly a waiver of that

issue, has resulted in a record reflecting only a belief on the part of officers that a

methamphetamine lab might be in the residence.1 In my opinion that belief standing

       1
        It is interesting that in the trial court police testified that in fact they had knocked and announced
       before entering the appellee’s residence. On appeal the State takes the rather inconsistent
       position that law enforcement fears of an explosion warranted an unannounced entry. If police
       testimony below is to be believed, officers did not believe an una nnounc ed entry was nece ssary
       for their protection.

                                                     2
alone is insufficient to create the exigent circumstances necessary to justify a

departure from the knock and announce rule.



       Even if police were certain that a methamphetamine laboratory was present in

Appellant’s residence, in my opinion that standing alone would not, as the State

suggests, justify a blanket exception to the knock and announce rule. Only recently

the United States Supreme Court has rejected the notion that the Fourth Amendment

permits blanket exceptions to the knock and announce rule. In Richards v. Wisconsin,

___U.S. ___, 117 S.Ct. 1416 (1997); the Court held that the reasonableness of each

“no knock” entry for the purpose of executing a search warrant must be judged under

the particular circumstances of each case. The Court noted that “[I]f a per se

exception were allowed for each category of criminal investigation that included a

considerable-albeit hypothetical-risk of danger to officers or destruction of evidence,

the knock-and-announce element of the Fourth Amendment’s reasonableness

requirement would be meaningless.” Id. at 1420-21.



       I therefore concur in the judgment of the Court.



                                          _____________________________
                                          JERRY L. SMITH, JUDGE




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