        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               November 27, 2012 Session

  STATE OF TENNESSEE v. GREGORY TODD WHITAKER and DAVID
                        PAUL COFFEY

                 Appeal from the Criminal Court for Greene County
                Nos. 11CR184, 11CR185     John F. Dugger, Jr., Judge


                  No. E2012-00253-CCA-R3-CD - Filed June 28, 2013


The Defendants, Gregory Todd Whitaker and David Paul Coffey, were both indicted for
manufacturing twenty or more, but less than 100, marijuana plants, a Class C felony; and
possession of drug paraphernalia, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-17-
417(g)(3), -425(a)(1). The Defendants both filed motions to suppress the evidence recovered
during a search of Defendant Whitaker’s trailer home. The trial court granted the
Defendants’ motions and dismissed the indictments. In this appeal as of right, the State
contends that the trial court erred by granting the Defendants’ suppression motions.
Following our review, we reverse the judgments of the trial court and remand the cases for
further proceedings consistent with this opinion.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; Richie Dale Collins and Cecil
Clayton Mills, Jr., Assistant District Attorneys General, for the appellant, State of Tennessee.

William Louis Ricker, Greenville, Tennessee, for the appellee, Gregory Todd Whitaker.

J. Bradley Mercer, Greenville, Tennessee, for the appellee, David Paul Coffey.

                                          OPINION

                                FACTUAL BACKGROUND
        Agent Tim Davis of the Third Judicial District Drug Task Force (DTF) testified that
during the afternoon of May 2, 2011, he received a phone call from a person who wanted to
remain anonymous. The caller informed Agent Davis “that there was an indoor marijuana
grow operation going on” at Defendant Whitaker’s trailer home. The caller also informed
Agent Davis “that they were supposed to be harvesting that evening.” Agent Davis testified
that he drove by the address and verified that there “was a single-wide mobile home” at the
end of a “long driveway” just as the caller had described.

       Agent Davis then called the local utility company “to see about . . . the power
consumption for that residence.” Agent Davis testified that he did this because “indoor
marijuana grow operations draw a lot of electricity.” According to Agent Davis, Defendant
Whitaker’s previous electric bill “was well over $300 for a single-wide mobile home.”
Agent Davis testified that he felt this was “an excessive amount” because he lived “in a
double-wide mobile home in [] basically the same general geographic area” and his electric
bill was only “seventy-some dollars” for the same time period. Agent Davis testified that at
that point in time, he did not believe that he had probable cause to justify a search warrant.

       Agent Davis and the other DTF agents decided to conduct a “knock and talk” on
Defendant Whitaker’s residence. At approximately 10:00 p.m. five “marked” police cruisers,
two from the Greene County Sheriff’s Department and three from the DTF, drove to
Defendant Whitaker’s residence. Agent Davis testified that Defendant Whitaker’s trailer
home was “a couple hundred yards away” from the road. A gravel driveway ran from the
road to the home. The driveway ended approximately thirty feet from the trailer home, and
this was where the agents parked their cruisers. There was no walkway to the home, and the
grass between the driveway and the home was three feet high. However, there were cars
parked “all the way up to the [] porch.”

        Agent Davis testified that when he stepped out of his cruiser, he could smell “a
distinct odor” of “green” or “fresh” marijuana. Agent Davis and two other agents walked
to a porch near where the cars were parked and which “appear[ed] to be [the] main entrance.”
Two other agents walked around to the home’s other entrance, which appeared to be “non-
accessible.” Agent Davis recalled that there were lights on in the house as he approached the
door. Agent Davis knocked on a “sliding glass door,” and Defendant Whitaker pulled back
the curtains. Agent Davis “identified [himself], showed [Defendant Whitaker his] badge, .
. . explained to him that [he] needed to speak to him and asked him if he would open the
door.”

      Defendant Whitaker then “cracked” the door about “eighteen inches,” and Agent
Davis was overwhelmed by the “aroma of marijuana com[ing] out of the house.” Agent
Davis explained to Defendant Whitaker that he had received a tip that there were “some

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narcotics in the residence” and asked Defendant Whitaker for his consent to search the home.
Defendant Whitaker told Agent Davis that he would be glad to let Agent Davis search the
house when he “showed up with a search warrant.” At that point, Agent Davis reached into
the residence, grabbed Defendant Whitaker by “his wrists,” pulled him out of the residence,
patted him down, and handcuffed him.

       Agent Davis asked Defendant Whitaker if there was anyone else in the house, and
Defendant Whitaker stated “that his buddy was in the house.” Defendant Whitaker’s mother
was also standing in the doorway as this occurred. Agent Davis instructed two of the other
agents to “detain the house . . . which meant that they were going to have to secure the
residence.” Agent Davis explained that he wanted the agents to “[s]weep the house for
individuals, make sure there [was] no one in there that could destroy evidence, and . . . bring
them out to where the house [was] secure and nothing [could] be destroyed or lost.” Agent
Davis further explained that he expected the agents to search every room and closet in the
home to “make sure there[ was] no one else in there that could destroy evidence or come out
and injure someone.” Agent Davis admitted that when he ordered the agents to enter the
home, “[t]here was no immediate threat to anyone at that time,” and there was nothing to
suggest that the evidence was in danger of being destroyed by the occupants of the house.

         DTF Agent Thomas McCallie testified that he and DTF Agent Adam Arrington went
into Defendant Whitaker’s house to search for Defendant Whitaker’s “buddy.” Once inside
the home, Agents McCallie and Arrington “came to a room that was partitioned off with
plastic.” They pulled the plastic back and saw Defendant Coffey “sitting in the middle of .
. . the grow room” filled with marijuana plants. Defendant Coffey ignored the agents and
their requests that he leave the room until Agent McCallie “drew [his] weapon and again
ordered . . . [him] to come out.” The agents seized Defendant Coffey and continued to search
the house. Agent McCallie testified that he and Agent Arrington “didn’t open anything” and
that they left the house once they completed their “sweep.”

        Agent Davis testified that he left immediately to get a warrant after ordering the
agents to search the house. Agent Davis further testified that he “used only the information
[he] had at [that] time” in his warrant affidavit and that he “had no knowledge of what was
in the house.” Agent Davis’s affidavit mentions the anonymous tip, the electrical usage at
Defendant Whitaker’s home, and that he smelled “fresh” marijuana upon exiting his cruiser
and that the odor was “overwhelming” when Defendant Whitaker opened the sliding glass
door. The affidavit makes no mention of Agents McCallie and Arrington entering the house
or what they found in the house. Agent Davis returned several hours later with a search
warrant. The agents recovered “approximately 100 marijuana plants” from Defendant
Whitaker’s home, as well as the equipment necessary to run “a very extensive hydroponic
grow operation.”

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       Based upon the foregoing evidence, the trial court granted the Defendants’ motions
to suppress the evidence recovered from Defendant Whitaker’s trailer. The trial court
concluded that the agents exceeded the scope of the knock and talk by going “to areas of the
curtilage that they weren’t supposed to.” The trial court further concluded that exigent
circumstances did not exist to justify Agents McCallie and Arrington entering the house to
search for Defendant Coffey and that the agents “jumped the gun a little bit on this case.”
The trial court also concluded that the independent source doctrine did not prevent the
exclusion of the evidence because there was no evidence that “anything [] was newly found,
that wasn’t already found.”

                                               ANALYSIS

         On appeal, the State contends that the trial court erred by granting the Defendants’
suppression motions and dismissing the indictments. The State argues that the agents
conducted a valid knock and talk and that the agents needed to secure the scene in order to
protect themselves and ensure that the evidence would not be destroyed. The State further
argues that even if the agents were not justified in their actions, the independent source
doctrine applies because “the only information in the affidavit was obtained prior to the
initial entry” of Defendant Whitaker’s home. The Defendants respond that the agents actions
violated the scope of a permissible knock and talk and that there were no exigent
circumstances to justify the agents’ entry into Defendant Whitaker’s home. The Defendants
further respond that the independent source doctrine does not apply to this case because the
evidence was not “subsequently discovered.” 1

                                         I. Standard of Review

        On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,
307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Questions about “the assessment of witness credibility, the weight and value of
evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the
trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court
“makes findings of fact in the course of ruling upon a motion to suppress, those findings are


1
 Defendant Coffey also raises arguments regarding the search of his car during the search of Defendant
Whitaker’s home. This issue was ancillary to the main issue addressed at the suppression hearing and only
briefly touched upon by the trial court following its ruling on the primary issue. As such, we believe that
it would be better for the trial court to examine Defendant Coffey’s arguments on remand, rather than for this
court to address them here.

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binding on appeal unless the evidence in the record preponderates against them.” Id. A trial
court’s conclusions of law along with its application of the law to the facts are reviewed de
novo without any presumption of correctness. Meeks, 262 S.W.3d at 722.

       Both the federal and state constitutions offer protection from unreasonable searches
and seizures with the general rule being “that a warrantless search or seizure is presumed
unreasonable and any evidence discovered subject to suppression.” Talley, 307 S.W.3d at
729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). As has often been repeated, “the
most basic constitutional rule in this area is that ‘searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment–subject to only a few specifically established and well delineated
exceptions.’” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v.
United States, 389 U.S. 347, 357 (1967)); see also State v. Berrios, 235 S.W.3d 99, 104
(Tenn. 2007). These constitutional protections “are designed to safeguard the privacy and
security of individuals against arbitrary invasions of government officials.” Id. (quoting
State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998)) (internal quotation marks omitted).

                                     II. Knock and Talk

       This court has previously recognized the validity of the knock and talk procedure.
State v. Cothran, 115 S.W.3d 513, 522 (Tenn. Crim. App. 2003). The procedure is
considered to be a consensual encounter with the police and a means for police officers “to
request consent to search a residence.” Id. at 521. In explaining the knock and talk
procedure and the reasoning for it, this court has quoted with approval the following:

       Absent express orders from the person in possession against any possible
       trespass, there is no rule of private or public conduct which makes it illegal per
       se, or a condemned invasion of the person’s right of privacy, for anyone openly
       and peaceably, at high noon, to walk up the steps and knock on the front door
       of any man’s “castle” with the honest intent of asking questions of the
       occupant thereof-whether the questioner be a pollster, a salesman, or an officer
       of the law.

Id. (quoting United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000)).

       Put another way, any “sidewalk, pathway or similar passageway leading from a public
sidewalk or roadway to the front door of a dwelling represents an implied invitation to the
general public to use the walkway for the purpose of pursuing legitimate social or business
interest with those who reside within the residence.” State v. Harris, 919 S.W.2d 619, 623
(Tenn. Crim. App. 1995). Accordingly, it “cannot be said a person has an expectation of

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privacy in the area in the front of his residence which leads from the public way to the front
door.” Id. (quoting State v. Baker, 625 S.W.2d 724, 727 (Tenn. Crim. App. 1981)).
Whatever an officer sees in this area “is not protected by either the Fourth Amendment or the
state constitution.” Id. at 624. However, “[a]ny substantial and unreasonable departure from
an area where the public is impliedly invited exceeds the scope of the implied invitation and
intrudes upon a constitutionally protected expectation of privacy.” Id. (quoting State v.
Seagull, 632 P.2d 44, 47 (Wash. 1981)) (internal quotation marks and brackets omitted).

        The trial court concluded that the agents exceeded the scope of the knock and talk by
going “to areas of the curtilage that they weren’t supposed to,” chiefly, that two agents went
to the home’s other entrance that appeared to be “non-accessible.” However, Defendant
Whitaker had no reasonable expectation of privacy in this area, and it was not a part of the
curtilage of the home. See Talley, 307 S.W.3d at 729 (citing Oliver v. United States, 466
U.S. 170, 180 (1984)) (defining “curtilage” as “any area adjacent to a residence in which an
individual can reasonably expect privacy”). The area where the second door was located was
facing the road and readily viewable from the driveway. Cf. State v. Rebecca Draper and
J.C. Draper, No. E2011-01047-CCA-R3-CD, 2012 WL 1895869, at *4-5 (Tenn. Crim. App.
May 24, 2012) (concluding that area behind a trailer home that was not viewable from the
street or driveway and was obscured by trees and heavy brush was a part of the curtilage of
the home). Therefore, the agents did not exceed the scope of the knock and talk by going to
that area of the home.

        Nor did the agents intrude on the curtilage of the home by going to the porch on the
“back” side of the trailer home. Agent Davis testified that the driveway led to that area of
the home, that there were cars parked in front of the porch, and that the porch appeared to
be the “main” and only functional entrance to the home. The agents followed the driveway
to the area that served as the main entrance to Defendant Whitaker’s home. The fact that the
entrance did not face the road or that there was not a cobblestone pathway or a set of ornate
stepping stones leading from the end of the driveway to the porch does not mean that the
agents had encroached upon the curtilage of the home. Instead, the operative question is
whether there was an implied invitation for any citizen to approach the porch. Given that the
driveway led to that area of the home, that there were cars parked in front of the porch, and
that the porch appeared to be the only functional entrance to the home, we conclude that such
an invitation existed and permitted the agents to walk up to the porch and knock on the
sliding glass door.

       On appeal, the Defendants argue that because the agents approached Defendant
Whitaker’s home at night, their actions constituted a seizure and not a permissible knock and
talk. To determine whether the agents’ actions constituted a seizure of the Defendants we
inquire as to “whether a reasonable person would feel free to decline the [agents’] requests

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or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991). The
fact that the encounter occurred at night does not per se invalidate a knock and talk, but it is
instead a factor to be considered in conjunction with the other circumstances surrounding the
encounter. See Scott v. State, 782 A.2d 862, 869 (Md. 2001) (stating that no court has found
a seizure “based solely” on the fact that a knock and talk occurred at night). Here, the agents
arrived at Defendant Whitaker’s residence at approximately 10:00 p.m.

        While the encounter occurred at night, it was not particularly late at night and the
lights in the home were on, evidencing that the agents did not rouse Defendant Whitaker
from his sleep. Agent Davis testified that they attempted the knock and talk at that time
because he had received a tip late in the afternoon that marijuana would be harvested at the
home that night. There was also no evidence that the agents’ weapons were visible or that
the Defendants were aware that two agents had approached the home’s second entrance.
When Defendant Whitaker answered the door he was faced with two agents in plain clothes
and one Sheriff’s deputy in uniform. When asked for his consent to allow the agents to
search the trailer home, Defendant Whitaker told Agent Davis he could search his home after
he got a warrant. Based upon the foregoing, we conclude that the agents’ actions constituted
a permissible knock and talk and did not amount to a unlawful seizure of the Defendants.

                                 III. Exigent Circumstances

       “Even though a felony has been committed and officers have probable cause to
believe that they will locate incriminating evidence inside a residence, a warrantless entry to
search for contraband or weapons is unconstitutional absent exigent circumstances.” State
v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005) (citing Payton v. New York, 445 U.S. 573, 587-
88 (1980)). Exigent circumstances “are those in which the urgent need for immediate action
becomes too compelling to impose upon governmental actors the attendant delay that
accompanies obtaining a warrant.” Meeks, 262 S.W.3d at 723.

        Put another way, exigent circumstances arise when “the needs of law enforcement are
so compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.” Meeks, 262 S.W.3d at 723 (quoting Brigham City, Utah v. Stuart, 547 U.S.
398, 403 (2006)) (internal quotation marks and brackets omitted). Exigent circumstances
exist only when “the State has shown that the search was imperative.” Id. Exigent
circumstances frequently arise in the following situations: “(1) hot-pursuit, (2) to thwart
escape, (3) to prevent the imminent destruction of evidence, (4) in response to an immediate
risk of serious harm to the police officers or others, and (5) to render emergency aid to an
injured person or to protect a person from imminent injury.” Id.




                                              -7-
        In determining the constitutionality of a warrantless search, “the inquiry is whether
the circumstances give rise to an objectively reasonable belief that there was a compelling
need to act and insufficient time to obtain a warrant.” Meeks, 262 S.W.3d at 723. “The
exigency of the circumstances is evaluated based upon the totality of the circumstances
known to the governmental actor at the time of the entry.” Id. (emphasis added). The State
“must rely upon specific and articulable facts and the reasonable inferences drawn from
them” rather than on mere speculation. Id. at 723-24.

        Police-created exigent circumstances cannot be used to justify a warrantless entry into
a constitutionally protected area. Carter, 160 S.W.3d at 532. Additionally, the “manner and
the scope of the search must be reasonably attuned to the exigent circumstances that justified
the warrantless search, or the search will exceed the bounds authorized by exigency alone.”
Meeks, 262 S.W.3d at 724. When the asserted exigency is risk to the safety of the officers
or others, “the governmental actors must have an objectively reasonable basis for concluding
that there is an immediate need to act to protect themselves and others from serious harm.”
Id.

       We agree with the trial court’s conclusion that Agent Davis’s removal of Defendant
Whitaker from the house and the subsequent search of the house by Agents McCallie and
Arrington were not justified by exigent circumstances. Agent Davis admitted at the
suppression hearing that when these actions occurred, “[t]here was no immediate threat to
anyone at that time,” and there was nothing to suggest that the evidence was in danger of
being destroyed by the occupants of the house. The only evidence to support the State’s
argument that the agents’ actions were justified was speculation by Agent Davis that there
is always a possibility of evidence being destroyed or a threat of serious harm in narcotics
investigations. Here, there were no specific and articulable facts to justify the agents’
actions; therefore, we conclude that their actions amounted to an unlawful warrantless search
of Defendant Whitaker’s home.

                              IV. Independent Source Doctrine

        The exclusionary rule bars “the admissibility of evidence either directly or indirectly
obtained from an unconstitutional search or seizure,” but it does not apply “to evidence
obtained by means independent of the constitutional violation.” Carter, 160 S.W.3d at 532
(citing Wong Sun v. United States, 371 U.S. 471, 485, 487 (1963)). The independent source
doctrine does not apply, as the Defendants argue, “only to evidence obtained for the first time
during an independent lawful search” but instead, applies “to evidence initially discovered
during, or as a consequence of, an unlawful search, but later obtained independently from
activities untainted by the initial illegality.” Murray v. United States, 487 U.S. 533, 537
(1988).

                                              -8-
        To that end, the ultimate question to determine if the independent source doctrine
applies is “whether the search pursuant to warrant was in fact a genuinely independent
source” of the evidence. Murray, 487 U.S. at 542. This would not be the case “if the agents’
decision to seek the warrant was prompted by what they had seen during the initial entry, or
if information obtained during that entry was presented to the [issuing judge] and affected
his decision to issue the warrant.” Id. (internal footnote omitted). Put another way, an
unlawful entry does not mandate the suppression of evidence if the evidence is subsequently
obtained “following the execution of a valid warrant based upon facts independent and
separate from information discovered as a result of the unlawful entry.” Carter, 160 S.W.3d
at 532 (emphasis added).

       The trial court erred in its determination that the independent source doctrine did not
apply to this case because the evidence at issue was not “subsequently discovered” during
the execution of the search warrant. Instead, the determinative question is whether the
decision to obtain the search warrant and the issuance of the search warrant were tainted by
what Agents McCallie and Arrington discovered during their unlawful search of the home.
Agent Davis testified that he left to obtain the search warrant before Agents McCallie and
Arrington entered the home and that he decided to obtain the search warrant based upon the
“overwhelming” smell of “fresh” marijuana coming from the home.

        Agent Davis’s affidavit made no mention of what Agents McCallie and Arrington
discovered and was based upon the information obtained during the valid knock and talk as
well as the anonymous tip and information from the utility company. There is no evidence
that the issuing judge was aware of what Agents McCallie and Arrington had discovered or
that Agent Davis concealed this information from the issuing judge. Accordingly, we
conclude that the search warrant was not tainted by the unlawful search of Defendant
Whitaker’s home and constituted an independent source for the evidence.

                                      CONCLUSION

       In consideration of the foregoing and the record as a whole, we conclude that the trial
court erred in granting the Defendants’ suppression motions and dismissing the indictments.
Therefore, we reverse the judgments of the trial court and remand the cases for further
proceedings consistent with this opinion.


                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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