                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                 November 10, 2004 Session

     STATE OF TENNESSEE v. WILLIAM TIMOTHY CARTER, ET AL.

                 Appeal by Permission from the Court of Criminal Appeals
                            Circuit Court for Carroll County
                     No. 02CR-1813      Charles C. McGinley, Judge



                    No. W2002-00947-SC-R11-CD - Filed March 18, 2005


We granted this appeal to determine whether evidence seized from the defendants’ residence
pursuant to a search warrant should be suppressed. Sheriff’s deputies entered the defendants’
residence without a warrant based upon an informant’s tip and the deputies’ recognition of the smell
of anhydrous ammonia and ether. The deputies then detained the defendants while a warrant was
obtained. We conclude that the deputies’ warrantless entry into the defendants’ residence was
unlawful. However, the unlawful entry and any illegality in the subsequent detention did not taint
the evidence seized pursuant to the search warrant, and the affidavit supporting the issuance of the
warrant sufficiently established probable cause. Therefore, we affirm the judgment of the Court of
Criminal Appeals and remand the case to the trial court for further proceedings consistent with this
opinion.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                        Affirmed; Remanded to the Trial Court

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON , ADOLPHO A. BIRCH , JR., and WILLIAM M. BARKER, JJ., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellants, William Timothy Carter and
Virginia Darlean Carter.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A.
Fulks, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On September 15, 2001, between 10:00 and 11:00 p.m., an anonymous caller informed the
Carroll County Sheriff’s Department that methamphetamine was being manufactured at the residence
of the defendants, William Timothy Carter and Virginia Darlean Carter. While driving by the
defendants’ residence, Deputy Michael Verner smelled anhydrous ammonia, and Deputy Timothy
Meggs smelled both anhydrous ammonia and ether. Deputy Meggs testified that, based upon prior
training, he recognized anhydrous ammonia as a product used in the manufacturing of
methamphetamine.

        When the deputies drove up to the defendants’ residence, Deputy Meggs observed someone
peering out of a window. As the deputies left their vehicles, Deputy Meggs heard people running
inside the residence. The deputies continued to smell anhydrous ammonia as they approached the
residence. Deputy Meggs approached the front door, and Deputy Verner approached the back door.
Both deputies knocked and announced their presence. Deputy Verner entered through the back door
while Deputy Meggs entered through the front door.

       When the deputies entered the defendants’ residence, they asked the defendants about the
odor of ammonia. The defendants denied that the odor was coming from their residence. The
deputies requested permission to search the residence, and the defendants refused to consent to a
search. The deputies escorted the defendants and a third occupant to the front porch where they
remained while Deputy Meggs secured a search warrant. Although the deputies did not arrest the
defendants at that time, the defendants were not free to leave the premises.

       Deputy Meggs and four additional deputies returned to the residence with a search warrant
that was issued at 1:09 a.m. on September 16, 2001. The affidavit in support of the search warrant
was signed by Deputy Meggs and provided:

               On 9/15/01 the Carroll County Sheriff[’]s Department received an
               anonymous call that someone was cooking me[th]amphetamine at
               7200 Hwy 190 in Carroll County. Your affiant then drove by 7200
               Hwy 190 in Carroll County and did smell ether coming from the area
               of 7200 Hwy 190. Your affiant then approached the doorway of 7200
               Hwy 190 and did notice the smell of ether and anhydrous ammonia
               coming from inside the residence and was able to hear several people
               running around inside the house. Your affiant has had considerable
               experience in working with methamphetamine labs and knows what
               he has observed to be consistent with the operation of a
               methamphetamine lab.

        While executing the search warrant, the deputies seized marijuana, methamphetamine, and
items used to manufacture methamphetamine. The deputies denied searching the residence prior to
obtaining a search warrant. They further denied observing any of the items seized pursuant to the
search warrant during their initial entry. The deputies arrested the defendants shortly after executing
the warrant. The defendants were each charged with six drug-related offenses including the
manufacture of methamphetamine, a Class C felony. See Tenn. Code Ann. § 39-17-417(a)(1), (c)(2)
(1997).



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        The trial court found that the deputies had probable cause to obtain a search warrant for the
defendants’ residence upon smelling the “byproducts” of the manufactured methamphetamine but
that the danger the defendants would dispose of evidence of illegal activities did not exist until the
deputies began the raid. The trial court further found that the deputies improperly created the exigent
circumstances to justify the warrantless entry and did not obtain the defendants’ consent to enter the
residence. Concluding that the search warrant was not properly obtained, the trial court granted the
defendants’ motion to suppress and dismissed the case.

         In reversing the trial court’s judgment, the Court of Criminal Appeals concluded that even
if the deputies’ initial entry was unlawful, incriminating evidence was neither discovered nor seized
as a result. The Court of Criminal Appeals further concluded that the time in which the defendants
were detained while Deputy Meggs obtained a search warrant was reasonable. Finally, the court held
that the evidence seized while executing the search warrant was admissible pursuant to the
independent source doctrine because the deputies obtained the warrant on the basis of information
entirely independent from any information discovered as a result of the initial warrantless entry or
detention. We granted review.

                                              ANALYSIS

        The defendants contend that the deputies’ initial entry and the defendants’ subsequent
detention were illegal and tainted the evidence seized pursuant to the search warrant. In reviewing
a motion to suppress, this Court is bound by the trial court’s findings of fact unless the evidence
contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001).
As the trier of fact, the trial court is able to assess the credibility of 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). The prevailing party is entitled to the strongest legitimate view of the
evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515,
521 (Tenn. 2001). However, we review the trial court’s conclusions of law de novo. State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000).

       Both the Fourth Amendment to the United States Constitution and Article I, section 7 of the
Tennessee Constitution prohibit unreasonable searches and seizures. The purpose of these
provisions is to “‘safeguard the privacy and security of individuals against arbitrary invasions of
government officials.’” State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002) (quoting Camara v.
Mun. Court, 387 U.S. 523, 528 (1967)). A bedrock principle of Fourth Amendment law is that
warrantless searches and seizures inside a residence are presumed to be unreasonable. Payton v.
New York, 445 U.S. 573, 586 (1980). 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. Id. at 587-88; see State v. Clark, 844 S.W.2d 597, 599 (Tenn. 1992).

       The State contends that exigent circumstances existed justifying the warrantless entry when
the deputies heard people running inside the defendants’ residence. Based upon their observations,


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the deputies could have reasonably concluded that the occupants were attempting to destroy
evidence. See Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir. 1989). However, the possibility of the
destruction of evidence did not arise until the deputies drove up to the defendants’ residence, thereby
alerting the occupants to their presence. In State v. Hendrix, this Court recognized the prohibition
against police-created exigent circumstances. 782 S.W.2d 833, 835 (Tenn. 1989). However, we
declined to determine whether exigent circumstances were created by the police because neither a
warrantless entry nor a search occurred. See id. Our conclusion that exigent circumstances
justifying a warrantless entry may not be created by the law enforcement officer’s actions is
consistent with holdings from other jurisdictions. See, e.g., United States v. Munoz-Guerra, 788
F.2d 295, 298 (5th Cir. 1986) (officer created the exigency by knocking on the defendant’s door and
alerting the defendant to the officer’s presence); Hornblower v. State, 351 So. 2d 716, 718 (Fla.
1977) (officer created the exigency by knocking on the defendant’s door resulting in “suspicious
movement”); Latham v. Sullivan, 295 N.W.2d 472, 478 (Iowa Ct. App. 1980) (officer created the
exigency by knocking on the defendant’s door and requesting consent to search the residence); State
v. Kelgard, 594 P.2d 1271, 1273 (Or. Ct. App. 1979) (officer created the exigency by “a premature
confrontation with a potential defendant”). In this case, the deputies created the exigent
circumstances by approaching the defendants’ residence and alerting the defendants to the presence
of the deputies. Therefore, the warrantless entry in this case was not supported by exigent
circumstances and violated both the federal and state constitutions.1

         Having concluded that the warrantless entry was unlawful, we next examine the effect of this
illegality on the admissibility of evidence subsequently seized from the defendants’ residence. The
exclusionary rule may bar the admissibility of evidence either directly or indirectly obtained from
an unconstitutional search or seizure. See Wong Sun v. United States, 371 U.S. 471, 485 (1963).
However, the exclusionary rule does not apply to evidence obtained by means independent of the
constitutional violation. See id. at 487. Pursuant to the independent source doctrine, an unlawful
entry does not mandate the suppression of evidence located inside a residence if the evidence is
subsequently discovered following the execution of a valid warrant based upon facts independent
and separate from information discovered as a result of the unlawful entry. Clark, 844 S.W.2d at 600
(citing Segura v. United States, 468 U.S. 796, 813-14 (1984)). The underlying policy of the
independent source doctrine is that “while the government should not profit from its illegal activity,
neither should it be placed in a worse position that it would otherwise have occupied.” Murray v.
United States, 487 U.S. 533, 542 (1988).2

        Despite the deputies’ unlawful entry and regardless of any illegality in the defendants’
subsequent detention, the deputies’ undisputed testimony establishes that no evidence was identified
or seized during the initial entry and detention. Furthermore, the affidavit supporting the warrant

         1
          Because the subsequent detention was illegal based on the unlawful warrantless entry, we need not reach the
issue of whether the length of the detention, approximately two hours, was unreasonable.

         2
          The defendants contend the State waived this issue by failing to raise it in the trial court. However, due to the
primary purpose of the exclusionary rule and the independent source doctrine and this Court’s obligation to review de
novo the trial court’s application of law at a suppression hearing, we elect to address the issue.

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did not refer to the entry or detention. The deputies obtained the information in the affidavit prior
to the initial entry. The affidavit contains information relating to the anonymous tip and Deputy
Meggs’ observations while driving on the roadway and approaching the defendants’ front door. A
person does not have an expectation of privacy in the area in front of his or her residence leading
from the public way to the front door. State v. Cothran, 115 S.W.3d 513, 522 (Tenn. Crim. App.
2003) (citation omitted). Thus, Deputy Meggs’ observations as he approached the defendants’
residence and stood at the front door were not unlawful and did not result from the warrantless entry.

        When Deputy Verner approached the back of the defendants’ residence and knocked on the
back door, he entered an area where the defendants may have possessed an expectation of privacy.
See State v. Harris, 919 S.W.2d 619, 624 (Tenn. Crim. App. 1995). However, the affidavit did not
refer to Deputy Verner’s observations. Accordingly, we conclude that the unlawful entry and
detention did not taint the evidence seized pursuant to the search warrant.

       Although we conclude that evidence seized pursuant to the warrant was not tainted by the
warrantless entry, our inquiry does not end here. We must also determine whether the affidavit
supporting the issuance of the warrant under which the evidence was seized established probable
cause to search the defendants’ residence. Both the Fourth Amendment to the United States
Constitution and Article I, Section 7 of the Tennessee Constitution require probable cause for the
issuance of a warrant. See Illinois v. Gates, 462 U.S. 213, 229-31 (1983); State v. Henning, 975
S.W.2d 290, 294 (Tenn. 1998). Probable cause is defined as “a reasonable ground for suspicion,
supported by circumstances indicative of an illegal act.” Henning, 975 S.W.2d at 294 (citation
omitted).

        The probable cause necessary for issuance of a search warrant must be based upon evidence
appearing in a written and sworn affidavit. State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989).
The affidavit must present facts upon which “a neutral and detached magistrate, reading the affidavit
in a common sense and practical manner,” can determine the existence of probable cause for the
issuance of a search warrant. Henning, 975 S.W.2d at 294 (citing State v. Bryan, 769 S.W.2d 208,
210 (Tenn. 1989)). Furthermore, the affidavit must provide more information than just the affiant’s
conclusory allegations to ensure that the magistrate exercises independent judgment. Jacumin, 778
S.W.2d at 432. In reviewing the existence of probable cause for issuance of a warrant, we may
consider only the affidavit and may not consider any other evidence known by the affiant or provided
to or possessed by the issuing magistrate. Henning, 975 S.W.2d at 295.

        The State maintains that Deputy Meggs’ detection of anhydrous ammonia and ether coming
from the defendants’ residence alone established probable cause for the issuance of the search
warrant. However, we need not decide whether the smell of these substances, standing alone,
established probable cause. Rather, the affidavit in this case contains not only the observations of
Deputy Meggs, the affiant, but also information from a confidential informant.

        An affidavit may contain hearsay information supplied by a confidential informant to
establish probable cause. Henning, 975 S.W.2d at 294-95. In determining the reliability of the


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information contained in an affidavit, a distinction exists between a “citizen-informant” or a
bystander witness and criminal informants or those from a “criminal milieu.” State v. Melson, 638
S.W.2d 342, 354 (Tenn. 1982). Information provided by a citizen-informant who is known to the
affiant is presumptively reliable. State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). The
reliability of the information of a citizen-informant whose identity is not disclosed is to be
determined from the circumstances and the affidavit in its entirety. Melson, 638 S.W.2d at 356. The
affidavit in the present case does not provide any information as to whether the anonymous caller
was a citizen-informant. Therefore, the presumption of reliability does not apply. See Stevens, 989
S.W.2d at 295.

        Instead, we must apply the two-prong test for reliability for information supplied by criminal
informants. See Spinelli v. United States, 393 U.S. 410, 412-13 (1969); Aguilar v. Texas, 378 U.S.
108, 114 (1964); Jacumin, 778 S.W.2d at 436. The magistrate who is issuing the search warrant
must be informed of the basis of the informant’s knowledge and either the basis of the informant’s
credibility or the reliability of the informant’s information. State v. Cauley, 863 S.W.2d 411, 417
(Tenn. 1993). Independent police corroboration may compensate for deficiencies in either prong.
Jacumin, 778 S.W.2d at 436. However, each prong must be separately considered and satisfied to
establish probable cause. Id.

       With regard to the confidential informant’s tip, the affidavit states that “[o]n 9/15/01 the
Carroll County Sheriffs Department received an anonymous call that someone was cooking
me[th]amphetamine at 7200 Hwy 190 in Carroll County.” The affidavit contains no information
regarding the basis of the informant’s knowledge or credibility or the reliability of the informant’s
information.

        However, the affidavit includes independent police corroboration consisting of Deputy
Meggs’ personal observations. The affidavit provides the following facts: Upon receiving an
anonymous tip that someone was manufacturing methamphetamine at the defendants’ residence,
Deputy Meggs smelled ether coming from the area of the defendants’ residence. As the deputy
approached the defendants’ residence, he smelled both ether and anhydrous ammonia coming from
inside of the residence. Deputy Meggs also heard people running inside of the residence. Finally,
based upon his prior experience, Deputy Meggs associated his observations with the operation of a
methamphetamine laboratory. These facts in combination provide more than sufficient independent
police corroboration to compensate for deficiencies in meeting the two-prong test under Jacumin.
Therefore, we conclude the information provided in the affidavit is sufficient to establish probable
cause for the issuance of a search warrant.

                                          CONCLUSION

        We conclude that although the deputies’ warrantless entry into the defendants’ residence was
unconstitutional, the unlawful entry and any illegality in the subsequent detention did not taint the
evidence seized pursuant to the search warrant. Furthermore, the affidavit supporting the issuance
of the search warrant is sufficient to establish probable cause. Accordingly, we affirm the judgment


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of the Court of Criminal Appeals and remand the case to the trial court for further proceedings
consistent with this opinion.

       The costs of appeal are taxed to the defendants, William Timothy Carter and Virginia
Darlean Carter, or their sureties for which execution may issue if necessary.



                                                    ___________________________________
                                                    JANICE M. HOLDER, JUSTICE




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