         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 28, 2001

                  STATE OF TENNESSEE v. JEFFREY K. SHAW

                    Appeal from the Criminal Court for Davidson County
                       No. 2000-A-87    J. Randall Wyatt, Jr., Judge



                    No. M2001-00563-CCA-R3-CD - Filed January 9, 2002


On February 5, 2001, the Defendant, Jeffery K. Shaw, entered a plea of guilty to felony weapon
possession. Pursuant to Rule 37 (b)(1)(i) of the Tennessee Rules of Criminal Procedure, the
Defendant sought to reserve a certified question of law to be reviewed by this Court. In this appeal,
the Defendant contends that the trial court erred in denying his motion to suppress evidence and
statements obtained as a result of the Defendant’s arrest in the home of a third party. We affirm the
judgment of the trial court.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant, Jeffrey K. Shaw.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Derrick Scretchen, Assistant District Attorney
General.

                                            OPINION

        On September 12, 1999, Detective James Arendall of the Metro Police Department arrested
several suspects as a result of an investigation concerning counterfeit ticket sales at the Tennessee
State Fair. One of the suspects informed Detective Arendall that the Defendant was the supplier of
the counterfeit tickets. The suspect also provided the Detective with an address where the Defendant
was “staying.” Detective Arendall entered the Defendant’s name in a police laptop computer and
discovered a photograph of the Defendant and learned that the Defendant had outstanding warrants
for probation violation and a weapons charge.

      Detective Arendall then proceeded to the address given by the suspect and knocked on the
door. A man asked the Detective to identify himself before opening the door, and the Detective
asked the man if he had the correct address. The Detective requested that the man behind the door
open it so the Detective could determine if he was at the correct address. When the man opened the
door, the Detective could see the Defendant sitting on a sofa in the living room. The man at the door
then stepped back, and the police entered and arrested the Defendant. Incident to the arrest, the
police discovered a loaded .38 revolver under the sofa cushion on which the Defendant was sitting.
During the arrest, the Defendant informed the police that the gun belonged to him and that the
counterfeit ticket scheme was his idea.

        Detective Arendall acknowledged on cross-examination that he did not have a search warrant
to enter the house, that he did not recall the name of the man who answered the door, and that he had
no information regarding the ownership of the house. Detective Arendall also testified that he was
acting on the information given him by his original suspect concerning the Defendant’s whereabouts
and that he never informed the man who answered the door that he was there to arrest the Defendant.

        After the hearing on the motion to suppress, the trial court found “that what the detective did
was reasonable under all of the circumstances, that they had a right to arrest the man that they had
an arrest warrant for, sitting right in front of them.” However, in the Order Denying the Defendant’s
Motion to Suppress, the trial court relied on the existence of exigent circumstances and the consent
of the man who answered the door in denying the motion.

        The Defendant contends that the police entered the home in search of him, and, absent
consent or exigent circumstances, a search warrant was required in order for the police and Detective
Arendall to conduct such a search. The Defendant relies on the United States Supreme Court’s
decision in Steagald v. United States, 451 U.S. 204 (1981), to support his argument. The State relies
on Payton v. New York, 445 U.S. 573 (1980), in asserting that no search warrant was required to
enter the home of the third party and arrest the Defendant. For the following reasons, we agree with
the State.

        The parties are correct in asserting that the Supreme Court’s decisions in Payton and Steagald
form the perimeters for our decision. In Payton, the Court held that, absent consent or exigent
circumstances, the police could not enter a defendant’s home to arrest him without an arrest warrant
and reason to believe that he was at home. See Payton, 445 U.S. at 603. The Court also held that
no search warrant was necessary because “an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason
to believe the suspect is within.” Id. A similar situation was presented in Steagald, where the police
again entered a home to execute an arrest warrant. However, in Steagald, the police entered the
home of a third party, not named in the warrant, and seized incriminating evidence which they later
attempted to use to prosecute the third party. The Court held that a search warrant was necessary
because the arrest warrant issued for the defendant did not justify the search of the third party’s
home. See Steagald, 451 U.S. at 222.

      The present case does not fit neatly under either Payton or Steagald. Unlike Payton, here the
Defendant was arrested pursuant to an arrest warrant in the home of a third party. However, unlike


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Steagald, the Defendant is not that third party whose home was searched and who is now seeking
to suppress evidence found by the police.

         In United States v. Buckner, 717 F.2d 297 (6th Cir. 1983), the Sixth Circuit addressed a case
whose facts were strikingly similar to the case presently before us. In Buckner, police went to the
home of the defendant, who was suspected in a bank robbery, pursuant to an arrest warrant only to
be told that the suspect was at his mother’s residence, a few apartments away. The police proceeded
to the mother’s apartment, and, upon arriving, noticed that the door was open and the suspect in
question was visible through the screen door of the apartment. The officers entered the apartment
and arrested the defendant.

        The Buckner court first sought to determine whether the defendant had standing to challenge
the search of the home of a third party, stating that “[i]n the usual case, the defendant will not have
had a legitimate expectation of privacy in the premises which were searched and therefore will be
unable to challenge the search.” Id. at 299, citing, United States v. Salvucci, 448 U.S. 83, 89-92
(1980); Rakas v. Illinois, 439 U.S. 128, 144 (1978). The fact that the entry into the home of the third
party may have violated the constitutional rights of that third party has no effect on the validity of
the arrest of a defendant who is subject to the arrest warrant. See Buckner, 717 F. 2d at 300, citing,
United States v. Payner, 447 U.S. 727, 731-32 (1980).

        The Buckner court concluded that the defendant did not have standing to challenge the search
because he possessed no legitimate expectation of privacy in the third party’s home. See Buckner,
717 F.2d at 300. Similarly, in the present case, there is no evidence that the Defendant has standing
to challenge the entry into the home in which he was arrested. However, the trial court assumed the
Defendant had standing and precluded the Defendant from presenting evidence to show standing.
Therefore, we will address the Defendant’s claim on its merits.

        Assuming that the Defendant did have the requisite expectation of privacy to challenge the
entry into the home, the motion to suppress was properly denied because the police had a warrant
for the arrest of the Defendant and reason to believe he was in the home. See Payton, 445 U.S. at
603. The fact that the Defendant was the person named in the arrest warrant mandates the
application of Payton rather than Steagald. See Buckner, 717 F.2d at 300. Under Payton, Detective
Arendall could have entered the Defendant’s own home if he had a warrant for the Defendant’s arrest
and reason to believe he was present in the home.1 See Payton, 445 U.S. at 603; State v. Clark, 844
S.W.2d 597, 599 (Tenn. 1992). In Buckner, the Sixth Circuit stated that “[i]t would be illogical to
afford the defendant any greater protection in the home of a third party that he was entitled to in his
own home.” Buckner, 717 F.2d at 300.


         1
          Tennessee law clearly acknowledges a police officer’s right to enter a home to make an arrest. Tennessee
Code An notated sec tion 4 0-7-107 authorizes en try into a hom e to effectuate a warrantless arrest or an arrest pursuant
to a warrant under certain circumstances. Additionally, in Tennessee, the issuance of an arrest warrant is a “command”
for law enforcement to take the named suspect into custody wherever he may be found. See Tenn. Code Ann. § 40-6-
201.

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        We agree with the reasoning of the Sixth Circuit. Therefore, the Defendant was only entitled
to the protection given him under Payton that requires law enforcement to obtain a warrant for his
arrest and have reason to believe he is inside the premises. Detective Arendall had a warrant for the
Defendant’s arrest and also positively identified him as the man sitting on the couch within the
house.

       Accordingly, we find that the entry into the home for the purpose of arresting the Defendant
was proper because the police had an arrest warrant and reason to believe he was within the house.2
Because the entry and arrest were valid, the search incident to the arrest that uncovered the pistol
under the cushion on which the Defendant was sitting was also valid. See Chimel v. California, 395
U.S. 752, 762-63 (1969). Accordingly, we find that the trial court properly denied the Defendant’s
Motion to Suppress.

                                                  CONCLUSION

        For the foregoing reasons, we find that the trial court properly denied the Defendant’s Motion
to Suppress because the police had a warrant for the Defendant’s arrest and reason to believe he was
in the residence in which he was found. The judgment of the trial court is AFFIRMED.


                                                                  ___________________________________
                                                                  DAVID H. WELLES, JUDGE




         2
           W e note that the trial judge, while denying the Defendant’s Motion to Suppress at the hearing on the motion,
relied on a finding that the entry was not an un reasonable entry because the D etective had an arrest warrant for the
Defendant and saw the D efendan t inside the house. However, in the written Order denying the motion, the Court relied
upon exigent circ um stances and consen t to valid ate the arrest. T here is no evidence of exigent circumstances in the
record. Additionally, the testimony of D etective Arend all that the man answering the door stepped back in to the house
allowing the police to enter is the only suggestion that consent was given to enter. The burden is on the pro secution to
prove that co nsen t was freely and volu ntarily given. See State v. Jackson, 889 S.W .2d 219, 221 (Tenn.Crim .App. 199 3).
That con sent w ill not be lightly inferred. See State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). The evidence of
con sent w as insu fficient.

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