           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                FILED
                             OCTOBER 1998 SESSION
                                                                January 7, 1999

                                                               Cecil W. Crowson
                                                              Appellate Court Clerk
STATE OF TENNESSEE,                        )
                                           )      NO. 01C01-9708-CR-00365
       Appellee,                           )
                                           )      DAVIDSON COUNTY
VS.                                        )
                                           )      HON. THOMAS H. SHRIVER,
RODNEY FORD,                               )      JUDGE
                                           )
       Appellant.                          )      (Aggravated Robbery)



                               DISSENTING OPINION


       I respectfully disagree with the majority’s conclusion that there was an illegal

entry into the defendant’s home. Because I believe the entry into the residence and

the seizure of property were proper, I further disagree that the matter should be

remanded for further proceedings to determine the admissibility of the written

confession. I would affirm the judgment of the trial court.

       The majority concludes that there were no exigent circumstances that would

justify the entry. I disagree. The testimony at the suppression hearing revealed that

at the time Morris entered the residence on Boatner Drive, the officers were unaware

who actually resided there.     Specifically, they did not know that this was the

defendant’s residence. The officers approached the premises and knocked on the

front door, which they had every right to do. They then heard “running.” The

defendant exited the rear of the premises. The record does not indicate that the

defendant told the officers it was his residence. The officers called for Morris, but he

did not respond even though the officers knew he was inside. The officers opened

a door at the rear of the premises, announced who they were and again called for

Morris. Again, Morris failed to respond. At that point they entered the premises and

subsequently apprehended Morris.

       The officers had an arrest warrant on Morris for a very serious and violent

offense; namely; aggravated robbery. In determining whether exigent circumstances

exist for entry into premises to make an arrest, the gravity of the underlying offense
is an important factor. Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80

L.Ed.2d 732 (1984). Furthermore, based upon the officers’ investigation of the

underlying offense, Morris was reasonably believed to be armed; he was reasonably

believed to be in the premises being entered; and the entry was made peaceably.

See Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (a case analyzed in

Welsh v. Wisconsin).

       Of equal importance was the ability of Morris to hide or destroy the physical

evidence relating to the prior robbery. Knowing that Morris is inside and is not

responding to the calls of the officers, are the officers then expected to leave him in

the premises while one of their number applies for and possibly secures a search

warrant two hours later?

       This does not seem reasonable to me.           A “common sense” approach

described in Welsh leads me to the conclusion that the entry was properly based

upon exigent circumstances. Welsh, 466 U.S. at 753, 104 S.Ct. at 2099.

       Having found the entry to be proper, I would further find the search and

seizure of the physical evidence to be justified under the “protective sweep” doctrine.

There were articulable facts which, taken together with the rational inferences from

those facts, would warrant a reasonably prudent police officer to believe that the area

to be swept harbored an individual posing a danger to those on the arrest scene.

Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The

officers were informed that someone else was inside. Furthermore, the officers were

seeking to arrest someone thought to be a dangerous felon. They were aware that

the felon allegedly had accomplices in the commission of the underlying violent

offense which involved stolen weapons. The officers had a right to conduct the

protective sweep for their own safety. The evidence found in plain view was properly

admissible in evidence.

       For these reasons, I respectfully dissent.



                                                 ___________________________
                                                 JOE G. RILEY, JUDGE




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