        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 18, 2013 Session

                  STATE OF TENNESSEE v. JUSTIN GIBSON

                Appeal from the Circuit Court for Williamson County
                  No. II-CR124574 James G. Martin, III, Judge




               No. M2012-02363-CCA-R3-CD             Filed October 18, 2013




The Defendant, Justin Gibson, entered a guilty plea to driving under the influence, first
offense. He agreed to a sentence of eleven months and twenty-nine days, all of which was
suspended after seven days’ incarceration. As a condition of his guilty plea, the Defendant
reserved a certified question of law challenging the warrantless search of his home as not
justified by either consent or exigent circumstances. After a thorough review of the
applicable law, we conclude that the officer’s entry into the Defendant’s home was supported
by neither exigent circumstances nor as a part of the community caretaker function; therefore,
the trial court erred when it denied the Defendant’s motion to suppress. Accordingly, we
reverse the judgment of the trial court and dismiss the charge against the Defendant.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and A LAN E. G LENN, JJ., joined.

Jeremy W. Parham, Manchester, Tennessee, for the appellant, Justin Gibson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim
R. Helper, District Attorney General; and Sean B. Duddy and Kelly A. Lawrence, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

      During the early morning hours of July 11, 2009, Captain Tommy Walsh of the
Brentwood Police Department responded to an accident call near the Brentwood city limits.
At the one-car accident scene, no one was found at or near the vehicle. After obtaining the
vehicle’s registration information, Captain Walsh proceeded to the residence of the registered
owner and subsequently went inside. The Defendant was found passed out in an upstairs
bedroom and later admitted to driving under the influence (DUI). A blood alcohol test was
also performed. He was thereafter arrested and charged with alternative counts of DUI,
leaving the scene of an accident, and underage consumption of alcohol. See Tenn. Code
Ann. §§ 1-3-113, 55-10-104, 55-10-401.

        The Defendant filed a motion to suppress the statements he made to emergency
personnel and the resulting blood alcohol test, arguing that there were no exigent
circumstances to permit Captain Walsh’s entry into his home and that all evidence obtained
after the unconstitutional entry should be suppressed. The trial court held a hearing on the
motion.1

       At the hearing, Captain Walsh testified that, on July 11, 2009, at approximately 2:46
a.m., he responded to an accident report “near the city limits” in the westbound lanes of
Concord Road. Upon his arrival at the one-car accident scene, he noticed a green, Nissan
Altima “off the roadway rolled over” in a ditch. Both of the vehicle’s airbags had been
deployed. He described the accident as follows: “It appeared that it had struck a tree . . . .
And obviously it had rolled over. The damage was consistent enough to deploy the airbags,
which would have been fairly significant.” Captain Walsh further stated that the vehicle was
in “a grassy area” and “that it was muddy in the area where the car had run off the road.”

       Upon searching the interior of the vehicle and the nearby area, Captain Walsh was
unable to locate the driver, so he ran the vehicle’s licence plate and obtained the registration
information. Once another officer had arrived at the scene to continue the investigation at
the accident site, Captain Walsh proceeded to the registered address, which he estimated was
approximately “a half-a-mile from the scene.” He stated that he went to the registered
address because, “Obviously I was concerned that there might have been an injury either to
a driver or an occupant in the car because of the amount of damage.”

       When Captain Walsh arrived at the house around 3:00 a.m., he “pulled up near the
front door of the house” and “immediately noticed that the front door to the house was
standing open.” According to Captain Walsh, he “could see inside the house from outside.”
He went to the front porch to investigate the open door, and although the door was “wide
open[,]” he did not observe any signs of forced entry. Captain Walsh then walked around

1
  The suppression issues were addressed by a different judge, The Honorable Timothy L. Easter.
Judge Easter conducted the suppression hearing and entered the subsequent order denying the
motion.

                                              -2-
the perimeter of the house, and as he was coming “back around the other side of the house[,]”
he encountered Martin Walker, a next-door neighbor, who had come outside to speak with
him. Captain Walsh explained that Mr. Walker gave him the following additional
information:

       [H]e told me he was watching the house while the owners were away. I spoke
       with him briefly. He said he had a garage code where he was going in and out
       of the garage, I think to watch after some animals that were inside. That he
       had checked the house earlier that evening. I asked him if he had left the front
       door open either by accident or if he knew if it had been open. He said he had
       not, that it was closed earlier, which obviously was unusual . . . .

        At that point, Captain Walsh decided he should go inside the residence to “check to
see if someone was injured from the crash or . . . there could have been a break-in.” He
elaborated, “I really don’t know what’s happening. There could have been an incident that
occurred at the house which led to the car crash. There could have been an injured party
from the crash that had gone to the house maybe that needed help that couldn’t call 911. ”
According to Captain Walsh, he made the decision to enter the residence based upon the
“totality of the circumstances with the crashed car, front door standing open, the next-door
neighbor who’s watching the house telling me that the front door earlier had been locked.”

       Captain Walsh explained that, while the front door was open, to go inside the
residence required him to open a closed, “screen door[.]” Captain Walsh said that he “called
out Brentwood Police Department a number of times[,]” and receiving no response, both he
and the neighbor entered the lower level of the residence. Captain Walsh continued to call
out but found no one on the first level of the home. He then decided to go upstairs, but
because it was dark upstairs, he went alone. Captain Walsh noticed a pair of tennis shoes
with mud on them at the top of the stairs and a pair of shorts “at the top near the landing.”
He explained that these items were haphazardly strewn about. Once at the top of the stairs,
there was a door immediately to Captain Walsh’s right. He knocked on the door, announcing
himself and again receiving no reply, opened the door.

       Captain Walsh noticed “a gentleman in the bed who was partially covered who was
asleep[,]” later identified as the Defendant. He “shined [his] light” and “yelled out
commands” to the Defendant but never got a response. As he was approaching the
Defendant, he observed mud on the Defendant’s legs and “some scrapes[ and] scratches” on
his arms. Captain Walsh vigorously tried to awaken the Defendant, but he was unsuccessful.
Captain Walsh smelled alcohol on the Defendant’s person and stated that he believed the
Defendant was intoxicated. Concerned that the Defendant was injured, Captain Walsh called
for emergency medical services (EMS) to treat the Defendant.

                                             -3-
        Upon their arrival, EMS personnel were able to arouse the Defendant. “They put him
on a backboard and then took him out to the ambulance outside.” Captain Walsh, who was
just outside the ambulance door, overheard the Defendant make statements to the firefighters
and paramedics who were treating him—the Defendant admitted that he had consumed
alcohol and said that “he was DUI, not injured.” The Defendant was taken to the hospital,
where a blood alcohol test was performed.

        On cross-examination, Captain Walsh acknowledged that he did not know exactly
what time the car accident had occurred, that he did not notice any blood at the scene, and
that he did not observe any alcoholic beverages inside the car. Captain Walsh clarified that,
when he said “screen door” on direct examination, he was actually referring to “a full glass
panel security door[.]” He further testified that, in addition to knocking on the front door of
the home and likely ringing the door bell, he also knocked on the glass of “the back window”
during his walk around the perimeter of the residence in effort to get someone’s attention.
Captain Walsh was asked if he inquired of Mr. Walker about possible occupants inside the
house, and Captain Walsh recalled that Mr. Walker “mentioned that there was a son and that
he thought he drove a green Altima.”

        When asked why he did not consider obtaining a search warrant prior to going inside
the residence, Captain Walsh testified,

              Well, I don’t know how long it’s been since you’ve obtained a search
       warrant, but at 3:00 o’clock in the morning it would take a significant amount
       of time to do something like that. If there were someone inside the house that
       was in distress, you know, that could have resulted in them having permanent
       injury or even death while I was attempting to get a search warrant.

Captain Walsh acknowledged that, when he observed the Defendant in his bed, there were
no outward signs of a major injury.

        Mr. Walker, the next-door neighbor, testified that he encountered Captain Walsh
outside the Defendant’s residence in the early morning hours of July 11, 2009. He spoke
with Captain Walsh, who alerted him that the front door to the residence was open. Mr.
Walker stated that the door was locked when he left earlier in the evening and that he became
“concerned about what possibly could have happened because [he] thought everyone was still
out of town.” He did not believe anyone was staying at the home. According to Mr. Walker,
his responsibility was simply “[j]ust to watch the dog” while his neighbors were gone; he
“had a garage door opener” to come and go; and he “made entry into the home through the
garage.”



                                              -4-
        On cross-examination, Mr. Walker expounded on his duties—“The only thing I was
suppose to do was take the dog out twice a day and make sure it had food. And I’d take it
out of it’s kennel and I would take it out on a walk, and then I’d put it back at night.” He did
not have a key to the house, just the garage door opener, and the dog’s food was in the
garage. He also said that he did not “have permission to just hang out in the house” and that
his authority was limited to “[j]ust going in twice a day to take care of the dog[.]”

        Mr. Walker described that the main front door “was not like swung all the way open,
but it was open enough where [he] noticed that [he] hadn’t done it. [He] hadn’t touched the
door since [he] was watching the dog.” He estimated that the door was “about two feet
open” and claimed that it was not open “to the point where you could actually . . . see inside
the house.” When asked if he knew the Defendant was going to be staying at the home while
his parents were out of town, Mr. Walker said, “She might have mentioned something, but
I could have forgot or I didn’t know he was going to be there at all. I just took the fact that
he was going to be in Florida with them on vacation.” According to Mr. Walker, this was
only “the third or fourth day” the family had been gone.

       The Defendant’s step-father, William Ian McGruder, also testified. He clarified that
he was not on vacation with his wife but “was traveling out of town” on July 11, 2009. He
did not personally have any conversations with Mr. Walker about caring for the house. Mr.
McGruder said that a “very heavy” storm door, which automatically closed, was installed at
his house on the evening in question.

       Following the hearing, the Defendant submitted supplemental authority to the trial
court, arguing that the search was not based upon valid consent by a person with common
authority over premises. Thereafter, the trial court denied the motion, reasoning as follows:

              After a careful review of the facts and a full consideration of the
       applicable law, the [c]ourt finds that Captain Walsh’s presence in the
       Defendant’s home was lawful on both consent and exigent circumstances
       bas[e]s.

              The record supports that the Defendant’s neighbor, Martin Walker, had
       been given authority to enter the Defendant’s home while the Defendant’s
       parents were out of town. Mr. Walker had the apparent authority to consent
       to Captain Walsh’s search of the residence.

              Additionally, and with more strength of argument, Captain Walsh was
       legally inside the Defendant’s residence based upon exigent circumstance[s].
       Relying on the information he had at the time he entered the residence, Captain

                                              -5-
       Walsh had probable cause to believe that the Defendant was inside the house,
       injured and in need of medical assistance. Additionally, Mr. Walker had told
       Captain Walsh that the homeowners were out of town. Mr. Walker informed
       Captain Walsh there was a son but he was unaware if he was there or not. He
       told Captain Walsh that he thought everyone was out of town and he did not
       think anybody was staying at the residence. Mr. Walker was concerned
       because the front door to the residence was open.

              The totality of the circumstances as known to Captain Walsh at the time
       he entered the Defendant’s residence created an urgent need for immediate
       action thus eliminating the timely procedure of securing a search warrant.

       The Defendant subsequently entered into a negotiated guilty plea, pleading guilty to
one count of DUI, first offense, and the remaining charges were dismissed. In exchange for
his plea, he received a sentence of eleven months and twenty-nine days, suspended after
serving seven days in jail. The Defendant also, pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2), reserved the following certified question of law for our review as a
condition of his plea agreement:

               Whether the entry and subsequent search of Defendant’s home by the
       Brentwood Police Department on or about July 11, 2009, violated the
       Defendant’s rights granted pursuant to the Fourth, Fifth and Fourteenth
       Amendments to the U.S. Constitution and [a]rticle I, [s]ections 7, 8 and 9 of
       the Tennessee Constitution and whether any evidence, statements and blood
       tests obtained as a result of said search should be suppressed as the fruits of an
       unconstitutional search, due to the fact there was no valid consent to search the
       home and there were no exigent circumstances present to otherwise justify the
       entry and search.

       This case is now before us for our review. We are inclined to note that this is not the
Defendant’s first attempt to certify his question to this court. See State v. Justin Gibson, No.
M2010-02361-CCA-R3-CD, 2011 WL 6916409 (Tenn. Crim. App. Dec. 28, 2011), perm.
app. denied, (Tenn. May 22, 2012). In the first appeal, a panel of this court dismissed the
Defendant’s appeal for lack of jurisdiction because the order stating the certified question
was not filed until after the Defendant filed his notice of appeal document, thus, failing to
comply with the requirements of Tennessee Rule of Criminal Procedure 37(b)(2). Id. at *1,
3. Following our supreme court’s denial of the Defendant’s permission to appeal, the
Defendant returned to the trial court and, on July 18, 2012, filed a motion to correct the
judgment pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure to include the
order certifying the question of law. See Tenn. R. Crim. P. 36. (“After giving any notice it

                                              -6-
considers appropriate, the court may at any time correct clerical mistakes in judgments,
orders, or other parts of the record, and errors in the record arising from oversight or
omission. Upon filing of the corrected judgment or order, the defendant or the state may
initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure.”)
(as effective July 1, 2012). Although it appears that several hearings were held on this
motion and those transcripts are not included in the record on appeal, the trial court granted
this motion, entering amended judgments on October 2, 2012, complying with the procedural
requirements for reserving a certified question of law.

        Although we can find no case where this exact procedure has been permitted, there
are several cases from our supreme court implying that this practice is acceptable.2 See
Cantrell v. Easterling, 346 S.W.3d 445, 449 (Tenn. 2011) (“While this Court has referred to
Rule 36 in the context of trial courts attempting to amend judgments so as to preserve a
certified question, this Court has not relied on Rule 36 in the context of a defendant’s claim
that his sentence is illegal.”) (citations omitted); State v. Armstrong, 126 S.W.3d 908, 912
(Tenn. 2003) (“One prior decision does reflect, however, that a trial court is not without the
means or the authority by which to take corrective action when it appears that a final
judgment or order does not comply with the Preston requirements. As we pointed out in
Pendergrass, ‘the trial court retains limited power to correct clerical mistakes in judgments
and other errors in the record arising from oversight or omission.’” (quoting State v.
Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996) (citing Tenn. R. Crim. P. 36)) (footnote
omitted); Pendergrass, 937 S.W.2d at 837-38. Based upon this line of cases from our
supreme court, and given that neither party has challenged this procedure on appeal, we are
inclined to review the question as properly certified.

                                               ANALYSIS

      On appeal, the Defendant argues that the Captain Walsh’s warrantless entry into his
home was not justified by either consent or exigent circumstances and that the resulting
evidence, the Defendant’s statements to EMS personnel and subsequent blood alcohol test,
should have been suppressed. The State responds that the trial court properly denied the
motion to suppress because the warrantless search was justified under the exigent
circumstances exception to the warrant requirement.3 The State asserts that Captain Walsh

2
  These cases were prior to the recent amendment to Rule 36 and cite to the rule in effect at that time. The
substance of the rule is unaltered by the recent amendment. The amendment differs only in that it now
provides for notice to the parties and makes provisions for an appeal as of right.
3
  The State does not argue on appeal that the search was based upon proper consent, failing to include the
issue in its appellate brief and conceding as much at oral argument. A third party’s consent to search is valid
                                                                                                 (continued...)

                                                     -7-
would have been derelict in his duty if he had not gone inside the Defendant’s home to
investigate further.

         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) (citing State v. Scarborough,
201 S.W.3d 607, 615 (Tenn. 2006). When the trial court “makes findings of fact in the
course of ruling upon a motion to suppress, those findings are binding on appeal unless the
evidence in the record preponderates against them.” Id. (citing State v. Berrios, 235 S.W.3d
99, 104 (Tenn. 2007)). 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. Id. (citing
State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)).

        Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures by government agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These
constitutional provisions are designed to ‘safeguard the privacy and security of individuals
against arbitrary invasions of government officials.’” State v. Keith, 978 S.W.2d 861, 865
(Tenn.1998) (quoting Camara v. Mun. Ct., 387 U.S. 523, 528 (1967)). The general rule is
that a warrantless search or seizure is presumed unreasonable and any evidence discovered
is subject to suppression. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012); see also State
v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003). That is, a trial court necessarily indulges the
presumption that a warrantless search or seizure is unreasonable, and the burden is on the


3
 (...continued)
where the third party had “common authority over [the] premises or effects . . . against the absent,
non-consenting person with whom that authority is shared.” State v. Bartram, 925 S.W.2d 227, 230-31
(Tenn. 1996) (citing U.S. v. Matlock, 415 U.S. 164, 171 (1974)). We agree with the Defendant and the
State’s concession that Captain Walsh’s entry was not lawful based upon consent by a third party with
common authority over the premises. Mr. Walker, a next-door neighbor, was only authorized to enter the
home through the garage in order to provide care for the family dog; he did not have “joint access or control
for most purposes” over the premises and, therefore, could not consent to a search of the Defendant’s home.
See id. at 231 (quoting Matlock, 415 U.S. at 171, n.7); see, e.g., State v. Huntingdon, 944 N.E.2d 240, 244-45
(Ohio Ct. App. 2010) (defendant’s friend, whom defendant had asked to feed her cats for three days while
defendant was out of town, lacked common authority over defendant’s home, as required for friend to validly
give police voluntary consent to enter without a warrant to search for drugs). Accordingly, we will only
address the exigent circumstances exception in the remainder of this opinion.

                                                     -8-
State to demonstrate that one of the exceptions to the warrant requirement applied at the time
of the search or seizure. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). “If the
circumstances of a challenged search and seizure come within one of the recognized
exceptions, the fruits of that search and seizure are not subject to operation of the
exclusionary rule and may be properly admitted into evidence.” State v. Shaw, 603 S.W.2d
741, 743 (Tenn. Crim. App. 1980).

                                 I. Exigent Circumstances
       The issue before this court is whether Captain Walsh was justified in making entry
into the Defendant’s residence without first obtaining a search warrant. The United States
Supreme Court has held that a warrant is not required to enter a person’s home when “the
exigencies of the situation make the needs of law enforcement so compelling that the
warrantless [entry] is objectively reasonable under the Fourth Amendment.” Mincey v.
Arizona, 437 U.S. 385, 393-94 (1978) (internal quotation marks omitted). “One exigency
obviating the requirement of a warrant is the need to assist persons who are seriously injured
or threatened with such injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Under
this “emergency aid” exception, “officers may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from imminent
injury.” Id. Officers do not need “ironclad proof of a likely serious, life-threatening injury
to invoke the emergency aid exception[.]” Michigan v. Fisher, 558 U.S. 45, 49 (2009)
(internal quotation marks omitted). Consistent with the Fourth Amendment’s “ultimate
touchstone” of reasonableness, officers must have an “objectively reasonable basis for
believing” that “a person within the house is in need of immediate aid.” Id. at 47 (internal
quotation marks and brackets omitted).

        “Brigham City illustrates the application of this standard.” Id. There, four officers
responded, at 3 o’clock in the morning, to a call about a loud party at a residence. Brigham
City, 547 U.S. at 406. When they arrived, they heard “an altercation occurring, some kind
of fight” inside the residence. They heard “thumping and crashing” and people yelling “stop,
stop” and “get off me.” According to one officer, “it was loud and . . . tumultuous.” The
noise came from the back of the house, so the officers went to the backyard to investigate.
They saw two juveniles drinking beer and—through a screen door and windows—a fight
underway in the kitchen. Four adults were attempting to restrain a juvenile who had broken
free and punched one of the adults in the mouth. The adults pinned the juvenile against a
refrigerator with such force that the refrigerator began to move along the floor. At that point,
an officer opened the screen door, but did not enter, and announced his presence. When no
one responded, the officer entered the kitchen and again shouted out. The fight eventually
ceased when the individuals became aware that police had arrived. The Court held that the
officers “had an objectively reasonable basis for believing both that the injured adult might
need help and that the violence in the kitchen was just beginning,” permitting them to enter

                                              -9-
the home to quell the violence. Id.

       In another “straightforward” application of the emergency aid exception, the Court
in Fisher deemed reasonable an officer’s warrantless home entry. 558 U.S. 45. In that case,
officers responded to a report that a man was “going crazy” inside a residence. Id. at 45-46.
The home was in “considerable chaos” when officers arrived—“a pickup truck in the
driveway with its front smashed, damaged fenceposts along the side of the property, and
three broken house windows, the glass still on the ground outside.” Wet blood was on the
hood of the truck, the clothes inside it, and the home’s front door. Through a house window,
officers observed the defendant with a fresh cut on his hand, screaming and throwing things.
The back door was locked, and a couch blocked the front door. The officers knocked, but
the defendant refused to answer. When officers asked the defendant through an open
window if he needed medical assistance, he cursed at them and demanded that they get a
warrant. At that point, an officer pushed open the front door and entered the home. The
entry was lawful, the Court held, because the officers could reasonably believe that the items
being thrown “might have a human target (perhaps a spouse or a child),” or that the
defendant “would hurt himself in the course of his rage.” Id. at 48.

       One case from the our supreme court fits within this category. In State v. Meeks, 262
S.W.3d 710 (Tenn. 2008), the Tennessee Supreme Court discussed the exigent circumstances
exception to the warrant requirement, explaining as follows:

               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. Thus, in assessing 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. 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. Mere speculation is
       inadequate; rather, the State must rely upon specific and articulable facts and
       the reasonable inferences drawn from them. The circumstances are viewed
       from an objective perspective; the governmental actor’s subjective intent is
       irrelevant. 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. Where the asserted
       ground of 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.

                                             -10-
Id. at 723-24.

        In Meeks, a motel patron called the police to report a strong odor. Id. at 714-16. The
caller also complained about burning eyes and headaches. An officer went to the motel, met
with the caller, and recognized the “unmistakable” smell of a methamphetamine laboratory
coming from the room next door. When backup officers arrived, the officers went to the
suspect room. They heard voices in the room and knocked on the door, but no one answered.
The officers decided to enter the room due to the “dangers posed by manufacturing
methamphetamine” and obtained a key from the manager. However, when they tried to open
the door, the door would not open completely due to a chain lock, and a large cloud of fumes
escaped through the partially opened door. The officers decided to kick open the door.
Inside, they found the two defendants, one of whom was unconscious, and an active
methamphetamine laboratory. The defendants were removed from the scene, and the officers
obtained a search warrant based upon the information they had obtained from their
warrantless entry into the room. During the subsequent search, the officers found
methamphetamine and various parts of a methamphetamine laboratory. The defendants were
indicted for manufacturing methamphetamine, possessing methamphetamine, and possessing
drug paraphernalia. They filed a motion to suppress, arguing that the warrantless entry was
not justified by exigent circumstances, and the trial court granted the motion. However, this
court reversed the trial court, holding that the defendants’ actions had presented an
immediate threat to public safety.

       On appeal to our supreme court, the supreme court described methamphetamine
laboratories as “highly dangerous,” noting that

       [i]n addition to being highly combustible, the vapors or fumes that are
       generated in the production of methamphetamine pose further dangers. For
       example, exposure to the toxic fumes or vapors produced during the
       manufacture of methamphetamine, some of which are carcinogenic, can cause
       serious inhalation injuries to those at the laboratory site and sometimes even
       to neighbors.

262 S.W.3d at 725. The court also noted that some jurisdictions have adopted a per se rule
that the discovery of an active methamphetamine laboratory creates an exigent circumstance
that does not require a search warrant while other jurisdictions have determined that the
exigency is based on whether the location of the laboratory creates a danger to others such
as neighbors, law enforcement officials, and the individuals manufacturing the
methamphetamine. Id. at 725-26. Regardless, “the scope of a permissible warrantless search
remains limited to the scope of the exigency.” Id. at 726. According to our supreme court,
the facts in Meeks clearly supported the existence of exigent circumstances and “provided

                                             -11-
the officers with an objectively reasonable basis for concluding that there was an immediate
need to act to protect themselves and others from serious harm.” Id. at 726-27.

      Now, we must determine if the present case comes under this line of jurisprudence.
We find one district court’s analysis on the issue both particularly instructional and helpful.
See United States v. Brandwein, No. 11-4015-01/02-CR-C-NKL, 2012 WL 7827660 (W.D.
Mo. May 24, 2012). The district court in Brandwein made the following observations:

       It is worth noting that all cases where a court has found that an exigent
       circumstance existed appear to share two common factors. First, in all of the
       cases in which courts found exigency, officers observed events obviously
       occurring within the residence or building. For example, cries for help,
       screams, loud noises, or an observation of a struggle or fight within the
       structure by looking through a window. Second, courts have found exigent
       circumstances exist when officers observed events or evidence leading directly
       to a structure. For example, a blood trail leading to a closed door. See, e.g.,
       [Fisher, 558 at 45-48] (exigent circumstances justified warrantless entry of
       house when officers saw recently injured person and heard violent noises
       coming from inside; because officer heard screams coming from the house and
       had been told by 911 operator that violence might be occurring); United States
       v. Klump, 536 F.3d 113, 118 (2nd Cir. 2008) (search of warehouse justified
       because police were investigating “odor of something burning” and developed
       a reasonable belief that a fire was burning inside a building); United States v.
       Lenoir, 318 F.3d. 725, 730 (7th Cir. 2003) (home entry justified where officers
       observed a drunk man wielding a shotgun and assault rifle retreat into a home).
       In these cases, the situation the officers encountered necessitated immediate
       or near-immediate action. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509
       (1978) (“[I]t would defy reason to suppose that firemen must secure a warrant
       or consent before entering a burning structure to put out the blaze.”).

2012 WL 7827660, at *7.

        In the case sub judice, while there was a series of suspicious circumstances occurring
at or near the Defendant’s residence on the evening in question, the factors common in these
other exigent circumstances cases were not present. There were no signs or sounds of
distress coming from inside the home nor evidence leading directly to the structure.

        The trial court found Captain Walsh’s testimony that he entered the home out of
concern that someone inside may have been seriously injured and in need of assistance due
to the car accident that occurred close by to be credible. The trial court further noted that Mr.

                                              -12-
Walker told Captain Walsh that the residents were out of town but that Captain Walsh was
concerned because the front door was open, insinuating that a break-in was possible. Here,
Captain Walsh was aware of the following information before entering the Defendant’s
home: (1) A car, registered to this address, had apparently hit a tree about one-half of a mile
away, and the airbags had deployed; (2) When he arrived at the residence at approximately
3:00 a.m., the front door to the residence was “standing open[,]” but the glass, security door
was closed; (3) No one responded to his presence when he announced himself and knocked
at both the front and the back of the residence; and (4) Mr. Walker, who was caring for the
residents’ dog, informed Captain Walker that he believed all of the residents were out of
town and that the door was not ajar when he was at the residence several hours earlier that
day.

        Under these circumstances, we respectfully disagree with the trial court’s ruling that
exigent circumstances justified Captain Walsh’s entry based upon his belief that someone
inside of the home may have been seriously injured or a possible burglary might have
occurred. The aforementioned cases which approve the warrantless entry into a home to
render emergency aid and assistance are, without exception, based upon the officers’
observations of the place to be searched. These observations readily led to a conclusion that
a person had been or was about to be harmed, thereby requiring immediate action. Such is
not the case here as there was no evidence leading directly into the home, such as a trail of
blood, and there were no noises, voices or screams leading officers to believe someone inside
may be in immediate distress or in need of protection. Here, nothing at the accident scene
caused Captain Walsh to believe that the driver was seriously injured. By the time Captain
Walsh arrived at the residence, the Defendant had already managed to walk back to his house
and fall asleep in his bedroom upstairs. Captain Walsh did not see or hear anything to cause
one to think that someone was in the home, much less that someone was in need of
immediate assistance. Although testifying as to his belief about a possible break-in, Captain
Walsh allowed the neighbor to accompany him inside the residence. Captain Walsh not only
entered the first floor of the residence but proceeded all the way inside to an upstairs second-
floor bedroom with the door closed before encountering the Defendant. We conclude that
warrantless search in this case was not appropriate based upon exigent circumstances. See
Fern Lynn Kletter, J.D., Annotation, Necessity of Rendering Medical Assistance as
Circumstance Permitting Warantless Entry or Search of Building, 58 A.L.R.5th 499 (2003)
(citing cases where courts held that warrantless entry into a building to purportedly render
assistance to a motor vehicle accident victim was not justifiable under the emergency
exception and further commenting that the United States Supreme Court in Bonvicino v.
Hopkins, 559 U.S. 1048 (2010), declined to grant certiorari from Hopkins v. Bonvicino, 573
F.3d 752 (9th Cir. 2009), in which the Ninth Circuit held that neither the emergency nor the
exigent circumstances exception to the Fourth Amendment’s warrant requirement justified
police officers’ warrantless entry into the home of the suspected driver in a “hit and run”

                                              -13-
accident). See also People v. Krueger, 567 N.E.2d 717 (Ill. App. Ct. 1991) (police did not
have reasonable grounds to believe that the motorist required their immediate assistance to
safeguard his well-being; the police knew only that the motorist had returned home from the
accident, was upstairs sleeping and, according to a neighbor, was “out of it” but “fine”);
Com. v. DiGeronimo, 652 N.E.2d 148 (Mass. App. Ct. 1995) (warrantless entry into the
residence of an allegedly drunk driver who had just been involved in an accident with another
vehicle and then drove home was not justified by the emergency doctrine, where the driver
of the other vehicle was not injured and did not tell police that the drunk driver was injured,
but only that he appeared drunk); Lambert v. State, 745 P.2d 1185 (Okla. Crim. App. 1987)
(no exigent circumstances justified warrantless entry into the occupant’s house,
notwithstanding a patrolman’s concern for the occupant’s possible physical injuries
stemming from a severe car crash); State v. Bramson, 765 P.2d 824 (Or. Ct. App. 1988)
(warrantless entry, culminating in the seizure of marijuana, was held not justified under either
emergency/exigent circumstances exception or the emergency aid doctrine, where the
occupants’ front door was open, the screen door had no glass or screen, the weather was cold,
a vehicle was in the driveway, the occupants were reportedly out of town, and there was no
report or other indication of unauthorized entry or criminal activity.)

                              II. “Community Caretaker” Function
        Courts in other jurisdictions have also addressed actions similar to Captain Walsh’s
as part of a police officer’s “community caretaking” function. See United States v. Quezada,
448 F.3d 1005, 1007 (8th Cir.); Brandwein, 2012 WL 7827660, at *9; see also 3 Wayne R.
LaFave, Search and Seizure, §§ 6.6 n.4, 6.6(a) n.7 (5th ed.) (citing cases). Particularly
relevant to this issue is our supreme court’s recent opinion in State v. Moats, 403 S.W.3d 170
(Tenn. 2013). In that case, an Etowah Police Department officer observed the defendant
sitting in a parked car in the parking lot of a grocery store at 2:00 a.m. Id. at 175. Upon
observing the truck in the same location five minutes later, the officer parked “behind the
truck, activated her blue lights, and called in the license plate number.” During a brief
conversation with the defendant, the officer observed an open beer in the cup holder and
noticed that the defendant “appeared to be ‘disoriented, very slow to speak, very sleepy
acting.’” The defendant eventually failed field sobriety tests and was placed under arrest for
DUI. On appeal, our supreme court reversed the defendant’s conviction, concluding that “the
circumstances here demonstrate that the officer was not acting within a community
caretaking role and did not have reasonable suspicion or probable cause to seize” the
defendant. Id. at 188.

       Pertinent to this case, the court in Moats concluded that the community caretaking
doctrine applied only to consensual police-citizen encounters, was not an exception to the
warrant requirement and, thus, did not justify the warrantless seizure in that case. Id. In the
face of a vigorous dissent, the majority noted the following:

                                              -14-
                 We are aware that the doctrine of community caretaking, as interpreted
        and applied in our state—i.e., as a type of third-tier consensual police-citizen
        encounter—represents a minority rule among other jurisdictions. Indeed, as
        the dissent points out, the vast majority of courts have applied the community
        caretaking doctrine as “an exception” to the warrant requirement of the Fourth
        Amendment to the United States Constitution. E.g., United States v. Coccia,
        446 F.3d 233, 237-38 (1st Cir. 2006); United States v. Pichany, 687 F.2d 204,
        205 (7th Cir. 1982); People v. Luedemann, 857 N.E.2d 187, 198-99 (2006);
        State v. Graham, 175 P.3d 885, 890 (2007); Ullom v. Miller, 705 S.E.2d 111,
        120 (2010). As noted in this opinion, however, this Court has for decades
        interpreted article I, section 7 of the Tennessee Constitution as imposing
        stronger protections than those of the federal constitution, which, under stare
        decisis, we are not prepared to dismissively brush aside.4 Particularly in the
        area of search and seizure law, we have often rejected the standards adopted
        by the United States Supreme Court in favor of more protective doctrines,
        tests, and rules. See, e.g., State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000)
        (noting that Tennessee has never recognized the “good faith” exception to the
        exclusionary rule that was adopted by the Supreme Court in United States v.
        Leon, 468 U.S. 897 (1984)); State v. Jacumin, 778 S.W.2d 430, 435-36 (Tenn.
        1989) (refusing to adopt the test for probable cause as established by the
        Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), because it is
        “inadequate”); State v. Lakin, 588 S.W.2d 544, 549 n.2 (Tenn. 1979) (“Where,
        . . . as in the particular phase of search and seizure law under consideration,
        there has been a settled development of state constitutional law which does not
        contravene the federal, we are not inclined to overrule earlier decisions unless
        they are demonstrably erroneous.”).

               While we recognize the rationale underlying the majority rule, we see
        no reason to depart from the standards of community caretaking that have
        developed in our state, particularly because neither party has articulated a
        persuasive basis for recognizing this as yet another exception to the
        constitutional protections against unreasonable searches and seizures. See
        Lakin, 588 S.W.2d at 549 (recognizing that, in the context of the “open fields”


4
  We feel compelled to note that our supreme court has also made statements such as, “[a]rticle I, [section]
7 [of the Tennessee Constitution] is identical in intent and purpose with the Fourth Amendment [of the
United States Constitution],” and that federal cases applying the Fourth Amendment should be regarded as
“particularly persuasive.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968); see also State v. Williams, 185
S.W.3d 311, 315 (Tenn. 2006) (citations omitted); State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)
(citation omitted).

                                                   -15-
       doctrine, “[a]lthough the decisions in this state may be somewhat more
       restrictive than those in other states or than federal decisions, no compelling
       reason has been demonstrated in this case for modifying or overruling them”).
       The Defendant has argued strongly against treating community caretaking as
       an exception to the warrant requirement, and the State has simply asserted that
       “the touchstone of this fact-intensive analysis is reasonableness.” Unlike the
       dissent, we decline to adopt an approach to community caretaking that would
       diminish “the most basic constitutional rule” that warrantless searches and
       seizures are per se unreasonable, simply because it has been adopted by a
       majority of other courts.

403 S.W.3d at 187-88 n.8 (footnote added). As further noted by our supreme court in Moats,
the community caretaking role has also been used to justify the “emergency aid doctrine”;
however, the court “decline[d] to address the myriad [of] circumstances under which the
community caretaking function might apply in our State.” Id. at 186-87 n.7 (emphasis added)
(citation omitted).

       The decision in Moats is reminiscent of other jurisdictions which have limited Cady
v. Dombrowski to vehicles, although our supreme court did not out-right make such a
statement. Those courts have held that because the Court in Dombrowski stressed the
“distinction between motor vehicles and dwelling places,” its application is to be limited to
searches of vehicles. See, e.g., Ray v. Township of Warren, 626 F.3d 170, 177 (3rd. Cir
2010); United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994); United States v. Erickson,
991 F.2d 529, 531 (9th Cir. 1993); United States v. Pichany, 687 F.2d 204, 208-09 (7th
Cir.1982). The Moats court did state,

               Our extensive research suggests that community caretaking can
       generally be classified into several categories, all of which are separate and
       distinct from traditional criminal investigation or detection. The primary form
       of community caretaking . . . is also known as the public safety function and
       is the type of community caretaking originally identified by the United States
       Supreme Court. In Dombrowski, the Court observed that

              [b]ecause of the extensive regulation of motor vehicles and
              traffic, and also because of the frequency with which a vehicle
              can become disabled or involved in an accident on public
              highways, the extent of police-citizen contact involving
              automobiles will be substantially greater than police-citizen
              contact in a home or office.



                                            -16-
       413 U.S. at 441. Like the community caretaking standards that have
       developed in our state, this type of community caretaking described by the
       Supreme Court “supports relatively minor or regular interactions with the
       police: approaching parked cars when the driver appears incapacitated or sick
       or the car is functioning improperly and approaching pedestrians who appear
       lost, in danger, or ill.” The core of any community caretaking function is when
       the police act to protect or assist the public in some manner outside of “the
       crime-control paradigm.”

403 S.W.3d at 186-87 (footnotes and some internal citations omitted).

       Because our supreme court declined to recognize the community caretaking doctrine
as an exception to the Fourth Amendment’s warrant and probable cause requirements, and
limited the doctrine to consensual police-citizen encounters, we cannot conclude that Captain
Walsh was validly acting a community caretaker role when he entered the Defendant’s
residence. Nothing about Captain Walsh’s encounter with the Defendant can be deemed a
consensual police-citizen encounter. The court in Moats was clear that a more restrictive
approach was necessary in this State. In accordance with this recent precedent, we conclude
that Captain Walsh’s entry into to the Defendant’s home was not authorized under any
exception to the warrant requirement, and therefore, the Defendant’s motion to suppress was
improperly denied.

                                       CONCLUSION

       In summary, we conclude that the trial court erred by denying the Defendant’s motion
to suppress. Accordingly, the judgment of the trial court is reversed. Because the nature of
this appeal requires that the issue is dispositive of the case and because we agree that it is,
the charge against the Defendant is dismissed.


                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -17-
