        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 19, 2012 Session

            STATE OF TENNESSEE v. STONEY R. ANDERSON, II

                 Appeal from the Circuit Court for Hickman County
                   No. 10-5076CR     James G. Martin, III, Judge


                 No. M2011-01766-CCA-R3-CD - Filed June 12,, 2012


The Defendant-Appellant, Stoney R. Anderson, II, pled guilty in the Hickman County Circuit
Court to possession of more than half an ounce of marijuana with intent to sell, a Class E
felony. He was sentenced as a Range I, standard offender to two years’ probation. Pursuant
to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, Anderson reserved the
following certified question of law: “[w]hether the warrantless search of the Defendant’s bag
is supported by exigent circumstances.” Upon review, we reverse and vacate the judgment
of the trial court and dismiss the case.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JAMES C URWOOD
W ITT, J R., J., joined and J ERRY L. S MITH, J., not participating.

Dale M. Quillen and Kenneth Quillen, Nashville, Tennessee, for the Defendant-Appellant,
Stoney R. Anderson, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Michael J. Fahey, II, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

      Background. This case concerns a law enforcement officer’s warrantless entry into
Anderson’s home and the subsequent search of a duffle bag Anderson was holding in his
hands at the time. Inside the bag, officers discovered approximately one and a half pounds
of marijuana and drug paraphernalia. Anderson filed a motion to suppress the evidence
obtained as a result of the search, arguing that the officers lacked a warrant or any other legal
grounds to authorize the search.1

       At the evidentiary hearing on the motion to suppress, Deputy Kyle Chessor of the
Hickman County Sheriff’s Department testified that at approximately 1 a.m. on September
26, 2009, he was dispatched to Wilder Point Road in response to a call reporting an
“unknown disturbance with shots being fired.” When Deputy Chessor arrived at Wilder
Point Road, he met with Deputy Cohen. They parked their cars at the bottom of a steep hill
on Wilder Point and proceeded on foot. As the deputies were walking, Deputy Chessor
heard loud music coming from a house later determined to be Anderson’s. He saw a car
leave the house, and Deputy Chessor stopped the car. He talked with the people in the car,
including Matthew Roberson, whom Deputy Chessor recognized as a personal acquaintance.
They informed him that there had been no disturbance at the residence, and they were not
aware of any gunshots or the presence of a firearm. They said that there was a “small get-
together” at Anderson’s house.

        The deputies continued toward the house and saw a light inside. They walked to the
back of the house. Deputy Chessor said they did not go to the front door because, “[w]ith
disturbances like that we want to kind of approach from a different angle, whatever angle we
think is the best. It differentiates from call to call. It’s a safety concern.” At the back of the
house, the deputies climbed a staircase leading to a deck and a back door. While the deputies
were on the deck and before they reached the back door, Anderson, who was carrying a
duffle bag, exited the door and walked onto the deck.

       Through the open door, Deputy Chessor testified that he smelled a “very strong odor
of burnt marijuana” coming from inside the house. Deputy Chessor identified himself to
Anderson and explained why he was there. Anderson told Deputy Chessor that he was
having a “get-together” and that there had been no disturbance or gunshots. Deputy Chessor
then walked to the door and saw several people inside the house at a kitchen table. He told
Anderson that he “wanted to speak with everyone and make sure there wasn’t a weapon
involved anywhere and make sure there wasn’t any kind of physical threat like that.” Deputy
Chessor ordered Anderson into the house, and Deputy Chessor followed him inside.

        Once inside, Deputy Chessor told the other people gathered in the kitchen to put their
hands on the table and that he was concerned that there might be a weapon in the house. He
testified, “We were concerned about what was going on because our information was pretty
limited from dispatch as to what was happening.” Meanwhile, Anderson walked toward a
bedroom, still carrying the duffle bag. Deputy Chessor, concerned Anderson was going to

       1
          The suppression motion refers, apparently erroneously, to the search of Anderson’s automobile
rather than his house.

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retrieve a weapon, told him to stop twice. Anderson ignored the commands and entered the
bedroom. Deputy Chessor then “had to physically go tell him to stop,” and Anderson
complied.

       At this point, Anderson told Deputy Chessor that he wanted to call his attorney, which
Deputy Chessor allowed. Anderson called his attorney, advised him of the situation, and
Deputy Chessor spoke with the attorney. Deputy Chessor advised the attorney that he was
concerned that there was a “weapon in the residence, particularly in the duffle bag, the way
[Anderson] was acting.” Deputy Chessor testified that the attorney “suggest[ed] no search
of the residence of any kind to be consented or anything like that, no search.” Deputy
Chessor told the attorney that he understood.

        Following the telephone conversation with the attorney, Deputy Chessor asked
Anderson “what was in the bag because [he] figur[ed] it was a weapon due to the nature of
the call.” In response to Deputy Chessor’s questioning Anderson as to why someone would
report “a gunshot fired,” Anderson said that “he wasn’t sure” and that it was possible that a
“prior relationship” was to blame. Anderson further explained that he was under an order
of protection and was not permitted to own or possess a firearm. Deputy Chessor told
Anderson “that [he] wanted to check the bag just to make sure there wasn’t a firearm there
for safety [sic] sake.” Deputy Chessor testified that Anderson “didn’t agree [to the search],
and [Anderson] further stated that his counsel didn’t want a search of the residence made,
and [Deputy Chessor] advised [Anderson], I’m not searching the residence, just the bag for
the firearm.”

       Finally, Anderson said, “[Y]ou don’t have to search [the bag], you know what’s in
there.” Deputy Chessor asked if marijuana was in the bag, to which Anderson again
responded, “[Y]ou know what’s in there.” When Deputy Chessor opened the bag, he found
approximately one and a half pounds of marijuana, digital scales, sandwich baggies, and
empty Crown Royal bags. He did not find a weapon in the bag or with any of the other
people in the house.

       On cross-examination, Deputy Chessor testified that he did not have either a search
or arrest warrant for Anderson or his home. Although Deputy Chessor denied knowing
Anderson’s address prior to the instant offense, a notice of property seizure and two
misdemeanor citations issued by Deputy Chessor to Anderson noting Anderson’s address
were admitted into evidence. When asked how he knew he had the “right residence” that
night, Deputy Chessor explained, “We could hear loud music at the residence. I believe there
was a mailbox there with it marked.” Upon being shown a photograph of the mailboxes in
front of Anderson’s home, Deputy Chessor acknowledged that Anderson’s mailbox was the
second mailbox in a row of five mailboxes with only one numeric displayed for all five
mailboxes. He further acknowledged that he parked “a good distance away” from

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Anderson’s home. Finally, Deputy Chessor confirmed that the dispatch he received (1) did
not identify the person who made the report or a possible suspect; and (2) did not state when
the shots were fired or where the disturbance took place.

        Matthew Roberson, who had been at Anderson’s house on the night of the offense,
testified that as he was leaving Anderson’s house in his car, he saw police officers walking
toward him on the road. Deputy Chessor, whom Roberson had known since his childhood,
approached the car and asked Roberson and Roberson’s wife for identification. Deputy
Chessor asked what was happening at Anderson’s house. Roberson told Deputy Chessor that
they had been at the house “having a barbeque out on the back deck listening to music, you
know, just relaxing and having fun.” He told Deputy Chessor that he had been at the house
for approximately two and a half to three hours and that he had not heard gunshots in the
area.

        Roberson testified that Anderson’s house was located on a private drive shared by
other houses. All the houses’ mailboxes were located at the beginning of the private drive.
Roberson identified photographs of Anderson’s house, which were admitted as exhibits at
the hearing. One photograph, taken from the road at an angle to the front of the house,
depicts the front and side of the house, the front yard, and a gravel and dirt parking area on
the side of the house. The house is mostly surrounded by trees, and no other houses are
visible in the photograph. The backyard cannot be seen. Another photograph depicts the
rear of the house, including a two-tiered deck attached to the house, a back door, and what
Roberson called the “pool area.” Stairs lead up to the deck from the yard, and close to the
top of the stairs is a door to the house. At the foot of the stairs are a number of children’s
toys. On the back deck are more toys, a grill, and several coolers. Roberson testified that
the rear of Anderson’s house appeared this way on the night of the offense.

       Justina Hollers, Anderson’s girlfriend, testified that she had been at his house all day
and night before the deputies arrived. She was not aware of any disturbance and had not
heard any gunshots. A number of friends and relatives were at the house. Hollers was in the
kitchen when the deputies entered the back door and told them all to put their hands on the
kitchen counter. The deputies searched everyone.

      Following the hearing, the trial court denied the motion to suppress and found that
exigent circumstances supported the deputies’ actions. It stated:

              The Court finds that under the facts and circumstances of this case that
       this was a warrantless search that was authorized . . . .

              [The deputies] received a dispatch that is undisputed. The dispatch said
       that there’s a disturbance, possible shots had been fired. The way that they

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       approached the residence, in the Court’s mind, was entirely reasonable. It’s
       1:00 o’clock [sic] in the morning. They don’t know what they’re going to
       find. So they approach on foot so as to not alert or alarm someone. They
       approach cautiously. They go to the back of the residence so they can see
       where the light is coming from, and even before they get to the door and
       announce their presence, Mr. Anderson exits, and when he does then a strong
       odor of marijuana comes out with him.

             They go inside, . . . and they gain control of the inside of the residence.
       They ask everyone to place their hands where they can be viewed, which is
       completely reasonable. They conduct a pat search of everyone in there to
       make sure that no one in there is armed. That’s completely reasonable.

              Everyone cooperates with the exception of Mr. Anderson, and he is
       asked to stay where you are three different times and he doesn’t do that. In
       addition to that, the search that’s involved here is limited to the duffle bag
       which is in the physical possession of Mr. Anderson, and has been in the
       physical possession of Mr. Anderson since he was first encountered on the
       deck, and it’s the officers [sic] concern that that duffle bag may very well
       contain a weapon, and they would have been foolish not to search that duffle
       bag and turn their back on Mr. Anderson and leave or to place anyone else in
       potential harm.

       ....

              The actual physical search that’s at issue here is of a duffle bag in the
       hand of Mr. Anderson, and under these circumstances the Court simply
       believes that this search was reasonable and it’s authorized by our Constitution
       ....

      Anderson later pled guilty, properly reserving for appeal a certified question of law:
“Whether the warrantless search of the Defendant’s bag is supported by exigent
circumstances.”
                                      ANALYSIS

        Anderson claims that the trial court erred in denying his motion to suppress. He
asserts that exigent circumstances did not support the search of Anderson’s duffle bag. Even
if there were exigent circumstances, according to Anderson, they cannot support the search
because the deputies created them when they unconstitutionally intruded on the curtilage of
Anderson’s home. The State responds that “Deputy Chessor encountered circumstances
leading to the objectively reasonable belief that there could be a serious risk to his safety,”

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an exigent circumstance that justified the search of Anderson’s bag. The State does not
address whether the deputies created the exigency.2 We agree with Anderson.

       Standard of Review. The standard of review applicable to suppression issues
involves a mixed question of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn.
2003). “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005)
(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court
explained this standard in State v. Odom:

        Questions of credibility of the witnesses, the weight and value of the evidence,
        and resolution of conflicts in the evidence are matters entrusted to the trial
        judge as the trier of fact. The party prevailing in the trial court 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.

928 S.W.2d at 23. Nevertheless, “the burden remains on the State to prove that a warrantless
search was constitutionally permissible.” State v. Richards, 286 S.W.3d 873, 877 (Tenn.
2009) (citing State v. Nicholson, 188 S.W.3d 649, 656-57 (Tenn. 2006); State v. Henning,
975 S.W.2d 290, 298 (Tenn. 1998)). A trial court’s conclusions of law are reviewed de novo.
State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005) (citing State v. Daniel, 12 S.W.3d 420,
423 (Tenn. 2000)).

        As an initial matter, the record shows that the trial court filed two written orders
denying the motion to suppress in addition to its oral order. The first written order, filed
before Anderson pled guilty, included a discussion of the court’s findings and analysis. The
second written order, filed after Anderson filed notice of appeal, stated that “[t]he legal and
factual bases for the denial are set forth on the record” of the suppression hearing. We glean
from the transcript of the plea hearing that the parties agreed the first written order was in
conflict with the court’s oral order denying the motion to suppress. The parties requested the
trial court enter a second order deferring to the court’s oral order at the suppression hearing.
However, the trial court did not have jurisdiction to file the second order because it did so
after Anderson had already filed notice of appeal. State v. Pendergrass, 937 S.W.2d 834, 837
(Tenn. 1996) (“The jurisdiction of the Court of Criminal Appeals attaches upon the filing of


        2
         The State construes the certified question too narrowly and argues that we need not consider
whether the deputies created the exigent circumstances or otherwise acted unreasonably. However, as we
discuss below, exigent circumstances can support a warrantless search only when the police have not first
violated constitutional protections. In order to answer the certified question, we must therefore consider the
reasonableness of the deputies’ actions prior to the search.

                                                     -6-
the notice of appeal and, therefore, the trial court loses jurisdiction.”) (citing State v. Peak,
823 S.W.2d 228, 229 (Tenn. Crim. App. 1991)). Nevertheless, we conclude that any
variance in the findings between the oral order and the first written order are immaterial to
our analysis here, and we rely on the court’s more thorough oral order recorded in the
suppression hearing transcript. Cf. Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 725
n.2 (Tenn. 2006) (relying on the more precise written order when the trial court’s written and
oral discovery orders differed).

       I. Warrantless Search. Both the United States Constitution and the Tennessee
Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV
(“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .”); Tenn. Const. art. I, § 7
(“That the people shall be secure in their persons, houses, papers and possessions, from
unreasonable searches and seizures . . . .”). “[A] warrantless search or seizure is presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless the
State demonstrates that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v.
Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996)). One such exception to the warrant
requirement allows police to conduct a search or seizure in the presence of exigent
circumstances. State v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008).

       Exigent circumstances commonly support a warrantless search when officers act “(1)
[to continue] hot pursuit, (2) to thwart escape, (3) to prevent the imminent destruction of
evidence, (4) [to respond] to an immediate risk of serious harm to police or others, and (5)
to render emergency aid to an injured person or to protect a person from imminent injury.”
Id. The Tennessee Supreme Court has summarized the principles governing the
determination of whether circumstances are sufficiently exigent to dispense with the warrant
requirement:

               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

                                               -7-
        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.

Id. at 723-24 (footnotes omitted).

       However, the exigent circumstances exception does not apply if the police themselves
impermissibly create the exigent circumstances. Kentucky v. King, 131 S. Ct. 1849, 1857-58
(2011); Carter, 160 S.W.3d at 532.3 Police conduct leading up to a warrantless search, even
if based on exigent circumstances, must be reasonable. King, 131 S. Ct. at 1858. Therefore,
when the police “gain entry to premises by means of an actual or threatened violation of the
Fourth Amendment,” exigent circumstances cannot support the warrantless search. Id. at
1862.

       Here, exigent circumstances did not support the warrantless search of Anderson’s bag.
Even if we were to accept the State’s argument that the deputies reasonably feared that
Anderson posed an immediate risk to their safety at the time they searched the bag, any risk
to their safety arose only after they violated Anderson’s constitutional protections by
intruding on his back deck. The United States Supreme Court has stated that “physical entry
of the home is the chief evil against which the wording of the Fourth Amendment is
directed.” United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972). Additionally, the
curtilage surrounding the house merits the same constitutional protection as the home. State
v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987). The extent of the curtilage, and thereby the
extent of constitutional protection, is measured according to two similar tests under the
United States and Tennessee Constitutions. Under the Fourth Amendment of the United
States Constitution, a court determines “whether the area in question is so intimately tied to
the home itself” to warrant protection by considering four factors:

        [(1)] the proximity of the area claimed to be curtilage to the home, [(2)]
        whether the area is included within an enclosure surrounding the home, [(3)]



        3
          Although Carter recognizes and applies the police-created exigency doctrine, its specific holding
on this issue, at least for the purposes of interpreting the Fourth Amendment, is abrogated by King. Compare
King, 131 S. Ct. at 1863 (holding that police did not create exigent circumstances by knocking on a front
door and announcing their presence), with Carter, 160 S.W.3d at 532 (holding that police “created exigent
circumstances by approaching the defendants’ residence and alerting the defendants to the[ir] presence”).

                                                    -8-
       the nature of the uses to which the area is put, and [(4)] the steps taken by the
       resident to protect the area from observation by people passing by.

United States v. Dunn, 480 U.S. 294, 301 (1987). Although Tennessee courts have not
adopted these Dunn factors, they similarly define the extent of the curtilage under article I,
section 7 of the Tennessee Constitution as “‘the area around the home to which the activity
of home life extends.’” Prier, 725 S.W.2d at 670-71 (quoting Oliver v. United States, 466
U.S. 170, 182 n.12 (1984)).

        Anderson’s deck was plainly within the curtilage of his home for the purposes of both
the Fourth Amendment and article I, section 7. Considering the Fourth Amendment test, the
deck was immediately attached to the house, and a back door opened to it. Although the area
was not included within an enclosure, it was largely surrounded by trees. A grill was on the
deck, indicating that Anderson used the area for cooking. The many toys indicate that young
children used the area to play. Roberson’s testimony indicates that Anderson used the area
to relax and entertain guests. Additionally, the area was behind the house and not visible to
passers-by on the road. All these factors support the conclusion that the deck was intimately
tied to the home, and the deck, therefore, is protected under the Fourth Amendment. Cf.
Hardesty v. Hamburg Twp., 461 F.3d 646, 652 (6th Cir. 2006) (finding rear deck to be
protected curtilage under similar facts). Furthermore, this same evidence, particularly the
nature of the activities that occurred on the deck, demonstrates that the deck was an area to
which the activity of home life extended. Consequently, Anderson also enjoyed the
protection of article I, section 7 of the Tennessee Constitution while on his deck. Because
the deputies intruded on this constitutionally protected area without a warrant, they violated
the mandates of the United States and Tennessee Constitutions.

        Although the State on appeal offers no defense of the deputies’ initial intrusion onto
the deck, the trial court found the deputies’ actions to be reasonable under the circumstances.
Presumably, the trial court relied on the late hour and Deputy Chessor’s testimony that the
deputies, because of the nature of the dispatch, went to the back of the house out of a concern
for their own safety. Considering the facts known to the deputies at the time, we conclude
that this concern did not rise to the level of exigent circumstances sufficient to justify the
warrantless intrusion on Anderson’s deck. Rather, any fear the officers may have held was
mere speculation. The deputies’ basis for their fear, the dispatch related to a disturbance with
gunshots fired, came from an unidentified informant whose reliability was not established.
See State v. Simpson, 968 S.W.2d 776, 781 (Tenn. 1998) (assessing informant’s reliability
by considering credibility and basis of knowledge when a tip provides officers with
reasonable suspicion). Additionally, the officers had no information linking Anderson or his
house to the disturbance. In fact, Deputy Chessor testified at the hearing that his
“information was pretty limited from dispatch as to what was happening,” and he received
information at the scene from Roberson, an identified acquaintance of Deputy Chessor’s who

                                              -9-
was leaving Anderson’s house, that no disturbance or gunshots had occurred. As a result,
we conclude that the trial court erred in denying Anderson’s motion to suppress.

       By so holding, we do not create a broad rule that an officer may never approach the
back door of a house before first approaching the front door. Such an action may be
reasonable under other circumstances. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 406-
07 (2006) (noting that knocking on the front door would have been futile and holding that
officers did not violate the Fourth Amendment by entering back door when a fight was
underway inside). Under the circumstances of this case, however, the constitutionally
reasonable course of conduct would have been to approach the front door instead of
approaching the back of Anderson’s house. See State v. Harris, 919 S.W.2d 619, 623-24
(Tenn. Crim. App. 1995) (explaining that police, as members of the public, are impliedly
invited to the front door of a residence).

        The evidence used to convict Anderson was obtained as a result of the deputies’
violation of Anderson’s rights under both the United States and Tennessee Constitutions, and
it therefore must be suppressed. Mapp v. Ohio, 367 U.S. 643, 654-55 (1961); Ellis v. State,
211 Tenn. 321, 327 (1963). Since this question is dispositive, the case against Anderson is
dismissed.

                                     CONCLUSION

        Upon review, we reverse and vacate the judgment of the trial court and dismiss the
case.


                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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