The State Cites The Case of State v. Gabbard, 877 P.2D 1217 (Or. App. 1994) ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1996 SESSION
September 2, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) NO. 01C01-9511-CR-00377
)
Appellant ) DAVIDSON COUNTY
)
V. ) HON. SETH NORMAN, JUDGE
)
JAMES A. HEARN, ) (Suppression)
)
Appellee )
)
CONCURRING OPINION
I concur fully with the result reached by the Court that the evidence in this case
must be suppressed. I disagree however with the holding that the State’s failure in the
trial court to argue the existence of exigent circumstances precludes consideration in
this court of that argument due to a waiver. I believe this Court should be free to
examine the validity of a search using any appropriate legal analysis where the record
in the case permits us to do so. The problem in this case is not that the State has
waived as such the argument that exigent circumstances warrant a departure from the
knock and announce rule; but rather the failure to litigate this issue below has left this
court with a record which is insufficient for us to conclude that an unannounced entry
was appropriate.
The State cites the case of State v. Gabbard, 877 P.2d 1217 (Or. App. 1994);
for the proposition that a belief on the part of officers executing a search warrant that a
methamphetamine lab may be on the premises to be searched is, standing alone,
sufficient to create exigent circumstances thereby creating an exception to the knock
and announce rule. However, I do not read Gabbard as holding this at all.
In Gabbard the offices received information the day of the search that the
defendant and another were in the process of cooking methamphetamine. In addition,
they recalled and verified that they had an outstanding arrest warrant for the individual
allegedly with defendant and had a description of that person’s car which was parked
at defendant’s residence. When the officers went to investigate, defendant came out
of a lighted shed and clothing had the smell of PCP, a precursor to
methamphetamine, and the officer observed that the defendant appeared under the
influence of methamphetamine. The court found that this information constituted
probable cause to look through the cracks in the shed walls where the officer
observed an operating methamphetamine lab. The court further observed that exigent
circumstances existed only if the officer had probable cause to believe the
methamphetamine lab was operating at the time as the exigent circumstances
exception was triggered only if there was an immediate danger of explosion and this
danger existed only if an operating lab were suddenly shut down at the wrong time.
The court found this probable cause by the officer’s observation of the defendant
when he came out of the shed. 877 P.2d at 1219, 1221, 1222.
Thus, the level of knowledge of the police as to the potential danger to
themselves and others was far greater than a mere belief that a methamphetamine
lab might be on the premises.
In contrast to Gabbard, the State’s failure in the instant case to raise below the
issue of the existence of exigent circumstances, while not strictly a waiver of that
issue, has resulted in a record reflecting only a belief on the part of officers that a
methamphetamine lab might be in the residence.1 In my opinion that belief standing
1
It is interesting that in the trial court police testified that in fact they had knocked and announced
before entering the appellee’s residence. On appeal the State takes the rather inconsistent
position that law enforcement fears of an explosion warranted an unannounced entry. If police
testimony below is to be believed, officers did not believe an una nnounc ed entry was nece ssary
for their protection.
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alone is insufficient to create the exigent circumstances necessary to justify a
departure from the knock and announce rule.
Even if police were certain that a methamphetamine laboratory was present in
Appellant’s residence, in my opinion that standing alone would not, as the State
suggests, justify a blanket exception to the knock and announce rule. Only recently
the United States Supreme Court has rejected the notion that the Fourth Amendment
permits blanket exceptions to the knock and announce rule. In Richards v. Wisconsin,
___U.S. ___, 117 S.Ct. 1416 (1997); the Court held that the reasonableness of each
“no knock” entry for the purpose of executing a search warrant must be judged under
the particular circumstances of each case. The Court noted that “[I]f a per se
exception were allowed for each category of criminal investigation that included a
considerable-albeit hypothetical-risk of danger to officers or destruction of evidence,
the knock-and-announce element of the Fourth Amendment’s reasonableness
requirement would be meaningless.” Id. at 1420-21.
I therefore concur in the judgment of the Court.
_____________________________
JERRY L. SMITH, JUDGE
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