eCases

. The Court created a burden-shifting standard that sought to
balance the constitutional right to a prompt probable-cause determination with
the “reasonable postponement” and “inevitable” delays that could result from
“paperwork and logistical problems,” especially in jurisdictions where
probable-cause determinations are combined with other pretrial procedures.
See

id. at 55

. If a probable-cause determination occurred
within 48 hours of arrest, the burden is on the arrestee to demonstrate that the
probable-cause determination was “delayed unreasonably.”

Id. at 56-57

. Delays “for the purpose of gathering additional evidence to justify
the arrest,” as well as delays “for delay’s sake” were given as examples of
unreasonable delay.

Id. at 56

. However, where more than 48
hours elapsed between arrest and probable-cause determination, the burden of
proof lies with the prosecutor, who must demonstrate “the existence of a bona
fide emergency or other extraordinary circumstance” beyond the ordinary
logistics involved in combined proceedings.

Id. at 57

111 S.Ct. 1661

.
In State v. Huddleston,

924 S.W.2d 666

 (Tenn. 1996), the Tennessee
Supreme Court held that “the exclusionary rule should apply when a police
officer fails to bring an arrestee before a magistrate [for a probable cause
determination] within the time allowed by McLaughlin.” Huddleston,

924 S.W.2d at 673

. The Huddleston court held that the “fruit of the poisonous
-14-
tree” analysis should determine whether to suppress statements made during
a detention that violates McLaughlin.

Id. at 674

 (citations omitted). Where the
state courts refer to a “Huddleston violation,” they are referring by implication
to a McLaughlin violation.
[The Defendant’s] appellate counsel alerted the court to the existence
of McLaughlin on direct appeal, but did not present a McLaughlin challenge
to [the Defendant’s] confession. Without citing McLaughlin, the opening
appellate brief argued that [the Defendant’s] confession must be suppressed
under Huddleston (which merely applies McLaughlin) and focused primarily
on subjective intent as one would for a McLaughlin claim. In his reply brief,
appellate counsel discussed McLaughlin and the 48-hour presumption directly,
but then stated that [the Defendant] complained of a Brown violation.
Certainly appellate counsel did not argue that [the Defendant] had been held
for over 48 hours without a probable cause determination, nor did he dissect
the record to demonstrate this, as would have been necessary to any
McLaughlin challenge.
On direct appeal, the TCCA sua sponte dismissed the possibility of a
McLaughlin claim on the grounds that [the Defendant] was held less than 48
hours, State v. Norris,

2002 WL 1042184

 at *9, a conclusion based on an
arrest time of 8:45 p.m. on March 11, when Norris was booked into jail, see
id. at *7. At [the Defendant’s] post-conviction appeal, the TCCA stood by that
arrest time because it concluded that, even after a post-conviction evidentiary
hearing, “there was only conflicting testimony offered as to when the petitioner
was taken into custody.” See Norris v. State,

2006 WL 2069432

 at *9. Thus,
the TCCA resolved this ineffective-assistance claim entirely on the merits of
the underlying alleged McLaughlin violation, specifically on the 48-hour
calculation.
Treating the 8:45 p.m. booking time as the arrest time was contrary to
clearly established federal law. Even if there is no formal arrest, a person is
considered seized for Fourth Amendment purposes when, under the
circumstances, a reasonable person would not believe himself free to leave.
See Michigan v. Chesternut,

486 U.S. 567

, 573,

108 S.Ct. 1975

100 L.Ed.2d 565

 (1988). It is undisputed that [the Defendant] was transported in handcuffs
from his mother’s home to the police station. Officer Christian testified that,
at the time [the Defendant] was put into the squad car, he was “taken into
custody” and confirmed that [the Defendant] was not free to leave. Officer
McCommon testified that he and Officer Christian went “[t]o pick [the
-15-
Defendant] up at his home and bring him in for a statement.” Under these
circumstances, a reasonable person would not feel free to “decline the officers’
request[].” See Florida v. Bostick,

501 U.S. 429

, 436,

111 S.Ct. 2382

115 L.Ed.2d 389

 (1991). Accordingly,[the Defendant] was arrested when “taken
into custody” by Officers Christian and McCommon.
However, the TCCA’s conclusion does not rely solely on the 8:45 p.m.
arrest time, but also notes that testimony conflicted as to when [the Defendant]
was taken into custody. Even resolving all testimony conflicts in favor of the
government, it was an unreasonable determination of fact to find that [the
Defendant] was in custody for less than 48 hours at the time he began to
confess. Even if we discount entirely the testimonies of [the Defendant] and
Daniels favoring an earlier time of arrest, it is undisputed that [the Defendant]
was already at the police station at 7:30 p.m. on March 11 and had begun
talking with Sergeant Christian. To find that [the Defendant] was in custody
for less than 48 hours before confessing would require one to believe that [the
Defendant] was free to go at 7:20 p.m. on March 11, and that police took less
than ten minutes to tell him he was being taken into custody, handcuff him,
place him in the back of the cruiser, drive him five-and-a-quarter miles, bring
him into the police station, and begin their interview. This is simply
implausible. Notwithstanding the conflicts in testimony, the state court’s
determination that [the Defendant] was in custody for less than 48 hours prior
to confessing was an unreasonable determination of fact.
Although [the Defendant’s] attorney was deficient in failing to focus on
the precise length of [the Defendant’s] detention and such an argument had a
reasonable probability of persuading the state court that [the Defendant] had
been in custody for over 48 hours prior to giving his statement on March 13,
that fact alone is not enough to prove prejudice. Even if the state court had
concluded that there were more than 48 hours of detention prior to confession,
under Huddleston, Tennessee courts must find that the confession was “fruit
of the poisonous tree” in order to suppress it.

924 S.W.2d at 674-75

. The
court would have had to consider four factors: “(1) the presence or absence of
Miranda warnings; (2) the temporal proximity of the arrest and the confession;
(3) the presence of intervening circumstances; and finally, of particular
significance, (4) the purpose and flagrancy of the official misconduct.” See

id.

Quoting McLaughlin,

500 U.S. at 56

, the Huddleston court
held that “delay ‘for the purpose of gathering additional evidence to justify the
arrest’” supports a finding of purposeful police misconduct. Id. at 676.
-16-
There is evidence in the record suggesting that officers kept [the Defendant]
detained to gather additional evidence. Captain Logan testified:
[Logan:] Based on [the statements of Lakendra Mull and
Charles Milem] we decided that [the Defendant] was a good
suspect for this homicide.
[The Defendant’s Attorney:] . . . but did you have probable
cause to charge him?
[Logan:] Well, after picking him up and getting him in the office
and talking to him, he admitted to it.
....
[The Defendant’s Attorney:] You had strong suspicions, and you
held him to do further investigation; is that correct?
[Logan:] Yes, we did.
Furthermore, the record contains no alternative explanation for [the
Defendant’s] prolonged detention. See McLaughlin,

500 U.S. at 57

 (listing examples of appropriate reasons for delay: “transporting arrested
persons from one facility to another, handling late-night bookings . . .,
obtaining the presence of an arresting officer who may be busy processing
other suspects or securing the premises of an arrest”). Since purpose is the
most important of the four factors and the burden of proof would have been on
the government instead of [the Defendant], there is a reasonable probability
that the confession would have been suppressed if [the Defendant’s] appellate
counsel had raised the McLaughlin issue in a reasonably competent manner
and persuaded the court on direct appeal that [the Defendant’s] pre-confession
detention was longer than 48 hours.
....
Accordingly, we grant the petition for writ of habeas corpus pursuant
to

28 U.S.C. § 2254

(d), unless the [the State] reopens [the Defendant’s] appeal
within 180 days to allow him to raise the McLaughlin issue on direct appeal.
Norris, 545 F. App’x at 326-69.
-17-
After the Sixth Circuit’s judgment, the State reopened the Defendant’s appeal to allow
him to raise the McLaughlin issue. That is the issue currently before this Court.
II. Analysis
On appeal, the Defendant contends that the violation of his McLaughlin rights requires
that his confession be suppressed. He asserts that the Memphis Police violated the
Defendant’s right to a prompt probable cause hearing as required by McLaughlin. He notes
that the police arrested him without a warrant and confined him to jail for three nights before
taking him to a magistrate for a probable cause determination. Further, as the Sixth Circuit
noted, the record contains no alternative explanation for the Defendant’s prolonged detention
besides the police’s desire to gather additional evidence.
The State responds by first contending that our review of this issue is limited to plain
error because the Defendant did not raise this issue during his suppression hearing and only
did so during his motion for new trial by indirectly addressing it as an ineffective assistance
of counsel claim. The State asserts that the Defendant cannot show that the trial court
committed plain error when it admitted the confession.
A. Plain Error
As the State points out, this Court has stated: “[A] party is bound by the grounds
asserted when making an objection. The party cannot assert a new or different theory to
support the objection in the motion for a new trial or in the appellate court.” 1 State v.
Adkisson,

899 S.W.2d 626

, 634-635 (Tenn. Crim. App. 1994); see State v. Aucoin,

756 S.W.2d 705

, 715 (Tenn. Crim. App. 1988) (holding that an appellant cannot object on one
ground and assert a new basis on appeal); see also State v. David Dwayne Smith, No. E2007-
00084-CCA-R3-CD,

2009 WL 230696

, at *21 (Tenn. Crim. App., at Knoxville, Feb. 2,
1
In Adkisson, this Court stated:
When, as here, a party abandons the ground asserted when the objection was made
and asserts completely different grounds in the motion for a new trial and in this Court, the
party waives the issue. State v. Matthews, 805 S.W.2d at 781; State v. Aucoin,

756 S.W.2d at 715

; State v. Dobbins, 754 S.W.2d at 641; State v. Davis, 751 S.W.2d at 171; State v.
Brock, 678 S.W.2d at 490. This theory finds its origin in three well-established rules. First,
as a general rule, a party will not be permitted to assert an issue for the first time in the
appellate court. Second, an appellate court will limit its decision to the ground asserted
when the trial court made its ruling. Third, an appellate court will not permit a party to take
advantage of its adversary when it is too late to remedy the basis of the objection.
Adkisson,

899 S.W.2d at 635

.
-18-
2009), Tenn. R. App. P. 11 application denied (Tenn. Aug. 17, 2009). When that happens,
the party waives the issue. See Adkisson,

899 S.W.2d at 635

; State v. Matthews,

805 S.W.2d 776

, 781 (Tenn. Crim. App. 1990); Aucoin,

756 S.W.2d at 715

; State v. Dobbins,

754 S.W.2d 637

, 641 (Tenn. Crim. App. 1988); State v. Brock,

678 S.W.2d 486

, 490 (Tenn. Crim. App.
1984). We may still review the issue for plain error. Adkisson,

899 S.W.2d at 634-635

.
In Adkisson, as in this case, the action challenged on appeal was the admission of
evidence. To challenge such a ruling on appeal, the appellant is required by rule not only to
enter a contemporaneous objection, but also to state the “specific ground of objection if the
specific ground was not apparent from the context.” See Tenn. R. Evid. 103(a)(1). The
Defendant in this case did not allege a McLaughlin or Huddleston issue in his motion to
suppress or at the motion to suppress hearing. Instead he raised two issues in his motion to
suppress: (1) that the police were aware that he was an epileptic and willfully withheld his
medication until he gave a statement to the police; and (2) that he refused to sign a waiver
of rights thereby exercising his right to remain silent and further that he asked to speak with
an attorney. Because the Defendant did not object in his motion to suppress on the grounds
of Huddleston or McLaughlin, he has waived this issue, and our review is limited to plain
error review. See Adkisson,

899 S.W.2d at 634

.
We may review issues normally considered waived pursuant to the plain error
doctrine. Tenn. R. App. P. 36(b). The doctrine of plain error only applies when all five of
the following factors have been established:
(1) the record clearly establishes what occurred in the trial court;
(2) the error breached a clear and unequivocal rule of law;
(3) the error adversely affected a substantial right of the complaining party;
(4) the error was not waived for tactical reasons; and
(5) substantial justice is at stake; that is, the error was so significant that it
“probably changed the outcome of the trial.”
State v. Hatcher,

310 S.W.3d 788

, 808 (Tenn. 2010) (quoting State v. Smith,

24 S.W.3d 274

,
282-83 (Tenn. 2000)). “An error would have to [be] especially egregious in nature, striking
at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.”
State v. Page,

184 S.W.3d 223

, 231 (Tenn. 2006).
B. Clear and Unequivocal Rule of Law
-19-
The Defendant asserts that his confession was given after he was illegally detained
for more than forty-eight hours. He notes, among other things, that Captain Logan admitted
that the Defendant “refused to talk” when he was arrested and that he held him for “further
investigation.” He points to Captain Logan’s response that he held the Defendant for further
investigation and interrogation because “we had that right.” The Defendant avers that this
reflects a misunderstanding of McLaughlin, which allows for a reasonable postponement of
a probable cause determination while police cope with everyday problems of processing
suspects but does not give police the “right” to arrest suspects without a warrant and
interrogate them for forty-eight hours before beginning the process of taking the suspect
before a magistrate.
The State counters that the Defendant cannot prove that there has been a violation of
a clear and unequivocal rule of law because, first, the Sixth Circuit improperly found that the
Defendant was detained for more than forty-eight hours. The State asserts that, “Though
there is some ambiguity in the trial-court record, the record fairly indicates that the
confession occurred within 48 hours of the [D]efendant’s arrest.” The State points out that
both Sergeant McCommon and the Defendant testified that the Defendant made an oral
confession to police before he spoke with his mother on the telephone. The State next asserts
that the Defendant’s argument that the police held him for an improper purpose fails because
(1) he has not shown a Huddleston violation and (2) he has not shown that consideration of
the error is necessary to do substantial justice because the record shows that the police
continued to investigate the crime while the Defendant was detained but not that they
detained him so that they could get further evidence to justify the Defendant’s arrest.
We begin with the proposition that “[b]oth the state and federal constitutions protect
against unreasonable searches and seizures; 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). Our Supreme Court has recognized three
categories of police interactions with private citizens: “(1) a full-scale arrest, which requires
probable cause; (2) a brief investigatory detention, requiring reasonable suspicion of
wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification.”

Id.

 (citing State v. Daniel,

12 S.W.3d 420

, 424 (Tenn. 2000)).
The law requires that, when a person is arrested without a warrant, he or she must be
brought “before a magistrate to ‘seek a prompt judicial determination of probable cause.’”
Bishop,

431 S.W.3d 22

, 42 (Tenn. 2014) (quoting Gerstein v. Pugh,

420 U.S. 103

, 125
(1975) (holding that “the Fourth Amendment requires a timely judicial determination of
probable cause as a prerequisite to detention”)); see also State v. Huddleston,

924 S.W.2d 666

, 672 n.2 (Tenn. 1996). Tennessee Rule of Criminal Procedure 5(a)(1) provides that
“[a]ny person arrested - except upon a capias pursuant to an indictment or presentment - shall
-20-
be taken without unnecessary delay before the nearest appropriate magistrate.” The
Tennessee Supreme Court has recently stated that “a delay of less than forty-eight hours is
presumptively reasonable” and that when the delay exceeds forty-eight hours, the State must
show that “‘a bona fide emergency or other extraordinary circumstance’ caused the delay.”
Bishop, 431 S.W.3d at 42 (quoting County of Riverside v. McLaughlin,

500 U.S. 44

, 56
(1991)). Nonetheless, even a delay of less than forty-eight hours may be unreasonable “if
the delay is ‘for the purpose of gathering additional evidence to justify the arrest’ or if the
delay is ‘motivated by ill will against the arrested individual, or delay for delay’s sake.’”

(quoting McLaughlin,

500 U.S. at 56

). “Courts cannot ignore the often unavoidable delays
in transporting arrested persons from one facility to another, handling late-night bookings
where no magistrate is readily available, obtaining the presence of an arresting officer who
may be busy processing other suspects or securing the premises of an arrest, and other
practical realities.” McLaughlin,

500 U.S. at 56-57

.
The remedy for failing to bring an arrestee before a magistrate without unnecessary
delay is exclusion of “any evidence obtained by virtue of a suspect’s unlawful detention,”
unless an exception to the exclusionary rule applies.

 (citing Huddleston,

924 S.W.2d at 673-75

). However, “when a suspect is arrested based on probable cause, the ensuing
detention is typically not illegal until it ‘ripens’ into a Gerstein violation.”

 (citing
Huddleston,

). “Obviously, if [an arrestee’s] statement was given prior to
the time the detention ripened into a constitutional violation, it is not the product of the
illegality and should not be suppressed.” Huddleston,

.
The first question we must address is whether the police had probable cause to arrest
the Defendant at the time of his arrest. “Probable cause . . . exists if, at the time of the arrest,
the facts and circumstances within the knowledge of the officers, and of which they had
reasonably trustworthy information, are ‘sufficient to warrant a prudent [person] in believing
that the [defendant] had committed or was committing an offense.’” Echols,

382 SW.3d 266

,
277-78 (Tenn. 2012) (quoting State v. Bridges,

963 S.W.2d 487

, 491 (Tenn. 1997)); see Beck
v. Ohio,

379 U.S. 89

, 91(1964). “‘Probable cause must be more than a mere suspicion.’”
Echols, 382 S.W.3d at 278 (quoting State v. Lawrence,

154 S.W.3d 71

, 76 (Tenn. 2005)).
However, probable cause “‘deal[s] with probabilities[,] . . . not technical[ities,] . . . the
factual and practical considerations of everyday life on which reasonable and prudent
[persons] . . . act.’”

 (quoting State v. Day,

263 S.W.3d 891

, 902 (Tenn. 2008)); see
Brinegar v. United States,

338 U.S. 160

, 175 (1949). Moreover, a determination of probable
cause encompasses the accumulation of information known to law enforcement collectively
if a sufficient nexus of communication exists between the arresting officer and a fellow
officer with pertinent knowledge. Echols, 382 S.W.3d at 278 (citation omitted).
-21-
When determining whether the police possessed probable cause, “the courts should
consider the collective knowledge that law enforcement possessed at the time of the arrest,
provided that a sufficient nexus of communication existed between the arresting officer and
any other officer or officers who possessed relevant information.” Bishop, 431 S.W.3d at 36.
Such a nexus exists when the officers are relaying information or when one officer directs
another officer to act. Id. It matters not whether the arresting officers themselves believed
that probable cause existed. Id. (citing Huddleston,

924 S.W.2d 666

, 676 (“[An officer’s]
subjective belief that he did not have enough evidence to obtain a warrant is irrelevant to
whether or not probable cause actually existed.”)). When determining the existence of
probable cause, the courts should also consider the entire record, including the proof adduced
at both the suppression hearing and the trial.

Id.

 at 36-37 (citing State v. Henning,

975 S.W.2d 290

, 299 (Tenn. 1998)).
In this case, the Defendant never specifically asserted to the trial court that the police
did not have probable cause to arrest him. Accordingly, much of the evidence needed to
determine whether the police had probable cause to arrest the Defendant must be pieced
together from the record. During the motion to suppress hearing, the trial, and during the
motion for new trial hearing, evidence was presented about what police knew at the time of
the Defendant’s arrest. The police knew that the murder in this case occurred on March 10,
1997. Police began an investigation of the homicide, and the Defendant was identified as a
“suspect.” Sergeant A.J. Christian testified during the motion to suppress hearing that the
police had spoken with witnesses “[t]hat actually saw the shooting.” Charles Milem, the
victim’s uncle, gave police officers a statement the night of the shooting. He and other
witnesses at the scene told officers that they had seen a “white box-type Chevy headed” away
from the scene. One of the State’s key witnesses, Lakendra Mull, whose testimony is
summarized above, testified at trial that she found out about the shooting when she returned
home after dropping the victim off the night he was shot. She said that she spoke with police
and gave them a statement the day after this incident. This statement implicated the
Defendant as a suspect in this shooting. It appears from the record that the police had spoken
with Ms. Mull before they arrested the Defendant at some point in the “evening” shortly
before 8:45 p.m. Ms. Mull’s statement provided the police with the Defendant’s motive for
the shooting and his opportunity. Her statement also indicated that the Defendant carried and
possessed a weapon. This statement gave the officers sufficient probable cause for the
Defendant’s arrest.
The Defendant points out that, at one point during Captain Logan’s testimony, he
stated that he did not have “enough to charge” the Defendant at the time of his arrest. Later
during that same testimony, however, Captain Logan was asked whether he was testifying
that the police did not have probable cause to charge the Defendant upon his initial arrest,
and the Captain answered in the negative. Regardless, “[i]t matters not whether the arresting
-22-
officers themselves believed that probable cause existed.” Bishop, 431 S.W.3d at 36. We
conclude that the record evinces that the police did, in fact, have probable cause to arrest the
Defendant after receiving Lakendra Mull’s staement on the evening of March 11, 1997.
“[W]hen a suspect is arrested based on probable cause, the ensuing detention is
typically not illegal until it ‘ripens’ into a Gerstein violation.” McLaughlin,

500 U.S. at

56-
57. (citing Huddleston,

). “Obviously, if [an arrestee’s] statement was
given prior to the time the detention ripened into a constitutional violation, it is not the
product of the illegality and should not be suppressed.” Huddleston,