State of Tennessee v. Rodney Ford - Dissenting

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
January 7, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9708-CR-00365
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER,
RODNEY FORD, ) JUDGE
)
Appellant. ) (Aggravated Robbery)
DISSENTING OPINION
I respectfully disagree with the majority’s conclusion that there was an illegal
entry into the defendant’s home. Because I believe the entry into the residence and
the seizure of property were proper, I further disagree that the matter should be
remanded for further proceedings to determine the admissibility of the written
confession. I would affirm the judgment of the trial court.
The majority concludes that there were no exigent circumstances that would
justify the entry. I disagree. The testimony at the suppression hearing revealed that
at the time Morris entered the residence on Boatner Drive, the officers were unaware
who actually resided there. Specifically, they did not know that this was the
defendant’s residence. The officers approached the premises and knocked on the
front door, which they had every right to do. They then heard “running.” The
defendant exited the rear of the premises. The record does not indicate that the
defendant told the officers it was his residence. The officers called for Morris, but he
did not respond even though the officers knew he was inside. The officers opened
a door at the rear of the premises, announced who they were and again called for
Morris. Again, Morris failed to respond. At that point they entered the premises and
subsequently apprehended Morris.
The officers had an arrest warrant on Morris for a very serious and violent
offense; namely; aggravated robbery. In determining whether exigent circumstances
exist for entry into premises to make an arrest, the gravity of the underlying offense
is an important factor. Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 80
L. Ed. 2d 732 (1984). Furthermore, based upon the officers’ investigation of the
underlying offense, Morris was reasonably believed to be armed; he was reasonably
believed to be in the premises being entered; and the entry was made peaceably.
See Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (a case analyzed in
Welsh v. Wisconsin).
Of equal importance was the ability of Morris to hide or destroy the physical
evidence relating to the prior robbery. Knowing that Morris is inside and is not
responding to the calls of the officers, are the officers then expected to leave him in
the premises while one of their number applies for and possibly secures a search
warrant two hours later?
This does not seem reasonable to me. A “common sense” approach
described in Welsh leads me to the conclusion that the entry was properly based
upon exigent circumstances. Welsh, 466 U.S. at 753, 104 S.Ct. at 2099.
Having found the entry to be proper, I would further find the search and
seizure of the physical evidence to be justified under the “protective sweep” doctrine.
There were articulable facts which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent police officer to believe that the area
to be swept harbored an individual posing a danger to those on the arrest scene.
Maryland v. Buie, 494 U.S. 325, 337, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). The
officers were informed that someone else was inside. Furthermore, the officers were
seeking to arrest someone thought to be a dangerous felon. They were aware that
the felon allegedly had accomplices in the commission of the underlying violent
offense which involved stolen weapons. The officers had a right to conduct the
protective sweep for their own safety. The evidence found in plain view was properly
admissible in evidence.
For these reasons, I respectfully dissent.
___________________________
JOE G. RILEY, JUDGE
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