State v. Henning

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, (

FILED

FOR PUBLICATION

( June 22, 1998

Appellee, ( Filed: June 22, 1998

( Cecil Crowson, Jr.

( Appellate C ourt Clerk

v. ( Madison Criminal

(

( Hon. Whit LaFon,

JOHNNY M. HENNING, ( Judge

(

Appellant. ( No. 02S01-9707-CC-00065

For State-Appellee: For Defendant-Appellant:

John Knox Walkup Hughie Ragan

Attorney General & Reporter Jackson, Tennessee

Michael E. Moore

Solicitor General

Kenneth W. Rucker

Assistant Attorney General

Nashville, Tennessee

James G. Woodall

District Attorney General

Twenty-Sixth Judicial District

Jackson, Tennessee

Shaun A. Brown

Assistant District Attorney General

Jackson, Tennessee

OPINION

AFFIRMED. DROWOTA, J.

We granted this appeal primarily to consider two issues: 1) whether the

search warrant in this case is supported by probable cause and is otherwise valid;

and 2) whether an appellate court reviewing a pretrial ruling that a search warrant

was validly executed may consider the entire record, including evidence submitted

at trial, in addition to evidence submitted at the pretrial suppression hearing. We

have determined that the search warrant issued in this case is supported by

probable cause and free from other defects. As to the second issue, which is a

question of first impression in Tennessee, we have determined that an appellate

court may consider the entire record, including the evidence submitted at trial, in

evaluating the correctness of a pretrial ruling that a search warrant was validly

executed. Accordingly, for the reasons that follow, the judgment of the Court of

Criminal Appeals upholding the trial court’s denial of the defendant’s motion to

suppress is affirmed.

FACTUAL BACKGROUND

On October 21, 1993, Johnny Henning was arrested at his home and police

seized .9 grams of cocaine, an unknown quantity of Mannitol, a substance

commonly mixed with cocaine, and a set of scales. The arrest, search, and

seizure was the culmination of several hours of surveillance of Henning’s home by

Officer Mark Caldwell of the Madison County Sheriff’s Department and a member

of the Drug Task Force of the 26th Judicial District.

After receiving information from a confidential informant that Henning was

selling crack cocaine, Officer Caldwell positioned himself in a field across the road

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from Henning’s residence at approximately 3:00 p.m. Between 3:00 p.m. and

4:20 p.m. that day, Caldwell observed three cars arrive separately at Henning’s

house. Each time, Caldwell observed Henning approach the car, talk to the

occupants for a short time, walk to the side of his house, return about four

seconds later, again approach the car, and then exchange something with the

occupants. Following the last exchange at approximately 4:30 p.m., Henning left

his home on foot.

During his absence, Officer Caldwell telephoned Captain Thomas A.

Coleman, described the transactions he had observed, and directed Capt.

Coleman to obtain a search warrant for Henning’s residence. Capt. Coleman

prepared an affidavit, obtained the warrant, returned to a location near Henning’s

residence with several other officers, and waited for Caldwell to call for execution

of the warrant.

Henning returned at 5:00 p.m, and thereafter, Caldwell observed two more

exchanges before Henning again departed his residence in a vehicle at

approximately 6:30 p.m. Caldwell maintained his position in the field across from

Henning’s home for about twenty minutes after Henning departed, but eventually

crossed the road and positioned himself so that he could observe the west side of

the house to which Henning had walked before each prior exchange had

occurred.

From that vantage point, Caldwell had observed three different vehicles

arrive at Henning’s residence. Each time the occupants remained inside their cars

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for a short time before approaching Henning’s house and knocking on the door.

Each time the visitors left as soon as Henning’s wife came to the door and told

them, “Johnny’s not here.”

Henning returned home at approximately 8:30 p.m., and shortly thereafter,

another car arrived at his residence. Henning came outside and spoke to the

driver and passenger of the vehicle. Caldwell observed Henning go to a concrete

block at the side of the house. During this activity, Caldwell crawled into

Henning’s yard, and was lying on the ground beside an abandoned car on the

west side of the house. Caldwell said he had been “very, very close” to Henning

and the occupants of the car. At that point, Caldwell called for backup assistance

from Capt. Coleman and the other officers located a short distance from

Henning’s residence. After making the call, Officer Caldwell stood and

approached the defendant who was engaged in conversation with one of the

occupants of the car. Henning began to flee toward his residence, and Caldwell

pursued him, stating that he knew it would be difficult to “keep up with where the

drugs were going to be . . . if they got in the house. . . .” Caldwell seized Henning

as he was entering his residence, and they fell into the doorway of Henning’s

residence.1

Once he had apprehended Henning, Caldwell announced he was a police

officer and told the defendant he had a search warrant. Caldwell ordered Henning

1

Apparently one of the occupants of the car involved in the exchange fled the scene on foot

and the other departed the scene in the car.

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and the other occupants of the house to sit down. Henning sat on the sofa, and

Caldwell observed him throw something on the carpet and try to kick it under the

couch. Caldwell recovered the object, and a subsequent laboratory analysis

revealed the substance to be .9 grams of cocaine. Other officers assisting in the

execution of the search warrant found Mannitol, a substance often combined with

cocaine, and a set of scales, inside a drainage pipe on the west side of the house

to which the defendant had walked before each transaction occurred.

The defendant moved pretrial to suppress the evidence seized as a result

of the search. The motion was denied, and the case proceeded to trial. The jury

found the defendant guilty of possession of cocaine with intent to sell, possession

of cocaine with intent to deliver, and possession of drug paraphernalia. The trial

court merged the two cocaine possession verdicts into a single conviction. The

defendant was sentenced to twelve years for the felony possession conviction and

eleven months, and twenty-nine days for the misdemeanor drug paraphernalia

conviction. The sentences were ordered to be served concurrently. The

defendant appealed, raising numerous issues. The intermediate court affirmed

the convictions, but remanded for resentencing because of a conflict between the

bench ruling and the judgment as to the applicable sentencing range. Thereafter,

we granted permission to appeal and now affirm the judgment of the Court of

Criminal Appeals.

I. CONSTITUTIONAL VALIDITY OF THE SEARCH WARRANT

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A. Probable Cause

Initially, the defendant contends that the affidavit, upon which the search

warrant was issued, did not establish probable cause because the affidavit failed

to allege facts from which the credibility of the informant and the reliability of the

information could be determined as is constitutionally required in Tennessee by

this Court’s decision in State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). The

State first responds that the affidavit contained facts from which the magistrate

could determine the credibility of the informant and the reliability of the

information, and alternatively argues that any deficiencies in the affidavit were

remedied by the independent police corroboration outlined in the affidavit in this

case. We agree.

The Fourth Amendment 2 to the United States Constitution requires that

search warrants issue only “upon probable cause, supported by Oath or

affirmation.” Article I, Section 7 of the Tennessee Constitution precludes the

issuance of warrants except upon “evidence of the fact committed.” Therefore,

under both the federal and state constitutions, no warrant is to be issued except

upon probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d

527 (1983); State v. Jacumin, supra; Tenn. Code Ann. § 40-6-103 (1997 Repl.).

Probable cause has been defined as a reasonable ground for suspicion,

supported by circumstances indicative of an illegal act. Lea v. State, 181 Tenn.

378, 181 S.W.2d 351, 352 (1944).

2

The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent.

Map p v. O hio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1 081 (1961).

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In Tennessee, a finding of probable cause supporting issuance of a search

warrant must be based upon evidence included in a written and sworn affidavit.

Tenn. Code Ann. 40-6-104 (1997 Repl.); Tenn. R. Crim. P. 41(c); Jacumin, 778

S.W.2d 432. Indeed, an affidavit containing allegations from which the magistrate

can determine whether probable cause exists is an indispensable prerequisite to

the issuance of a search warrant in this State. Id.; see also State ex rel.

Blackburn v. Fox, 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (Tenn. 1956). The

affidavit must set forth facts upon which a neutral and detached magistrate,

reading the affidavit in a common sense and practical manner, can find probable

cause for the issuance of a search warrant. State v. Bryan, 769 S.W.2d 208, 210

(Tenn. 1989). To ensure that the magistrate exercises independent judgment, the

affidavit must contain more than mere conclusory allegations by the affiant.

Jacumin, 778 S.W.2d at 432; State v. Moon, 841 S.W.2d 336, 337 (Tenn. Crim.

App. 1992). An affidavit may contain hearsay information and need not reflect the

direct personal observations of the affiant. Jacumin, 778 S.W.2d at 432; State v.

Melson, 638 S.W.2d 342, 354 (Tenn. 1982). However, under the Tennessee

Constitution, an affidavit containing hearsay information supplied by a confidential

informant can not support a finding of probable cause unless it also contains

factual information concerning the informant’s basis of knowledge and credibility.

Jacumin, 778 S.W.2d at 432, 436. While independent police corroboration can

make up deficiencies in either prong, we have recognized that “each prong

represents an independently important consideration that must be separately

considered and satisfied in some way.” Id. Appellate courts reviewing the

existence of probable cause to support issuance of a warrant may consider only

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the affidavit and may not consider other evidence provided to or known by the

issuing magistrate or possessed by the affiant. Jacumin, 778 S.W.2d at 432;

Moon, 841 S.W.2d at 337.

Having delineated the guiding principles, we now consider whether the

affidavit in this case sufficiently describes the informant’s credibility and basis of

knowledge. The affidavit, in pertinent part, provides as follows:

Personally appeared before me, Capt. Thomas Coleman, who

makes oath that he has probable cause for believing and does

believe that Johnny Henning is in possession of the following

described property, to-wit: illegal narcotics, crack cocaine, pictures,

ledgers, tapes, or records of drug sales or records of proceeds

therefrom . . . .

Affiant has been provided information by a reliable informant whose

reliability has been established by providing information which has

resulted in several arrest[s] in the past. Said informant was in the

company of a subject who stated the intention to obtain crack

cocaine and did go to the above described residence and did enter

the described residence and did display crack cocaine obtained

within the residence. Investigators with the drug task force did

observe five transactions of a type believed to be drug sales. The

resident of the dwelling, Mr. Henning has two prior arrest for

possession of drugs with intent to sale[sic], and a vehicle seizure for

possession of drugs. These transactions were observed within the

last 6 hours and the informant has been on the property within the

last 72 hours.

Affiant therefore asks that a warrant issue to search the person of

Johnny Henning and the premises herein described . . . [for] illegal

narcotics crack cocaine.

With respect to the informant’s basis of knowledge, the affidavit contained

specific allegations: “[s]aid informant was in the company of a subject who stated the

intention to obtain crack cocaine and did go to the above described residence and

did enter the described residence and did display crack cocaine obtained within the

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residence.” The affidavit also alleged that the informant had been on the premises

in the last 72 hours. The informant’s personal observation and knowledge of

Henning’s activities satisfies the basis of knowledge prong of Jacumin. See State v.

Valentine, 911 S.W.2d 328, 330 (Tenn. 1995).

However, as the Court of Criminal Appeals recognized, the affidavit contains

only a conclusory allegation regarding the informant’s credibility: “a reliable informant

whose reliability has been established by providing information which has resulted

in several arrest[s] in the past.” Although there is no specific allegation in the affidavit

which, on its face, establishes the credibility of the informant, the independent police

corroboration of the informant’s tip, explained in the affidavit, is sufficient to establish

the informant’s credibility. As Judge Wade, writing for the Court of Criminal Appeals,

stated:

While the affidavit here contains nothing more than a conclusory

attestment of the reliability of the informant, police had seen ‘five

transactions of what appeared to be drug sales.’ Police learned that

the defendant had two prior arrests for drug violations and vehicle

seizure. That officers knew of the prior arrests and seizure, that they

had placed his residence under surveillance for six hours within three

days of the report by the informant, and that they had observed actions

by the defendant consistent with the sale of illegal drugs, does provide

the very kind of corroboration envisioned by the ruling in Jacumin.

We agree with the Court of Criminal Appeals that the independent police

corroboration sufficiently established the informant’s credibility, and the affidavit in

this case was sufficient to support a finding of probable cause justifying issuance of

the search warrant.

B. General Warrant

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The defendant next contends that the search warrant is unconstitutional

because it failed to adequately specify the items to be located during the search of

the premises. The State responds that the search warrant adequately delineated the

items for which a search had been authorized. We agree.

Under the Fourth Amendment a search warrant must contain a particular

description of the items to be seized. See Marron v. United States, 275 U.S. 192, 48

S.Ct. 74, 72 L.Ed. 231 (1927). Likewise, Article I, Section 7 of the Tennessee

Constitution prohibits general warrants, and, in addition, Tenn. Code Ann. § 40-6-103

(1997 Repl.), specifically requires that search warrants describe the property to be

seized with particularity. See Lea v. State, supra; Hampton v. State, 148 Tenn. 155,

252 S.W. 1007 (1923).

The constitutional prohibition against general warrants is designed to limit

governmental intrusion upon a citizen’s privacy and property rights to only that shown

to the magistrate to be necessary and to limit the discretion of the officer conducting

the search. Marron, supra; Wayne R. LaFave, Search and Seizure, § 4.6(a) (3rd ed.

1996)(hereinafter “LaFave”). To satisfy the particularity requirement, a warrant “‘must

enable the searcher to reasonably ascertain and identify the things which are

authorized to be seized.’” State v. Meeks, 867 S.W.2d 361, 367 (Tenn. Crim. App.

1993) (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981). However,

as this Court stated in Lea,

[W]here the purpose of the search is to find specific property, it should

be so particularly described as to preclude the possibility of seizing any

other. On the other hand, if the purpose be to seize not specified

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property, but any property of a specified character which, by reason of

its character, and of the place where and the circumstances under

which it may be found, if found at all, would be illicit, a description, save

as to such character, place and circumstances, would be unnecessary,

and ordinarily impossible.

181 Tenn. at 382-83,181 S.W.2d at 352-53 (emphasis added).

The warrant issued in this case authorized a search for “crack cocaine, illegal

narcotics, pictures, records, ledgers, tapes or items that tend to memorialize [sic]

drug sales and proceeds therefrom.” In our view, the warrant describes the character

of the property subject to seizure with sufficient particularity “to enable the searcher

to reasonably ascertain and identify the things which are authorized to be seized.”

See Melson, 638 S.W.2d at 353; State v. Meadows, 745 S.W.2d 886, 891 (Tenn.

Crim. App. 1987). Accordingly, the warrant is not unconstitutionally general and the

defendant’s claim is without merit.

C. Filing of the Affidavit

The defendant next contends that the warrant was invalid because the

underlying affidavit was not attached to nor filed with the warrant. We disagree.

While an affidavit must be retained in order to ensure subsequent judicial review of

the probable cause determination, there is no statute or rule in Tennessee which

requires an affidavit upon which a search warrant is issued to be attached or

otherwise kept with the warrant. State v. Smith, 836 S.W.2d 137, 141 (Tenn. Crim.

App. 1992). Rule 41(c), Tenn. R. Crim. P., contains mandatory recording and filing

requirements for warrants, but not for affidavits. The affidavit is not considered part

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of the search warrant in this State even if it appears on the same printed form as the

warrant. Minton v. State, 186 Tenn. 541, 212 S.W.2d 373 (1948); Hampton, supra.

Therefore, the fact that the affidavit here was not attached to the warrant is

inconsequential. The magistrate maintained a copy of the affidavit and it was made

a part of the record at the hearing on the defendant’s motion to suppress. There is

a printed reference on the search warrant to the affidavit made by Capt. Thomas

Coleman. The affidavit reflects that it was sworn to before the general sessions court

judge of Madison County on October 21, 1993, the same date that the warrant

issued. This issue is without merit.

II. MOTION TO SUPPRESS

A. Appellate Review

Even assuming the validity of the search warrant, the defendant next contends

that the trial court erred in denying his motion to suppress because the officers

executing the warrant failed to comply with the federal and state knock and announce

requirement before entering the defendant’s home. Before considering the merits of

this claim, we must first determine whether our review of this issue extends to the

entire record or to only that proof offered at the hearing on the motion to suppress.

In this case, the trial court commented at the suppression hearing that the only

substantial issue raised by the motion to suppress was the sufficiency of the search

warrant affidavit. Because the sufficiency of a search warrant affidavit is to be

determined from the allegations contained in the affidavit alone, the State offered no

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proof at the suppression hearing. Only the defendant testified, and Henning said that

Officer Caldwell did not “knock and announce,” but simply “barged” into his home.

However, at trial, the State offered the testimony of Officer Caldwell who related the

circumstances of the defendant’s arrest and the execution of the search warrant,

which have been previously set forth herein. Henning contends that the Court of

Criminal Appeals erred by considering the proof offered by the State at trial when

evaluating the correctness of the trial court’s ruling on the motion to suppress.

According to the defendant, when evaluating a trial court’s denial of a pretrial motion

to suppress, an appellate court must only consider the evidence that was before the

trial court at the hearing on the motion. The State, in contrast, argues that in

conducting its review, an appellate court may and should consider the entire record,

including evidence offered at trial.

It is well-settled in this State that courts reviewing a magistrate’s finding of

probable cause are limited to the allegations contained in the affidavit supporting

issuance of the warrant. Indeed, we previously have reaffirmed and applied this rule

in this opinion. However, our research has revealed no Tennessee decision

regarding the evidence which an appellate court may consider when reviewing a

pretrial ruling on a motion to suppress that does not relate to the validity of a search

warrant. While this is a question of first impression in Tennessee,3 other jurisdictions

have considered the question, in a variety of contexts, and the majority rule is that

3

Seldom will this issue arise in Tennessee. The denial of a motion to suppress is very often

followed by entry of a guilty plea. Therefore, if an appeal is taken pursuant to Tenn. R. Crim. P. 37,

the record before the reviewing court will consist only of the evidence offered at the hearing on the

motion to suppress. If a motion to suppress is granted, the prosecution is oftentimes terminated.

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appellate courts may consider evidence adduced at trial in evaluating the correctness

of a pretrial ruling on a motion to suppress. This rule is well established and

uniformly followed by the federal courts. Carroll v. U.S., 267 U.S. 132, 162, 45 S.Ct.

280, 288, 69 L.Ed. 543 (1925) (warrantless search); U.S. v. Han, 74 F.3d 537, 539

(4th Cir. 1996) (warrantless search); U.S. v. Rico, 51 F.3d 495, 503-04 (5th Cir. 1995)

(warrantless arrest); U.S. v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995)

(warrantless entry); U.S. v. Trevino, 60 F.3d 333, 336 (7th Cir. 1995) (warrantless

checkpoint stop); U.S. v. Martin, 982 F.2d 1236, 1240 (8th Cir. 1993) (warrantless

patdown search); U.S. v. Thomas, 875 F.2d 559, 562, n.2 (6th Cir. 1989) (warrantless

seizure); U.S. v. de Jesus-Rios, 990 F.2d 672, 674, n. 2 (1st Cir. 1993) (pretrial

identification); U.S. v. Corral, 970 F.2d 719, 723 (10th Cir. 1992) (investigatory stop

and warrantless search); Washington v. U.S., 401 F.2d 915, 920, n. 19 (D.C. Cir.

1968) (warrantless arrest); Rocha v. U.S., 387 F.2d 1019, 1020 (9th Cir. 1967)

(warrantless arrest).

Likewise, most state courts addressing the issue, again in a variety of

contexts, also have held that an appellate court may consider the entire record when

reviewing the correctness of a trial court’s ruling on a pretrial motion to suppress.

State v. Randall, 385 P.2d 709, 710 (Ariz. 1963) (warrantless arrest); State v.

Whitaker, 578 A.2d 1031, 1033 (Conn. 1990) (voluntariness of confession); People

v. Gilliam, 670 N.E.2d 606, 614 (Ill. 1996) (voluntariness of statement); Lamb v.

State, 348 N.E.2d 1, 3 (Ind. 1976) (voluntariness of statement); State v. Jackson, 542

N.W.2d 842, 844 (Iowa 1996) (inventory search); State v. Chopin, 372 So.2d 1222,

1224, n. 2 (La. 1979) (investigatory stop); State v. Parkinson, 389 A.2d 1, 10 (Me.

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1978) (warrantless arrest); State v. Sharp, 702 P.2d 959, 961 (Mont. 1985)

(investigatory stop); State v. Huffman, 148 N.W.2d 321, 322 (Neb. 1967) (warrantless

search); State v. Martinez, 612 P.2d 228, 231 (N.M. 1980) (warrantless arrest and

search); Commonwealth v. Chacko, 459 A.2d 311, 318, n. 5 (Pa. 1983)

(voluntariness of statement); State v. Keeling, 233 N.W.2d 586, 590, n.2 (S.D. 1975)

(pretrial identification); State v. Bruno, 595 A.2d 272, 273 (Vt. 1991) (investigatory

stop); Carroll v. State, 938 P.2d 848, 850 (Wyo. 1997) (warrantless arrest); Henry v.

State, 468 So.2d 896, 899 (Ala. Crim. App. 1984) (voluntariness of statement);

Sayers v. State, 487 S.E.2d 437, 438 (Ga. App. 1997) (investigatory stop); State v.

Kong, 883 P.2d 686, 688 (Hawaii App. 1994) (voluntariness of statement); State v.

Sims, 952 S.W.2d 286, 290 (Mo. App. 1997) (pretrial identification); Woodson v.

Commonwealth, 491 S.E.2d 743, 745 (Va. App. 1997) (warrantless search). But see

contra Trusty v. State, 521 A.2d 749, 755 (Md. 1987) (warrantless arrest);

Commonwealth v. Doulette, 609 N.E.2d 473, 474 (Mass. 1993) (warrantless search);

People v. Kaigler, 118 N.W.2d 406, 409 (Mich. 1962) (warrantless search); State v.

Buzzard, 461 S.E.2d 50, 58 (W.Va. 1995) (warrantless search); People v. Breault,

273 Cal. Rptr. 110, 117 (Cal.App. 4 Dist. 1990) (warrantless search); People v.

Braithwaite, 568 N.Y.S.2d 135, 136 (N.Y.A.D. 2 Dept. 1991) (investigatory stop);

Alexander v. State, 305 P.2d 572, 576 (Ok. Crim. App. 1956) (voluntariness of

statement); Smith v. State, 840 S.W.2d 689, 691 (Tex. App. 1992) (investigatory

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stop); see generally LaFave, § 11.7(d).4

We previously have recognized that when suppression of evidence seized

pursuant to a search warrant is advocated, the burden is upon the accused to prove

by a preponderance of the evidence: (1) the existence of a legitimate expectation of

privacy in the place or property from which the items sought to be suppressed were

seized; (2) the identity of the items sought to be suppressed; and (3) the existence

of a constitutional or statutory defect in the search warrant or the search conducted

pursuant to the warrant. State v. Evans, 815 S.W.2d 503, 505 (Tenn. 1991); State

v. Harmon, 775 S.W.2d 583, 585-86 (Tenn. 1989). Conversely, if suppression of

evidence seized without a warrant is sought, the burden is upon the State to prove

that the search and seizure was conducted pursuant to one of the exceptions to the

warrant requirement. Id. These principles are important and must guide the trial

court’s decision upon a pretrial motion to suppress. However, in our view, these

principles do not require an appellate court, or a trial court considering a motion for

new trial, to ignore trial evidence which reinforces or negates the correctness of the

pretrial ruling on the motion. To hold otherwise would exalt form over substance.

4

Though none of these decisions address the specific question at issue in this appeal - the

evidence which may be considered by an appellate court reviewing a pretrial ruling that a search

warrant was validly executed - the general principle is the same. Where, as here, a defendant

attem pts to sup press e vidence seized pu rsuant to a warran t on the gro unds th at the State failed to

com ply with the kn ock an d anno unce ru le, the State m ust offer proof to e stablish an excep tion to

the knock and announce rule. Likewise, when suppression of evidence seized in a warrantless

search is sough t, the State m ust offer proof to e stablish tha t the searc h was c onduc ted purs uant to

an exception to the warrant requirement. In contrast, where evidence is seized pursuant to a

warrant, and the defendant seeks suppression on the sole basis that th e issu ing ju dge erred in

finding probable cause to support the warrant, the only evidence which may be presented by the

State is the affid avit su ppo rting is sua nce of the sear ch w arra nt Th e Sta te m ay not offe r extr insic

evidence to bolster the allegations in the affidavit. Likewise, appellate courts reviewing a finding of

probable cause are limited to the allegations contained in the affidavit supporting issuance of the

warrant. Our holding herein does not alter nor abrogate this long-standing rule of criminal

proced ure.

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Certainly, a defendant should not be convicted upon evidence that was seized

in violation of the Fourth Amendment’s protection against unreasonable searches

and seizures simply because the illegality is established by proof offered at trial,

rather than proof offered at the suppression hearing. Likewise, if proof adduced at

trial establishes a lawful search or seizure, the evidence should not be excluded

simply because the proof at the suppression hearing did not establish its legality.

This is particularly true in light of the primary purpose of the exclusionary rule which

is to deter police misconduct. State v. Huddleston, 924 S.W.2d 666, 676 (Tenn.

1996). Suppressing evidence lawfully seized simply because the legality of the

seizure was established by proof introduced at trial, rather than proof introduced at

the suppression hearing, in no way furthers the purpose of the rule and could

perhaps be inimical to prudent law enforcement practices.

The Tennessee Rules of Appellate Procedure are to “be construed to secure

the just, speedy, and inexpensive determination of every proceeding on its merits.”

Rule 1, Tenn. R. App. P. To that end, the appellate courts of this State are

authorized to “grant the relief on the law and facts to which the party is entitled or the

proceeding otherwise requires. . . .” Rule 36(a), Tenn. R. App. P. In our view, these

rules contemplate that allegations of error should be evaluated in light of the entire

record. Accordingly, we hold that in evaluating the correctness of a trial court’s ruling

on a pretrial motion to suppress, appellate courts may consider the proof adduced

both at the suppression hearing and at trial.

Our holding with regard to the evidence which may be considered by an

appellate court does not modify the applicable standard of review, which we recently

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clarified in State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We reiterate that an

appellate court should uphold a trial court’s decision on a motion to suppress, unless

the evidence in the record preponderates against the finding. “Questions of credibility

of 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.” Id. The party

prevailing in the trial court is entitled to the strongest legitimate view of the evidence,

as well as all reasonable and legitimate inferences that may be drawn from the

evidence. Id. Upon consideration of the entire record in this case, we conclude, for

the reasons that follow, that the evidence does not preponderate against the trial

court’s denial of the defendant’s motion to suppress.

B. Knock and Announce

Pursuant to constitutional and statutory mandates, before an officer executing

a search warrant makes a forced entry into an occupied residence, the officer

generally must knock on the door of the residence and announce his or her authority

and purpose. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976

(1995); Tenn. R. Crim. P. 41(e); State v. Lee, 836 S.W.2d 126 (Tenn. Crim. App.

1991). To comply with this rule, officers generally must (a) identify themselves as law

enforcement officials and b) explain the purpose of their presence, i.e. the execution

of a search warrant. Id. If the officer is not admitted to the residence after giving

proper notice, the officer is authorized to “break open any door or window . . ., or any

part thereof, . . . to the extent that it is reasonably necessary to execute the warrant

and does not unnecessarily damage the property.” Tenn. R. Crim. P. 41(e). This

long standing principle derives from the common law which generally protected a

man’s house as “his castle of defense and asylum.” Wilson, 514 U.S. at 931, 115

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S.Ct. at 1916. The purpose of the “knock and announce” rule is threefold. It provides

protection from violence, both to the occupants of the residence and to the entering

law enforcement officers. Secondly, it protects the privacy interest that is inherent in

the home, and finally, it protects against the needless destruction of private property.

Richards v. Wisconsin, __ U.S. __, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997); Wilson,

514 U.S. at 930-32, 115 S.Ct. at 1917; Lee, 836 S.W.2d at 128.

However, the knock and announce requirement is not absolute. Compliance

is not required if knocking and announcing would increase the officer’s peril, or if an

officer executing a warrant perceives indications of flight or indications that evidence

is being destroyed. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726

(1963); State v. Fletcher, 789 S.W.2d 565 (Tenn. Crim. App. 1990). These are

exigencies excusing compliance. Id. Indeed, recently, the United States Supreme

Court specifically held that law enforcement officials executing a search warrant may

initiate a “no-knock” entry, if they have a reasonable suspicion that knocking and

announcing their presence, under the particular circumstances of a case would be

“dangerous or futile, or that it would inhibit the effective investigation of the crime by

. . . allowing the destruction of evidence.” Richards, __ U.S. __, 117 S.Ct. at 1421-

22.

Applying these guiding principles to the facts of this case we agree with the

Court of Criminal Appeals that under the particular circumstances of this case,

compliance with the rule was not required. Here, Officer Caldwell testified that he

was hiding a short distance away and observed Henning complete a drug transaction

just outside his home. After calling for back up assistance, Officer Caldwell decided

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to execute the search warrant. When he stood and approached the defendant,

Henning fled toward his residence, and Caldwell pursued him, stating that he knew

it would be difficult to “keep up with where the drugs were going to be . . . if they got

in the house. . . .” Caldwell seized Henning as he was entering his residence, and

they fell into the doorway of Henning’s residence. Officer Caldwell then announced

he was a police officer, with a search warrant, and ordered Henning to sit on the

couch. Henning sat down and attempted to kick crack cocaine under the sofa.

Officer Caldwell recovered the substance. These circumstances establish both that

the defendant fled and that Officer Caldwell reasonably suspected that the evidence

would be destroyed if he did not apprehend Henning before he retreated inside his

home. Considering these circumstances the officer’s failure to formally comply with

the “knock and announce” rule was excused in this case by the exigencies involved.

Moreover, the defendant’s warrantless arrest in this case was justified. A

police officer may make a warrantless arrest upon probable cause that a felony has

been committed. Tenn. Code Ann. § 40-7-103(a)(4) (1997 Repl.). Probable cause

exists if the facts and circumstances within the officer’s knowledge at the time of the

arrest, and of which the officer “had reasonably trustworthy information sufficient to

warrant a prudent man in believing that the petitioner had committed or was

committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13

L.Ed.2d 142 (1964). While warrantless felony arrests inside a home are generally

prohibited by the Fourth Amendment absent probable cause and exigent

circumstances, Payton v. New York, 445 U.S. 573, 583-590, 100 S.Ct. 1371, 1378,

1382, 63 L.Ed.2d 639 (1980); State v. Clark, 844 S.W.2d 597, 599 (Tenn. 1992), in

this case, both probable cause and exigent circumstances supported the warrantless

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arrest. Probable cause arose from the confidential informant’s tip, significant first-

hand corroboration of the tip by Officer Caldwell, and Officer Caldwell’s up-close

observation of the last of what appeared to be cocaine sales. Exigent circumstances

arose when the defendant fled upon Officer Caldwell’s approach. See U.S. v.

Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976) (hot

pursuit of a fleeing felon justified warrantless arrest inside home). The record

demonstrates that both the execution of the search warrant and the warrantless

arrest in this case were constitutionally sound. Accordingly, after reviewing the

record, we conclude that the evidence does not preponderate against the trial court’s

denial of the defendant’s motion to suppress.

CONCLUSION

For the reasons previously stated, we conclude that the search warrant in this

case was supported by probable cause and was free from other defects. Moreover,

upon consideration of the evidence in this record, we have also determined that the

trial court appropriately denied the defendant’s pretrial motion to suppress.

Accordingly, the judgment of the Court of Criminal Appeals upholding the trial court’s

denial of the defendant’s motion to suppress and the judgment of conviction is

affirmed.

We also affirm the judgment of the Court of Criminal Appeals in all other

respects and accordingly remand this cause to the trial court for resentencing

because of a conflict between the bench ruling and the judgment as to the applicable

sentencing range. In imposing the appropriate sentence, the trial court should

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consider the terms of Tenn. Code Ann. § 40-35-106, make any factual determinations

necessary, and specify the applicable sentencing range.

______________________________

FRANK F. DROWOTA, III,

JUSTICE

Concur:

Anderson, C.J., and Holder, J.

Separate Concurring Opinion By:

Birch, J. and Reid, Sp. J.

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