State v. Rodney Ford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. RODNEY FORD

Direct Appeal from the Criminal Court for Davidson County

No. 95-A-582; 583 Steve R. Dozier, Judge

No. M1999-01078-CCA-R3-CD - Decided April 27, 2000

Defendant was convicted by a jury of three counts of aggravated robbery. Subsequently, on direct

appeal this court held that the search of defendant's home was illegal. We held that all physical

evidence gained through the search of the residence as well as defendant's verbal statements when

confronted with this evidence should have been suppressed. Additionally, this court remanded the

case to the trial court for a determination as to the legality of defendant's subsequent written

confession at the police station. On remand, the trial court held the statement was admissible. After

thoroughly reviewing the record, we reverse the decision of the trial court and remand for a new

trial, with instructions that the written statement be suppressed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Remanded

RILEY, J., delivered the opinion of the court, in which GLENN, J. and ACREE, Special J. joined.

Thomas Jay Norman, Nashville, Tennessee, for the appellant, Rodney Ford.

Michael E. Moore, Solicitor General, Clinton J. Morgan, Assistant Attorney General, Victor S.

Johnson III., District Attorney General, and Kymberly Haas, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

BACKGROUND

On June 14, 1994, Detective Ricky Roll of the Nashville Metropolitan Police Department

obtained an arrest warrant for Grady Morris who was wanted for a series of aggravated robberies

committed at area pawn shops. Detectives followed Morris to a residence which they later learned

belonged to the defendant; knocked at the front door; and immediately heard “someone running.”

Several of the detectives went to the back of the house where they encountered the defendant. The

defendant was told to lie on the ground and was asked who was in the house. Defendant stated his

“baby brother” might be in the house. When asked if Morris was in the house, defendant responded

affirmatively. The detectives then entered the house and arrested Morris. Thereafter, detectives

searched the house for other persons and subsequently discovered stolen jewelry lying on a bed. The

detectives retrieved the defendant and brought him to the upstairs bedroom where the jewelry was

found. Defendant was advised of his rights. Defendant stated “I ain’t taking this by myself,” and

indicated the jewelry was stolen in the “pawn shop robberies.”

While defendant was still upstairs, Detective Norris Tarkington again read him his rights and

asked if he was willing to talk without an attorney. When defendant agreed, the detective continued

to question him, and defendant eventually admitted his participation in one of the “pawn shop

robberies.” In addition, defendant directed detectives to further evidence linking him to the “pawn

shop robberies.” Defendant also stated that he knew where there were guns which had been taken

in the robberies. Two detectives escorted the defendant to the location where he claimed the guns

were hidden, but no guns were recovered.

Before being transferred to the police station, the detectives returned the defendant to his

home where he briefly spoke with his mother. Once at the station, the defendant was read his rights

and executed a written waiver of those rights. While detectives interviewed Morris, the defendant

was left alone and Detective Haney asked him to write out his involvement in the robberies.

Defendant wrote a self-titled “confession” in which he implicated himself in the “pawn shop”

robberies. He gave a detailed account of his involvement and included specific diagrams of the

robberies.

PROCEDURAL POSTURE

Defendant was convicted by a jury of three counts of aggravated robbery. Subsequently on

direct appeal, this court held that the search of defendant's home was illegal. See State v. Rodney

Ford, C.C.A. No. 01C01-9708-CR-00365, 1999 WL 5437 (Tenn. Crim. App. Jan. 7, 1999).1 We

held that all physical evidence gained through the search of the residence, and all verbal statements

made by the defendant at the residence when confronted with this physical evidence, should have

been suppressed. Ford, 1999 WL 5437, at *4. Additionally, this court remanded the case to the trial

court for a determination as to the legality of defendant's subsequent written confession. Ford , 1999

WL 5437, at *5. In its opinion, this court instructed the trial court to consider the following four

factors in determining whether defendant’s written statement must be suppressed pursuant to the

exclusionary rule: “(1) whether the accused received Miranda warnings; (2) the period of time

between the search and the confession; (3) the presence of intervening circumstances; and finally,

of particular significance (4) the purpose and flagrancy of the official misconduct.” Ford, 1999 WL

5437, at *5 (quoting Brown v. Illinois, 422 U.S. 590, 603-604 (1975)). On remand, the trial court

held the statement was not affected by the prior illegality; was properly obtained; and was

1

The undersigned judge dissented, believing the seizure to be proper under the

exigent circumstances doctrine. The state did not seek permission to appeal.

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admissible. This appeal followed.

STANDARD OF REVIEW

The findings of fact made by the trial court at the hearing on a motion to suppress are binding

upon this court unless the evidence contained in the record preponderates against them. State v.

Carter, 988 S.W.2d 145, 149 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the

credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve

any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this court

is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.

1998). Determining whether the written confession was the “fruit” of the illegal search and

improperly-obtained statements at the residence requires us to apply the law to the facts as found by

the trial court. This is a question of law which this court reviews de novo. Id.; State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997). When we apply the law to the facts as found by the trial court, we

conclude the written confession was the “fruit” of the illegal search and improperly-obtained

statements.

FOUR-PRONG ANALYSIS

The test for determining the admissibility of a confession elicited from an illegal search or

seizure is the “fruit of the poisonous tree” analysis, as opposed to the voluntariness test. Brown v.

Illinois, 422 U.S. at 591-592; State v. Huddelston, 924 S.W.2d 666, 674 (Tenn. 1996). “Under the

‘fruit of the poisonous tree’ analysis, the focus is on whether the evidence was obtained by

exploitation of the Fourth Amendment illegality.” Huddleston, 924 S.W.2d at 674 (quoting, Wong

Sun v. United States, 371 U.S. 471, 488 (1963)). In making this determination the primary question

is “whether [the statement] was sufficiently an act of free will to purge the primary taint of the

unlawful invasion.” Brown, 422 U.S. at 598 (quoting, Wong Sun v. United States, 371 U.S. at

486)); see also, State v. Johnson, 980 S.W.2d 414, 424 (Tenn. Crim. App. 1998). The burden of

proving the admissibility of the challenged evidence by a preponderance of the evidence rests on the

prosecution. Huddleston, 924 S.W.2d at 675.

On remand, this court instructed the trial court to use the analysis applied by both the United

States Supreme Court in Brown and the Tennessee Supreme Court in Huddleston. Thus, on remand

the trial court considered the following:

(1) the presence or absence of Miranda warnings; (2) the temporal proximity of the

search and the confession; (3) the presence of intervening circumstances; and finally,

of particular significance, (4) the purpose and flagrancy of the official misconduct.

Huddleston, 924 S.W.2d at 674-675.

Therefore, in our review of the trial court’s judgment, we will look to these factors.

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A. Miranda Warnings

It is undisputed that defendant received Miranda warnings before his initial, verbal

statements; before he was questioned by Detective Tarkington; and before he signed a written waiver

of his rights and issued the written confession. Thus, this factor weighs in favor of the State.

However, Miranda warnings alone do not per se authorize the admission of the subsequent

confession. Brown, 422 U.S. at 603.

B. Temporal Proximity

Weighing in favor of suppression is the temporal proximity of the search and statements at

the residence with the defendant’s subsequent written confession. In Brown the Supreme Court

found that, because the defendant had made one statement he believed to be admissible, the second

statement was tainted as well. 422 U.S. at 605. The Court noted that defendant’s cooperation with

the officers was based on his “anticipation of leniency.” Id. at 605 n.12. The Court held that such

expectations “bolstered the pressures” for defendant to give the second statement, or “at least vitiated

any incentive on his part to avoid self-incrimination.” Id.

The defendant’s written confession was given only four to five hours after the initial

“illegality.” Defendant was in custody for the entire period; continued to make broad incriminating

statements; and turned over additional evidence. Furthermore, the defendant’s police station

confession contained essentially the same information he had given in the verbal statements which

this court previously ordered suppressed. Thus, there is no indication that adequate time elapsed to

allow the defendant to formulate “free will” sufficient to remove the taint caused by the illegality.

This factor weighs heavily in favor of suppression.

C. Intervening Circumstances

The state argues that the defendant’s conversation with his mother and the time spent alone

at the police station are both intervening circumstances sufficient to allow the formation of “free

will.” The State argues that even though defendant was detained, consultation with his mother prior

to the statement weighs in its favor. See Huddleston, 924 S.W.2d 675. However, Detective Haney

testified that defendant’s conversation with his mother was “very brief.” The state has failed to

carry its burden of showing sufficient intervening circumstances to undermine the inference that the

written police station confession was tainted by the Fourth Amendment violation. This factor weighs

heavily in favor of suppression.

D. Flagrancy of Misconduct

In the original opinion filed by this court, the decision to suppress was not unanimous.

Relying on Welch v. Wisconsin, 466 U.S. 740 (1984), the dissent found that the search was proper

based upon exigent circumstances; the search and seizure of the physical evidence was justified

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under the “protective sweep doctrine;” and the evidence was found in plain view and, thus, was

admissible. See Ford, 1999 WL 5437, at *6-7.2

While the lack of unanimity as to the suppression of the search does not foreclose the issue

of whether or not there was flagrant misconduct, it does weigh in favor of finding no such flagrancy

existed. The police were unaware the defendant lived at the house in question and were seeking to

arrest a person thought to be a dangerous felon. Furthermore, the detectives attempted to extricate

the suspect without entering the house, but he refused to exit.

Relying on these facts, we conclude there was no flagrant misconduct. Thus, this factor

weighs in favor of the State.

NATURE OF THE ILLEGALITY

This case is factually unique in that the defendant’s statements were the fruit of an illegal

search versus an illegal arrest or illegal detention. Thus, even though we remanded to the trial court

to analyze this case under the four-prong Brown and Huddleston holdings, we recognize that this

approach has been criticized “when the ‘poisonous tree’ is an illegal search.” See generally, 5

Lafave, Search and Seizure § 11.4(c) (3d ed.1996).

While we are wary of jumping into the quagmire of a complicated Fourth Amendment

analysis, and certainly stop short of adopting a new test, we do note the distinct legal difference

between a confession which results from an illegal arrest and one which results from an illegal

search. This distinction is especially relevant in cases where the illegal search produces evidence

which is presented to the defendant in an attempt to gain a confession. The defendant’s realization

that the “cat is out of the bag” clearly is significant in encouraging the defendant to speak. 5 Lafave,

§ 11.4(c) at 273.

The giving of Miranda warnings does not break the casual chain when a defendant is

presented with illegally-obtained incriminating evidence which he believes to be admissible, and

confesses shortly thereafter. See 5 Lafave, § 11.4(c) at 273-274. The more contemporary doctrine

appears to establish that giving the defendant Miranda warnings will not break the causal chain

between an illegal search and a subsequent confession, since they do not advise the defendant

whether the evidence he is confronted with was unlawfully obtained. Id. at 274.

Similarly, where the taint is a productive illegal search, Brown’s temporal proximity factor

adds little insight into the question of whether defendant’s confession is the “fruit” of the initial

illegality. See 5 Lafave, §11.4(c) at 273. Where incriminating evidence is seized, regardless of the

time frame between the illegal search and the subsequent confession, the potential remains for

2

As previously noted, the state did not seek permission to appeal to the Tennessee

Supreme Court.

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authorities to elicit a confession through exploitation of the illegality.

DUAL ILLEGALITY

We further note that the nature of the illegality in this case is extremely unique. This court

previously concluded the search was illegal and ordered suppression not only of the physical

evidence, but also the defendant’s statements at his residence. Thus, a dual illegality preceded the

written confession at the police station. The giving of Miranda warnings to remove the taint

becomes even more attenuated where, as in the present case, the defendant believes he has already

given the same information in an admissible confession. See United States v. Patino, 830 F.2d 1413,

1419 (7th Cir. 1987). Having been confronted with the illegal evidence and having given improperly-

obtained admissions, we are simply unable to conclude that the state has met its burden of

establishing that the subsequent written confession was purged of the primary taint of the unlawful

activities.

CONCLUSION

We conclude that the state failed to meet its burden of showing the written confession was

a sufficient act of free will to purge the primary taint of the illegality. The written confession was

a fruit of the illegal search and improperly-obtained statements made at defendant’s residence.

Therefore, the judgment of the trial court is REVERSED. This case is REMANDED for a new trial

with specific instructions to suppress defendant’s written confession.3

3

The state indicated to the trial court that it would be unable to proceed without the

written confession. Upon remand, this determination will have to be made by the state. It

is not appropriate for this court to order a dismissal.

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