State of Tennessee v. Holly N. Hilliard

08/29/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 27, 2017 Session1

STATE OF TENNESSEE v. HOLLY N. HILLIARD

Appeal from the Criminal Court for Sullivan County

No. S61553 R. Jerry Beck, Judge

___________________________________

No. E2015-00967-CCA-R3-CD

___________________________________

AND

STATE OF TENNESSEE v. BRIAN REYNOLDS

Appeal from the Criminal Court for Sullivan County

No. S61558 R. Jerry Beck, Judge

___________________________________

No. E2015-00969-CCA-R3-CD

___________________________________

AND

STATE OF TENNESSEE v. JOSEPH A. TESTER II

Appeal from the Criminal Court for Sullivan County

No. S62173 R. Jerry Beck, Judge

___________________________________

No. E2015-00970-CCA-R3-CD

___________________________________

1

Following oral argument on June 29, 2016, one judge discovered a conflict and recused himself.

By order entered January 12, 2017, this case was rescheduled for oral argument before the current panel,

and the parties were requested to file supplemental briefs addressing the legality of the knock and talk

investigative procedure used by the Sullivan County Sheriff’s Department. Following the filing of

supplemental briefs by the parties, a second round of oral argument was conducted on June 27, 2017.

This is a consolidated appeal by the State. Holly N. Hilliard (“Ms. Hilliard”),

Brian K. Reynolds (“Mr. Reynolds”), and Joseph A. Tester, II (“Mr. Tester”)

(collectively, “the Defendants”) were charged, via presentment, with conspiracy to

manufacture over .5 grams of methamphetamine within 1,000 feet of a school. The

presentment also charged Ms. Hilliard and Mr. Reynolds with one count of

manufacturing greater than .5 grams of methamphetamine within 1,000 feet of a school,

two counts of attempted aggravated child neglect, one count of maintaining a dwelling

where controlled substances are used or sold, and one count of possession of drug

paraphernalia. The Defendants moved to suppress evidence found in a warrantless search

of their residence. Following a suppression hearing, the trial court found that the

officers’ subjective reasons for entering the house were inconsistent, that there were not

sufficient exigent circumstances to justify a protective sweep, and that the officers’ entry

into the residence was an illegal warrantless search. The trial court granted the motions

and suppressed the evidence found in the residence. Upon review, we conclude that the

trial court erred by using a subjective rather than objective test in finding that the exigent

circumstances were not sufficient to justify the officers’ entering the residence to perform

a protective sweep. However, we determine that the police officers’ knocking on the

front door for ten to fifteen minutes while announcing their badge of authority rendered

the encounter with Ms. Hilliard nonconcensual and the knock and talk investigation

unlawful. The subsequent warrantless entry of the residence therefore violated the

prohibition against unreasonable searches and seizure under the Fourth Amendment of

the United States Constitution and article 1 section 7 of the Tennessee Constitution. The

subsequent consent to search given by Ms. Hilliard was not voluntary and resulted from

an exploitation of the prior illegality. We, therefore, affirm the judgments of the trial

court suppressing the evidence in these three cases.

Tenn. R. App. P.3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Barry Staubus, District Attorney General; and Josh D. Parsons, Assistant District

Attorney General, for the appellant, State of Tennessee.

-2-

Cameron L. Hyder, Elizabethton, Tennessee (on appeal), and Clifton L. Corker, Johnson

City, Tennessee (at hearing), for the appellee, Holly Hilliard.

Jeremy E. Harr, Kingsport, Tennessee, for the appellee, Brian K. Reynolds.

Gene G. Scott, Jr., Jonesborough, Tennessee, for the appellee, Joseph A. Tester, II.

OPINION

Factual and Procedural Background in the Trial Court

This case arises from a knock and talk performed by officers with the Sullivan

County Sheriff’s Department on October 9, 2012. Almost two years later, Ms. Hilliard

filed a motion to suppress all evidence found during the warrantless search of her

residence. This motion claimed that the “protective sweep” conducted before Ms.

Hilliard gave consent was an illegal search and that the search conducted after Ms.

Hilliard gave consent was illegal because a search had already taken place and her

consent was not voluntarily given. On January 9, 2015, Mr. Tester also filed a motion to

suppress all evidence found in the search of the residence in which he resided with Ms.

Hilliard. The State filed a “Response to Motion to Suppress” on March 27, 2015. Mr.

Reynolds orally joined both of his co-defendants’ motions to suppress.

Suppression Hearings

A short suppression hearing was held in the late afternoon on February 23, 2015,

but the hearing was continued to April 2, 2015, where the bulk of the proof was

presented. Sullivan County Sheriff’s Department Detective Ray Hayes was the only

witness who testified at the February hearing and was the first witness called in April.

He testified that he received a cell phone call on October 9, 2012, from a confidential

informant (“CI”) stating that the CI had observed methamphetamine being made at the

Defendants’ residence that morning. The CI stated that Mr. Tester, Ms. Hilliard, and two

minor children were in the home. This CI had worked with Detective Hayes for

approximately one year and had provided information over twenty times. Based on his

experience with this CI, Detective Hayes believed him to be reliable.

-3-

Detective Hayes testified that “[w]e were going to apply for a search warrant, but .

. . we were afraid during that time . . . something could happen to the children.”

Detective Hayes decided to conduct a knock and talk at the residence and began

assembling a group of officers to assist. Detective Hayes, along with Sergeant Burk

Murray, two other detectives, and two patrol officers went to the residence that afternoon.

One patrol car was parked in the driveway, and three other vehicles were parked on the

adjacent property or on the road in front of the residence. Detective Hayes, Sergeant

Murray, and one uniformed patrol officer went to the front door. The other three officers

went to the side and rear of the property so that they could observe the other doors to the

residence. Detective Hayes stated that they “surrounded the house with officers” for

officer safety but that the officers did not have their weapons drawn. One uniformed

patrol officer knocked on the front door “multiple times” and announced “Sullivan

County Sheriff’s Office.” Detective Hayes testified that he could hear “scattering” inside

the residence when they knocked. He said that even though the movement in the house

caused concern about officer safety they did not draw their weapons at that time.

Detective Hayes said that they continued knocking and announcing, and after

“[p]robably about ten minutes,” Ms. Hilliard opened the door, holding a small child.

Detective Hayes testified that, when Ms. Hilliard opened the door, “there was a chemical

smell that came from the house” that he “specifically associated with the manufacture of

methamphetamine.” Detective Hayes stated that he had worked over 300

methamphetamine laboratory cases during his career and that he was very familiar with

the smell of methamphetamine being manufactured. He asked Ms. Hilliard if there was

anyone else inside the house. Ms. Hilliard initially lied but shortly thereafter recanted

and told Detective Hayes that Mr. Reynolds was inside. Detective Hayes advised Ms.

Hilliard that he had received reliable information that methamphetamine was being

manufactured in the house and asked for consent to search. Ms. Hilliard responded, “No

. . . [y]ou’ll have to get a search warrant.” Detective Hayes asked Ms. Hilliard to step out

of the house, and after she complied, he called for Mr. Reynolds to come to the door. At

that time, the officers drew their weapons. Mr. Reynolds came to the door after

“probably five to ten minutes.” Mr. Reynolds was handcuffed for “officer safety.” Ms.

Hilliard was not handcuffed.

Detective Hayes stated that officers decided to perform a “protective sweep”

because “[w]e didn’t know if the other [child] was in there, and we didn’t know if any

other subjects were in the house.” He said that, based on his training and experience,

methamphetamine laboratories are very dangerous. He explained that the one-pot

-4-

method involved the use of a “gasser” bottle that contained “hydrogen chloride gas

which, in contact with water, becomes hydrochloric acid.” Detective Hayes testified that

hydrogen chloride fumes were toxic and that there was a danger of “bottle failure”

resulting in an explosion and fire. During the protective sweep, he saw, in the upstairs

master bedroom in plain view, “a crushed pill, cut straws, and a mirror with white residue

on it.” In the basement, Detective Hayes observed “some tubing, some pipes, a cut cold

pack, . . . some Drano, some filters, and some Morton salt.” He said these were common

ingredients or components used in the manufacture of methamphetamine. Detective

Hayes said that, during the sweep, the officers only looked in areas of the house large

enough to conceal a human being. The officers did not find any other people in the house

during the sweep.

Detective Hayes informed Ms. Hilliard of the items that he had seen during the

protective sweep and again asked for consent to search. She again refused to consent.

Officer Hayes then went to his vehicle to prepare paperwork for a search warrant. While

working on the search warrant, Detective Hayes was informed by Sergeant Murray that

Ms. Hilliard had changed her mind and consented to a search. Ms. Hilliard then signed a

consent to search form and a Miranda rights waiver. After the form was signed, officers

put on protective suits and searched the residence.

During cross-examination, Detective Hayes stated that he did not know the exact

time the CI called but that it was in the morning. When questioned further, he estimated

that the CI called around 8:30 or 9:00 a.m., and he stated that the CI had been to the

residence that morning. Later in cross-examination, Detective Hayes stated that the CI

did not say when he was at the residence and that he was “just making an assumption”

that it was that morning.

Detective Hayes agreed that he could have attempted to obtain a search warrant

but did not. He stated that it would have taken approximately two to three hours to obtain

a search warrant. He also agreed that he arrived at the Defendants’ residence to conduct

a “knock and talk” at 2:56 p.m. and that officers were at the residence for approximately

thirty minutes before conducting the protective sweep. Detective Hayes stated that the

sweep was performed “for officer safety and [to] make sure that there was no active cook

going on at the time,” as well as to look for the second child. Detective Hayes stated that,

after they conducted the sweep, Ms. Hilliard told him that the second child was at school.

Detective Hayes initially said that a gasser bottle was found during the sweep, but he later

stated that he could not recall which items of evidence were found during the sweep and

-5-

which items were found after Ms. Hilliard signed the consent form. After refreshing his

memory with the case summary that he had prepared following the search, Detective

Hayes could not explain why he did not mention in his report that he smelled a strong

chemical odor when the front door was opened. Detective Hayes agreed that the case

summary only mentioned a faint chemical odor that he smelled when he went downstairs

during the protective sweep. In explaining any discrepancy between his testimony and

the report, Detective Hayes said that the gasser bottle could have been moved downstairs

after officers knocked on the front door.

Sergeant Murray testified that he and a uniformed patrolman accompanied

Detective Hayes to the front porch of the residence in order to conduct the knock and talk

and that Detective Hayes and the patrolman knocked. Sergeant Murray said no one

immediately came to the door, but they could hear “people moving around back and forth

through the house.” Sergeant Murray recalled that it took about ten or fifteen minutes for

Ms. Hilliard, who was carrying a small child, to open the front door. When Ms. Hilliard

opened the door, Sergeant Murray detected “the odor of chemicals that [he] associated

with a hydrogen chloride gasser” based upon his experience at hundreds of

methamphetamine labs. Ms. Hilliard initially claimed that no one else was inside the

residence, but after being told that the officers heard a lot of noise in the house, she

admitted that Mr. Reynolds was inside. Sergeant Murray stated that Detective Hayes

explained to Ms. Hilliard that they had received a complaint and asked for permission to

search. Ms. Hilliard refused. Sergeant Murray recalled that officers called for Mr.

Reynolds to come out, and he did so in “[l]ess than a minute or two.” Sergeant Murray

noted:

It’s at that point we knew, from the information that Detective Hayes

received that there—[Mr.] Tester resided at the home, and two children.

And I instructed the rest of the deputies, Detective Ford, Detective Hayes,

and Detective Dotson to do a sweep through the home, ensure there was no

one else in the home because all of the commotion and the time it took for

them to initially answer the door.

When asked to clarify who the officers were looking for during the “protective sweep,”

Sergeant Murray stated that officers were looking for Mr. Tester.

On cross-examination, Sergeant Murray agreed that the officers were going to

continue to knock until somebody answered the door. He also agreed that the odor of a

-6-

meth lab can linger and is not necessarily associated with methamphetamine being

manufactured at the time the odor is detected. He stated that the odor he smelled when

the door was opened was produced when chemicals were agitated in a hydrogen chloride

gasser. He explained that, when a gasser is stationary for a while, the chemicals will

separate and quit producing gas, and the bottle must be reagitated to start producing gas

again. He agreed that he could not determine if methamphetamine was being actively

manufactured at the time he smelled the hydrogen chloride gasser, only that

methamphetamine was being made or had been made in the house.

Sergeant Murray remained outside with Ms. Hilliard during the sweep. After

completing the sweep, officers informed Sergeant Murray that they “observed meth –

manufacturing methamphetamine components in the house and in the basement, and that

. . . we would have an active lab.” Sergeant Murray said Detective Hayes explained to

Ms. Hilliard what the officers found inside the home and again asked for consent to

search, but Ms. Hilliard again refused. Detective Hayes then stepped away to prepare the

paperwork needed to seek a search warrant.

While the search warrant documents were being prepared, Sergeant Murray

advised Ms. Hilliard of her rights and asked about the location of the second child.

Sergeant Murray also explained the process of obtaining a search warrant. Ms. Hilliard

asked how long it would take, and Sergeant Murray said, “It could be anywhere from

three to six hours, depending on how efficient [Detective Hayes] [wa]s at writing the

warrant and finding the judge to sign the warrant.” Sergeant Murray also advised Ms.

Hilliard that another detective would be contacting the Department of Children’s Services

(“DCS”) and that he knew that she had prior dealings with DCS. Sergeant Murray told

Ms. Hilliard that consenting to the search may be beneficial to her when dealing with

DCS. Ms. Hilliard “thought about it for a while” and then said she would consent to a

search, and Sergeant Murray informed Detective Hayes that Ms. Hilliard had changed her

mind. After being advised of her right to refuse to sign, Ms. Hilliard signed a form

consenting to a search of the residence. Sergeant Murray stated that Ms. Hilliard was not

placed in handcuffs.

Cassidy Hyatt testified that she was Mr. Reynolds’ parole officer at the time he

was arrested on these charges. She received a call informing her that officers had

discovered a methamphetamine laboratory at an address where Mr. Reynolds was

located. Ms. Hyatt went to the residence and noted that the address was not the same as

the address Mr. Reynolds had listed as his place of residence. Ms. Hyatt also stated that,

-7-

as a condition of his parole, Mr. Reynolds had agreed to submit to a search of his person,

property, vehicle, or residence that was not supported by reasonable suspicion or a

warrant. Mr. Reynolds told Ms. Hyatt that the residence belonged to his cousin, Mr.

Tester, but that he had been staying there. Mr. Reynolds also admitted that he had helped

manufacture the methamphetamine.

Robert Neial Howington lived across the street from the Defendants’ residence

and was sitting on his front porch when police arrived. Mr. Howington observed officers

surround the house with their weapons drawn. Mr. Howington recalled that officers

demanded people to exit the residence and that they knocked on the door for

approximately five minutes. On cross-examination, Mr. Howington said he thought the

officers had their guns drawn when they first knocked on the front door, but he “could

not swear upon it.”

Matthew Allen Hilliard, Ms. Hilliard’s estranged husband, testified that he

provided transportation for his son to and from school and Ms. Hilliard’s home. He

stated that Mr. Tester and Mr. Reynolds were living at Ms. Hilliard’s home at the time of

the “incident.” He filed for divorce after Ms. Hilliard was arrested.

Oral Ruling of the Trial Court

After considering “the ambiguity” in the testimony of Detective Hayes and

Sergeant Murray, the trial court found there were not sufficient exigent circumstances to

justify entering the house for a warrantless search. The trial court announced that it

“considered the ruling [that there were not exigent circumstances to conduct a warrantless

search of the residence] to be [dispositive] “of all search issues . . . raised at the

suppression hearing[].” Nevertheless, the trial court announced that it would discuss

other issues raised in the motion to suppress. The trial court found that Ms. Hilliard twice

refused to consent and that the methamphetamine laboratory and laboratory components

were discovered before Ms. Hilliard signed the consent form and, therefore, Ms.

Hilliard’s subsequent signing of the consent to search did not cure the warrantless search

or entry into the house. Additionally, the trial court held that the warrantless search could

not be sustained due to the fact that Mr. Reynolds was on parole because the police did

not know about Mr. Reynolds’ parolee status when they conducted the search.

Concerning the failure of Detective Hayes to apply for a search warrant, the trial

court noted that the CI did not state when he observed methamphetamine being

-8-

manufactured, and therefore, it was questionable whether Detective Hayes could have

obtained a search warrant.

Written Order of the Trial Court

In its written order granting the motion to suppress the search as to all of the

Defendants, the trial court characterized the testimony of Detective Hayes and Sergeant

Murray as “conflicting,” stating:

[Detective] Hayes testified [that] they next entered the residence

without consent for two purposes:

(A) Protective sweep looking for other individuals;

(B) Entered to look for possible child in residence.

[Sergeant] Murray testified [that] he entered the residence to look for

a third suspect, [Mr.] Tester, who the C.I. had informed the police was at

the house.

The two officers that testified at the suppression hearing caused a

concern of the [trial c]ourt as to why they made a warrantless search.2

On the one hand[,] based upon the theory that the others smelled the

components of methamphetamine may have justified a warrantless search

to save the child from harm. See State v. Meeks, 262 S.W.3d 710 (Tenn.

2008). On the other hand[,] to just look for a possible suspect [Tester]

under the testimony of Murray in the suppression hearing would not offer

exigent circumstances to make a warrantless search.

2

The trial court was referring to the fact that Detective Hayes and Sergeant Murray gave different

reasons for the officers’ warrantless entry.

-9-

....

If there are conflicts as to why the police entered, the [trial c]ourt is

left in a position of picking between the two if possible. Both officers

appear to be credible and the [trial c]ourt cannot cho[o]se between them.

To repeat, the [S]tate has the burden.

The warrantless search thus appears to be unreasonable considering

the two versions of why the police entered.

Concerning the consent given by Ms. Hilliard, the trial court stated:

In any case, the officers conducted a search without the consent of

anyone. They found no other persons in the residence but did find an active

meth cook in the basement.

After finding the active meth cook, etc., the police went and asked

Ms. Hilliard’s consent to search but again did not ask [for] Reynolds’[]

permission. Both Hilliard and Reynolds were still outside of the house at

the scene. Ms. Hilliard declined consent again.

The police then decided to fill out a search warrant form stating to

Ms. Hilliard it would take some hours to go to a judge. The police then

talked about Ms. Hilliard possibly being confronted with children’s

services.

Ms. Hilliard then signed a written consent form allowing the police

to search. Mr. Reynolds was not asked to consent although he was still

present at the scene.

Even if Ms. Hilliard finally consented, the search was already

complete and the meth lab had been discovered and the consent would avail

the [S]tate nothing.

The trial court reserved for a later hearing issues related to the statements given by

the three defendants.

- 10 -

State’s Decision Not to Go Forward with Prosecution

At a subsequent hearing, the State informed the trial court that it would not be able

to go forward with the prosecution, and the trial court dismissed the three cases. The

State filed timely appeals, and this court granted the State’s motion to consolidate the

three cases on appeal.

Analysis

In its initial brief, the State asserted that “the trial court erred in finding a lack of

exigent circumstances supporting the initial entry into the Defendant’s residence based

upon the subjective intent of the officers.” As the State correctly argued, “[i]n assessing

whether exigent circumstances justify a warrantless search, the proper inquiry is whether

exigent circumstances give rise to an objectively reasonable belief that there was a

compelling need to act and insufficient time to obtain a warrant.” In its supplemental

brief, the State argued that “no rule of law prohibits any person from approaching the

front door of a residence to ask questions of the occupant.”

In their initial brief, the Defendants argued that the trial court correctly found,

based on the totality of the circumstances, that there were not sufficient exigent

circumstances to justify entering the Defendants’ residence without a warrant. In their

supplemental brief, the Defendants argued that the “officers exceeded the scope of a

permissible knock and talk because they knocked on the door of Ms. Hilliard’s home for

ten to fifteen minutes[.]”

Standard of Review

When reviewing a trial court’s decision on a motion to suppress, this court is

bound by the trial court’s findings of fact unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of credibility, the weight and

value of the evidence and resolutions of conflicts in the evidence are resolved by the trial

court. Id. The prevailing party is entitled to the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom. Id. We review the trial

court’s conclusions of law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005).

- 11 -

Warrantless Searches

Both the United States and Tennessee Constitutions prohibit unreasonable

searches and seizures. U.S. Const. amend. IV; Tenn. Const. Art. I, § 7. A warrantless

search or seizure is presumed unreasonable, and the “evidence discovered as a result

thereof is subject to suppression unless the State demonstrates that the search or seizure

was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v.

New Hampshire, 403 U.S. 443, 454-55 (1971)). Commonly recognized exceptions to the

warrant requirement include: (1) a search incident to a lawful arrest; (2) the plain view

doctrine; (3) consent to search; (4) a stop and frisk based on reasonable suspicion of

criminal activity; and (5) probable cause accompanied by the existence of exigent

circumstances. State v. Meeks, 262 S.W.3d 710, 722, 726 (Tenn. 2008). In the case of a

warrantless search, the State bears the burden of proving that the search was conducted

pursuant to one of the exceptions to the warrant requirement. Id.

Failure to Obtain a Search Warrant

The Defendants maintain that the warrantless search of their residence was not

reasonable because the CI had provided Detective Hayes sufficient information to allow

him to obtain a search warrant in the six hours that elapsed between the time the CI

telephoned Detective Hayes and the time the officers conducted the knock and talk.

Unlike a warrantless entry into a residence based on exigent circumstances, which

requires law enforcement officers to determine upon the discovery of exigency if there is

sufficient time to obtain a search warrant, Meeks, 262 S.W.3d at 723, law enforcement

officers are not required to seek a search warrant, even if there might be sufficient

information and ample time to do so, before they conduct a knock and talk investigation.

Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1416 (2013) (quoting Kentucky v. King,

563 U.S. 452, 469 (2011)) (“[A] police officer not armed with a warrant may approach a

home and knock, precisely because that is ‘no more than any private citizen might do.’”).

“Law enforcement officers are under no constitutional duty to call a halt to criminal

investigation the moment they have the minimum evidence to establish probable cause . .

. .” Hoffa v. United States, 385 U.S. 293, 310 (1966), see also State v. Hendrix, 782

S.W.2d 833, 836 (Tenn. 1989) (officers had sufficient probable cause to seek a search

warrant but instead legally conducted a “phone rip-off,” in which they telephoned the

defendant and told him that the police were on the way to his house with a search

- 12 -

warrant, and subsequently arrested the defendant after he left his home). “Faulting the

police for failing to apply for a search warrant at the earliest possible time after obtaining

probable cause imposes a duty that is nowhere to be found in the Constitution.” King,

563 U.S. at 467.

Even though the officers in this case were not required to obtain a search warrant

before conducting a knock and talk investigation, forgoing a search warrant has certain

inherent risk. The occupants might not be home, or they might simply choose to not

answer the door. Even if an occupant answers the door, the encounter may be found to

be nonconsensual. If the ultimate goal of an officer is to enter the residence to search for

evidence rather than simply talk, a knock and talk is a poor substitute for a search warrant

because the burden is on the State to prove the reasonableness of a warrantless search.

Knock and Talk

Over fifty years ago in Davis v. United States, the general rule for the “knock and

talk” procedure was explained as follows:

Absent express orders from the person in possession against any possible

trespass, there is no rule of private or public conduct which makes it illegal

per se, or a condemned invasion of the person’s right of privacy, for anyone

openly and peaceably, at high noon, to walk up the steps and knock on the

front door of any man’s “castle” with the honest intent of asking questions

of the occupant thereof—whether the questioner be a pollster, a salesman,

or an officer of the law.

Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964), abrogation on other grounds

recognized by United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th Cir. 2012). The

view expressed in Davis is now “a firmly-rooted notion in Fourth Amendment

jurisprudence.” United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (citing

United States v. Jerez, 108 F.3d 684, 691 (7th Cir. 1997); United States v. Taylor, 90 F.3d

903, 909 (4th Cir. 1996); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991);

United States v. Roberts, 747 F.2d 537, 543 (9th Cir. 1984)).

The knock and talk procedure has been recognized as a valid investigative tool by

Tennessee courts. State v. Cothran, 115 S.W.3d 513, 521-22 (Tenn. Crim. App. 2003).

The validity of the knock and talk procedure depends upon the encounter being

- 13 -

consensual in nature. Id. at 521. The consensual nature of such an encounter is usually

determined by “the show of force exhibited by the police.” United States v. Thomas, 430

F.3d 274, 277 (6th Cir. 2005).

Recently, the Tennessee Supreme Court held in a case of first impression that

“‘No Trespassing’ signs posted near [the defendant’s] unobstructed driveway were not

sufficient to revoke the implied license referred to in Jardines[]” based on “the totality of

the circumstances[.]” State v. Christensen, 517 S.W.3d 60, 77 (Tenn. 2017) (citing

Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409 (2013)). In discussing the nature of the

“implied license” to approach an individual’s residence, the United States Supreme Court

in Jardines stated that:

“the knocker on the front door is treated as an invitation or license to

attempt an entry, justifying ingress to the home by solicitors, hawkers and

peddlers of all kinds.” Breard v. Alexandria, 341 U.S. 622, 626, 71 S.Ct.

920, 95 L.Ed. 1233 (1951). This implicit license typically permits the

visitor to approach the home by the front path, knock promptly, wait briefly

to be received, and then (absent invitation to linger longer) leave . . . .

Thus, a police officer not armed with a warrant may approach a home and

knock, precisely because that is “no more than any private citizen might

do.” Kentucky v. King, 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d

865 (2011).

Jardines, 133 S.Ct. at 1415-16. “A sidewalk, pathway or similar passageway leading

from a public sidewalk or roadway to the front door of a dwelling represents an implied

invitation to the general public to use the walkway for the purpose of pursuing legitimate

social or business interest with those who reside within the residence.” State v. Harris,

919 S.W.2d 619, 623 (Tenn. Crim. App. 1995).

The above language from Jardines, which was quoted by our supreme court in

Christensen, 517 S.W.3d at 70, reinforces the requirement that an encounter resulting

from a knock and talk must be consensual in nature. In Thomas, the United States Court

of Appeals for the Sixth Circuit stated:

[W]e have held that a consensual encounter at the doorstep may

evolve into a “constructive entry” when the police, while not entering the

house, deploy overbearing tactics that essentially force the individual out of

- 14 -

the home. In United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984), we

held that a “constructive entry” occurred when a suspect emerged from a

house “in response to coercive police conduct.” And in United States v.

Saari, 272 F.3d 804 (6th Cir. 2001), we described coercive police conduct

as “such a show of authority that [the] Defendant reasonably believed he

had no choice but to comply.”

The difference between the two—between a permissible consensual

encounter and an impermissible constructive entry—turns on the show of

force exhibited by the police.

Thomas, 430 F.3d at 277 (some internal citations omitted). It is the defendant’s burden to

establish, by a preponderance of the evidence, that a knock and talk conducted by the

police was invalid. Christensen, 517 S.W.3d at 72 (citing United States v. Holmes, 143

F. Supp.3d 1252, 1261 (M.D. Fla. 2015)).

In the case sub judice, approximately six hours after Detective Hayes received

reliable information from a CI, six officers went to the Defendants’ residence during

daylight hours. Detective Hayes testified that he decided to conduct a knock and talk

rather than seek a search warrant because he was concerned for the safety of the two

children that the CI stated were in the residence when he observed methamphetamine

being manufactured. Three officers went up on the front porch while three officers

surrounded the residence and took up positions to watch the other doors. The officers

knocked on the front door and announced “Sullivan County Sheriff’s Office.” The

officers could hear people inside moving around after they knocked. The officers

testified that they knocked and announced for ten to fifteen minutes before Ms. Hilliard

finally opened the door. Detective Hayes asked for consent to search the residence, and

when Ms. Hilliard refused, the detective told her to step out of the house. Officers then

drew their weapons and ordered Mr. Reynolds to come to the door.

The officers did not “knock promptly, wait briefly to be received, and then (absent

invitation to linger longer) leave.” Jardines, 133 S.Ct. at 1415. Rather, the officers

deployed overbearing tactics that we conclude essentially forced Ms. Hilliard to open the

door and exit the residence. No reasonable person would have believed that they were

free to ignore the officers’ prolonged and persistent knocking while announcing their

badge of authority. The knock and talk procedure employed by the officers in this case

- 15 -

destroyed the consensual nature of the encounter and was unlawful based on the totality

of the circumstances.

Exigent Circumstances

The trial court found that Detective Hayes’ and Sergeant Murray’s subjective

reasons for entering the house were inconsistent and concluded that the search was

illegal. However, exigent circumstances are viewed from an objective standpoint, and

“the governmental actor’s subjective intent is irrelevant.” Meeks, 262 S.W.3d at 724.

We will examine the exigent circumstance from an objective standpoint and determine

the ramifications of the discovery of an exigent circumstance after a nonconsensual

encounter.

“Exigent circumstances arise where ‘the needs of law enforcement [are] so

compelling that the warrantless search is objectively reasonable under the Fourth

Amendment.’” Meeks, 262 S.W.3d at 723 (quoting Brigham City, Utah v. Stuart, 547

U.S. 398, 403 (2006)). “The question of whether circumstances were sufficiently exigent

to justify a warrantless search is a mixed question of law and fact[,]” and the trial court’s

conclusions are reviewed de novo with no presumption of correctness. Id. at 722.

Exigent circumstances sufficient to allow the warrantless search of a domicile include:

(1) “hot pursuit”; (2) “to thwart escape”; (3) to prevent the immediate destruction of

evidence; (4) “in response to an immediate risk of serious harm to the police officers or

others”; and (5) “to render emergency aid to an injured person or to protect a person from

imminent injury.” Id. at 723. “The exigency of the circumstances is evaluated based

upon the totality of the circumstances known to the governmental actor at the time of the

entry.” Id. The State may not rely on mere speculation but “must rely upon specific and

articulable facts and the reasonable inferences drawn from them.” Id. at 723-24.

In Meeks, our supreme court held that “[t]he undisputed facts clearly establish the

sort of exigent circumstances that justified the officers’ decision to enter [the motel room]

without first obtaining a search warrant.” Id at 726-27. The officers responded to a call

of an odor coming from a motel room, and when they arrived, they recognized the

“unmistakable” odor of a methamphetamine laboratory. Id. at 714. The officers heard

voices in the suspects’ room and knocked on the door, but no one answered. Id. After

approximately five to ten minutes, the officers decided to enter the room “because of the

dangers posed by manufacturing methamphetamine” to the occupants of the room and

- 16 -

other guests at the motel. Id. at 715. When they forced open the door, they found two

men and an active methamphetamine laboratory. Id.

In this case, Detective Hayes and Sergeant Murray testified that they entered the

residence “in response to an immediate risk of serious harm to the police officers or

others,” which is a recognized exigent circumstance sufficient to allow the warrantless

search of a domicile. Id. at 723 (citing Stuart, 547 U.S. at 403; Minnesota v. Olson, 495

U.S. 91, 100 (1990); United States v. Huffman, 461 F.3d 777, 782 (6th Cir. 2006); State

v. Adams, 238 S.W.3d 313, 321 (Tenn. Crim. App. 2005)). However, unlike Meeks, there

is no proof in the record that the officers smelled an odor they associated with the

manufacture of methamphetamine before Ms. Hilliard opened the door. Before the door

was opened, the officers only knew that the CI claimed that he saw Ms. Hilliard and her

two children and Mr. Tester in the home at some previous time while methamphetamine

was being manufactured. The officers did not know when the CI was in the home or

whether it was even the same day he telephoned Detective Hayes. There is no proof in

the record that the officers were concerned about “the immediate destruction of evidence”

when they heard movement inside the residence. Id. at 723. The officers did not have

probable cause to believe that a criminal offense was being committed or was going to be

committed or that there were exigent circumstances justifying a warrantless entry into the

residence before Ms. Hilliard opened the door. As we have previously determined, the

prolonged knocking while announcing their badge of authority destroyed the consensual

nature of the encounter, resulting in the unlawful knock and talk. Because the exigent

circumstance was discovered as a result of the nonconsensual encounter with Ms. Hilliard

and because the officers lacked probable cause to search prior to the nonconsensual

encounter, the warrantless search violated the Defendants’ rights under both the U.S. and

Tennessee constitutions. See State v. Linda Greene, No. E2008-00884-CCA-R3-CD,

2009 WL 3011108, at *8 (Tenn. Crim. App. Sept. 22, 2009) (holding “that the State’s

proof was not sufficient to establish probable cause for the officers to have left their

course from the knock and talk and go to the place where they observed the

methamphetamine lab in plain view[]” and “that absent probable cause, there were no

exigent circumstances to permit the warrantless entry into the curtilage, and the officers’

entry into the curtilage violated the defendant’s constitutional rights under the Fourth

Amendment and article I, section 7[]”), no perm. app. filed. The trial court properly

suppressed the evidence arising from the officers’ protective sweep.

- 17 -

Search after Consent

“Whether an individual voluntarily consents to a search is a question of fact to be

determined from the totality of the circumstances.” State v. Berrios, 235 S.W.3d 99, 109

(Tenn. 2007) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), State v. Cox,

171 S.W.3d 174, 184 (Tenn. 2005)). Our supreme court stated in State v. Ingram that “a

consent to search that is preceded by an illegal seizure is not ‘fruit of the poisonous tree’

if the consent is both: 1) voluntary, and 2) not an exploitation of the prior illegality.” 331

S.W.3d 746, 760 (Tenn. 2011) (quoting Berrios, 235 S.W.3d at 109) (internal quotation

marks omitted). “Under the ‘fruit of the poisonous tree’ analysis, the focus is on whether

the evidence was obtained by exploitation of the Fourth Amendment illegality.” Id.

(quoting State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996)) (internal quotation

marks omitted). In Ingram, the defendant consented to a search of his residence after

officers searched his person. Id. at 752-53. Our supreme court stated that “[t]he validity

of the search of the [d]efendant’s residence depends on whether the [d]efendant

consented to the search and if so, whether that consent was the product of the previous

invalid search of his person.” Id. at 759-60.

In State v. Garcia, our supreme court adopted the following factors from Brown v.

Illinois, 422 U.S. 590, 603-04 (1975), to evaluate whether the causal connection between

an unlawful seizure and a subsequent consent has been broken: “1) the temporal

proximity of the illegal seizure and consent; 2) the presence of intervening circumstances;

and 3) the purpose and flagrancy of the official misconduct.” 123 S.W.3d 335 (Tenn.

2003). We will apply the same test to determine whether Ms. Hilliard’s consent was

sufficiently attenuated from the officers’ earlier warrantless entry and search of her

residence. See Ingram, 331 S.W.3d at 760-61 (applying the Brown factors to unlawful

police search and subsequent consensual search).

In this case, we conclude that Ms. Hilliard’s consent was not voluntary and

resulted from an exploitation of the prior illegal knock and talk. Ms. Hilliard had been

previously exposed to a coercive and nonconsensual knock and talk when the officers

knocked on her door and announced their presence for ten to fifteen minutes. Before the

officers conducted the protective sweep, Ms. Hilliard denied the officers’ request for

permission to search her residence. Based on claimed exigent circumstances, the officers

entered the residence and conducted a protective sweep, during which they observed

paraphernalia and ingredients used in the manufacture of methamphetamine. After the

protective sweep, Ms. Hilliard asked how long it would take the officers to obtain a

- 18 -

search warrant. Sergeant Murray told her that it “could be anywhere from three to six

hours[.]” Sergeant Murray knew that Ms. Hilliard had prior dealings with DCS and he

told Ms. Hilliard that consenting to the search may be beneficial to her when dealing with

DCS. It was only then that Ms. Hilliard consented to a search of her home.

Although it is unclear from the record how much time passed between the initial

protective sweep and the second search, it is clear that Ms. Hilliard consented to the

search shortly after the officers constructively entered her home. This factor weighs in

favor of suppression. Additionally, there were no intervening circumstances between the

officers’ initial warrantless entry and their consensual search; this factor also weighs in

favor of suppression. Further, the officers’ misconduct of knocking on Ms. Hilliard’s

door for ten to fifteen minutes while announcing their badge of authority was a flagrant

violation of the Defendants’ rights. Lastly, Sergeant Murray agreed on cross-

examination that the officers were going to continue to knock until somebody answered

the door, showing that the purpose of the officers’ illegal action was to gain warrantless

entry into Ms. Hilliard’s home. This factor also weighs in favor of suppression. Based

on the totality of the circumstances, Ms. Hilliard’s consent was not voluntary and resulted

from an exploitation of the prior illegal knock and talk. As such, any evidence seized

during the search of the Defendants’ residence after Ms. Hilliard signed the consent form

is “fruit of the poisonous tree,” and we agree with the trial court’s decision to suppress

this evidence.

Conclusion

After a thorough review of the record and applicable case law, we affirm the

judgments of the trial court granting the motions to suppress.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

- 19 -