Court of Criminal Appeals of Tennessee, Knoxville
Session June 27, 2017 
from the Criminal Court for Sullivan County No. S61553 R.,
S61558, R.S62173 R. Jerry Beck, Judge
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.
R. App. P.3 Appeal as of Right; Judgments of the Criminal
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.
Cameron L. Hyder, Elizabethton, Tennessee (on appeal), and
Clifton L. Corker, Johnson City, Tennessee (at hearing), for
the appellee, Holly Hilliard.
E. Harr, Kingsport, Tennessee, for the appellee, Brian K.
G. Scott, Jr., Jonesborough, Tennessee, for the appellee,
Joseph A. Tester, II.
L. Holloway, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ.,
L. HOLLOWAY, JR., JUDGE
and Procedural Background in the Trial Court
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 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.
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.
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
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 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.
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.
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.
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 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
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.
asked to clarify who the officers were looking for during the
"protective sweep, " Sergeant Murray stated that
officers were looking for Mr. Tester.
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 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.
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
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.
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,
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 ...