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State v. Hilliardand

Court of Criminal Appeals of Tennessee, Knoxville

August 29, 2017

STATE OF TENNESSEE
v.
HOLLY N. HILLIARDAND STATE OF TENNESSEE
v.
BRIAN REYNOLDS AND STATE OF TENNESSEE
v.
JOSEPH A. TESTER II

          Session June 27, 2017 [1]

         Appeal from the Criminal Court for Sullivan County No. S61553 R., S61558, R.S62173 R. Jerry Beck, Judge

         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

          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.

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

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

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         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.

         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 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 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 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, 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 ...


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