State v. McElrath

• Decision Date: 12 March 2019
• Docket Number: No. W2015-01958-SC-R11-CD (consolidated on appeal),No. W2015-01794-SC-R11-CD,W2015-01794-SC-R11-CD,W2015-01958-SC-R11-CD (consolidated on appeal)
• Parties: STATE of Tennessee v. Jerome Antonio MCELRATH
• Court: Tennessee Supreme Court

569 S.W.3d 565

STATE of Tennessee

v.Jerome Antonio MCELRATH

No. W2015-01794-SC-R11-CD

No. W2015-01958-SC-R11-CD (consolidated on appeal)

Supreme Court of Tennessee, AT JACKSON.

April 4, 2018 Session

FILED March 12, 2019

Roger A. Page, J.

We granted the State’s permission to appeal in this case to determine whether to adopt, as a matter of state law, the good-faith exception to the exclusionary rule set forth by the United States Supreme Court in Herring v. United States , 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), and if so, whether the Herring good-faith exception permits introduction of the evidence in this case. A Union City police officer arrested the defendant without a warrant because he was on a list of individuals who had been "barred" from housing authority property. The list in question was maintained by the Union City Police Department. Upon performing a search incident to arrest, the officer seized marijuana from the defendant. Nineteen days later, the same officer arrested the defendant on the same property based on the same list and again seized marijuana from the defendant. It was later discovered that the list was incorrect and that the defendant’s name should have been removed prior to the date of his arrests. The trial court suppressed the evidence in both cases, and the Court of Criminal Appeals affirmed. The trial court and the Court of Criminal Appeals based their decisions on Tennessee’s not having yet adopted Herring ’s good-faith exception. Upon discretionary review, we adopt the good-faith exception as set forth by Herring but conclude that neither of the defendant’s arrests falls within the good-faith exception. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

As a result of the defendant’s arrests as described in detail infra , the defendant was charged by separate indictments with simple possession of marijuana, a Class A misdemeanor, in the first count of each indictment and with simple possession of marijuana for the fourth time, a Class E felony, in the second count of each indictment because the defendant had been convicted of simple possession on January 16, 2015; October 7, 2004; and April 19, 2001. See Tenn. Code Ann. § 39-17-418(e) (2014) ("A violation under this section is a Class E felony where the person has two (2) or more prior convictions under this section....").¹ The defendant filed motions to suppress the evidence in both cases, which were consolidated prior to trial. The following facts were adduced at the hearing on the motion to suppress.

I. Facts

On April 8, 2015, Union City Police Officer Chris Cummings was patrolling an area of Union City and passed the Union City Housing Authority property. Officer Cummings observed the defendant standing outside of the community center. Acting upon his belief that the defendant was barred from the housing authority property, Officer Cummings radioed dispatch to check the "barred" list. The dispatcher advised Officer Cummings that the defendant was, indeed, on the "barred" list. Officer Cummings called for another unit to assist, then drove back to the housing authority property. The defendant and another individual walked inside the community center as Officer Cummings approached in his vehicle. As Officer Cummings began to follow the defendant, the defendant "took off" through the building toward the rear of the structure, where Officer Cummings stopped the defendant and asked him to accompany Officer Cummings outside. Officer Cummings then placed the defendant under arrest for criminal trespass and performed a search incident to arrest. The search yielded approximately ten grams of marijuana from the defendant’s pocket.

On April 27, 2015, Officer Cummings was again patrolling the area that encompassed the Union City Housing Authority property when he observed an apparent altercation on the property. He approached to break up the fight and observed several people present, including the defendant. Officer Cummings warned the defendant that he was barred from the property and that he should leave the property or be escorted to jail. The defendant continued to make disparaging comments toward Officer Cummings, which prompted him to arrest the defendant for criminal trespass a second time. During this incident, the defendant was uncooperative and did not cease his combative behavior until Officer Cummings threatened to use a taser. Officer Cummings required the assistance of additional officers to be able to perform a search of the defendant, which yielded approximately four grams of marijuana.

Union City Police Department Lieutenant Melvin Dowell was responsible for maintaining a list of people barred from housing authority properties and kept a copy of the list in the dispatch office. When an individual is barred from a housing authority property, Lieutenant Dowell sends the individual a criminal trespass letter containing all of the relevant information about the barring. Being barred is not permanent; when an individual completes the application to request to be removed from the list and all of the necessary parties have approved the request, Lieutenant Dowell notifies the individual that his name has been removed from the list, and he then gives a copy of the notice to the office secretary to have the person removed from the barred list. Officers call in for information when they have a question about the list.

Officer Cummings brought with him to the suppression hearing two printouts of the "barred" list. The first list was printed on March 23, 2015, and the second list was printed on May 11, 2015, subsequent to the defendant’s arrests. The March list indicated that the defendant was barred from the Union City Housing Authority property on October 19, 2007, because of illegal drug offenses. The May list also named the defendant as being barred from the property.

Following a third incident that is not subject to this appeal, Officer Cummings learned that the defendant had actually been removed from the barred list prior to the two offenses involved in this case. The defendant had apparently completed the requisite procedure to be removed from the list, and his request had been approved and was effective as of August 16, 2010. The defendant’s name appeared on an April 11, 2014 list of people who had been removed from the barred list, but his name also remained on the actual list of barred people. Essentially, a clerical error had occurred. As a result of the arrests in these two instances, the defendant was re-barred on May 15, 2015.

At the conclusion of the suppression hearing, the trial court granted the defendant’s motion to suppress, stating:

This matter is here on a motion to suppress a warrantless arrest of the defendant. Therefore, the burden is on the state to prove that ... it is an exception to the warrant requirement.

I think we're clear here that the question now is do we want to have a good-faith exception to that requirement in order to get around the exclusionary rule.

The Court finds that, as I had earlier asked, but for the mistaken inclusion of the defendant, Mr. McElrath, on the barred list, he would not have been arrested. The Court finds that Officer Cummings testified that on April 8th, he saw the defendant standing outside the housing authority’s location; he thought that the defendant was on the barred list. I believe he even testified that he keeps a copy of the barred list. So he called dispatch to verify, and dispatch showed that he was on the barred list. I think it’s pretty much stipulated to, and if one looks through the documents that that was a mistake. I'm not a hundred percent sure whose mistake it was. [Lieutenant] Dowell testified that he maintains the list and that Mr. McElrath had been barred in 2007 but had requested in 2010 to be removed, and that there is a form to be filled out to be removed from the criminal trespass list, which Mr. McElrath did fill out and was approved by the chief of police for the Union City Police Department, Ms. Burden for the housing authority and a manager from East Gate Village. So it was approved that he be removed from the barred list. And that’s also reflected in Exhibit 4 that shows the revised list dated 4/11/14 that he should have been removed – 4/11/14 – but for whatever reason, the dispatcher or whoever gets the running list didn't remove it; although we do have Ms. Burden testifying that somehow the defendant ended up on both lists. He was on the ... unbarred list and the barred list.

So but for the dispatcher picking up the barred list, she could have easily – he or she easily could have picked up the unbarred list, I guess, in light of the fact that they keep two lists. I don't know why you would keep two lists. One would think that you would only go with the barred list and not have an unbarred list. You're either on the barred list or you're not on the barred list.

The [S]tate has moved the Court to find that Officer Cummings had a good-faith exception here and that he did nothing wrong, and I find that Officer Cummings didn't do anything wrong. However, so far, the Supreme Court case[s] in Tennessee and the criminal court case[s] in Tennessee hold that we don't have a good-faith exception to the exclusionary rule. It’s my understanding of the law that we can be more restrictive than the federal government in the exclusionary rule. If this were a federal case in U.S. Federal Court, I don't think there'd be any doubt that the officer would have been entitled to bring this evidence up and to keep Mr. McElrath in court. However, I'm not inclined to make that decision based upon the cases that have been cited and the holdings that are currently in place in the state of Tennessee. Right now, we don't have a good-faith exception, and, therefore, I am going to suppress the evidence.

The State appealed the trial court’s decisions to the Court of Criminal Appeals, which affirmed suppression of the evidence. State v. McElrath ,...