Panel to weigh exceptions for police errors in gathering of case evidence

The Tennessee Supreme Court is again signaling its intent to decide whether state courts should be more forgiving of police foul-ups even if they violate the constitutional rights of its citizens.

Tennessee’s high court will be paying a visit Wednesday to the University of Tennessee’s College of Law in Knoxville, where the panel will hear two cases involving errors in the search warrant process. One involves a drunken driving arrest in Williamson County. The other involves a mother in Sumner County who suffocated her newborn twins.

In each case, the Supreme Court is specifically asking attorneys for both the state and defense to argue their respective positions on what’s known as a “good faith exception” to a rule that requires judges to toss out evidence illegally obtained in violation of both state and federal constitutions.

The high court has been toying with the idea since the make-up of the court shifted from a panel of predominantly Democratic appointees to one with a majority of Republican appointees in recent years.

It has taken baby steps so far — creating a limited good faith exception in certain DUI cases in which blood is drawn from suspects and upholding a flawed search in the high-profile torture slayings of Channon Christian, 21, and Christopher Newsom, 23, in Knoxville in January 2007.

But Tennessee’s Supreme Court has for decades refused to fully adopt the good faith exception created by the U.S. Supreme Court in federal cases in 1994, opining the state’s constitution offers its citizens greater protection than does the federal one.

Under both the state and federal constitution, if law enforcers violate a citizen’s right to be free of “unreasonable” and “illegal” searches and seizures, a judge can toss out any evidence obtained as a result. It’s considered punishment for the offending law enforcers and a warning shot to other law enforcers to strictly abide by the law. It’s called an exclusionary rule.

Debate arose about just how fair that rule is when the law enforcers made a so-called “innocent” mistake with no intent to violate a suspect’s rights that nonetheless rendered a search unconstitutional.

The most high-profile example of that in Tennessee came a few years ago when murder charges against Knox County’s only confessed serial killer — Thomas Dee “Zoo Man” Huskey — were dropped because the search warrant used to discover incriminating evidence was legally flawed. The fault in that case rested not with investigators but the issuing court. But the search was still unconstitutional, and courts ruled it couldn’t be used. That, in turn, forced the dismissal of the murder charges. Huskey remains in prison — for now — on a series of rapes.

Under the federal good faith exception, the case against Huskey might have been spared. The federal exception is broad, allowing judges discretion to decide if law enforcers were intentionally violating a suspect’s rights or believed they were following the law and had taken all steps required for a legally sound warrant.

But Tennessee’s high court, then leaning Democratic, made no move to adopt that broad exception.

LEGISLATURE SPEAKS, BUT SHOULD COURTS LISTEN?

The state Legislature in 2011 sought to make an end run around the courts by creating a good faith exception that applied only in cases involving “clerical errors” or “clerical omissions” — basically, typographical errors.

The Tennessee Attorney General’s Office warned in an opinion that such a legislatively created good faith exception might run afoul of the constitution’s separation of powers between the legislature and the courts. The bill became law.

Since then, the makeup of the court has changed, and at least two of the three Republican appointees — Chief Justice Jeff Bivins and Justice Holly Kirby — have made clear in comments from the bench that the panel is interested in the idea of adopting the broader federal exception.

The panel first tackled the process law enforcers must go through in order to draw blood from a drunken driving suspect, making it a bit easier to save the evidence if mistakes are made. It next tackled a “clerical error” situation in the case of torture slayings ringleader Lemaricus Davidson.

In Davidson’s case, the lead investigator accidentally cut off his signature when faxing a search warrant affidavit for Davidson’s Chipman Street house. Using that flawed search warrant, police discovered Christian’s body stuffed inside a trash can in the kitchen of Davidson’s home.

The high court ruled that under the specific facts of that case, it would allow an exception. Now, though, the court is looking to see if it should adopt a more permanent, broader exception and also examining whether the Legislature’s 2011 law is binding on the courts.

In the Sumner County case, Lindsey Brooke Lowe was convicted of suffocating her newborn twins in 2011. A search warrant used to garner evidence against her contained a mistake, with one related document saying it was issued in the morning and another saying it was issued at night. In the Williamson County case, Angela Faye Daniel was not given a copy of the search warrant authorizing her blood to be drawn. The officer testified she thought she gave Daniel a copy.