Court reverses order to suppress evidence in DTF case

By Kathy Helms-Hughes
STAR STAFF
khughes@starhq.com

   The state Court of Criminal Appeals, in an order filed July 18, has reversed a Washington County Criminal Court decision to suppress evidence in the case of Jack Roger Norton, owner of a tavern in Johnson City known as "The Weed."
   District Attorney General Joe Crumley and Assistant District Attorney Steve Finney appealed an order issued by Criminal Court Judge Robert Cupp granting a motion to suppress filed by Norton's attorney, James T. Bowman of Johnson City. Norton contended that execution of a search warrant at the tavern was improper.
   In reversing the decision, the Appeals Court said, "It is undisputed that the officers did not 'knock and announce' prior to entry into the building to execute the warrant" -- the basis of Judge Cupp's ruling -- but that they were not required to do so.
   According to testimony, officers of the Washington County Drug Task Force executed a search warrant at The Weed around midnight April 28, 2000. The tavern was open for business, with six or seven patrons inside, including Norton, who was charged with possession with intent to sell or deliver 5.2 grams of a Schedule II controlled substance and possession of drug paraphernalia.
   Sgt. Kenneth Phillips, DTF director, testified that he requested assistance from Washington County Sheriff's Department's SWAT team and that he and other DTF agents waited outside while they entered.
   Sgt. Keith Sexton, SWAT team commander on the night of the incident, testified that Norton was "suspected" of possessing either a sawed-off shotgun or submachine gun. Judge Cupp concluded that this suspicion was nothing more than a "hunch." A small caliber pistol was found in a box behind the bar and Norton was not charged with any criminal offense regarding the pistol.
   Sexton said team members entered the tavern wearing a black mask known as a "balaclava," which covered the entire head and neck area, except for the nose, eyes, and a small portion of the forehead. They also wore goggles or glasses. The word "SHERIFF" was printed in 1 to 1-1/2 inch high yellow letters on the left chest of the officers' vests and in letters 2-1/2 to 3 inches high on the back of each vest. They also wore standard sleeve patches and a metal badge attached to their pistol holsters.
   Five team members armed with three 59 mm submachine guns and two Mossberg .12-gauge shotguns pushed open the door "as if we were walking into the bar for anything else," Sexton said, and yelled, "Sheriff's Office, search warrant, get on the ground."
   Sexton said the entry tactics are designed to distract and control the persons present, causing sensory overload with an effect similar to that of a "flash-bang" grenade.
   Bobby Daniels, a customer in the tavern at the time, testified that he was walking toward the bathroom when the door "flung open" and he heard someone yelling, "Everybody get down." He said he then was pushed 20 to 25 feet through the tavern and onto the floor by a man wearing a mask and holding a gun.
   Daniels said his first thought was that a robbery was being committed. He asked what was going on and the men told him to "shut his f...ing mouth" and pointed a shotgun in his face. He later saw a badge.
   The Appeals Court said it was clear that SWAT team members were there to secure the area "prior" to execution of the search warrant by DTF, and that they accomplished this "by stunning and immobilizing each person present [and] by forcing the people in the tavern to the floor and handcuffing them."
   The Appeals Court said Judge Cupp granted Norton's motion to suppress evidence based on officers' failure to "knock and announce," in accordance with Tennessee's Rules of Criminal Procedure. The court also said the Supreme Court has held that in order to justify a "no-knock" entry, police must have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile or inhibit investigation of the crime.
   While not afforded the same heightened protection as a residential dwelling, commercial premises are protected by the Fourth Amendment's prohibition on unreasonable searches and seizures, the court said. "Under the facts of this case, we consider the conduct of the SWAT team to be dangerous and an unduly frightening experience" for the patrons, who were unarmed.
   "We are concerned ... about the inherent danger to officers and the innocent bystanders alike when methods of the type employed by the SWAT team in this instance are utilized. ... We speculate that, given a choice, innocent customers ... would overwhelmingly opt to forgo 'protection,' rather than have it provided in such a manner."