text:
    STATE of Tennessee v. William Timothy CARTER, et al.
    Supreme Court of Tennessee, at Jackson.
    Nov. 10, 2004 Session.
    March 18, 2005.

      Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellants, William Timothy Carter and Virginia Darlean Carter.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

We granted this appeal to determine whether evidence seized from the defendants’ residence pursuant to a search warrant should be suppressed. Sheriffs deputies entered the defendants’ residence without a warrant based upon an informant’s tip and the deputies’ recognition of the smell of anhydrous ammonia and ether. The deputies then detained the defendants while a warrant was obtained. We conclude that the deputies’ warrant-less entry into the defendants’ residence was unlawful. However, the unlawful entry and any illegality in the subsequent detention did not taint the evidence seized pursuant to the search warrant, and the affidavit supporting the issuance of the warrant sufficiently established probable cause. Therefore, we affirm the judgment of the Court of Criminal Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

On September 15, 2001, between 10:00 and 11:00 p.m., an anonymous caller informed the Carroll County Sheriffs Department that methamphetamine was being manufactured at the residence of the defendants, William Timothy Carter and Virginia Darlean Carter. While driving by the defendants’ residence, Deputy Michael Verner smelled anhydrous ammonia, and Deputy Timothy Meggs smelled both anhydrous ammonia and ether. Deputy Meggs testified that, based upon prior training, he recognized anhydrous ammonia as a product used in the manufacturing of methamphetamine.

When the deputies drove up to the defendants’ residence, Deputy Meggs observed someone peering out of a window. As the deputies left their vehicles, Deputy Meggs heard people running inside the residence. The deputies continued to smell anhydrous ammonia as they approached the residence. Deputy Meggs approached the front door, and Deputy Verner approached the back door. Both deputies knocked and announced their presence. Deputy Verner entered through the back door while Deputy Meggs entered through the front door.

When the deputies entered the defendants’ residence, they asked the defendants about the odor of ammonia. The defendants denied that the odor was coming from their residence. The deputies requested permission to search the residence, and the defendants refused to consent to a search. The deputies escorted the defendants and a third occupant to the front porch where they remained while Deputy Meggs secured a search warrant. Although the deputies did not arrest the defendants at that time, the defendants were not free to leave the premises.

Deputy Meggs and four additional deputies returned to the residence with a search warrant that was issued at 1:09 a.m. on September 16, 2001. The affidavit in support of the search warrant was signed by Deputy Meggs and provided:

On 9/15/01 the Carroll County Sheriff[’]s Department received an anonymous call that someone was cooking me[th]amphe-tamine at 7200 Hwy 190 in Carroll County. Your affiant then drove by 7200 Hwy 190 in Carroll County and did smell ether coming from the area of 7200 Hwy 190. Your affiant then approached the doorway of 7200 Hwy 190 and did notice the smell of ether and anhydrous ammonia coming from inside the residence and was able to hear several people running around inside the house. Your affiant has had considerable experience in working with methamphetamine labs and knows what he has observed to be consistent with the operation of a methamphetamine lab.

While executing the search warrant, the deputies seized marijuana, methamphetamine, and items used to manufacture methamphetamine. The deputies denied searching the residence prior to obtaining a search warrant. They further denied observing any of the items seized pursuant to the search warrant during then initial entry. The deputies arrested the defendants shortly after executing the warrant. The defendants were each charged with six drug-related offenses including the manufacture of methamphetamine, a Class C felony. See TennCode Ann. § 39-17-417(a)(1), (c)(2) (1997).

The trial court found that the deputies had probable cause to obtain a search warrant for the defendants’ residence upon smelling the “byproducts” of the manufactured methamphetamine but that the danger the defendants would dispose of evidence of illegal activities did not exist until the deputies began the raid. The trial court further found that the deputies improperly created the exigent circumstances to justify the warrantless entry and did not obtain the defendants’ consent to enter the residence. Concluding that the search warrant was not properly obtained, the trial court granted the defendants’ motion to suppress and dismissed the case.

In reversing the trial court’s judgment, the Court of Criminal Appeals concluded that even if the deputies’ initial entry was unlawful, incriminating evidence was neither discovered nor seized as a result. The Court of Criminal Appeals further concluded that the time in which the defendants were detained while Deputy Meggs obtained a search warrant was reasonable. Finally, the court held that the evidence seized while executing the search warrant was admissible pursuant to the independent source doctrine because the deputies obtained the warrant on the basis of information entirely independent from any information discovered as a result of the initial warrantless entry or detention. We granted review.

ANALYSIS

The defendants contend that the deputies’ initial entry and the defendants’ subsequent detention were illegal and tainted the evidence seized pursuant to the search warrant. In reviewing a motion to suppress, this Court is bound by the trial court’s findings of fact unless the evidence contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 889 (Tenn.2001). As the trier of fact, the trial court is able to assess the credibility of witnesses, determine the weight and value to be afforded the evidence, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). The prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn.2001). However, we review the trial court’s conclusions of law de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.2000).

Both the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution prohibit unreasonable searches and seizures. The purpose of these provisions is to “ ‘safeguard the privacy and security of individuals against arbitrary invasions of government officials.’ ” State v. Randolph, 74 S.W.3d 330, 334 (Tenn.2002) (quoting Camara v. Mun. Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). A bedrock principle of Fourth Amendment law is that warrantless searches and seizures inside a residence are presumed to be unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Even though a felony has been committed and officers have probable cause to believe that they will locate incriminating evidence inside a residence, a warrantless entry to search for contraband or weapons is unconstitutional absent exigent circumstances. Id. at 587-88, 100 S.Ct. 1371; see State v. Clark, 844 S.W.2d 597, 599 (Tenn.1992).

The State contends that exigent circumstances existed justifying the war-rantless entry when the deputies heard people running inside the defendants’ residence. Based upon their observations, the deputies could have reasonably concluded that the occupants were attempting to destroy evidence. See Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir.1989). However, the possibility of the destruction of evidence did not arise until the deputies drove up to the defendants’ residence, thereby alerting the occupants to their presence. In State v. Hendrix, this Court recognized the prohibition against police-created exigent circumstances. 782 S.W.2d 833, 835 (Tenn.1989). However, we declined to determine whether exigent circumstances were created by the police because neither a warrantless entry nor a search occurred. See id. Our conclusion that exigent circumstances justifying a warrantless entry may not be created by the law enforcement officer’s actions is consistent with holdings from other jurisdictions. See, e.g., United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986) (officer created the exigency by knocking on the defendant’s door and alerting the defendant to the officer’s presence); Hornblower v. State, 351 So.2d 716, 718 (Fla.1977) (officer created the exigency by knocking oh the defendant’s door resulting in “suspicious movement”); Latham v. Sullivan, 295 N.W.2d 472, 478 (Iowa Ct.App.1980) (officer created the exigency by knocking on the defendant’s door and requesting consent to search the residence); State v. Kelgard, 40 Or.App. 205, 594 P.2d 1271, 1273 (1979) (officer created the exigency by “a premature confrontation with a potential defendant”). In this case, the deputies created the exigent circumstances by approaching the defendants’ residence and alerting the defendants to the presence of the deputies. Therefore, the warrantless entry in this case was not supported by exigent circumstances and violated both the federal and state constitutions.

Having concluded that the war-rantless entry was unlawful, we next examine the effect of this illegality on the admissibility of evidence subsequently seized from the defendants’ residence. The exclusionary rule may bar the admissibility of evidence either directly or indirectly obtained from an unconstitutional search or seizure. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the exclusionary rule does not apply to evidence obtained by means independent of the constitutional violation. See id. at 487, 83 S.Ct. 407. Pursuant to the independent source doctrine, an unlawful entry does not mandate the suppression of evidence located inside a residence if the evidence is subsequently discovered following the execution of a valid warrant based upon facts independent and separate from information discovered as a result of the unlawful entry. Clark, 844 S.W.2d at 600 (citing Segura v. United States, 468 U.S. 796, 813-14, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984)). The underlying policy of the independent source doctrine is that “while the government should not profit from its illegal activity, neither should it be placed in a worse position that it would otherwise have occupied.” Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

Despite the deputies’ unlawful entry and regardless of any illegality in the defendants’ subsequent detention, the deputies’ undisputed testimony establishes that no evidence was identified or seized during the initial entry and detention. Furthermore, the affidavit supporting the warrant did not refer to the entry or detention. The deputies obtained the information in the affidavit prior to the initial entry. The affidavit contains information relating to the anonymous tip and Deputy Meggs’ observations while driving on the roadway and approaching the defendants’ front door. A person does not have an expectation of privacy in the area in front of his or her residence leading from the public way to the front door. State v. Cothran, 115 S.W.3d 513, 522 (Tenn.Crim.App.2003) (citation omitted). Thus, Depu ty Meggs’ observations as he approached the defendants’ residence and stood at the front door were not unlawful and did not result from the warrantless entry.

When Deputy Verner approached the back of the defendants’ residence and knocked on the back door, he entered an area where the defendants may have possessed an expectation of privacy. See State v. Harris, 919 S.W.2d 619, 624 (Tenn.Crim.App.1995). However, the affidavit did not refer to Deputy Verner’s observations. Accordingly, we conclude that the unlawful entry and detention did not taint the evidence seized pursuant to the search warrant.

Although we conclude that evidence seized pursuant to the warrant was not tainted by the warrantless entry, our inquiry does not end here. We must also determine whether the affidavit supporting the issuance of the warrant under which the evidence was seized established probable cause to search the defendants’ residence. Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution require probable cause for the issuance of a warrant. See Illinois v. Gates, 462 U.S. 213, 229-31,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Henning, 975 S.W.2d 290, 294 (Tenn.1998). Probable cause is defined as “a reasonable ground for suspicion, supported by circumstances indicative of an illegal act.” Henning, 975 S.W.2d at 294 (citation omitted).

The probable cause necessary for issuance of a search warrant must be based upon evidence appearing in a written and sworn affidavit. State v. Jacumin, 778 S.W.2d 430, 432 (Tenn.1989). The affidavit must present facts upon which “a neutral and detached magistrate, reading the affidavit in a common sense and practical manner,” can determine the existence of probable cause for the issuance of a search warrant. Henning, 975 S.W.2d at 294 (citing State v. Bryan, 769 S.W.2d 208, 210 (Tenn.1989)). Furthermore, the affidavit must provide more information than just the affiant’s eonclusory allegations to ensure that the magistrate exercises independent judgment. Jacumin, 778 S.W.2d at 432. In reviewing the existence of probable cause for issuance of a warrant, we may consider only the affidavit and may not consider any other evidence known by the affiant or provided to or possessed by the issuing magistrate. Henning, 975 S.W.2d at 295.

The State maintains that Deputy Meggs’ detection of anhydrous ammonia and ether coming from the defendants’ residence alone established probable cause for the issuance of the search warrant. However, we need not decide whether the smell of these substances, standing alone, established probable cause. Rather, the affidavit in this case contains not only the observations of Deputy Meggs, the affiant, but also information from a confidential informant.

An affidavit may contain hearsay information supplied by a confidential informant to establish probable cause. Henning, 975 S.W.2d at 294-95. In determining the reliability of the information contained in an affidavit, a distinction exists between a “citizen-informant” or a bystander witness and criminal informants or those from a “criminal milieu.” State v. Melson, 638 S.W.2d 342, 354 (Tenn.1982). Information provided by a citizen-informant who is known to the affiant is presumptively reliable. State v. Stevens, 989 S.W.2d 290, 293 (Tenn.1999). The reliability of the information of a citizen-informant whose identity is not disclosed is to be determined from the circumstances and the affidavit in its entirety. Melson, 638 S.W.2d at 356. The affidavit in the present case does not provide any information as to whether the anonymous caller was a citizen-informant. Therefore, the presumption of reliability does not apply. See Stevens, 989 S.W.2d at 295.

Instead, we must apply the two-prong test for reliability for information supplied by criminal informants. See Spinelli v. United States, 393 U.S. 410, 412-13, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jacumin, 778 S.W.2d at 436. The magistrate who is issuing the search warrant must be informed of the basis of the informant’s knowledge and either the basis of the informant’s credibility or the reliability of the informant’s information. State v. Cauley, 863 S.W.2d 411, 417 (Tenn.1993). Independent police corroboration may compensate for deficiencies in either prong. Jacumin, 778 S.W.2d at 436. However, each prong must be separately considered and satisfied to establish probable cause. Id.

With regard to the confidential informant’s tip, the affidavit states that “[o]n 9/15/01 the Carroll County Sheriffs Department received an anonymous call that someone was cooking me[th]amphetamine at 7200 Hwy 190 in Carroll County.” The affidavit contains no information regarding the basis of the informant’s knowledge or credibility or the reliability of the informant’s information.

However, the affidavit includes independent police corroboration consisting of Deputy Meggs’ personal observations. The affidavit provides the following facts: Upon receiving an anonymous tip that someone was manufacturing methamphetamine at the defendants’ residence, Deputy Meggs smelled ether coming from the area of the defendants’ residence. As the deputy approached the defendants’ residence, he smelled both ether and anhydrous ammonia coming from inside of the residence. Deputy Meggs also heard people running inside of the residence. Finally, based upon his prior experience, Deputy Meggs associated his observations with the operation of a methamphetamine laboratory. These facts in combination provide more than sufficient independent police corroboration to compensate for deficiencies in meeting the two-prong test under Jacumin. Therefore, we conclude the information provided in the affidavit is sufficient to establish probable cause for the issuance of a search warrant.

CONCLUSION

We conclude that although the deputies’ warrantless entry into the defendants’ residence was unconstitutional, the unlawful entry and any illegality in the subsequent detention did not taint the evidence seized pursuant to the search warrant. Furthermore, the affidavit supporting the issuance of the search warrant is sufficient to establish probable cause. Accordingly, we affirm the judgment of the Court of Criminal Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

The costs of appeal are taxed to the defendants, William Timothy Carter and Virginia Darlean Carter, or their sureties for which execution may issue if necessary.

      . Because the subsequent detention was illegal based on the unlawful warrantless entry, we need not reach the issue of whether the length of the detention, approximately two hours, was unreasonable.

      . The defendants contend the State waived this issue by failing to raise it in the trial court. However, due to the primary purpose of the exclusionary rule and the independent source doctrine and this Court's obligation to review de novo the trial court’s application of law at a suppression hearing, we elect to address the issue.


source: Caselaw Access Project

author: DAVID H. WELLES, J.,

license: Public Domain

text:
    STATE of Tennessee v. Dennis James VARNER.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    April 20, 2004 Session.
    June 28, 2004.

      Thomas Greenholtz, Chattanooga, Tennessee, for the appellant, Dennis James Varner.
    Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Bill Cox, District Attorney General; and Jason Thomas, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

DAVID H. WELLES, J.,

delivered the opinion of the court,

in which JOE G. RILEY and THOMAS T. WOODALL, JJ., joined.

The Defendant, Dennis James Varner, entered a conditional plea of guilty to driving under the influence following the trial court’s denial of his motion to suppress evidence attendant upon his stop at a roadblock. The Defendant reserved for this Court’s ruling a certified question of law regarding the constitutionality of his stop by law enforcement officers. Upon our review of the record and pertinent legal authority, we have determined that the trial court erred in denying the Defendant’s motion to suppress. Accordingly, we reverse the trial court’s judgment and dismiss the charges against the Defendant arising out of his stop at a roadblock conducted in contravention of Tennessee’s constitution.

The Defendant was stopped during a roadblock conducted by the Hamilton County Sheriffs Department on the night of September 1, 2000. As a result of this stop, the Defendant was arrested for driving under the influence. The Defendant subsequently filed a motion to suppress the evidence adduced in conjunction with his stop, on the grounds that the roadblock did not comport with constitutional requirements. The trial court denied the Defendant’s motion after an evidentiary hearing. The Defendant then entered a conditional plea of guilty, reserving as a certified question of law the following dis-positive issue: whether the stop of the Defendant’s vehicle on September 1, 2000, at a roadblock in Hamilton County, Tennessee, violated Article I, section 7 of the Tennessee Constitution based on the requirements set forth in State v. Hicks, 55 S.W.3d 515 (Tenn.2001), and State v. Downey, 945 S.W.2d 102 (Tenn.1997). The State makes no objection to the form or substance of this reserved question of law, and we have determined that it meets the requirements of Tennessee Rule of Criminal Procedure 37(b)(2)(i). See also State v. Preston, 759 S.W.2d 647, 650 (Tenn.1988). Accordingly, we will address the Defendant’s certified question of law on its merits.

FACTS

Officer Ragan McDevitt testified that, on the night of September 1, 2000, he was working “special assignment.” Officer McDevitt described this assignment as “working field sobriety checkpoints.” The checkpoints had been authorized by Deputy Chief Tommy Standifer of the Hamilton County Sheriffs Department; no other agencies were involved. The checkpoint at issue in this case was located on the southbound lanes of a divided state highway. Officer McDevitt stated that, although he had not seen the department’s procedures for administering sobriety checkpoints, Lieutenant Newman was familiar with the procedures and he was present at the scene. According to Officer McDevitt, Deputy Chief Standifer was also present at the roadblock.

Officer McDevitt stated that the lighting for the roadblock was provided by the emergency lights and headlights on the patrol cars, which numbered approximately ten, as well as flashlights held by the participating officers. There was no other lighting provided. Two K-9 officers were present.

Officer McDevitt stated that there were meetings in which the officers were informed about how the checkpoints would be conducted, but he did not recall what was said at the meetings. Deputy Chief Standifer was in charge of these meetings.

Officer McDevitt stated that he spoke with the Defendant during the Defendant’s stop at the checkpoint, and that he “could smell the odor of an alcoholic beverage coming from [the Defendant’s] vehicle, his speech was slurred, [and] he had an open beer beside him in the console of his van.” Accordingly, Officer McDevitt conducted a further investigation of the Defendant’s condition, which resulted in the Defendant’s eventual arrest for driving under the influence.

Lieutenant James Newman with the sheriffs department also testified. He had received a memorandum dated August 17, 2000, from Deputy Chief Standifer about Labor Day weekend traffic enforcement. The memorandum was admitted into evidence and provides in pertinent part as follows:

The Patrol Division will enact some special enforcement for the upcoming long Labor Day Weekend. (Friday Sept. 1 thru Monday Sept. 4).
Officers will be placed on special assignment to assist in conducting sobriety checkpoints and patrol saturation to identify DUI, speeding and aggressive drivers.

On the morning of September 1, the participating officers met and went over the procedures to be used during the roadblocks. Lt. Newman explained that he was the supervisory officer at the roadblock and that he also served as the safety coordinator. As to the nature of the roadblocks, Lt. Newman testified, “We weren’t specifically looking for anything, we use it as a safety tool.” When questioned about the manner of safety he was referring to, Lt. Newman responded, “Impaired driving or that sort of thing.”

Lt. Newman identified a copy of the county’s operational guidelines used in conjunction with roadblocks, and stated that the participating officers were informed of their responsibilities under these guidelines. One of the guidelines provides that, ‘When unreasonable delay results from heavy traffic, the safety coordinator will direct, according to a predetermined plan, that only every third, fourth, or fifth vehicle be checked until the backlog is eliminated.” Nevertheless, Lt. Newman testified that, when he thought that traffic became too heavy, he removed the other officers from the road and allowed all of the traffic to flow through until the backlog was eliminated. Lt. Newman agreed that this practice was contrary to the guidelines, and acknowledged that he was responsible for making this determination while on the scene of the roadblock.

Lt. Newman also stated that, in accordance with the guidelines, a press release was prepared concerning the upcoming roadblocks. This press release was dated August 30, 2000, and provided, in pertinent part, as follows:

During the Labor Day holiday weekend which will consist of (4) days Friday, Sept. 1 — Monday September 04 the Hamilton County Sheriffs Department will increase traffic enforcement to assist with the Holiday Traffic.
Patrol Officers will be conducting sobriety check-points along with highly visible patrol saturation, watching for the drunk or impaired driver, speeding and the aggressive driver in an effort to reduce traffic accidents and fatalities within o[u]r communities and County. The Sobriety Check-points will be established at different locations or sites in the county. All check-points will be posted with signs alerting all motorist[s] of a pending stop or check-point ahead.
Further information may be obtained by contacting the following: Deputy Chief Tommy Standifer or Lieutenant Jim Newman....

Following the issuance of this press release, a newspaper article was published providing as follows:

The Hamilton County Sheriffs Department will increase traffic enforcement over the four-day Labor Day holiday weekend.
Patrol officers will be conducting sobriety checkpoints along with increasing patrols, officials said. In addition, officers will be watching for drunk or impaired drivers and speeding and aggressive driving in an effort to cut down on fatalities.
The sobriety checkpoints will be established at different locations in the county. All checkpoints will be posted with signs alerting drivers of an impending stop.
Further information can be obtained by contacting Deputy Chief Tommy Standifer or Lt. Jim Newman_

Lt. Newman explained that he and Deputy Chief Standifer together determined the locations at which the roadblocks would be placed. Lt. Newman testified that the sites for the roadblocks were “picked by where we’ve had fatality accidents, high risk as far as speeding type problems, that [sort of] thing. We don’t go out just empty-handed and just select, they are selected by, you know, those vari-ouses [sic].” Lt. Newman reiterated this during cross-examination, explaining that he and Deputy Chief Standifer “would talk about [the location of the roadblock] as far as ... fatalities, locations, problem areas with speed problems and that type thing.” Lt. Newman further explained that there was no portable equipment at the roadblock for the purpose of testing a driver’s blood alcohol content. Lt. Newman confirmed that Deputy Chief Standifer was present at the roadblock.

At the roadblock where the Defendant was apprehended, 502 cars were stopped during a one hour period. The State offered no proof as to how many of these stops involved motorists driving under the influence.

After hearing the foregoing, the trial court ruled from the bench as follows:

All right. Of course, as I stated, I am familiar with the Downey case.... I think the court’s concern in the Downey case, and seems to me in the Hicks case as well, is subterfuge. You can’t say we’re going to have a driver’s license checkpoint, we’re going to have a speeding checkpoint, when the whole purpose of it is to stop DUIs, and that’s the subterfuge. That’s what was true and I think the court found in the Downey case and said we’re not going to have that.
The Supreme Court of the United States has said you can have checkpoints, you can have roadblocks to stop for the public safety, because driving, first of all, is not a right guaranteed by the Constitution, it’s a privilege, and so they can impose roadblocks. And the United States Supreme Court has put its stamp of approval on that.
But you can’t have a roadblock set up just as a subterfuge: We’re going to check driver’s license[s], we’ve got the canine dogs out here in case one of these people has a bad license but also has cocaine in the car; that’s a subterfuge.
In this case, as far as the gravity of the situation, I think that as was stated it’s public safety. On a holiday weekend, Labor Day weekend, statistics show that there are a number of people driving under an influence of an intoxicant and so the County set up a roadblock. They didn’t call it a driver’s license checkpoint, they didn’t call it — although Lieutenant Newman said “We’re checking for safety,” I think the reason he said that is because in answer to the question, why did you pick this particular location, because there were speeders, a lot of traffic accidents at this location and it was a likely point in the county to set up a field sobriety or DUI roadblock. And they didn’t, they called a spade a spade. They said this is a DUI — and the policy says operational procedure for DUI roadblocks and checkpoints. And so finally they got to the point and I think they did what they set out to do and what the supreme court said you’ve got to do: If you’re going to have a DUI checkpoint, then call it a DUI checkpoint, don’t have a subterfuge for saying you’re doing something else when everybody knows this is what you’re doing.
So the situation, 520 [sic] cars going through there sometime, or at least those that were stopped in an hour, shows that that’s a highly traffic[ked] area, and I think there is concern about [that] especially on [a] holiday weekend.
As far as the degree of public interest, again, I think all the public is interested in traffic safety and I think the majority of the public would have no qualms about setting up a roadblock as long as it’s a minimal intrusion upon their liberties and it does not inconvenience them in an unnecessary way. And I think the County did whatever they could do at that time to cause minimal intrusions upon the public at that time. They did advertise it to say there’s going to be a roadblock in the geographical area of Hamilton County, we’re putting anybody that wants to drive under the influence of an intoxicant on Labor Day weekend, you better look out because there will be roadblocks.
Now that, to me, is a notice that should put everybody on notice that there are going to be roadblocks in certain areas of the county and I need to look out for them. They had it posted, they had the lights on out there, as much light as they could get out there at that time of night. Of course, I guess there would be more light in the daylight, they could have set up a field sobriety checkpoint at Brainerd Baptist Church on Sunday morning at 12:00, but I don’t think it would have been much— it’s sort of an exercise in futility, but there would have been daylight and there would have been a lot of people coming out of the church, but that’s not — the purpose is public, is safety, and to protect the remainder of the public, those people who choose not to drive under the influence.
And the interference with the public, I think, is very minimal, I think it was a wise decision on the officer’s part. Sure, he deviated from the procedure, but, again, it was less restrictive than the actual procedures, because he let everybody go through to try to keep’ from traffic backing up and people waiting and waiting and waiting. He let those go through until traffic got caught up and they could start stopping people again.
I think the County did everything they could do. They used good faith to try to comply with the requirements of Downey, the requirements of Hicks and the requirements of [the] United States Supreme Court in setting up this field sobriety roadblock and traffic stop. And I don’t think it was an unreasonable stop or an unreasonable search in violation of the Fourth Amendment, I think it complies with the requirements of the United States Supreme Court and the State of Tennessee, so I’m going to overrule the motion to suppress.

STANDARD OF REVIEW

This Court will uphold a trial court’s findings of fact in a suppression hearing unless the evidence preponderates otherwise. See State v. Odom, 928 SW.2d 18, 23 (Tenn.1996). However, we will review the trial court’s conclusions of law under a de novo standard without according any presumption of correctness to those conclusions. See State v. Hicks, 55 S.W.3d 515, 521 (Tenn.2001).

DOWNEY AND HICKS

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” Article I, section 7 of the Tennessee Constitution similarly prohibits unreasonable searches and seizures, and our supreme court has long held that this provision is identical in intent and purpose with the Fourth Amendment. See, e.g., State v. Binette, 33 S.W.3d 215, 218 (Tenn.2000); State v. Vineyard, 958 S.W.2d 730, 733 (Tenn.1997). When examining the scope and application of the prohibition against unreasonable searches and seizures, we must be cognizant that the essence of this protection “is to ‘safeguard the privacy and security of individuals against arbitrary invasions of government officials.’ ” State v. Downey, 945 S.W.2d 102, 106 (Tenn.1997) (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967)). It is the State’s burden to establish the reasonableness of a warrantless seizure. See State v. Bridges, 963 S.W.2d 487, 490 (Tenn.1997); State v. Crutcher, 989 S.W.2d 295, 299-300 (Tenn.1999).

In State v. Downey, our supreme court addressed for the first time whether sobriety roadblocks may be permissible under Tennessee’s constitutional prohibition against unreasonable searches and seizures. See 945 S.W.2d at 103. The court first recognized that under traditional constitutional principles, before a police officer may seize a person, the officer must possess, at a minimum, some reasonable suspicion, based on specific and articulable facts, that a crime has been or is about to be committed. See, e.g., Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). A roadblock, however, permits’ law enforcement officers to seize, if only for a brief time, persons whose conduct has not yet raised any suspicions whatsoever. Accordingly, our supreme court in Doumey recognized that “[a] roadblock seizure ... is a departure from ... fundamental constitutional principles [because] [i]t permits officers to stop and question persons whose conduct is ordinary, innocent, and free from suspicion.” 945 S.W.2d at 104. Looking to the United States Supreme Court decision in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), our supreme court determined that whether such seizures would pass constitutional muster depended upon a balancing of the public interest served by the seizure against the severity of the interference with individual liberty. See 945 S.W.2d at 104.

Relying on Michigan v. Sitz, 496 U.S. 444, 447, 110 S.Ct. 2481, 2483, 110 L.Ed.2d 412 (1990), in which the United States Supreme Court concluded that a state’s use of a highway sobriety checkpoint did not constitute a per se violation of the Fourth Amendment, the Downey court then determined that the appropriate method for measuring these competing interests was to adopt the three-prong test set forth in Sitz. See 945 S.W.2d at 110. That three-part test consists of the following criteria: a) the gravity of the public concerns served by the seizure; b) the degree to which the seizure advances the public interest; and c) the severity of the interference with individual liberty. See id. at 107. The primary concern to be addressed in conducting this analysis is to assure that “an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field, and the seizure is carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Id. at 110.

Using the three-prong test set forth in Sitz, our supreme court determined that the State has a “compelling interest in detecting and deterring motorists who drive while under the influence of alcohol.” Id. The court further concluded that “roadblocks are effective tools in advancing the State’s interest in solving a serious public danger.” Id. Thus, the first two prongs of the three-part test adopted by the Downey court were found to weigh in favor of the constitutionality of sobriety roadblocks. Indeed, in light of these concerns, the court concluded generally that

the use of a sobriety roadblock, although a seizure, can be a reasonable seizure under the Tennessee Constitution, provided it is established and operated in accordance with predetermined operational guidelines and supervisory authority that minimize the risk of arbitrary intrusion on individuals and limit the discretion of law enforcement officers at the scene.

Id. at 104.

Nevertheless, the particular roadblock at issue in Downey was found unconstitutional because the method by which the roadblock had been established and conducted had been subject to an excessive amount of discretion by the officers at the scene. See id. at 112. Specifically, the decision to set up the roadblock was made by an officer in the field; the site selected for the roadblock and the procedure to be used in its operation were left to the discretion of an officer in the field; and no prior supervisory authority was sought or obtained and no administrative decisions were made with regard to these factors. See id. at 110. Furthermore, there was no advance public notice about the roadblock. See id. at 111. Finally, there was a discrepancy between the stated purpose of the roadblock — to check for drivers’ licenses — and the actual purpose for its establishment, which was to detect alcohol-impaired drivers. See id. In short, there was an “overall failure by law enforcement officers to establish this roadblock in a manner consistent with administrative and supervisory oversight.” Id. This failure resulted in insufficient limitations placed on the discretion of the officers at the scene of the roadblock. Accordingly, the roadblock was deemed unconstitutional. See id. at 112.

Our supreme court has spoken most recently on the constitutionality of roadblocks in the case of State v. Hicks, 55 S.W.3d 515 (Tenn.2001). In Hicks, a roadblock had been established by officers from the Tennessee Highway Patrol, the Chattanooga Police Department, and the Red Bank Police Department. The roadblock was created ostensibly for the purpose of checking drivers’ licenses. However, one of the attending officers was a K-9 officer, and another officer carried a picture of a suspect wanted on rape charges. The defendant was stopped pursuant to the roadblock, and one of the officers noticed the smell of marijuana in the defendant’s car. The K-9 officer responded with his dog, and the dog indicated the presence of drugs. The defendant was placed under arrest, and five pounds of marijuana were subsequently discovered in the defendant’s car.

The defendant filed a motion to suppress the evidence against him on the grounds that the stop violated the Tennessee Constitution. After a hearing, the trial court granted the defendant’s motion. On appeal, this Court reversed the trial court’s ruling. See State v. Larry Allen Hicks, No. E1999-00957-CCA-R3-CD, 2000 WL 656801, at *12 (Tenn.Crim.App., Knoxville, May 19, 2000). Our supreme court then granted the defendant’s request for permission to appeal and reversed this Court’s ruling, holding that “the State ha[d] failed to establish a sufficiently compelling interest justifying the need to maintain drivers’ license roadblocks and ... the particular roadblock [at issue] failed to comply with the standards set forth in Downey.” Hicks, 55 S.W.3d at 520-21.

Initially, the Hicks court reiterated that “the test adopted in Downey is to be applied in all cases involving constitutional challenges to roadblocks or checkpoints under the Tennessee Constitution.” Id. at 524. Accordingly, the first step in analyzing the constitutional efficacy of the roadblock at issue was to “identify the state interest in maintaining such roadblocks and then determine whether this interest is sufficiently compelling to abrogate constitutional protections against suspicionless stops.” Id. at 525. The court stressed that the “critical examination of the nature and presence of the state interest involved is an important and essential factor in ascertaining the reasonableness of any roadblock.” Id.

In the Hicks case, the State consistently maintained that the purpose of the roadblock was to ensure highway safety by detecting and deterring unlicensed drivers. See id. Relying on Downey, the court analyzed this asserted interest in light of three factors: (1) whether the State’s interest in maintaining the roadblock was directly tied to the ability of drivers to safely operate motor vehicles on the roads and highways of the state; (2) whether the harm sought to be eliminated by the roadblock was one that posed an imminent danger of death or serious bodily injury; and (3) whether the magnitude of the problem, coupled with its harm, was such that it commanded heightened action. See id. The court emphasized that “the presence of a sufficiently compelling interest is necessary under Article I, section 7 [of the Tennessee Constitution] before an examination of the other aspects of a roadblock may proceed.” Id. at 527.

Applying these principles to the roadblock before it, the Hicks court determined that, to establish a compelling interest justifying the drivers’ license roadblock, the State had to prove (1) that drivers not possessing a license were unable to safely operate vehicles on the state’s roads; (2) that an unlicensed driver “invariably” presents an imminent danger of death or serious bodily injury to other drivers that is not typically present with licensed drivers; and (3) that the safety threat from unlicensed drivers is of such a magnitude that the problem, coupled with its risk of harm, commands heightened attention. See id. at 527. While acknowledging that unlicensed drivers might cause a sufficient substantial and imminent threat to the driving public so as to meet the first prong of the Downey test, the court held that the State had failed to adduce sufficient proof of any such “urgent necessities” so as to justify suspicionless stops. See id. at 528, 530-31. Accordingly, the Hicks court held that the State failed to satisfy the first prong of the Downey test. See id. at 531.

Significantly, the court emphasized that, in future cases,

the State may not merely rely upon its general interest in maintaining highway safety to justify suspicionless seizures of its citizens, no matter how “minimal” one may be able to characterize the intrusion. To the extent that the State’s justification for maintaining a roadblock does not reflect a real, compelling interest in curbing a substantial and imminent threat to the safely of motorists on public roads, one may be unable to distinguish this supposed interest in safety from a more general interest in ordinary crime control. However, as the United States Supreme Court has made clear, and as we agree has long been the law in Tennessee, in no case may the State establish a roadblock merely “to detect evidence of ordinary criminal wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 41, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Instead, “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints ..., stops can only be justified by some quantum of individualized suspicion.” Id. at 47, 121 S.Ct. 447. Therefore, ... this Court will not presume the existence of a compelling interest until the State introduces some proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of unlicensed drivers.

Id. at 529-30.

The Hicks court went on to consider the second prong of the Downey test, noting that it would be satisfied “when one can fairly say that roadblocks contribute in a meaningful way to achieving the sufficiently compelling state interest [established under the first prong of the test].” Id. at 531. In the case before it, the roadblock revealed no unlicensed drivers, in spite of having been operated over a two-night period. See id. Finding that the State had failed to demonstrate any meaningful link between the operation of the roadblock and the achievement of its purported interest, the Hicks court found that the roadblock also failed the second prong of the Downey test. See id. at 532-33.

Finally, the court turned to the severity of the roadblock’s interference with personal liberty and privacy, noting that “the most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field.” Id. at 533. The court continued:

[t]wo facts are critical to finding that the officers’ discretion on the scene was properly limited: (1) the decision to set up the roadblock in the first instance cannot have been made by the officer or officers actually establishing the checkpoint, and (2) the officers on the scene cannot decide for themselves the procedures to be used in operating the roadblock. In all cases, therefore, the State must show that some authority superior to the officers in the field decided to establish the roadblock, particularly as to its time and location, and that the officers adhered to neutral standards previously fixed by administrative decision or regulation. To be dear, these factors are so essential to a reasonable roadblock that the absence of either of them will necessarily result in the invalidation of the stops.

Id. at 533 (citation omitted) (emphasis added). In reiterating this point, Justice Barker later stated flatly in his opinion that “Downey clearly condemns the samé person holding the power to approve and establish a roadblock, and the disconcerting appearance of this fact in any record is necessarily fatal to a finding of reasonableness under Article I, section 7.” Id. at 534-35.

In assessing the roadblock before it according to these criteria, the Hicks court determined that the roadblock failed this prong of the Downey test, as well. See id. at 535. Specifically, the State introduced no proof that the officer who established and supervised the roadblock while at the scene had earlier obtained administrative approval for doing so. See id. Moreover, “the officers actually conducting the checkpoint had virtually complete discretion to decide for themselves the procedures to be used in its operation.” Id.

Finally, the court expressed deep concern that the evidence suggested that the roadblock had been operated in fact for purposes other than as a drivers’ license checkpoint. See id. at 536. The court elucidated:

Our close examination of the record reveals much evidence to show that this drivers’ license roadblock was designed and operated as a method to pursue objectives other than detecting and deterring unlicensed drivers. On the administrative level, the time and place of the roadblock do not seem calculated, at least in an intuitive sense, to detect unlicensed drivers, and the fact that the State introduced no proof that the time and site of the roadblock were chosen because of their effectiveness in detecting and deterring unlicensed drivers further indicates that the “drivers’ license” checkpoint was a subterfuge. On the operational level, the record shows that at least one officer on the scene possessed and used a drug dog, and another officer seems to have conducted the roadblock for the purposes of apprehending a fleeing felon. Because neither of these purposes is arguably related to any interest served by a checkpoint established to detect and deter unlicensed drivers, one may infer that at least some officers were pursuing investigatory agendas that were wholly distinct and apart from the State’s claimed interest.

Id. at 537 (footnote, citation omitted). Noting that “[wjhen police officers are permitted, either through administrative design or supervisory neglect, to actively engage in suspicionless investigation of criminal activity wholly unrelated to the purposes of the roadblock, the constitutional protections afforded by Article I, section 7 are rendered utterly without effect or meaning.” Id. at 538. Accordingly, “a checkpoint designed or operated to further illegitimate law enforcement practices under the pretext of a lawful purpose is unreasonable under Article I, section 7, irrespective of other indicia of reasonableness.” Id. at 536.

ANALYSIS

We turn now to the application of the Downey-Hicks calculus to the roadblock at issue in this case. The first prong of the three-prong Downey test is the gravity of the public concern served by the roadblock. Two of the participating law enforcement officers testified on this point. Officer McDevitt described the roadblock as a “field sobriety checkpoint” but admitted that two canine officers were present. Lt. Newman, who testified that he was the supervisory officer for the roadblock, explained that the roadblock was utilized as a generalized “safety tool,” stating plainly that they “weren’t specifically looking for anything.” When more closely questioned by the State, Lt. Newman responded that the safety concerns meant to be addressed by the roadblock were “impaired driving or that sort of thing.” However, Lt. Newman, who participated in determining the location of the roadblock, also explained that the roadblock site was selected because there had been fatal accidents and speeding at that location. Lt. Newman did not testify, however, that either the accidents or the speeding were in any way related to drivers impaired by alcohol. Significantly, the officers had no equipment at the site for testing blood alcohol content.

The trial court concluded that the purpose of the roadblock was “public safety,” particularly the detection of motorists driving under the influence of alcohol. The evidence establishes, however, that there was no single specific goal in place for this particular roadblock. Rather, the sheriffs department was seeking to inhibit speeding drivers, “aggressive” drivers (of which the State’s witnesses offered no definition), and impaired drivers. Additionally, the State was pursuing a goal nowhere mentioned in the administrative memoran-da or guidelines: the interception of those transporting illegal drugs; hence the K-9 officers. Obviously, checking for DUI violations was just one of several actual purposes meant to be realized by this particular’ roadblock.

As noted above, our supreme court has acknowledged that the State’s interest in detecting DUI violations is sufficiently compelling as to justify suspicionless seizures of its citizens, so long as those seizures are carried out in a constitutionally reasonable manner. See generally Hicks and Downey. Where that interest is the •primary purpose for which the roadblock is established, the roadblock may still pass constitutional muster. See City of Indianapolis v. Edmond 581 U.S. 32, 48, 121 S.Ct. 447, 148 L.Ed.2d 338 (2000) (to determine the constitutionality of a particular roadblock, the reviewing court must “examine the available evidence to determine the primary purpose of the checkpoint program.”) (emphasis added); Downey at 111. In this case, however, and contrary to the trial court’s conclusion, the State has simply failed to prove that checking for motorists driving under the influence was the primary purpose for the roadblock. The record contains no proof of the number of arrests made in conjunction with the roadblock; no proof as to the nature of the arrests; testimony that the location was decided upon because of past traffic problems, but no indication that those problems were in any way caused by impaired drivers; testimony that no equipment for testing alcohol impairment was in place at the scene; and testimony that K-9 officers were present. These facts preponderate against a finding that the primary purpose of the roadblock was to check for impaired drivers. The presence of K-9 officers also raises a concern that this roadblock may have been operated, at least in part, as a pretext. Nevertheless, we will analyze whether the State’s claim of “highway safety” purposes to be served by the roadblock were sufficiently grave and compelling so as to satisfy the first of the three-prong Downey test.

In addition to pursuing impaired motorists, the proof before us demonstrates that the State was also interested in detecting speeding drivers and those driving “aggressively.” Thus, we must determine whether the State has proven (1) that speeding and/or aggressive drivers are unable to safely operate vehicles on the state’s roads; (2) that speeding and/or aggressive drivers “invariably” present an imminent danger of .death or serious bodily injury to other drivers that is not typically present with law-abiding drivers; and (3) that the safety threat from speeding and/or aggressive drivers is of such a magnitude that the problem, coupled with its risk of harm, commands heightened attention. See Hicks, 55 S.W.3d at 527.

We conclude that the State has not met its burden of proof as to any of these three criteria. Indeed, the State has offered us no proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of these particular drivers. Moreover, looking at the second of these three criteria, common sense reveals that speeding does not, in and of itself, pose “an imminent danger of death or serious bodily injury.” If it did, we are confident that our legislature would more closely align the penalties for speeding convictions with the penalties provided for DUI. As to whether “aggressive” driving creates such a risk, we must point out that the State has failed to offer us any evidence as to what “aggressive” driving is. Thus, the State has failed to carry its burden of proving any compelling interest whatsoever in detecting and/or deterring this amorphous group of motorists. Finally, the State has failed to prove that the safety threat from this group of motorists is of such a magnitude that heightened action is required. Accordingly, we are constrained to hold that these two purposes for which this roadblock was established do not satisfy the first prong of the Downey test. Moreover, because the State has failed to establish that the primary purpose for the roadblock was to check for impaired drivers, we hold that the roadblock fails to satisfy in all events the first prong of the Downey test.

We turn now to the second prong: the degree to which the roadblock advanced the State’s compelling interest. To the extent that the roadblock was operated in order to detect drunken drivers, Downey instructs us that roadblocks are “effective tools in advancing the State’s interest in solving [the] serious public danger [posed by motorists driving under the influence].” 945 S.W.2d at 110. However, we see no “meaningful link” between the establishment of a roadblock and the interception of speeding and/or “aggressive” drivers. Cf. Hicks, 55 S.W.3d at 532. To the contrary, common sense indicates that a roadblock is a singularly ineffective means by which to detect such motorists. Unlike driving while intoxicated — á bodily condition that the driver is helpless to change by a sheer act of will — a speeding or aggressive driver may cease his or her unlawful behavior within seconds of being notified that he or she is in danger of apprehension, hence the Tennessee Highway Patrol’s practice of “hiding” behind bridges or around curves in order to apprehend motorists driving in a dangerous manner. A speeding driver aware of an approaching roadblock will simply slow down. Being stopped at a roadblock will in no way detect such a driver. Thus, we find that, to the extent the roadblock was operated in order to apprehend speeding and “aggressive” drivers, it fails to satisfy the second prong of the Downey test.

We turn now to the third and final prong: the severity of the interference with personal liberty and privacy caused by the roadblock. As set forth above, Hicks instructs us that there are two critical factors essential to a finding that a particular roadblock is constitutionally reasonable: (1) the initial decision to establish the roadblock cannot have been made by the officer or officers who actually set up and conduct the roadblock, and (2) the officers conducting the roadblock cannot decide for themselves the procedures to be used in its operation. See 55 S.W.3d at 533. The roadblock before us fails on both of these counts.

The initial decision to set up the roadblock was apparently made by Deputy Chief Tommy Standifer. He and Lt. Newman then decided where the roadblock would be located. Our conclusion that both of these gentlemen served in an administrative capacity vis a vis establishing the roadblock is bolstered by the press release’s advance directive to contact either of these men for further information about the roadblocks. Yet, both of these law enforcement officers were present at the scene of the roadblock. Indeed, Lt. Newman was the “safety coordinator” for the operation of the roadblock. Obviously, this aspect of the roadblock is in direct contravention of the requirements of Dow-ney and Hicks, because the decisions about establishing the roadblock were made by the same men who were actually conducting it at the scene. Furthermore, Lt. Newman testified that he decided on the scene about how to handle traffic backlogs, and that his method was contrary to that established by the guidelines. The trial court recognized that Lt. Newman “deviated from the procedure,” but rationalized that the deviation was acceptable because Lt. Newman’s personal procedure was “less restrictive” than that specified by the guidelines. The central concern with suspicionless seizures, however, is not how an officer exercises his or her discretion in the field, but whether he or she exercises an inordinate amount of it. Any deviation from established guidelines indicates that an on-site officer’s discretion is not properly limited.

The trial court also overruled the Defendant’s motion to suppress on the grounds that the Sheriffs Department “used good faith to try to comply with the requirements of Downey.” However, nowhere in Downey, Hicks, or any other case of which we are aware, is “good faith” set forth as the appropriate standard by which to measure the constitutionality of a suspi-cionless seizure. To the contrary, the law enforcement agency’s “good faith” in conducting a roadblock is simply irrelevant. Similarly, the trial court’s conclusion about the public’s level of “qualms” over the intrusions undertaken pursuant to the instant roadblock does not rescue the roadblock from constitutionally fatal mistakes.

In sum, this roadblock evinces an absence of both of the factors identified as essential by the Hicks decision. Accordingly, we have no choice but to hold this roadblock unreasonable under Article I, section 7 of the Tennessee Constitution. See Hicks, 55 S.W.3d at 533.

The State argues, and we acknowledge, that the roadblock in this case did comport with several constitutional requirements. Specifically, the proof established that the Sheriffs Department stopped all cars passing through the roadblock, so long as traffic permitted; adequate safety precautions were taken, including warning approaching motorists of the roadblock and stopping cars only in a safe and visible area; the roadblock was conducted with uniformed officers and marked patrol cars with flashing emergency lights; and advanced publicity about the roadblock was furnished to the public at large. See Downey, 945 S.W.2d at 110-12. Nevertheless, these aspects of the roadblock do not overcome the constitutional infirmities set forth in this opinion. We conclude that the roadblock before us simply does not pass constitutional muster under the Downey-Hicks analysis.

CONCLUSION

The trial court’s denial of the Defendant’s motion to suppress is reversed. Accordingly, we vacate the Defendant’s conviction and dismiss the charges against him.

      . We need not analyze whether drivers transporting illegal drugs might constitute a sufficiently compelling state interest to satisfy the first prong of the Downey test because roadblocks established for that purpose are per se violative of the Fourth Amendment. See Edmond, 531 U.S. at 48, 121 S.Ct. 447.

      . In fairness to the Hamilton County Sheriff's Department, the Hicks opinion had not been released as of the date of the roadblock in this case.

      . Indeed, in the context of arrests, the United States Supreme Court has recognized that, "If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964).


author: JERRY L. SMITH, J„

text:
    Margo FRESHWATER v. STATE of Tennessee.
    Court of Criminal Appeals of Tennessee, at Jackson.
    May 4, 2004 Session.
    Sept. 1, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 31, 2005.

      Robert W. Ritchie and Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Margo Freshwater.
    Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.
   JERRY L. SMITH, J„

delivered the

opinion of the court,

in which JOSEPH M. TIPTON, and JAMES CURWOOD WITT, JR., JJ., joined.

OPINION

The petitioner, Margo Freshwater, was convicted of first degree murder in 1969. Her conviction was affirmed on direct appeal. See Freshwater v. State, 2 Tenn.Crim.App. 314, 453 S.W.2d 446 (1969). In 2003, she filed a petition for writ of error coram nobis, alleging that new evidence existed that proved her innocence, as well as complaining of violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and juror misconduct that occurred at trial which necessitated a hearing and ultimately a new trial. Prior to a hearing, the trial court granted a motion to dismiss the petition because the petition was, inter alia, filed outside the statute of limitations. The petitioner seeks a reversal of the trial court’s decision on appeal. Because due process requires the tolling of the statute of limitations for filing the petition for writ of error coram nobis with respect to the petitioner’s claim of previously withheld exculpatory evidence, we reverse the judgment of the trial court and remand the matter for an evidentiary hearing on the petition. As to the remaining allegations of juror misconduct, we conclude those allegations could have and should have been addressed in a post-conviction petition and are now time-barred. Thus, we affirm the portion of the trial court’s order dismissing the part of the petition for writ of error coram nobis pertaining to those claims.

Factual Background

The petitioner and Glenn William Nash, a Memphis attorney, were indicted in March of 1968 for first degree murder and felony murder in the death of Hillman C. Robbins, Sr., a cashier of the Square D Liquor Store in Memphis. Mr. Nash took money from the register prior to taking the victim to the back room of the store where his hands were tied behind his back. The victim was shot multiple times in the head with both a .22 caliber pistol and a .38 caliber pistol. After traveling throughout the Southeast, the petitioner and Mr. Nash were eventually arrested in Mississippi.

Mr. Nash was later found incompetent to stand trial. He has never been tried and the charges against him were ultimately dismissed on the basis of a speedy trial violation. The petitioner, on the other hand, was tried in Shelby County in early 1969. After a trial on the merits, the petitioner was found guilty of first degree murder.

At trial, the petitioner maintained that her participation in the robbery and subsequent flight with Mr. Nash were the result of duress and coercion. The prosecution offered evidence that the victim had been shot with a .22 caliber pistol. There was testimony introduced, through Johnny Box, that the petitioner possessed a .22 caliber weapon. As a result of this testimony, the State argued that the petitioner was responsible for shooting the victim with the .22 caliber weapon. The petitioner’s testimony, on the other hand, indicated that she knew nothing of Mr. Nash’s plan to rob the liquor store or shoot the cashier and that she cooperated with Mr. Nash only because she was in fear for her life. She maintained that Mr. Nash instructed her to exit the liquor store prior to the time that the victim was killed and that she did not fire a gun. She denied that she was in any way an accomplice. After being found guilty of first degree murder, the petitioner was sentenced by the jury to a ninety-nine year sentence and sent to the Tennessee Prison for Women in Nashville.

On direct appeal, this Court affirmed the conviction. See Freshwater v. State, 2 Tenn.Crim.App. 314, 453 S.W.2d 446 (1969). In that appeal, the petitioner challenged the sufficiency of the evidence, statements made by Mr. Box as inadmissible hearsay, jury instructions, her sentence, the introduction of a photograph of the deceased, and the testimony of the victim’s son. See id. The petitioner also alleged that newly discovered evidence existed which would have changed the outcome of her trial. This Court determined that none of the petitioner’s allegations had merit. The opinion, written by Judge Russell, determined that the jury was “well justified” in determining that

the defendant cased the liquor store in question with Nash earlier in the day, drove him to that store that night to the exclusion of other liquor stores passed in route, waited upon a customer while Nash was in the back with the victim, had in her possession a .22 calibre pistol and bullets, and the victim was shot with both a .38 calibre pistol and a .22 calibre pistol. She drove the getaway car, lived with Nash as man and wife as they traveled all over the southeast spending the fruits of the robbery, and never at any time did anything consistent with non-involvement or coerced involvement right up to the time that both were arrested as they left a bus in Mississippi. She did testify, without corroboration, that she tried to leave Nash in Chattanooga. When finally arrested, she denied her true identity, and did absolutely nothing consistent with being a true victim of coercion.

Id. at 448-49.

On October 4, 1970, less than a year after the petitioner’s conviction was af-finned, she escaped from the Tennessee Prison for Women. The petitioner remained at large until May 19, 2002, when she was apprehended and arrested in Columbus, Ohio. During the 32 years following her escape, the petitioner became a mother and grandmother and was married twice. After legal proceedings in Ohio, the petitioner was extradited to Tennessee. She later pled guilty to the charge of escape.

On February 6, 2003, the petitioner filed a petition for writ of error coram nobis. In that petition, she claimed that prior to the 1969 trial, her attorney requested any written statements that she made to any witnesses that were reduced to writing, including the written statement of “any informer once held in the DeSoto County [Mississippi] Jail.” Unknown to the petitioner’s counsel at the time of trial, trial counsel for the prosecution referred the request to the Executive Assistant Attorney General who instructed trial counsel for the prosecution to refuse to provide the entire statement of Mr. Box to the defense because Mr. Box “was not a law-enforcement officer of the State of Tennessee, and the statement was not made in Tennessee.” Apparently, Mr. Box made several statements to authorities in which he recounted his conversations with the petitioner and Mr. Nash while incarcerated in the DeSoto County, Mississippi jail. Portions of these statements were given to the petitioner during discovery, including the last page of Mr. Box’s statement, which was produced to and utilized by the defense counsel in cross-examining Mr. Box at trial. However, a portion of Mr. Box’s handwritten statement that contained statements made by Mr. Nash to Mr. Box was never turned over to defense counsel. That statement was discovered in 2002 by current counsel for the petitioner and one of the original prosecutors during a review of the District Attorney’s case file. The undisclosed portion contained a confession made by Mr. Nash to Mr. Box that he was the only shooter of the victim. The coram nobis petition alleges that the suppression of this evidence was a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the evidence was obviously exculpatory in nature and should have thus been turned over to the defense in response to discovery.

The petition for writ of error coram nobis also alleges that a juror from the 1969 trial contacted current counsel for the petitioner. That juror apparently claimed that the jury watched television newscasts in the evenings during the course of the trial, and that it was suggested, during these newscasts, that, among other things, the petitioner fired a .22 caliber pistol during the robbery and that she had previously been charged with the murder of a taxi driver in DeSoto County, Mississippi. Further, the petition alleged that a bailiff brought daily newspapers into the jury area and that the jurors read these newspapers during the course of the trial.

In response to the allegations in the petition for writ of error coram nobis, the State filed a motion to dismiss based on the one-year statute of limitations for co-ram nobis relief contained in Tennessee Code Annotated section 27-7-103. The trial court held a hearing on the motion to dismiss, at which the trial court heard argument from counsel for both the petitioner and the State. The trial court granted the motion to dismiss, determining that the petitioner failed to file her petition within the one-year statute of limitations and failed to demonstrate that due process required the tolling of the statute of limitations. This appeal followed.

Analysis

On appeal, the petitioner challenges the trial court’s dismissal of the petition. Specifically, she argues that: (1) the trial court improperly dismissed the petition without a hearing; (2) the trial court erroneously found that the petitioner was at fault in failing to present at the proper time the issue of Mr. Box’s statement containing Nash’s statement that he was the only shooter; (3) the trial court incorrectly determined that Mr. Nash’s confession as the sole shooter was not new evidence of innocence; and (4) the trial court erroneously dismissed the constitutional violations asserted in the petition. The State counters that “the law does not support the petitioner’s claims” and coram nobis relief is not appropriate for the constitutional violations alleged by the petitioner.

Relief by petition for writ of error coram nobis is provided for in Tennessee Code Annotated section 40-26-105. That statute provides, in pertinent part:

[t]he relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will he for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial. The issue shall be tried by the court without the intervention of a jury, and if the decision be in favor of the petitioner, the judgment complained of shall be set aside and the defendant shall be granted a new trial in that cause.

The writ of error coram nobis is an “extraordinary procedural remedy,” filling only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.1999). The “purpose of this remedy ‘is to bring to the attention of the court some fact unknown to the court which if known would have resulted in a different judgment.’ ” State v. Hart, 911 S.W.2d 371, 374 (Tenn.Crim.App.1995) (quoting State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 167 (1966)). The decision to grant or deny a petition for writ of error coram nobis rests within the sound discretion of the trial court. Teague v. State, 772 S.W.2d 915, 921 (Tenn.Crim.App.1988), overruled on other grounds by Mixon, 983 S.W.2d at 671 n. 3.

A petition for writ of error coram nobis must relate: (1) the grounds and the nature of the newly discovered evidence; (2) why the admissibility of the newly discovered evidence may have resulted in a different judgment had the evidence been admitted at the previous trial; (3) the petitioner was without fault in failing to present the newly discovered evidence at the appropriate time; and (4) the relief sought by the petitioner. Hart, 911 S.W.2d at 374-75.

A petition for writ of error coram nobis must usually be filed within one year after the judgment becomes final. See Tenn.Code Ann. § 27-7-103; State v. Mixon, 983 S.W.2d 661, 670 (Tenn.1999). It has been determined that a judgment becomes final, for purposes of coram nobis relief, thirty days after the entry of the judgment in the trial court if no post-trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion. Mixon, 983 S.W.2d at 670. The parties do not dispute that the petition for writ of error coram nobis in the case herein was filed outside of the applicable statute of limitations.

The grounds for seeking a petition for writ of error coram nobis are not limited to specific categories, as are the grounds for reopening a post-conviction petition. Coram nobis claims may be based upon any “newly discovered evidence relating to matters litigated at the trial” so long as the petitioner also establishes that the petitioner was “without fault” in failing to present the evidence at the proper time. Coram nobis claims therefore are singularly fact-intensive. Unlike motions to reopen, coram nobis claims are not easily resolved on the face of the petition and often require a hearing. The coram nobis statute also does not contain provisions for summary disposition or expedited appeals.... Although coram nobis claims also are governed by a one-year statute of limitations, the State bears the burden of raising the bar of the statute of limitations as an affirmative defense. See Sands v. State, 903 S.W.2d 297, 299 (Tenn.1995).

Hams v. State, 102 S.W.3d 587, 592-93 (Tenn.2003).

In the case herein, the trial court summarily dismissed the petition on the basis that it was filed outside the statute of limitations. Despite not having a hearing in which evidence was presented, the trial court also determined that the petition did not satisfy the requirements of Hart. 911 S.W.2d at 374-75. Specifically, the trial court opined that

there is no question that the petitioner’s motion, filed approximately thirty-two years after the judgment was final in the trial court, was clearly outside the statute of limitations. However, the defendant contends that due process requires that the statute of limitations for filing her Petition for Writ of Error Coram Nobis be tolled. This court finds no due process concerns which would entitle petitioner to relief....
Moreover, this court finds that coram nobis is not the appropriate avenue to address the alleged constitutional violations relating to juror misconduct....
Having found that the defendant has failed to file within the applicable statute of limitations and having further found that the defendant has failed to demonstrate that her interest in presenting her claims is outweighed by the government’s interest in preventing litigation of stale claims, it is not necessary for this court to further examine the merits of the petitioner’s allegations. However, this court notes that [the] petition seems to be fundamentally flawed under the standards set forth by Hart. Initially, it is unclear whether or not the statement of Nash allegedly made to Box were unknown to the defense during the original trial....
Hart also requires the petitioner to demonstrate that she was without fault in failing to present the claims. This court finds it unlikely that it was the intention of our Supreme Court to reward defendants, who due to their own criminal actions, fail to present timely claims, by providing them with relief under a writ of error coram nobis....
Finally, under Hart, the defendant must demonstrate that a different judgment “may have resulted” if the new evidence were presented to the jury. As noted, given the fact that the alleged testimony, even if accepted by the jury, would not change the culpability of the defendant, it is unlikely that the defendant could demonstrate a “reasonable probability” that a different judgment would have resulted based upon the new evidence.

As we begin our analysis, we must initially determine if the claims advanced by the petitioner are appropriately addressed by coram nobis relief. The State argues that the petitioner’s allegations of violations of Brady v. Maryland and juror misconduct are not appropriately addressed in a coram nobis proceeding. Specifically, citing Kinnaird v. State, No. M2000-00037-CCA-R3-PC, 2001 WL 881371 (Tenn.Crim.App. at Nashville, Aug. 7, 2001), the State argues that “a petition for writ of error coram nobis is not the appropriate remedy by which to seek relief from constitutional errors such as that asserted under Brady v. Maryland.”

In Kinnaird, a post-conviction proceeding, this Court evaluated a claim in which the defendant alleged that the State violated his constitutional rights under Brady by withholding various pieces of exculpatory evidence. 2001 WL 881371, at *1. The defendant had raised issues with respect to the withheld evidence in a motion for new trial and, subsequently, in a petition for writ of error coram nobis. The trial court denied the motion for new trial and this Court, in State v. Hershell Kinnaird, No. 01C01-9404-CC-00149, 1995 WL 382612, at *1 (Tenn.Crim.App. at Nashville, June 28, 1995), found that the issue of the Brady violations had been previously raised in the motion for new trial and that relief under the coram nobis statute was therefore not available. The defendant raised these issues for the third time in his petition for post-conviction relief. On appeal from the denial of post-conviction relief, this Court commented

[d]espite his prior unsuccessful attempt to obtain relief on this issue, the Defendant again complained about the State’s failure to disclose ... [the exculpatory evidence]. The coram nobis court properly found that this issue had been previously raised in the motion for new trial and that relief under the coram nobis statute was therefore not available.... On appeal from the coram nobis court’s ruling, this Court also rejected the Defendant’s Brady claim on this issue, holding that “[c]oram nobis is not a forum for the determination of a constitutional issue.”

Kinnaird, 2001 WL 881371, at *5.

We agree that this Court determined in Kinnaird’s case that “coram nobis is not a forum for the determination of a constitutional issue.” However, according to the statute, coram nobis relief is appropriate for “matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on a writ of error, or in a habeas corpus proceeding.” Tenn.Code Ann. § 40-26-105; Kinnaird, 2001 WL 881371, at *5. In Kinnaird, the defendant had raised the issue of the withheld evidence in both a motion for new trial and a coram nobis proceeding and the trial court had made “specific findings with respect to the ... [exculpatory evidence] and ruled that the State’s withholding of the statement did not justify a new trial under Brady.” 2001 WL 881371, at *5. Moreover, we also note that Kinnaird was decided several months after the supreme court’s decision in Workman, yet the Kin-naird opinion does not reference or cite Workman even though Workman dealt with a similar issue — -a coram nobis proceeding predicated on evidence that was unavailable at the time of the defendant’s trial due to alleged suppression by the State. See Kinnaird, 2001 WL 881371, at *l-*4. We feel this seriously calls into question the Kinnaird ⅛ panel reliance on the earlier Kinnaird decision that determined Brady violations are not appropriate for coram nobis relief. See Kinnaird, 2001 WL 881371, at *6 (relying on Kin-naird, 1995 WL 382612, at *4, to conclude that allegations of Brady violations are not appropriate in a coram nobis proceeding).

In the case herein, the petitioner’s allegations of the newly discovered evidence in the context of violations of Brady v. Maryland, were not, and could not have been, litigated previously. Despite the petitioner’s discovery request for statements of Mr. Box prior to trial, the existence of the evidence was not discovered until September of 2002 when current counsel for the petitioner and one of the original prosecutors reviewed the District Attorney’s case file from the original trial. Further, at least one reported case from this Court, State v. Workman, 111 S.W.3d 10, 18 (Tenn.Crim.App.2002), discusses coram no-bis relief in the context of suppressed exculpatory evidence that also might amount to new evidence of innocence.

The allegations of juror misconduct, on the other hand, could have been discovered by the petitioner and raised in a post-conviction petition. Therefore, we determine that the allegations of juror misconduct do not amount to new evidence of innocence which would have resulted in a different judgment had it been presented at trial. See Tenn.Code Ann. § 40-26-105; see also State v. Doyle Hart, No. 02C01-9612-CC-00451, 1997 WL 563613, at *6 (Tenn.Crim.App. at Jackson, Sept. 10, 1997); Kenneth C. Stomm v. State, No. 03C01-9110-CR-00342, 1992 WL 97081, at ⅜1 (Tenn.Crim.App. at Knoxville, May 12, 1992) (stating that “[t]he [coram nobis] proceeding is confined to errors outside the record and to matters which were not and could not have been litigated at trial, the motion for new trial, appeal, or upon post-conviction petition.”); State v. James D. “Sonny” Yarbrough, No. 01C01-9001-CC-00012, 1990 WL 109107, at *2 (Tenn.Crim.App. at Nashville, Aug. 3, 1990) (not ing that the remedy of error coram nobis is also not available on matters that were or could have been litigated in a post-conviction proceeding). Thus, regardless of our decision as to the remainder of the allegations, the petitioner’s claim of juror misconduct is waived by failing to assert it in a timely petition for post-conviction relief. See TenmCode Ann. § 40-35-102.

Because we have determined that the petitioner’s allegations of newly discovered evidence are appropriately addressed in a petition for writ of error coram nobis, the next step in our analysis is to determine whether the statute of limitations should be tolled in the case herein. In Workman v. State, 41 S.W.3d 100 (Tenn.2001), a case relied heavily upon by the petitioner, the Tennessee Supreme Court reviewed a case in which the petitioner was denied a hearing on his petition for writ of error coram nobis because the statute of limitations for filing had passed. Similar to the case herein, Workman sought coram nobis relief based on claims that new evidence,- unavailable during his trial, would show that he was actually innocent of capital murder.

In Workman, the supreme court found that, in a variety of contexts, due process may require tolling of an applicable statute of limitations. Id. at 103. The Workman court relied, in part, on the due process considerations discussed in Burford v. State, 845 S.W.2d 204 (Tenn.1992). Workman, 41 S.W.3d at 102. Specifically, the Burford court recognized that “before a state may terminate a claim for failure to comply with procedural requirements such as statutes of limitations, due process requires that potential litigants be provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner” and that, “under the circumstances of a particular case, application of the statute may not afford a reasonable opportunity to have the claimed issue heard and decided.” Id. (quoting Burford, 845 S.W.2d at 208).

In determining what sort of opportunity is “reasonable,” the court concluded that “[i]dentification of the precise dictates of due process requires consideration of both the governmental interests involved and the private interests affected by the official action.... ” Workman, 41 S.W.3d at 102. In Burford, the private interest at stake was the accused’s opportunity to attack his conviction and incarceration on the grounds that he was deprived of a constitutional right via a post-conviction petition; the governmental interest represented by the statute of limitations was the prevention of stale and groundless claims. Id. The court in Burford determined, after weighing the competing interests in that case, that the accused’s interest in mounting a constitutional attack upon his conviction and incarceration outweighed the State’s interest in preventing the litigation of stale and groundless claims.

Using that same analysis, the court in Workman weighed the governmental interests involved against the private interests affected by the official action and decided that, if the procedural time bar was applied, Workman could have been put to death without receiving an opportunity to have the merits of his claim evaluated by a court of this state. Id. at 103. In other words, the court determined that due process precludes application of the statute of limitations to bar consideration of a petition for writ of error coram nobis in cases where the defendant’s interest in obtaining a hearing to present newly discovered evidence, which may establish actual innocence, far outweighs any governmental interest in preventing the litigation of stale claims. Id. The supreme court concluded that Workman was entitled to a hearing to evaluate the claims contained in his petition for writ of error coram nobis, notwithstanding the fact that he filed his petition thirteen months after discovering the newly discovered evidence. Id. In considering the delay, the court remarked that the time within which Workman’s petition was filed did not exceed the reasonable opportunity afforded by due process, especially in cases such as Workman’s where the evidence in issue may show actual innocence of a capital offense. Id. at 103-104.

Contrary to Workman, the petitioner’s case does not involve a capital offense. Yet a sentence of ninety-nine years’ incarceration is in our opinion a sufficiently significant period of time to warrant similar treatment for purposes of due process analysis. Moreover, this Court has applied the doctrine set forth in Workman to non-capital cases. See State v. Ratliff, 71 S.W.3d 291, 296-97 (Tenn.Crim.App.2001).

Returning to the due process issue, we observe that the petitioner, similarly to the defendant in Workman, has raised serious questions regarding whether she, in fact, murdered Hillman Robbins, Sr. The petition alleges that counsel for the defendant was not provided with, and did not know of, the portion of the statement made by Mr. Box which contained Mr. Nash’s admission that he was the sole shooter. Had that confession been available to her counsel at the time of trial, the petitioner argues, the confession would have corroborated her testimony that she knew nothing of Mr. Nash’s plan to rob and murder Mr. Robbins. The statements were obviously exculpatory in nature as they corroborated the testimony of the petitioner.

The State argues that the petitioner did not “avail herself’ of the system and is thus precluded from now gaining the benefit of the late discovery of the evidence. The State claims that “the petitioner cannot show that it was not her fault in fading to bring the claim any time over the past 33 years ... the only explanation that the claims were not brought until February 2003 is that the petitioner was at fault” because she was a fugitive, the petitioner had not discovered the suppression of the statements of Mr. Box by the conclusion of her trial and direct appeal, and did not discover the evidence until the time for filing a petition for writ of error coram nobis had already expired. We disagree. The delay in obtaining the evidence is not attributable to the fault of the petitioner or her attorneys. Despite the fact that the petitioner escaped from prison and remained at large for over thirty years, the petitioner’s trial counsel specifically requested the written statement of “any informer once held in the DeSoto County [Mississippi] Jail” as part of a discovery request. That information was not provided to the petitioner at trial. The fact that the petitioner escaped from jail and remained a fugitive for many years does not change the fact that the evidence was withheld by the State. Even if the petitioner had not escaped we have no reason to believe this evidence would have been disclosed voluntarily. Indeed, if the State’s position in this appeal were to prevail, criminal defendants, in order to protect their rights to file a coram nobis petition, would be required in every case to examine every prosecution file following their convictions in order to determine whether exculpatory evidence was withheld. We cannot believe this is something the State really wants. “[T]he State’s finality interest is seriously compromised when the prosecution has suppressed evidence in violation of its constitutional duty and is directly responsible for causing the delay in finality.” Harris v. State, 102 S.W.3d 587, 602 (Tenn.2003) (Anderson, J. dissenting) (citing Sample v. State, 82 S.W.3d 267, 276 (Tenn.2002)).

Accordingly, we determine that due process precludes summary dismissal of this claim based upon a statutory time bar, and that the petitioner herein is entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence. No court in this State has actually held a hearing to evaluate the strength of the claims asserted in the petition. The petitioner is entitled to a “reasonable opportunity after the expiration of the limitations period to present [her] claim in a meaningful time and manner.” Williams v. State, 44 S.W.3d 464, 471 (Tenn.2001).

Conclusion

Accordingly, we conclude that the decision of the trial court dismissing the portion of the writ of error coram nobis alleging the discovery of new evidence should be reversed and the case remanded for a hearing. At the hearing, the petitioner will have the opportunity to establish that there is a “reasonable probability” that the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial. See Tenn.Code Ann. § 40-26-105; Workman, 111 S.W.3d at 18. If she makes this showing, and if she also establishes that she “was without fault” in failing to present the newly discovered evidence at the appropriate time, she will be entitled to a new trial. Id.; see also Workman, 41 S.W.3d at 104; Mixon 983 S.W.2d at 673. Further, we affirm the portion of the trial court’s decision dismissing the portion of the petition relating to the allegations of juror misconduct as those allegations should have been brought in a post-conviction proceeding. Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . While incarcerated in Mississippi, the petitioner was in a cell next to Mr. Box, an accused robber, and Mr. Nash. The petitioner was intimate with Mr. Box on several occasions and the two had numerous conversations about the murder of the liquor store cashier during these encounters. Mr. Nash was present on at least one of these occasions. Mr. Box became a key witness for the prosecution at trial.

      . The newly discovered evidence in the direct appeal related to the discovery of evidence that Mr. Box was paid for his testimony by the State and did not relate at all to the claim of newly discovered evidence as alleged in the petition for writ of error coram nobis.