author: VICTOR C. HOWARD, Judge.

text:
    Joe M. EDGER, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
    No. WD 71395.
    Missouri Court of Appeals, Western District.
    April 20, 2010.

      Joe M. Edger, Appellant pro-se.
    Michael J. Spillane for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

Joe Edger appeals the summary judgment entered in favor of the Missouri Board of Probation and Parole (Parole Board) on his petition seeking a declaration that he became eligible for parole on November 2, 2005, based on the calculation of his minimum term for eligibility for parole. The trial court found that he will not become parole eligible until February 3, 2014, or until he has served an aggregate term of 15.5 years on his consecutive sentences. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

On June 26, 1998, Edger was sentenced, as a persistent offender, to two fifteen-year terms of imprisonment for two counts of stealing a motor vehicle and one ten-year term of imprisonment for resisting arrest. The sentences were to run concurrently. He began serving the sentences the same day.

In April 2000, Edger attempted to escape. He was subsequently convicted of attempt to escape confinement and was sentenced on November 2, 2001, to eight years imprisonment to run consecutively to his prior sentences.

In December 2004, the Parole Board calculated that Edger would be eligible for parole on February 3, 2014. The Parole Board determined that the eight-year sentence for attempted escape has a fifty percent mandatory minimum prison term, or four years, and that the sentence would not begin to run until February 3, 2010. February 3, 2010, is the conditional release date for Edger’s previous fifteen-year sentence.

Edger filed his petition for declaratory judgment in June 2008 arguing that his parole eligibility date was November 2, 2005, not February 3, 2014. Edger calculated that he became parole eligible on his first fifteen-year sentence after twenty-five percent of the sentence, or three years and nine months, under 14 CSR 80-2.010(l)(b). He acknowledged that he must serve the minimum prison term of fifty percent of his eight-year sentence under section 558.019.2(2), RSMo Cum.Supp.2009. Pursuant to section 217.690.5, RSMo Cum. Supp.2009, Edger added the minimum terms for parole eligibility for each of the consecutive sentences for a total of seven years and nine months making him eligible for parole on November 2, 2005.

Thereafter, the parties filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Parole Board finding that Edger •will not become parole eligible until February 3, 2014, or until he has served an aggregate term of 15.5 years on his consecutive sentences. This appeal by Edger followed.

In his sole point on appeal, Edger contends that the trial court erred in entering summary judgment in favor of the Parole Board because the Parole Board violated section 217.690.5 in calculating his parole eligibility date.

Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376.

Section 217.690, RSMo Cum.Supp.2009, is the general parole statute. Subsection 5 of the statute provides a formula for calculating the minimum term of parole eligibility for an offender with consecutive sentences:

When considering parole for an offender with consecutive sentences, the minimum term for eligibility for parole shall be calculated by adding the minimum terms for parole eligibility for each of the consecutive sentences, except the minimum term of parole eligibility shall not exceed the minimum term for parole eligibility for an ordinary life sentence.

§ 217.690.5.

The parties do not dispute that Edger’s eight-year sentence for attempted escape has a fifty percent mandatory minimum prison term under section 558.019.2(2), RSMo Cum.Supp.2009. That statute provides:

If the offender has two previous prison commitments to the department of corrections for felonies unrelated to the present offense, the minimum prison term which the offender must serve shall be fifty percent of his or her sentence or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed; whichever comes first.

§ 558.019.2(2). Because Edger has two pri- or commitments to the Department of Corrections, he must serve four years of his eight-year sentence. The parties disagree, however, on the minimum term for parole eligibility on Edger’s fifteen-year sentence for stealing a motor vehicle.

Section 217.690 authorizes the Parole Board to adopt rules regarding parole eligibility and hearings. § 217.690.4. Fourteen CSR 80-2.010 sets forth the guidelines under which the Parole Board is to determine the parole eligibility of an offender. Cooper v. Holden, 189 S.W.3d 614, 618 (Mo.App. W.D.2006). Under the rules, an offender convicted of an enhanced nonviolent class C or D offense is eligible for parole after twenty-five percent of the maximum sentence has been served, except where statute would require more time to be served. 14 CSR 80-2.010(l)(B). Under this rule, Edger would be eligible for parole on his fifteen year sentence after serving three years and nine months. If Edger’s argument is correct, this minimum term is added to the minimum term of four years for the attempted escape for a total of seven years and nine months before he is eligible for parole.

The Parole Board contends, however, that this rule does not apply to calculate the minimum term for parole eligibility on Edger’s first sentence because statutes require more time to be served. It argues that because the purpose of section 558.019 is to punish a repeat offender for his latest offense based on his demonstrated propensity for misconduct, it would be an unreasonable result in this case to declare Edger eligible for parole before he even starts to serve the attempted escape sentence. Implicit in the Parole Board’s argument is that section 558.011.4(1)(b), which specifies conditional release terms for various sentences, requires Edger to serve twelve years of his previous fifteen-year sentence before being eligible for parole. A sentence of imprisonment consists of a prison term and a conditional release term. Cooper, 189 S.W.3d at 617. During the last few years of a sentence, the conditional release term, an offender is discharged from prison under the supervision of Parole Board. Section 558.011.4(l)(b) provides that the conditional release term for a fifteen year sentence is three years. Thus, a sentence of fifteen years consists of a prison term of twelve years and a conditional release term of three years. An offender is required to serve the mandated minimum prison term of his sentence before being eligible for conditional release. Cooper, 189 S.W.3d at 617.

While conditional release is akin to parole, the two are not identical or interchangeable terms. Id. The operation of conditional release is specifically dictated by statute, while parole is almost entirely left to the discretion of the Parole Board. Id. at 618. Section 558.011.4 specifies the time tables under which an offender is entitled to be conditionally released, although a conditional release date can be extended if the procedures of section 558.011.5 are followed. Id. On the other hand, section 217.690 allows the Parole Board to determine if and when an offender may be released on parole. Id. “With the exceptions of the mandatory minimum sentences set forth in statutes or 14 CSR 80-2.010, offenders can be paroled virtually any time during their sentence at the discretion of the Parole Board under conditions set by the Board.” Id. Likewise, the Parole Board can deny parole to an offender throughout his entire sentence. Id.

Section 558.011.4 does not provide support for the Parole Board’s argument in this case. It merely sets forth terms of conditional release for various prison sentences. The legislature has explicitly provided in section 217.690.5 a method for calculating parole eligibility for an offender with consecutive sentences by adding together the minimum terms for parole eligibility for each consecutive sentence. The minimum term for parole eligibility of Edger’s fifteen year sentence under 14 CSR 80 — 2.010(1)(B) is three years and nine months. The minimum prison term on his eight year sentence is four years under section 558.019.2(2). Edger must serve seven years and nine months before being eligible for parole. The trial court erred in granting summary judgment in favor of the Parole Board. Edger’s point is granted.

The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    In the Interest of: H.C.B.P. and P.M.J.P. Juvenile Officer, Respondent, v. K.A.P., Appellant.
    Nos. WD 71429, WD 71430.
    Missouri Court of Appeals, Western District.
    April 20, 2010.
    Bert M. Godding, Kansas City, MO, for Appellant.
    Tammy J. Glick, Platte City, MO, for Respondent.
    Sarah E. Recker, Parkville, MO, Guardian ad litem.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

K.A.P. appeals the judgment of the Circuit Court of Platte County terminating his parental rights to H.C.B.P. and P.M.J.P. pursuant to section 211.447, RSMo Cum.Supp.2008. On appeal, K.A.P. raises fourteen points of claimed error. We affirm in this per curiam order. Rule 84.16(b).


author: GARY R. WADE,

text:
    STATE of Tennessee v. William Glenn TALLEY.
    Supreme Court of Tennessee, at Nashville.
    Feb. 11, 2010 Session.
    March 19, 2010.

      David Louis Raybin, Nashville, Tennessee, for the appellant, William Glenn Talley.
    Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

GARY R. WADE,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

After receiving information about illegal drug sales at the condominium residence of the defendant, detectives from the police department, which, among others, had been previously provided with the access code to the locked front entrance of the building, were permitted entry into the commonly owned interior hallway by an unknown individual. The detectives knocked at the defendant’s unit, received consent to search from the girlfriend of the defendant, and observed what appeared to be drugs and drug paraphernalia. After search warrants were issued, first for the defendant’s residence and then for his business, the police found drugs and child pornography; further, the defendant, upon questioning, made incriminatory statements. A grand jury indicted the defendant on six separate charges. The trial court denied a motion to suppress the evidence acquired by the police and then granted the defendant an interlocutory appeal. The Court of Criminal Appeals affirmed. We granted an application for permission to appeal in order to determine whether the defendant had a legitimate expectation of privacy in the locked, commonly shared interior hallway of the condominium. Because the totality of the circumstances establish that the defendant could not reasonably expect privacy in the hallway leading to his residential unit, the order denying the motion to suppress is affirmed and the cause is remanded for trial.

Factual and Procedural History

During the summer of 2005, William Glenn Talley (the “Defendant”) resided in a condominium unit he owned on the second floor of Hedrick Place, located at 116 81st Avenue North in Nashville. Including the Defendant, there were twenty-one owners of units within the condominium building. Ownership of a unit included a parking space and an equal share in the common areas, such as the interior hallways, the stairway, and yard. The property did not display “no trespassing” signs. The front door entrance, accessible from the public sidewalk, was locked at all times, requiring visitors without an access code to make contact with a resident by use of an electronic keypad and the telephone system in order to gain entry. The unit resident permitting entry either provided the visitor with an access code via the telephone system or simply opened the front door manually. Any resident or guest could admit anyone, including the police, to the common areas of the building. Those entering the front door had access to all of the common areas. The police department, the fire department, the postal service, United Parcel Service, FedEx, facility cleaners, vendors, and perhaps others were provided with an access code to the front entrance. The dispatcher at the police department maintained the code on file so that officers could call in for access at any time.

On or about August 11, 2005, an individual who expressed the desire to remain anonymous reported to the Metropolitan Nashville Police Department through “244-DOPE-LINE” that the Defendant was selling illegal drugs at his condominium unit. Five days later, at approximately 7:45 p.m., Detective Joseph Simonik, accompanied by Detectives Fox, Osborne, Stokes, and Gonzales, arrived at the condominium building and contacted the dispatcher in order to obtain the access code for the front door. The detectives, who had purposefully chosen not to alert the Defendant of their presence before they reached his unit, wore “raid jackets” clearly marked with a police patch and badge. While the officers waited for the dispatcher to provide the code, a casually dressed man, who was departing the premises, opened the door, greeted the officers, and allowed them entry. Detectives Simonik, Fox, and Osborne proceeded to the Defendant’s second floor unit, and Detectives Stokes and Gonzales waited in the hallway. Within thirty to forty seconds after entering the building, Detective Simonik knocked at the door of the Defendant’s unit. Kimberly Knight answered and informed the officers that the Defendant was not present. Detective Simonik asked permission to enter the unit in order to talk further, and Ms. Knight, who told the officers that she had shared the residence with the Defendant for approximately three weeks, agreed. As the detectives walked into the living room, they observed, in plain view, a glass smoking pipe and a knife containing white residue.

Shane Cathey, Ms. Knight’s teenage brother, had been staying at the condominium and was present when the detectives arrived. When questioned by Detective Fox, Cathey admitted that he had possession of Xanax, which had been supplied by the Defendant. Drugs were in his pocket. Ms. Knight called the Defendant on her mobile phone and allowed Detective Simo-nik to speak directly to him. After explaining the purpose of the investigation, Detective Simonik asked the Defendant, a licensed pharmacist, to return to the condominium. When the Defendant arrived shortly thereafter, the detective asked for permission to search. At that point, the Defendant asked for the opportunity to speak to an attorney, made several telephone calls, and then walked upstairs in hopes of finding an attorney who resided in one of the other condominium units. Ultimately, he declined consent to search. Detective Simonik left to acquire a search warrant, and the other officers secured the area until his return. Meanwhile, the Defendant was informed that he was free to leave the premises.

After a search warrant was obtained, the officers conducted a search of the unit at approximately 10:15 p.m. They discovered more illegal drugs, drug paraphernalia, pornographic images of children, and three pornographic compact discs. When Ms. Knight informed Detective Simonik that the Defendant had other drugs and a gun at his place of business, the officers applied for a search warrant at that location. The second warrant was issued at 2:59 a.m. on the following day. Two hours later, the officers found more illegal drugs, a gun, and a large number of pornographic images of children at the Defendant’s place of business. When arrested, the Defendant admitted to having used cocaine since the prior September and acknowledged that he had provided illegal drugs to some of his friends in exchange for money, explaining that he did not consider this to be “selling.” He- also asserted that he had downloaded the images the detectives found on his computer only out of curiosity.

Based upon the results of the investigation, the Defendant was indicted by a grand jury on six counts: (1) exploitation of a minor by possessing more than fifty images of child pornography; (2) sexual exploitation of a minor by possessing more than one-hundred images of child pornography; (3) possession of dihydrocodeinone with intent to sell or deliver; (4) possession of alprazolam with intent to sell or deliver; (5) possession of clonazepan with intent to sell or deliver; and (6) possession of diphenoxylate with intent to sell or deliver. See Tenn.Code Ann. §§ 39-17-1003 & -417 (2003).

The Defendant filed a motion to suppress all of the incriminating evidence acquired by the police, contending that the condominium search was illegal and arguing that the search of the business and any of his incriminatory statements were unattenuated products of the wrongful search. Charles Reasor, Jr., an attorney and homeowners association board member who owned a unit at Hedrick Place, testified for the Defendant at the hearing on the motion. When asked whether he considered the access code given to various nonresidents an “emergency code” for the police, he answered yes. When asked whether the police had been allowed “free rei[]n” into the building absent an emergency, Reasor answered, “No.” On further questioning, however, he conceded that the police “could have access, if they wanted to know the code” and that they had been there in non-emergency situations, such as for the preparation of an automobile accident report and a burglary investigation. Further, Reasor acknowledged that the code had “just been registered with the police department, just like it has with the postal service,” and the use of the code by the police was “at their discretion.”

After concluding from this testimony that the Defendant had a reasonable expectation of privacy in the hallway leading to his condominium unit door, an area “protected from warrantless entry,” and the officers had gained entry in order to conduct a “knock and talk,” see United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir.2000), the trial court observed that the motion to suppress would have been granted absent the intervening consent to search by Kimberly Knight. See State v. Cothran, 115 S.W.3d 513, 521 (Tenn.Crim.App.2003) (upholding a “knock and talk” as a proper investigatory technique in a consensual encounter). The trial court refused to rule out the evidence after finding that the consent by Ms. Knight, as a lawful occupant of the unit, was not causally linked to the illegal intrusion. In the interlocutory appeal, the Court of Criminal Appeals affirmed, but on different grounds, concluding that the Defendant had no reasonable expectation to privacy in the common areas of the condominium complex. State v. Talley, No. M2007-01905-CCA-R9-CD, 2009 WL 1910949, at *6 (Tenn.Crim.App. July 1, 2009). In anticipation of this Court’s further review, the Court of Criminal Appeals alternatively ruled that had the Defendant reasonably expected privacy in the hallway and had the initial entry, therefore, been unlawful, the State failed to establish that the consent by Ms. Knight was sufficiently removed from the illegality so as to permit the admission of the evidence acquired. Id. at *7.

This Court granted the application for permission to appeal in order to address whether the Defendant had a reasonable expectation of privacy in the commonly owned hallway of the condominium complex. If not, the motion to suppress was properly denied, and the alternative theories advanced by the State would not warrant consideration.

Standard of Review

The standard of review applicable to suppression issues is well-established. When the trial court makes findings of fact at the conclusion of a suppression hearing, the findings are binding upon this Court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). “Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id. “The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence.” Id. Our review of a trial court’s application of law to the facts, however, is de novo, with no presumption of correctness. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997)).

Applicable Law

Both the federal and state constitutions offer protection from unreasonable searches and seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any evidence discovered subject to suppression. See U.S. Const, amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”); Tenn. Const, art. I, § 7 (“That the people shall be secure in then-persons, houses, papers and possessions, from unreasonable searches and seizures .... ”). “[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn.1997) (“[A] warrantless search or seizure is presumed unreasonable.”). The Fourth Amendment and article I, section 7 of our constitution protect the curtilage, which is defined as any area adjacent to a residence in which an individual can reasonably expect privacy. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Intrusion within the curtilage, as an area of expected privacy, may be unlawful. State v. Prier, 725 S.W.2d 667, 671 (Tenn.1987). Exceptions to the warrant requirement include searches incident to arrest, plain view, exigent circumstances, and others, such as the consent to search. State v. Cox, 171 S.W.3d 174, 179 (Tenn.2005). Reasonableness is the “touchstone of the Fourth Amendment.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citing Katz, 389 U.S. at 360, 88 S.Ct. 507); see also Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); State v. Scarborough, 201 S.W.3d 607, 616 (Tenn.2006). These constitutional protections are designed to “ ‘safeguard the privacy and security of individuals against arbitrary invasions of government officials.’ ” State v. Keith, 978 S.W.2d 861, 865 (Tenn.1998) (quoting Camara v. Mun. Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)).

This Court has previously held that our state constitution offers more protection than the corresponding provisions of the Fourth Amendment. See, e.g., State v. Jacumin, 778 S.W.2d 430, 436 (Tenn.1989); State v. Lakin, 588 S.W.2d 544, 549 (Tenn.1979). As under the federal constitution, evidence obtained as a result of a warrant-less search or seizure “is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.” Yeargan, 958 S.W.2d at 629. The state, of course, “bears the burden of proof when a search or seizure is conducted without a warrant.” State v. Berrios, 235 S.W.3d 99, 105 (Tenn.2007) (citing Yeargan, 958 S.W.2d at 629).

Neither the Fourth Amendment nor article 1, section 7 of our constitution precludes governmental intrusion absent the reasonable expectation of privacy. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State v. Munn, 56 S.W.3d 486, 494 (Tenn.2001). In consequence, “an investigation by governmental authorities which is not a search as defined by the Supreme Court may be conducted without probable cause, reasonable suspicion or a search warrant.” State v. Bell, 832 S.W.2d 583, 589-90 (Tenn.Crim.App.1991). The “rights assured by the Fourth Amendment are personal rights, and ... they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.” Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The focus of the inquiry is “on the extent of a particular defendant’s rights under the [constitution], rather than on any theoretically separate, but invariably intertwined concept of standing.” Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

In the determination of whether a search or seizure meets constitutional standards, the first consideration, therefore, is whether the accused has a reasonable expectation of privacy. See Katz, 389 U.S. at 360, 88 S.Ct. 507 (Harlan, J., concurring). In Katz, a two-prong test was established: “(1) whether the individual had an actual, subjective expectation of privacy and (2) whether society is willing to view the individual’s subjective expectation of privacy as reasonable and justifiable under the circumstances.” Munn, 56 S.W.3d at 494 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). A defendant has the initial burden of establishing a legitimate expectation of privacy, and the failure to do so is dispositive in favor of the state. E.g., State v. Oody, 823 S.W.2d 554, 560 (Tenn.Crim.App.1991).

Analysis

In this instance, the Defendant argues that this Court should adopt a bright-line rule precluding the police from entering the locked common area of a privately owned condominium building, apartment complex, or similar multi-unit dwelling, and, therefore, overturn the ruling of the Court of Criminal Appeals. In response, the State asserts that the Defendant had no reasonable expectation of privacy in the interior hallways of the condominium complex, and, further, that the police had authority to enter based upon consent not only by virtue of their having been provided the entry code by the condominium ownership but also by permission of the individual who had held open the front entrance door for the detectives participating in the investigation.

Our decision in State v. Ross, 49 S.W.3d 833 (Tenn.2001), addresses the expectation of privacy issue in the context of the Fourth Amendment and article 1, section 7 of the Tennessee Constitution. In that case, this Court considered a challenge by the occupants of a motel to a warrantless search by the police and discussed at length the state’s contention that Ross, who, in response to questioning by the authorities at the scene, had disclaimed any interest in the motel unit, had no reasonable expectation of privacy. After observing that the federal and state constitutions afforded privacy protections to the resident of a hotel or motel room, this Court recognized a totality of the circumstances test, applying the seven factors developed in United States v. Haydel, 649 F.2d 1152 (5th Cir.1981), but also carved out an exception, holding that when a defendant disclaims any interest in the object of a governmental search, the expectation of privacy is lost. Ross, 49 S.W.3d at 840-42. Absent the disclaimer exception, this Court approved of the following factors:

(1) [whether the defendant owns the property seized]; (2) whether the defendant has a possessory interest in the thing seized; (3) whether the defendant has a possessory interest in the place searched; (4) whether he has the right to exclude others from that place; (5) whether he has exhibited a subjective expectation that the place would remain free from governmental invasion; (6) whether he took normal precautions to maintain his privacy; and (7) whether he was legitimately on the premises.

Id. at 841 (quoting Haydel, 649 F.2d at 1154-55). The Court of Criminal Appeals first used this test in State v. Turnbill, 640 S.W.2d 40, 46 (Tenn.Crim.App.1982), and has often resorted to the use of these factors when considering the legitimacy of a privacy claim. See, e.g., Oody, 823 S.W.2d at 560; State v. Woods, 806 S.W.2d 205, 208 (Tenn.Crim.App.1990).

In this instance, the Defendant, properly asserting that a condominium complex is analogous to an apartment building, specifically asks this court to follow the ruling in United States v. Carriger, 541 F.2d 545 (6th Cir.1976), a decision in which the United States Court of Appeals for the Sixth Circuit considered “whether a tenant in an apartment building has a reasonable expectation of privacy in the common areas ... not open to the general public.” Id. at 549. In Carriger, a federal agent gained entry to a locked interior corridor of an apartment building by preventing the door from closing as several workers exited the premises. Id. at 548. The Sixth Circuit fashioned a rule that when “an officer enters a locked [apartment] building, without authority or invitation, the evidence gained as a result of his presence in the common areas of the building must be suppressed.” Id. at 552. The rationale for the decision was that a tenant in a locked apartment building, much like the circumstances here involving a locked but shared condominium hallway, has an expectation that only other building residents or their, invited guests would have access to the common areas. Id. at 551; see also United States v. Heath, 259 F.3d 522, 534 (6th Cir.2001) (determining that evidence seized in the defendant’s apartment unit must be suppressed, even though a co-resident consented to the search, because of the expectation of privacy in a hallway with a locked entrance). Illinois, Louisiana, Michigan, and perhaps other state courts appear to concur in the rule established in the Sixth Circuit. See, e.g., People v. Trull, 64 Ill.App.3d 385, 20 Ill.Dec. 960, 380 N.E.2d 1169, 1173 (1978); State v. Di Bartolo, 276 So.2d 291, 294 (La.1973); People v. Killebrew, 76 Mich.App. 215, 256 N.W.2d 581, 583 (1977). Our research, however, establishes that the Sixth Circuit represents the minority view among the federal circuit courts of appeal that have addressed the issue.

In United States v. Eisler, 567 F.2d 814 (8th Cir.1977), the Eighth Circuit, only a year after the Carriger decision, concluded that the locks on the doors at the entrances of an apartment building were designed to provide security for the occupants, not for the common hallways. Because the hallways were commonly accessible by residents, their guests, and other individuals having a legitimate reason to be on the premises, the Eighth Circuit panel concluded that the tenant in the apartment building had no reasonable expectation of privacy in that area. Id. at 816. Our review of the more recent cases confirms that among the federal courts of appeal, the Sixth Circuit stands alone in recognizing a reasonable expectation of privacy in the common areas of a locked apartment building. To illustrate, in United States v. Holland, 755 F.2d 253 (2d Cir.1985), the Second Circuit followed the rule established in Eisler. Thereafter, the Seventh Circuit, United States v. Concepcion, 942 F.2d 1170, 1171-72 (7th Cir.1991), and the Ninth Circuit, United States v. Nohara, 8 F.3d 1289, 1241-42 (9th Cir.1993), followed suit. A number of other states have since adopted what now appears to be the majority position among the states which have considered the question. See, e.g., People v. Lyles, 332 Ill.App.3d 1, 265 Ill.Dec. 591, 772 N.E.2d 962, 966 (2002); Commonwealth v. Dora, 57 Mass.App.Ct. 141, 781 N.E.2d 62, 67 (2003); State v. Davis, 711 N.W.2d 841, 845 (Minn.Ct.App.2006); Commonwealth v. Reed, 851 A.2d 958, 962 (Pa.Super.Ct.2004).

In the case before us, Judge Norma M. Ogle, writing for the Court of Criminal Appeals, observed that access to the hallways of a condominium complex or an apartment building by those other than tenants would not necessarily negate a reasonable expectation of privacy, thereby rejecting the Sixth Circuit bright-line rule that a resident always has a reasonable expectation of privacy in a secured common area:

The determination as to whether a tenant has a reasonable expectation in the common areas of a locked apartment building is a fact-driven issue. In the instant case, [condominium board member] Charles Reasor testified that owners could give their guests the access code to get into the building and that various nonresidents such as delivery and cleaning people used the code. See State v. Breuer, 577 N.W.2d 41, 46-47 (Iowa 1998) (noting as one factor in its conclusion that the defendant had a reasonable expectation of privacy in the stairway of his locked apartment building was that guests usually waited at building door after ringing doorbell). Furthermore, twenty-one condominiums were in the building. Given the numerous third parties that had unescorted access to the building’s common areas, we conclude that the [defendant] in this case did not have an actual, subjective expectation of privacy in those areas.

Talley, 2009 WL 1910949, at *6 (citation omitted).

The trial court specifically found that the police dispatcher had the code number required for entry, but that while the detectives were waiting for the information to be passed along by the dispatcher, “a man leaving the condominium held the door open for the detectives to enter.” Because the individual' who opened the door for the officers to enter was not identified, the trial court refused to classify the entry as properly authorized by a resident.

In our view, the State’s failure to identify who opened the door is not dispositive on the expectation of privacy issue, but would qualify as a fact to be taken into consideration under the analysis established in Ross. The decision in United States v. Miravalles, 280 F.3d 1328, 1331-32 (11th Cir.2002), is instructive. The Eleventh Circuit Court of Appeals, while addressing the expectation of privacy question in the common areas of an apartment building, also chose to deviate from the Sixth Circuit rule, adopting instead the majority position within the federal circuit courts of appeal while considering a variety of factors in its analysis:

Five of the six circuits that have decided the issue have concluded that tenants do not have a reasonable expectation of privacy in the common areas of their apartment building. Of those five decisions, four necessarily suggest that it does not matter whether the door to the apartment building is locked or unlocked at the time law enforcement officers arrive, because in each of those cases the door was locked.
The five circuits holding that there is no reasonable expectation of privacy in the common areas of an apartment building reason that tenants have little control over those areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like. The reasonableness of a tenant’s privacy expectation in the common areas of a multi-unit apartment building stands in contrast to that of a homeowner regarding the home and its surrounding area, over which the homeowner exercises greater control. The more units in the .apartment building, the larger the number of tenants and visitors, workers, delivery people, and others who will have regular access to the common areas, and the less reasonable any expectation of privacy. Whether the door to the building is locked is another relevant consideration.

Id. at 1331-32 (emphasis added) (citations omitted).

Having considered our 2001 holding in Ross and the developments in the federal courts of appeal since the Sixth Circuit decision in Carriger, we reject any bright-line rule and maintain our view that the totality of the circumstances test is best-suited for determining the reasonableness of an expectation of privacy. Application of these factors to the circumstances existing at Hedrick Place favors the State. Although the Defendant had a l/21st ownership interest in the common areas of the building and the front entrance was locked at all times, each of the residents, according to Reasor, had the right to permit entry without restrictions. Neither the Defendant nor any other resident could unilaterally exclude others rightfully within the hallway. While the Defendant was entitled to privacy in his condominium unit, there is no evidence that he exhibited a subjective expectation that the common areas, and particularly the hallways, would be free from intermittent access by the police. To the contrary, the record establishes that the condominium residents had collectively provided not only the police department but also several others with the entry code for use in the ordinary course of their duties. Police access was “discretionary” and not always limited to emergencies. Moreover, there is no evidence that the Defendant had taken any precautions to maintain his privacy in the common areas of the building. The totality of these circumstances establish that the Defendant could not have had a reasonable expectation of privacy in the interior hallway between the condominium entrance and the door to his particular unit.

There being no illegality in the initial entry into the condominium building, it follows that the consent to enter the unit given by the Defendant’s girlfriend, Ms. Knight, who shared his residence, is valid. In United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court held that consent to a warrantless search by one who possesses common authority over the premises or effect is valid as against an absent, non-consenting person with whom that authority is shared. Common authority is defined as the “mutual use of the property by persons generally having joint access or control ... so that it is reasonable to recognize that any of the co-habi-tants has the right to permit [an] inspection ... and that the others have assumed the risk....” Id. at 171, n. 7; see also State v. Bartram, 925 S.W.2d 227, 231 (Tenn.1996) (holding that even an “angry wife” may consent to search as one with “common authority” over premises, and that such consent is valid against the opposing wishes of an absent, non-consenting husband with whom that authority is shared). Further, neither the search warrants nor the incriminatory statements by the Defendant are tainted by the conduct of the police; therefore, the “fruit of the poisonous tree doctrine” does not apply. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Conclusion

Because the Defendant did not have a reasonable expectation of privacy in the commonly shared, interior hallway of a condominium complex that ran from the front entrance to his unit’s doorway, the motion to suppress was properly denied. The judgment of the Court of Criminal Appeals, which upheld the trial court’s refusal to grant relief, is affirmed. Costs are assessed against the Defendant, William Glenn Talley, for which execution may issue if necessary.

      . Detective Simonik acknowledged that the caller actually provided his or her identity but had requested confidentiality.

      . In the course of their investigation at the condominium, the police seized the following items: a folding knife with white residue; a white cup with residue; a glass vial with copper mesh; a glass vial with residue; a glass pipe with dark residue; three straws with white residue; four plastic bags with white residue; a mirror with white residue; another marijuana pipe; two sets of digital scales; a bag containing plastic baggies; a plastic cocaine sniffer; a black and silver pipe; a set of glass pipes with residue; a metal grinder for marijuana; two plastic bags of marijuana; two bags of Xanax; a pill bottle of Hydrocodone; various pill bottles containing 1,928 Xanax pills, 115 Mersyndol pills, 1,198 Lomotil pills, and nine Klonopin pills; a Dell notebook computer containing images of child pornography; three pornographic compact discs; and several other compact discs. Child pornography was also found in the Defendant’s briefcase.

      . In contrast, a walkway leading from a public sidewalk or street to the front door of the residence “represents an implied invitation to the general public to use the walkway for purpose of pursuing legitimate social or business interests” and is not protected by the Fourth Amendment or article 1, section 7 of the Tennessee Constitution. State v. Harris, 919 S.W.2d 619, 623-24 (Tenn.Crim.App. 1995).

      . As a general rule, unlocked or unsecured common areas of apartment buildings do not qualify for any reasonable expectation of privacy. State v. Taylor, 763 S.W.2d 756, 760 (Tenn.Crim.App.1988); see also United States v. Luschen, 614 F.2d 1164, 1173 (8th Cir. 1980). If the hallway of a multi-unit dwelling is readily accessible to the general public, police may enter. State v. Crider, 341 A.2d 1, 4 (Me.1975); see also United States v. Acosta, 965 F.2d 1248, 1253-54 (3d Cir.1992).

      . The trial court implicitly ruled that the consent by Ms. Knight was sufficiently attenuated from the illegal entry at the front door of the condominium building. In order to determine whether the causal connection between an unlawful search and seizure and a consent to search has been broken, a court should consider the following three factors set forth by the United States Supreme Court in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975): "1) the temporal proximity of the illegal seizure and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct.” State v. Garcia, 123 S.W.3d 335, 346 (Tenn.2003). The question of attenuation is subject to de novo review. State v. Ford, 30 S.W.3d 378, 380 (Tenn.Crim.App.2000). The state carries the initial burden of establishing sufficient attenuation. Brown, 422 U.S. at 604, 95 S.Ct. 2254.
      Because only thirty seconds to two minutes passed between the detectives’ entry through the front door of the building and the knock at the Defendant’s second floor unit, the first factor was held by the Court of Criminal Appeals to have weighed against attenuation. Because there were no compelling intervening circumstances, the second factor weighed in favor of the Defendant. Because the officer initially described the informant as anonymous and later revealed that he knew the identity, the Defendant was not present, and Ms. Knight was not a suspect, the third factor was also deemed favorable for the Defendant. Thus, had the intrusion in the first instance been unlawful, the Court of Criminal Appeals would have found no basis for the application of the doctrine of attenuation. Talley, 2009 WL 1910949, at *7.

      . The Court of Criminal Appeals considered the number of residences in the condominium as a factor in the analysis of expectation of privacy, suggesting that the greater the number of residents, the lesser the expectation of privacy. In United States v. King, 227 F.3d 732, 749-50 (6th Cir.2000), the Sixth Circuit Court of Appeals recognized that principle, holding that the nature of the living arrangements in a duplex afforded a greater expectation of privacy in common areas than that which a resident of a multi-unit apartment building might enjoy.


author: FRANK G. CLEMENT, JR., J.,

text:
    Ronald TIMMONS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    April 14, 2009 Session.
    June 15, 2009.
    Permission to Appeal Denied by Supreme Court Jan. 25, 2010

      Sue B. Cain, Kevin C. Klein, and Andrew D. McClanahan, Nashville, Tennessee, for the appellant, The Metropolitan Government of Nashville and Davidson County.
    Steve North and Mark North, Madison, Tennessee, for the appellee, Ronald Tim-mons.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which PATRICIA J. COTTRELL, P.J., M.S., and ANDY D. BENNETT, J., joined.

Plaintiff filed this Governmental Tort Liability Act action against the Metropolitan Government of Nashville and Davidson County for injuries sustained during his arrest for driving under the influence following a vehicular accident. Plaintiff contends the police officers who arrested him were negligent in failing to recognize that he was not intoxicated but in diabetic shock, in failing to recognize that he could be restrained and handcuffed while standing, instead of in the prone position, and that he sustained a spiral, comminuted fracture of the humerus while an officer was pulling his right arm behind his back in an effort to cuff his hands. Following a bench trial, the trial court found the officers were negligent in the manner in which they assessed the threat posed by Plaintiff and were negligent in the decision to handcuff him in the prone position, which caused his injuries. The trial court, therefore, held the Metropolitan Government liable for the officers’ negligence, assessed 100% of the fault to the officers, and awarded Plaintiff $140,000 in damages. On appeal, the Metropolitan Government insists it is immune from liability because the officers’ actions were not the result of negligence but, it contends, the officers’ consciously and volitionally used an excessive amount of force that constituted the intentional tort of battery. Alternatively, the Government contends, if it is liable under a negligence theory, the trial court erred by apportioning no fault to Plaintiff. We have determined the evidence does not preponderate against the trial court’s findings that Plaintiff’s injuries resulted from the officers’ negligent acts and omissions, that the Metropolitan Government is liable for the officers’ negligence, that Plaintiff was not contributorily negligent, and that Plaintiff is entitled to recover damages in the amount of $140,000. Accordingly, we affirm the trial court in all respects.

This action arises from the events that occurred on the evening of March 6, 2004, after Plaintiff, Ronald Timmons, had eaten dinner at his sister’s residence. After dinner, at approximately 7:00 p.m., he started driving to his home, which was approximately four miles from her house. While driving, Mr. Timmons, a Type I diabetic, began to experience the symptoms of insulin shock. In an effort to regulate his blood sugar, Mr. Timmons stopped at a convenience store to buy a candy bar, which he ate, and then waited at the store fifteen minutes for the symptoms to subside. When the symptoms began to subside, Mr. Timmons resumed his drive home; however, shortly thereafter, he again experienced the symptoms of insulin shock. Believing he could drive home safely, Mr. Timmons continued his drive toward his home, but he never made it. While driving on Dickerson Pike, Mr. Tim-mons “blacked out” and began driving down the wrong side of the road, causing motorists to make 911 calls to inform the police. Before the police could respond, Mr. Timmons was involved in an accident; the property damage to both vehicles was minor and no one sustained injuries in the collision.

Metropolitan Police Officer Corey Wilson was the first officer to arrive at the scene. When Officer Wilson arrived, he found Mr. Timmons sitting in the driver’s seat clutching the steering wheel with both hands; Mr. Timmons’ frame was rigid, he was completely unresponsive to Officer Wilson’s inquiries, and Mr. Timmons’ eyes appeared red and watery. Based upon these observations and Mr. Timmons’ non-responsiveness, Officer Wilson believed Mr. Timmons was intoxicated. Because Mr. Timmons would not respond or cooperate, Officer Wilson called for the assistance of additional officers. When the second officer, Officer Thornton, arrived at the scene, he did not realize Officer Wilson was already at the scene. As a consequence, Officer Thornton approached the vehicle and ordered Mr. Timmons to get out of the vehicle. As before, Mr. Tim-mons did not respond to Officer Thornton, nor comply with any of his instructions. Officer Thornton then attempted, unsuccessfully, to pull Mr. Timmons out of the vehicle. Within a few minutes, fifteen police vehicles, an ambulance, and a fire truck arrived at the scene.

In the interim, and despite Officer Thornton’s repeated efforts, Mr. Timmons remained in the driver’s seat, rigid, unresponsive, and vigorously clutching the steering wheel with both his hands. When Officer Jacob Pilarski arrived, he entered the vehicle on the passenger side in an attempt to push Mr. Timmons toward Officer Thornton, as Officer Thornton attempted to pull Mr. Timmons out of the vehicle on the driver’s side using a technique called “soft empty hand control.” As Officer Thornton pulled Mr. Timmons’ hands from the steering wheel in an attempt to pull him from the vehicle, Mr. Timmons, in what the trial court found was a reflexive action, immediately pulled his hands back in the vehicle. Finally, Officer Thornton succeeded in pulling Mr. Tim-mons from the vehicle. At the moment Mr. Timmons was removed from the vehicle, Officer Pilarski immediately went to the driver’s side of the vehicle, grabbed Mr. Timmons from Officer Thornton’s grasp, and with the help of an unidentified officer, placed Mr. Timmons face down on the ground in what is known as the “prone position.”

With Mr. Timmons face down in the prone position, Officer Pilarski straddled Mr. Timmons in order to handcuff him. Officer Pilarski pulled Mr. Timmons’ left arm behind him and placed a handcuff on his wrist. As Officer Pilarski unsuccessfully attempted to place a handcuff on Mr. Timmons’ right wrist, he believed Mr. Timmons was resisting arrest because Mr. Timmons’ right arm was rigid underneath Mr. Timmons’ body, and Mr. Timmons was not cooperating. After a few failed attempts to remove Mr. Timmons’ right arm from underneath Mr. Timmons’ body, Officer Pilarski requested assistance from Officer Wilson, who was 6 feet 7 inches tall and weighed 220 pounds. While other officers were assisting in securing Mr. Tim-mons’ legs, which “flopped and flailed” about, Officer Wilson pulled Mr. Timmons’ right arm from underneath Mr. Timmons’ body, and as he was attempting to place the right hand behind Mr. Timmons’ back, Mr. Timmons sustained a “spiral, commi-nuted fracture” of his right humerus. None of the officers realized that Mr. Tim-mons was injured and they proceeded to place the handcuffs on Mr. Timmons’ right wrist and then placed Mr. Timmons in the back of a police car for transport to jail. While Mr. Timmons was in the police car at the scene, paramedics examined him to see if he had sustained injuries during the vehicular accident. It was during this examination that the paramedics determined that Mr. Timmons was in shock and that he had sustained an injury to his right arm, whereupon Mr. Timmons was transported to receive medical care.

On January 14, 2005, Mr. Timmons filed this action against the Metropolitan Government alleging that the Metropolitan Government’s employees, the police officers, were negligent in failing to recognize that he was in diabetic shock and were negligent in using force against a “helpless and unconscious man.” Following discovery, the Metropolitan Government filed for summary judgment, which the trial court granted. Mr.' Timmons appealed that judgment and this Court determined that there was a genuine dispute concerning material facts regarding whether the police officers acted reasonably under the circumstances; this Court reversed the grant of summary judgment and remanded the matter for trial. See Timmons v. Metropolitan Government of Nashville, No. M2006-01828-COA-R3-CV, 2007 WL 2405132 (Tenn.Ct.App. Aug. 23, 2007).

On remand, a bench trial was held over a period of three days, following which the trial court determined that Mr. Timmons’ injuries were the result of the officers’ negligent acts and omissions, for which the Metropolitan Government was liable, and awarded a judgment in favor of Mr. Tim-mons in the amount of $140,000, plus $2,722.65 in discretionary costs. The trial court’s findings were set forth pursuant to Tenn. R. Civ. P. 52.01 in a detailed Memorandum Opinion dated June 23, 2008. In pertinent part, the trial court found that the force employed by Officer Wilson, who pulled Mr. Timmons’ right arm from underneath his body, was not excessive force, that the force used to handcuff Mr. Timmons was the result of another officer’s negligent decision to place him in the prone position, and that the injuries sustained by Mr. Timmons were the result of the negligent decision to place Mr. Tim-mons in the prone position which necessitated the use of the more risky “prone handcuffing” technique. The trial court also found that Mr. Timmons was not eon-tributorily negligent because he was incapacitated due to insulin shock, that Mr. Timmons was essentially unconscious and unable to comprehend the officers’ questions or to voluntarily communicate, and that Mr. Timmons was not being combative or actively resisting the officers. Following the entry of a judgment in accordance with the foregoing findings, the Metropolitan Government filed this appeal.

Analysis

On appeal, the Metropolitan Government argues that the trial court erred in holding it responsible under a negligence theory because, it contends, its employees, the police officers, acted consciously and volitionally when they used an unreasonable amount of force which constituted the intentional tort of battery for which the Metropolitan Government retains immunity under the Governmental Tort Liability Act. The Metropolitan Government also argues that the trial court erred in assigning no portion of fault to Mr. Timmons for his injuries based upon his conscious decision to continue driving when he felt the onset of insulin shock and for his resistance to the police officers’ attempts to remove him from his vehicle.

Standard of Review

The standard of review of a trial court’s findings of fact is de novo and we presume that the findings of fact are correct unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001). For the evidence to preponderate against a trial court’s finding of fact, it must support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App.2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct.App.1999). Where the trial court does not make findings of fact, there is no presumption of correctness and we “must conduct our own independent review of the record to determine where the preponderance of the evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999). We also give great weight to a trial court’s determinations of credibility of witnesses. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997); B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App. 2000). Issues of law are reviewed de novo with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).

The Governmental Tort Liability Act

The Tennessee Governmental Tort Liability Act (the Act) codifies the general common law rule that “ ‘all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities,’ Tenn.Code Ann. § 29-20-201(a), subject to statutory exceptions in the Act’s provisions.” Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79 (Tenn.2001). But for certain enumerated exceptions, Tenn.Code Ann. § 29-20-205 of the Act provides a general waiver of immunity from suit for personal injury claims for injuries proximately caused by a negligent act or omission of an employee acting within the scope of his employment. Id. One of the enumerated exceptions is the intentional tort exception, which includes the intentional tort of battery. Id. Accordingly, the Metropolitan Government may be held liable for the actions of its police officers if the acts or omissions of the officers caused injury to Mr. Timmons while the officers were acting within the scope of their employment. See id. Conversely, the Metropolitan Government is immune from liability, and cannot be held liable for injuries sustained by Mr. Tim-mons if the injuries were the result of the intentional tort of battery by the officers. See id.

Mr. Timmons’ Claim of Negligence

Mr. Timmons’ negligence claim centers on what he contends were the negligent acts and omissions of two police officers: Officer Pilarski who made the decision to place Mr. Timmons on the ground in the prone position, which necessitated that he be handcuffed pursuant to the prone cuffing technique, and Officer Wilson who was attempting to place the handcuff on Mr. Timmons’ right wrist when the humerus in his right arm fractured.

A negligence cause of action has five essential elements: (1) a legally recognized duty owed by the defendant to the plaintiff, (2) the defendant’s breach of that duty, (3) an injury or loss, (4) causation in fact, and (5) legal cause. Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn.2005); Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn.2005); Foster v. Bue, 749 S.W.2d 736, 741 (Tenn.1988).

The first element of duty is “the legal obligation owed by defendant to plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995). “[T]he existence or nonexistence of a duty owed to plaintiff is entirely a question of law for the Court.” Carson v. Headrick, 900 S.W.2d 685, 690 (Tenn.1995). It is undisputed that the police officers had a duty to abide by the applicable policies and procedures of the Metropolitan Police Department as they attempted to arrest and handcuff Mr. Timmons.

The 2001 Lesson Plan for the Metropolitan Nashville Police Department Training Division was introduced as evidence of the Department’s applicable policies and procedures. In the section entitled “Defensive Tactics: Removing/Placing Subjects:Vehicle,” the Plan instructs officers “to remove a resisting, drunken subject from a vehicle” and handcuff them by placing the subject’s chest against the vehicle for support. This technique is to be employed if the subject being arrested is not believed to be a high risk to the arresting officers or others. Alternatively, the Defensive Tactics section instructs that it is appropriate for officers to employ the “prone cuffing” technique — where the sub-jeet is placed on the ground face down— when “the subject being arrested is thoughft] to be a high risk to officers or others.” (emphasis added). There are four instances when the “prone position” is considered appropriate: when the subject is a violent felon, is armed, has a history of resisting arrest, or actively resists arrest. The section also instructs that the “crime or danger must be serious enough to warrant placing the subject on the ground.” Mr. Timmons was not a violent felon, he was not armed, and he did not have a history of resisting arrest. Accordingly, we find, as a matter of law, that the police officers had a duty to evaluate whether Mr. Timmons was actively resisting arrest before deciding to employ the prone handcuffing technique.

With that determination, the question is whether the officers failed to exercise reasonable care under the circumstances in making the decision to employ the prone handcuffing technique. See McCall, 913 S.W.2d at 153 (quoting W. Keeton, Prosser and Keeton on the Law of Torts, § 356 (5th ed. 1984)) (holding that what a defendant, or its employees acting in the scope of their employment, must do, or must not do, “is a question of the standard of conduct required to satisfy the duty”). The standard of conduct is the “standard of reasonable care in light of the apparent risk.” Id. (citing Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn.1994) (“As in all eases, there is a duty to exercise reasonable care under the circumstances.”); Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn.1993) (“All persons have a duty to use reasonable care to refrain from conduct that will foreseeably cause injury to others.”); Prosser and Keeton, § 356). Defendants who do not exercise reasonable care breach their duty. Id. at 153-54 (citing Doe v. Linder Const. Co., Inc., 845 S.W.2d 173, 178 (Tenn.1992)).

As the Department’s policies instruct, the only policy justification for the use of the prone handcuffing technique would be that the officers reasonably thought Mr. Timmons was “actively resisting” their attempts to place him under arrest for driving under the influence. While the officers were attempting to extract Mr. Timmons from his vehicle, which took a great deal of effort by two officers, most of the officers believed that Mr. Timmons was passively resisting arrest, meaning they did not believe that he was “actively” resisting arrest. Officer Pilarski, however, believed Mr. Timmons was actively resisting arrest. These differing opinions are evident by the reports made by officers following the arrest. The Police Department’s “Use of Force” form, commonly referred to as “Form 108,” was completed by three of the officers and filed with the Department following this unfortunate incident. The Use of Force form is to be completed following any incident in which officers use force. The form provides boxes for the officers to check to indicate the subject’s level of resistance. Two of the officers reported that Mr. Timmons was passively resisting arrest. Officer Pilarski checked two boxes, indicating that he believed Mr. Timmons exhibited both passive resistance and active resistance. Officer Thornton, the one who extracted Mr. Timmons from the vehicle, additionally testified at trial that he did not believe Mr. Timmons was actively resisting.

The trial court made the express factual finding that Mr. Timmons did not actively resist arrest. The record fully supports the trial court’s finding that Mr. Timmons was not intending to resist arrest; he was simply suffering from the effects of insulin shock and was unaware of his actions or the officers’ instructions. The record also supports the trial court’s finding that Mr. Timmons was not “actively resisting” the officers; instead he was merely exhibiting “reflexive reactions” by rigidly sitting in his car, resisting the officers’ repeated efforts to remove him from the car, and “pulling his arms” toward his body as they removed his hands from the steering wheel, which he was firmly grasping. Accordingly, we affirm the trial court’s conclusion that Officer Pilarski negligently evaluated the resistance and threat posed by Mr. Timmons, which led to the erroneous conclusion that Mr. Tim-mons was actively resisting arrest and the decision to place Mr. Timmons on the ground, thereby necessitating the use of the prone handcuffing technique.

A defendant’s negligent conduct is the cause in fact of the plaintiff’s injury “if, as a factual matter, it directly contributed to the plaintiffs injury and without it plaintiffs injury would not have occurred.” T.P.I.-Civil 3.21 (8th ed. 2008) (citing Hale v. Ostrow, 166 S.W.3d 713, 718-19 (Tenn.2005)). An actor’s conduct is the legal cause of a person’s injury if the actor’s conduct was “a substantial factor in bringing about the harm,” and if there is no “legal rule or policy that would operate to relieve the actor from liability.” Lowery v. Franks, No. 02A01-9612-CV-00304, 1997 WL 566114, at *5 (Tenn.Ct.App. Sept. 10, 1997) (citing McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991)). Additionally, the harm that occurred must have been reasonably foreseeable by a person of ordinary intelligence and prudence. Id. (citing McClenahan, 806 S.W.2d at 775).

We find Officer Pilarski’s negligent evaluation of the type of resistance and the threat Mr. Timmons posed to the officers significant because testimony presented at trial reveals the importance of evaluating subjects to determine whether they were intoxicated or suffering from a medical ailment. That testimony also revealed the significantly greater risks associated with the prone handcuffing technique, meaning the risks of injury to the subject being handcuffed in the prone position as opposed to the standing position. Based on the evidence in the record, we affirm the trial court’s finding that the use of the prone handcuffing technique posed additional risks of injury to Mr. Timmons and that injury from the use of the prone handcuffing technique was foreseeable.

The decision to place Mr. Timmons on the ground and handcuff him in the prone position was also a substantial factor in bringing about the injuries he sustained. When the decision was made to place Mr. Timmons on the ground, this led to his right arm being beneath his body, which led to Officer Wilson having to exert more force to pull Mr. Timmons’ right arm behind his back, which is when the fracture to the right arm occurred. The record reveals that it was reasonably foreseeable that Mr. Timmons might be injured by being handcuffed in the prone position, and it is undisputed that Mr. Timmons suffered a “spiral, comminuted fracture” as the prone handcuffing technique was being employed. Therefore, the negligent decision that necessitated that Mr. Timmons be handcuffed in the prone position was both the cause-in-fact and the legal cause of his injuries.

We acknowledge the vigorous argument presented by the Metropolitan Government that the actions by the police officers constituted the intentional tort of battery, not a negligent act. This argument is principally based on the decision in City of Mason v. Banks, 581 S.W.2d 621 (Tenn.1979). In Banks, the Court addressed whether a municipal corporation was required to indemnify an employee of the police department against whom judgment was recovered from conduct occurring within the scope of the officer’s employment. Id. at 622. The dispositive “factual issue” in Banks was whether the officer “engaged in willful wrongdoing,” or “whether he was justified, although negligent, in using force that ultimately blinded respondent in his left eye.” Id. at 623. We find the facts of this case are distinguishable from those in Banks, and therefore, Banks is not controlling.

There are two key distinctions between Banks and this case. In Banks, the officer used a “blackjack” to subdue the subject, who was attempting to escape from the police car where he had been placed following his arrest. Id. The Banks Court commented:

It is clear from the record that [the officer] intended to hit respondent in the head with his blackjack; it was his voluntary and conscious act. He was privileged to use only that force necessary to effect the arrest and was liable for the amount of the force that was excessive. See Restatement (Second) of Torts §§ 71, 138. Hence [the officer] was liable for the damages caused by his excessive and unprivileged use of force under the intentional tort of battery.

Id. at 626 (emphasis added). The officer’s actions in Banks were found to be “willful” and “excessive.” Id. Here, the trial court found that Mr. Timmons’ injuries were the result of the officer’s negligent evaluation of the extent of Mr. Timmons’ resistance to being arrested. As a result of the negligent assessment of the extent of Mr. Timmons’ resistance, the officers followed a Department policy which authorized handcuffing the subject in the prone position. Mr. Timmons’ injuries flowed from the negligent assessment concerning his resistance to being arrested, not from an intentional decision to use excessive force. Furthermore, the trial court in Banks made the factual determination that the police officer used “excessive force in effecting the arrest” and, therefore, the municipality was not liable. Id. at 626. Here, the trial court made the opposite finding, holding that the injuries were the result of the officers’ negligence and that the officers did not use “excessive force.” As a consequence, to prevail on this issue the Metropolitan Government must establish that the evidence preponderates against the trial court’s finding that the officer’s were negligent and that the force used was “excessive.” We have determined the evidence does not preponderate against the trial court’s findings.

Based on the foregoing, Mr. Timmons has successfully established each of the essential elements of a negligence claim against the Metropolitan Government, and the Metropolitan Government has failed to establish that the evidence preponderates against the findings that the officers’ actions constituted negligence and that they did not intentionally use excessive force.

Comparative Fault

We now consider the contention that the trial court erred by finding that Mr. Timmons was not comparatively negligent. The Metropolitan Government argues that Mr. Timmons was comparatively negligent in two ways. One, Mr. Timmons was negligent when he continued driving despite feeling the onset of an episode of insulin shock. Two, Mr. Timmons was negligent by resisting the officers’ attempts to remove him from his car and handcuff him.

Pursuant to the comparative fault doctrine, the court may compare the fault of the tortfeasor to the fault of the plaintiff. Lewis v. State, 73 S.W.3d 88, 94 (Tenn.Ct.App.2001). “If the plaintiffs own negligence is less [than the tortfeasor’s fault], [the plaintiff] may recover, but the damages he can collect are reduced in proportion to the percentage of the total negligence that can be attributed to [the plaintiff].” Id. The degree of fault of each party in producing the injury is a circumstance for the finder of fact to consider and determine. Id. at 94-95 (quoting Prince v. St. Thomas Hospital, 945 S.W.2d 731 at 736 (Tenn.Ct.App.1996)). The apportionment of fault by the trier of fact is entitled to a presumption of correctness on appeal. Id. at 95.

The trial court found that “the decision by Mr. Timmons to continue driving had nothing to do with the negligence of the officers in deciding to throw him on the ground and use the prone handcuffing technique.” The trial court further found that a conscious decision was required to be comparatively at fault, and as Mr. Tim-mons was suffering from the effects of insulin shock and “essentially unconscious,” no fault could be attributed to him. Based upon these and other findings, the trial court apportioned 100% of the fault against the police officers, and thus against their employer, the Metropolitan Government.

The Metropolitan Government asserts that Mr. Timmons is comparatively at fault due to his decision to continue driving despite experiencing the symptoms of insulin shock. We believe the facts of this case are analogous to that in the matter of Mercer v. Vanderbilt, 134 S.W.3d 121, 125 (Tenn.2004). Mercer was a medical malpractice case wherein a patient’s negligence was the cause of injuries and the need for medical attention at Vanderbilt Hospital, where he was taken following the accident. Id. The patient was injured in a vehicle accident of his own fault, a result of his driving while under the influence of alcohol. The patient suffered severe brain damage while being treated at the hospital, which was due to the negligence of hospital personnel who deprived him of oxygen. Id. at 126. In its assessment of the fault of the hospital versus that of the patient, the court noted that patients, even those who negligently injure themselves, are entitled to subsequent non-negligent medical treatment. Id. (quoting Fritts v. McKinne, 934 P.2d 371, 374 (Okla.Civ.App.1996) (quoting Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991)). The court went on to state that such a patient was also entitled to “an undiminished recovery if such subsequent non-negligent treatment is not afforded.” Id. (quoting Fritts, 934 P.2d at 374) (quoting Martin, 409 S.E.2d at 877)). Upon that reasoning, the Mercer court held that “a patient’s negligent conduct that occurs prior to a health care provider’s negligent treatment and provides only the occasion for the health care provider’s subsequent negligence may not be compared to the negligence of the health care provider.” Mercer, 134 S.W.3d at 130.

In this case, Mr. Timmons was suffering the effects of insulin shock. Although insulin shock was the cause of the wreck and the reason for the police officers to come to the scene, Mr. Timmons’ medical condition, and his acts and omissions while essentially unconscious, cannot constitute acts of negligence. When the police arrived, and at all times material thereafter, Mr. Timmons was not conscious, and due to his medical condition he was not aware of his actions. We, therefore, find that the evidence does not preponderate against the trial court’s finding that Mr. Timmons was not at fault as it pertained to the injuries he suffered while being handcuffed in the prone position.

In Conclusion

The judgment of the trial court is affirmed in all respects, and this matter is remanded with costs of appeal assessed against the Metropolitan Government of Nashville and Davidson County.

      . "Insulin shock” is a medical condition where the body reacts to excessively large amounts of insulin in the bloodstream producing an abnormal fall in the person’s level of blood sugar. Symptoms include nervousness, trembling, sweating, and paleness.

      . Officer Pilarski’s and Officer Thornton’s testimony differed in some respects at trial. Officer Thornton stated that it was Officer Pilar-ski who took Mr. Timmons to the ground. Officer Pilarski testified that it was not him and that he was unaware who had taken Mr. Timmons to the ground, and that Mr. Tim-mons was already on the ground when he reached the driver’s side of the vehicle. The trial court found Officer Thornton’s version of events to be more credible, a decision which is entitled to great weight on appeal. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997); B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App.2000).

      . This was a modification of the court’s ruling from the bench.

      . In Banks, the underlying action from which the suit to indemnify arose was a 42 U.S.C. § 1983 action. Banks, 581 S.W.2d at 626. Notably, while "isolated incidents of negligence” are not cognizable under § 1983, excessive force actions when a "policeman's conduct was conscious, volitional, and purposeful” have been held actionable under § 1983. Id. at 626-27.