Defendant was indicted for a marijuana grow operation in 2005. The search was not suppressed for a warrant time error, but it was reversed on appeal in 2009 because Tennessee finds that not a mere technical violation. In 2011 the legislature adopted “Exclusionary Rule Reform Act” to adopt the good faith exception, and defendant was reindicted. The state argued the statute was retroactive and validated the 2005 search, and the trial court did not agree. The state appealed, and the Court of Criminal Appeals found the statute not retroactive. State v. Hayes, 2013 Tenn. Crim. App. LEXIS 576 (July 1, 2013):
After remand, on April 15, 2011, the Davidson County Grand Jury indicted the Defendant on six drug related charges, three of which were identical to his previous indictments. These charges stemmed from the same search we had previously found invalid.
On May 23, 2011, the Governor signed into law the “Exclusionary Rule Reform Act.” The act, codified at Tennessee Code Annotated section 46-1-108, provides:
Notwithstanding any law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part or any violation of the Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c).
T.C.A. § 40-6-108(a) (2012). The Act specifies that is “shall take effect July 1, 2011.” 2011 Tenn. Pub. Acts ch. 252 § 2.
. . .
II. Analysis
On appeal, the State contends that the “Exclusionary Rule Reform Act” (“the Act”) should apply retroactively to the Defendant’s case, arguing that the Act is procedural and poses no ex post facto concern. The Defendant disagrees, contending that the trial court correctly found that because the legislature had not indicated an intention for the amendment to apply retroactively, the amendment should not be applied to his case. The Defendant also argues that retroactive application of the Act would violate constitutional protections against ex post facto laws. We agree with the Defendant on both arguments.
We conclude that the Act cannot be applied to the Defendant’s case for several reasons. First, the Act does not contain any indication by the Legislature that it should be applied retroactively. Second, in our view, the retroactive application of the Act violates the Defendant’s Tennessee constitutional protection against ex post facto laws because it alters the Defendant’s situation to his disadvantage. See Miller 584 S.W.2d at 761; Odom, 137 S.W.3d at 582. Before the Act’s enactment, the Defendant’s “situation” under the law applicable at that time included that the evidence against him must be suppressed because of the mistake contained in the search warrant. See Hayes, 337 S.W.3d at 235. After the enactment of the Act, that same evidence would be admissible against him. T.C.A. § 40-6-108(a) (stating “evidence … shall not be suppressed as a result of any violation of this part or any violation of the Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c)”). This clearly places the Defendant at a disadvantage, and application of the Act to his case would, therefore, violate constitutional protections against ex post facto laws.
We cannot agree with the State’s assertion that the Defendant’s “situation” being altered to his disadvantage must relate to the offense or the punishment. In Hanners, this Court addressed whether the legislative amendment to the expungement statute could nevertheless be applied in the appellant’s case to bar expungement when he would have been entitled to expungement at the time of his conviction and sentencing. We held: …
… In line with this reasoning, we reject the State’s argument that the Act should apply retroactively because it does not disadvantage the Defendant’s “situation” with respect to the offense or punishment.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
