IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MAY 1996 SESSION
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9502-CR-00052
) & NO. 03C01-9502-CR-00053
Appellee )
) BRADLEY COUNTY
v. )
) HON. MAYO L. MASHBURN,
DAVEY JOE VINEYARD, ) JUDGE
)
Appellant ) Possession of marijuana for resale
) in an amount over ten pounds and
and ) less than 70 pounds
)
JIMMY LEE COCKBURN, ) Possession of marijuana for resale
) in an amount over ten pounds and
Appellant ) less than 70 pounds; possession of
) drug paraphernalia
FOR THE APPELLANTS FOR THE APPELLEE
Kenneth L. Miller Charles W. Burson
Logan, Thompson, Miller, Bilbo, Attorney General & Reporter
Thompson & Fisher, P.C.
P.O. Box 191 Hunt S. Brown
Cleveland, TN 37364-0191 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
Joseph A. Rehyansky
Assistant District Attorney General
93 Ocoee St. N., Ste. 200
P.O. Box 1351
Cleveland, TN 37364
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
The Defendants entered pleas of guilty and reserved the right to appeal the
following issue only:
DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S
MOTION TO SUPPRESS BECAUSE THE STOP OF
DEFENDANT’S VEHICLE WAS MADE WITHOUT PROBABLE
CAUSE AND WAS A PRETEXTUAL STOP MADE FOR ILLEGAL
REASONS?
The trial judge found the stop to be lawful.
The judgment of the trial court is affirmed.
The state’s evidence in this case came from Detective Gates, a narcotics
officer with the city of Cleveland.
Detective Gates had received an anonymous tip that the Defendants would
be traveling north on I-75, would pass through Bradley County, would go to an
undisclosed location, obtain marijuana and return through Bradley County en route
to Georgia.
At approximately 7:00 a.m. on June 6, 1994, Detective Gates and Detective
Queen set up surveillance on I-75. They saw the vehicle in which the Defendants
were traveling go north on I-75 at approximately 8:00 a.m. The detectives
continued the surveillance and saw the vehicle returning at 9:30 a.m. The
Defendants were traveling in the left lane of the highway which, according to Gates,
led him to believe the vehicle was speeding. Gates and Queen, each driving police
vehicles, pulled out onto the highway and commenced to follow the Defendants.
Gates testified the vehicle was traveling at 75 m.p.h. at the time he got behind it.
Further, he testified the vehicle pulled into the right lane without giving a signal.
The detectives did not stop the vehicle at this time. Rather, they continued
to follow the Defendants for another six to eight miles, where they were stopped by
another police vehicle.
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Detective Gates testified that he pursued the Defendants’ vehicle “with the
expectation and hope that there would be a traffic violation to give . . . a reason to
pull the vehicle over.” Further, Gates testified the vehicle was pulled over for
speeding and illegal lane change, “. . . plus the information we had received, . . . .”
Gates testified that it was customary for narcotics officers to do highway
interdiction, which consists of surveillance of the highway and the stop of certain
vehicles in the hope of obtaining a consent to search the vehicles which are
stopped. He further testified the majority of traffic control officers do not attempt to
obtain consent to search when they make stops for traffic violations.
The Defendants’ briefs rely on State of Tennessee v. Sidney Williams, Ivory
D. Jones and Roy Kittles, C.C.A. No. 173 (Tenn. Crim. App. at Knoxville, April 30,
1991) for the argument that in Tennessee, as stated in Williams,
“We conclude that in determining whether an investigative stop is
invalid as pretextual, the proper inquiry is whether a reasonable
officer would have made the seizure in the absence of illegitimate
motivation.”
However, the parties have submitted supplemental authority in the case
pursuant to T.R.A.P. 27(d), as a result of a U. S. Supreme Court opinion recently
released, United States v. Whren, 16 S.Ct. 1769 (1996) filed June 10, 1996.
In Whren, plainclothes vice-squad officers of the District of Columbia
Metropolitan Police Department were patrolling a “high drug area” of the city in an
unmarked car. Their suspicions were aroused when they passed a truck with
temporary license plates and youthful occupants waiting at a stop sign, the driver
looking down into the lap of the passenger at his right. The truck remained stopped
at the intersection for what seemed an unusually long time - - more than twenty
seconds. When the police car executed a U-turn in order to head back toward the
truck, it turned suddenly to its right, without signalling, and sped off at an
“unreasonable” speed. The policemen followed, and in a short while overtook the
truck when it stopped behind other traffic at a red light. They pulled up alongside
and an officer stepped out and approached the driver’s door, identifying himself as
a police officer and directing the driver to put the vehicle in park. When the officer
drew up to the driver’s window, he immediately observed two large plastic bags of
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what appeared to be crack cocaine in the passenger’s hands. Driver and
passenger were arrested, and quantities of several types of illegal drugs were
retrieved from the vehicle.
Defendants argued that the stop had not been justified by probable cause to
believe, or even reasonable suspicion, that they were engaged in illegal drug-
dealing activity; and that the police officers’ asserted ground for approaching the
vehicle - - to give the driver a warning concerning traffic violations - - was
pretextual. The District Court denied the suppression motion, concluding that “the
facts of the stop were not controverted, and “[t]here was nothing to really
demonstrate that the actions of the officers were contrary to a normal traffic stop.”
The Defendants were convicted of four counts of violation of various federal drug
laws. The Court of Appeals affirmed, holding with respect to the suppression issue
that, “regardless of whether a police officer subjectively believes that the occupants
of an automobile may be engaging in some other illegal behavior, a traffic stop is
permissible as long as a reasonable officer in the same circumstances could have
stopped the car for the suspected traffic violation.”
The U. S. Supreme Court affirmed, holding that a traffic stop is reasonable
where police have probable cause to believe that a traffic violation has occured,
regardless of the actual motivations of the individual officers involved, unless the
stop is shown to be constitutionally impermissible selective enforcement of the law
based on considerations such as race. Whren, supra.
Defendants contend that the State of Tennessee has authority to protect the
privacy of its citizens more stringently than does the U. S. Constitution. We agree.
However, we note that all case law on the issue of suppression of evidence
because of a selective stop cited in the Smith opinion, upon which Defendants rely,
is federal case law, indicating that Tennessee has chosen to base its level of
protection upon the rights afforded all citizens under the U. S. Constitution.
Therefore, we find the Whren decision should be followed in this case.
Whren holds that inquiry into the motivations of the police is not
constitutionally mandated unless the stop is alleged to have been motivated by
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racial or other constitutionally impermissible selectivity. There is no such allegation
of racial or other impermissible selectivity in this case, therefore, the stop was
proper.
Since the traffic stop in question was lawful based upon probable cause to
believe that a traffic violation had occurred, we find that the sole issue the
Defendants have reserved for our consideration is without merit.
We affirm the judgment of the trial court.
John K. Byers, Senior Judge
CONCUR:
John H. Peay, Judge
Jerry L. Smith, Judge
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE FILED
February 17, 1998
STATE OF TENNESSEE, (
Cecil Crowson, Jr.
( Appellate C ourt Clerk
Plaintiff-Appellee, ( Filed: February 17, 1998
(
(
v. (
( S. Ct. No.
( 03S01-9612-CR-00120
DAVEY JOE VINEYARD AND (
JIMMY LEE COCKBURN, (
(
Defendants-Appellants. (
Order on Petition To Rehear
Upon consideration of the petition to rehear filed by the appellants Davey Joe
Vineyard and Jimmy Lee Cockburn, this Court is of the opinion that the petition
should be and the same is hereby denied.
PER CURIAM