State v. Freeman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR-00037
)
Appellee, ) CARTER COUNTY
)
) HON. LYNN W. BROWN, JUDGE
V. )
)
TER RY FR EEM AN, ) (CERT IFIED QU ESTIO N OF L AW
) POS SES SION OF SC HED ULE VI
Appe llant. ) DRUGS WITH INTENT TO SELL)

FOR THE APPELLANT: FOR THE APPELLEE:

LAURA RULE HENDRICKS JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
606 West Main Street, Suite 350
P.O. Box 84 SANDY COPOUS PATRICK
Knoxville, TN 37901-0084 Assistant Attorney General
(On A ppea l) 2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243-0943

DAVID F. BAUTISTA DAVID E. CROCKETT
District Public Defender District Attorney General

ROBERT Y. OAKS KEN NET H C. B ALDW IN
Assistant Public Defender Assistant District Attorney General
Main Courthouse Carter County Courthouse Annex
Elizabethton, TN 37643 Elizabethton, TN 37643
(At Tr ial)

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
 OPINION

Pursuant to a nego tiated plea agreem ent, the D efenda nt, Terry

Freeman, pled guilty in the Criminal Court of Carter County to the Class E felony

offense of possession of marijuana with intent to sell. The trial court denied the

Defe ndan t’s motion to suppress evidence. With the consent of the State and the

trial court, Defendant reserved the right to appeal a certified question of law

which is dispos itive of the cas e. See T.R.A.P. 3(b)(2). The precise question of

law certified in this appeal is as follows: “Whether the stop of the Defe ndan t’s

vehicle was made with reasonable suspicion based on articulable facts under the

Tennessee and U nited Sta tes Con stitutions.” We affirm the judgment of the trial

court.

On September 19, 1995 , Dete ctives G rayso n W inters a nd Ro nnie

McClure received information from a confidential informant that Terry Freeman

would be leaving his residence at 227 South Hills around 1:00 p.m. or 2:00 p.m.

to go to his work at Red Lobster. The informant also sta ted tha t Defe ndan t would

be driving a Silver Toyota vehicle and would have marijuana in his possession.

Further, the informant advised the officers that Defendant had a revoke d drive r’s

license.

The officers went to the area of the address on September 19 after

checking Defe ndan t’s driver ’s licens e histo ry and confirm ing tha t it was in a

revoked status. They observed the described vehicle at the residence and

stayed in the area for a brief period of time, but did not see the Defendant leave.

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The officers did not know the confidential informant prior to September 19 and

obviou sly had never used information from the person on any prior occasion. On

September 20, 19 95, the officers again went to Defendant’s residence between

1:00 and 2:00 p.m. They saw the describe d silver To yota leave the residence at

227 South Hills, but could not positively identify Defendant because all that they

could se e was th e back of the driver a s the veh icle pulled o ut.

Detective Winters testified that they immediately began following the

vehicle, radioed to the dispatcher for a check on the license plate number of the

car, and were informed that the vehicle was registered to Defendant. The officers

then stopped the Defendant. This stop by the officers is the specific action

comp lained of b y Defen dant in this appea l.

In this court, the Defendant principally relies upon ou r court’s

decisions in State v. Coleman, 791 S.W.2d 504 (Tenn. Crim. App. 1989) and

State v. Norword, 938 S.W.2d 23 (Tenn. Crim. App. 1996). In Norword , our court

recognized that sto pping an au tomo bile an d deta ining th e occ upan ts is a seizure

within the meaning of the 4th and 14th Amendments of the United States

Constitution “even though the purpose of the stop is limited and the resulting

detention quite brief.” 938 S.W.2d at 24, quoting from Delaware v. Prouse, 440

U.S. 64 8, 653 (1 979).

Furthermore, our court in Norword specifically held:

In som e circu msta nces , an offic er may briefly detain a suspect
without probable cause in order to investigate possible criminal
activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640-41,
61 L.Ed.2d 357 (1979). In these situations, an inve stigato ry stop is

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 only permissible when a police officer h as a re ason able suspicion,
supported by specific and articulable facts, that a criminal offense
has been or is about to be com mitted. Terry v. Ohio , 392 U.S. 1, 21,
88 S.Ct. 1868, 18 79-80, 20 L.E d.2d 889 (1 968). In order to
determine specific an d articulab le facts, this C ourt mu st consider the
“totality of the circumsta nces.” United States v. Cortez, 449 U.S.
411, 41 7, 101 S .Ct. 690, 6 94-95, 6 6 L.Ed.2 d 621 (1 981).

Norword , 938 S.W.2d at 24-25.

In Norword , the defendant was operating a vehicle which belonged

to the arres ting officer’s brother. The officer knew that his brother did not

regula rly loan the vehicle. While on routine patrol, the officer saw the car being

driven by a stranger and based upon this “suspicious” circumstance, the officer

stopped the defendant and ultimately found marijuana, drug paraphernalia, and

that the de fenda nt was driving th e vehic le with a revoked licen se. Our cou rt ruled

that the police officer had no specific objective basis for suspecting criminal

involvement by the de fendan t and th at therefore the stop violated the

defen dant’s rights gua ranteed by the Fo urth and Fourtee nth Ame ndme nts to the

United S tates Co nstitution. Norword , 938 S.W .2d at 25.

In Coleman, our court affirmed the judgmen t of the trial court

granting the defendant’s motion to suppress evidence seized as a result of an

investigatory stop by a law enforce ment o fficer. In that case, the defendant was

stopped for inves tigation base d upo n inform ation received from a confidential

informant who had never before been used as a source of information in any

police investigation and did not reveal to the officer the basis of his or her

knowledge conce rning the informa tion. Our court specifically noted that the stop

was not ma de upo n the office r’s own o bservatio ns. In Coleman, the grounds for

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justifying the investigato ry stop we re related solely to the inform ation pro vided to

law enforcement officers by the c onfide ntial info rman t. Our c ourt he ld that even

though the vehicle was registered in the name of a person who had the same first

name as provided by the informant, that this was not enough to provide

reason able an d articulab le suspic ion to justify the stop and detention .

Howeve r, the facts in the case sub judice are more similar to the

facts involved in State v. Watkins, 827 S.W.2d 293 (Tenn. 1992) than the facts

in Norword and Coleman. In Watkins, one of the arresting officers had personal

knowledge that there was a capias outstanding for Watkins’ arrest. Other police

officers had informed the arresting officer that defendant drove a black Cadillac

vehicle which had the words “The Duke” inscribed on the car. On the date of the

arrest, the officer and his partner were parked when they observed the particular

black Cadillac drive by them. Due to the outstanding capias, the officers decided

to stop the vehicle an d “investigate the iden tity of the driver.” W atkins, 827

S.W.2d at 294.

After the defendant identified himself at the request of the arresting

officer, a call was made to the police dispatcher to verify the capias, and

defendant was then placed under arrest. The defendant argued on appeal that

the seizure of his vehicle by way of the in vestiga tory sto p was a violatio n of his

rights guaranteed by the Fourth Amendment to the United States Constitution.

Noting that a court must consider “rational inferences and

deductions” that a police officer may draw from the facts and circumstances

known to him, our supreme court rejected the defendant’s argument and held:

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 Considering the totality of these circumstances, we find that
the police officers had the required reasonable suspicion, supported
by specific and articula ble facts, that the defendant was the driver
of the vehicle and that he was the person wanted on the outstanding
capias.

Watkins, 827 S.W.2d at 295.

In the case sub judice, the officers knew from verified information

that the De fenda nt’s drive r’s licen se wa s in a revoked status. They observed a

white male driving the vehicle registered in Defendant’s name on a public road.

Under W atkins, there were sufficient specific and articulable facts to make an

investigatory stop to determ ine the identity of the driver. Eve n if the officers

thought that they ha d enou gh inform ation to base the stop solely upon the

information obtained from the confidential informant (which they did not since the

neither the basis of kn owledg e nor the veracity of the in forma nt is shown in the

record), the sto p is still legal if it is based on reasonable grounds other than those

relied upon b y the officers . See State v. Smith, 787 S.W.2d 34, 35 (Tenn. Crim.

App. 19 89).

The judgment of the trial court is affirmed.

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 ____________________________________
THOMAS T. W OODALL, Judge

CONCUR:

(See Separate Concurring Opinion)____
DAVID H. WELLES , Judge

(See Separate Concurring Opinion)____
JOHN K. BYERS, Senior Judge

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 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997
FILED
October 22, 1997

STATE OF TENNESSEE, ) Cecil Crowson, Jr.
C.C.A. NO. 03C01-9701-CR-00037
Appellate C ourt Clerk
)
Appellee, )
)
) CARTER COUNTY
VS. )
) HON . LYNN W. BR OW N,
TERRY FREEMAN, ) JUDGE
)
Appe llant. ) (Certified Question of Law
) Possession of Schedule VI
) Drug s with In tent to S ell)

CONCURRING OPINION

I concur in the opinion of my colleague, Judge Woodall. I agree that, under

our supreme court’s holding in State v. Watkins, 827 S.W .2d 293 (Te nn. 1992),

the police officers in the present case had the required reasonable suspicion

based on specific and articulable facts to make an investigatory stop of the

Defen dant. I write separately, how ever, to exp ress m y conce rn abou t a

significant difference between Watkins and the case sub judice.

As Judge Woodall points out, an investigatory detention, although less

intrusive than a full-blown arrest, is neverthele ss subject to the constitutional

protection of the Fo urth Am endm ent against “unreasonable searches and

seizures .” Terry v. O hio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889

(1968). Interactions between the police and the public that constitute seizures

but not arrests are judged by their reasonableness rather than by a showing of

proba ble cause . Id. The reasonableness of the intrusion is “judged by weighing

the gravity of the public concern, the degree to which the seizure advances that
concern, and the severity of the intrusion into individual privac y.” State v. Pulley,

863 S.W.2d 29, 30 (Tenn. 1993) (citing Brown v. Texas, 443 U.S . 47, 50, 99 S.Ct.

2637, 264 0, 61 L.Ed.2d 357 (1979 )).

The law is well settled in Tennessee that an investigative detention

requires only a showing of reasonable suspicion rather than probable cause.

See, e.g., Watkins, 827 S.W.2d at 294. Reasonable suspicion must be based on

spec ific and articulable facts that a criminal offense has been or is about to be

committed. Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Pulley, 863 S.W.2d at 30;

Watkins, 827 S.W .2d at 294 ; State v. Seaton, 914 S.W.2d 129, 131 (Tenn. Crim.

App. 1995). In evalu ating w hethe r reaso nable susp icion is b ased on sp ecific and

articula ble facts, we must consider the totality of the circumstances, including the

personal observations of the police officer, information obtained from other

officers or agencies, information obtained from citizens, and the pattern of

operation of certain o ffenders . Watkins, 827 S.W.2d at 294 (citing United States

v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629

(1981)); see also Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32

L.Ed.2d 612 (1972); Pulley, 863 S.W.2d at 31. We must also consider the

rational inference s and d eduction s that a trained police officer may draw from the

circumstances. Watkins, 827 S.W.2d at 294 (citing Terry, 392 U.S. at 21, 88

S.Ct. at 1880, 2 0 L.Ed.2d a t 906).

In Watkins, one of the police officers had personal knowledge that a capias

was outstanding for the defendant’s arrest. He had also learned from other

officers that the defend ant frequently drove a black Cadillac which had the words

“The Duke ” written on the vehicle . The c ar was registe red to th e defe ndan t’s

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mother. On the day in q uestion, the officer an d his partner ob served the black

Cadillac drive by them. Be cause of the o utstanding ca pias, the officers decided

to stop the vehicle and investigate the identity of the driver. After the stop of the

vehicle, the defen dant iden tified hims elf to the officers. They confirmed with the

police dispatcher that there was an outstanding capias for the defendant’s arrest

and the n placed the defen dant un der arres t. Watkins, 827 S.W.2d at 294-95.

On appe al, our s uprem e cou rt rejecte d the d efend ant’s argument that the

investigatory stop of the black C adillac was n ot sup ported by reas onab le

suspicion. In so doing, the court held as follows:

Considering the totality of these circumstances, we find that
the police officers had the required reasonable suspicion, supported
by specific and articulable facts, that the defendant was the driver
of the vehicle and that he was the person wanted on the outstanding
capias.

Id. at 295 (empha sis added). Thus, the court concluded that the defendant had

not been subjected to an unconstitutional stop.

I agree with Judge Woodall that the Watkins holding controls the case at

bar. In the present case, the officers knew that the Defendant’s driver’s license

was in a revoke d status. One of the officers had arrested the Defendant in 1987

and apparently knew that he was a white male. The officers observed a white

male driving a ve hicle regis tered to the Defen dant. Prior to stopping the vehicle,

however, the o fficers did not know the identity of the driver.

From these facts, I believe that the co nstitutiona lity of the stop in the case

sub judice turns on the question of whether the officers had a reaso nable

suspicion that the driver of the vehicle was the Defendant. Under similar

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circumstances, the Watkins court stated that the officers in that case had

sufficient reasonable suspicion “that the defendant was the driver of the v ehicle.”

Watkins, 827 S.W.2d at 295. Given that language from Watkins, I can only

conclude that the officers in the case at bar had a reasonable suspicion

supported by specific and articulable facts that the Defendant was the driver of

the vehicle that they stopp ed. Accordin gly, I agree w ith Judge Woodall that the

stop of the Defendant’s vehicle wa s a constitutionally perm issible investigatory

stop.

I believe, however, that the existence of a cap ias for th e defe ndan t in

Watkins is highly significant. In my judgment, the existence of a capias for the

defendant in Watkins heightens the gravity of the public concern, one of the

factors courts must we igh to evaluate the re asonablen ess of an inves tigatory

stop. See Pulley, 863 S.W.2d at 30. T he he ighten ed gra vity of the public

concern involved in Watkins tips the balance m ore in favor of the stop being

reasonable than in the case sub judice, where there was no capias for the

Defen dant. Furthermore, I believe that the actions of the o fficers in Watkins, who

stopped the de fenda nt bec ause of the o utstan ding c apias , were n ot sole ly

investigatory but were also aimed at ensuring the efficient administration of the

criminal justice system by taking the defendant into custody. In contrast, the

actions of the officers in the present case we re purely in vestigator y, seeking to

confirm information about possible traffic and drug offenses.

The Watkins court did not, however, note any special significance for the

outstanding capias in the analysis of the reasonableness of the stop. Instead, the

plain language of the opinion clearly and simply states that the officers had

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reaso nable suspicion that the defendant was the driver of the vehicle. Given that

language, I feel constrained by the holding in W atkins to conclude that the

investigatory stop of the Defendant in the case at bar was supported by

reaso nable susp icion. I th erefor e con cur in th e opin ion of J udge Wo odall.

____________________________________
DAVID H. WELLES, JUDGE

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 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JULY 1997 SESSION October 22, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-
CR-00037
)
Appellee ) CARTER COUNTY
)
v. ) HON. LYNN W. BROWN,
) JUDGE
TERRY FREEMAN, )
) (Certified Question of Law
Defendant/Appellant ) Possession of Schedule VI
) Drug s with In tent to S ell)

CONCURRING OPINION

I concur in the Concurring Opinion written by Judge Welles.

John K. Byers, Senior Judge