State v. Vineyard

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
(HEARD AT CHATTANOOGA)
December 29, 1997

Cecil Crowson, Jr.
FOR PUBLICATION
Appellate C ourt Clerk

STATE OF TENNESSEE, ( Filed: December 22, 1997
(
Plaintiff-Appellee, (
( Bradley Criminal
(
v. ( Hon. Mayo L. Mashburn,
( Judge
(
DAVEY JOE VINEYARD (
AND JIMMY LEE COCKBURN, (
(
Defendants-Appellants. ( S.Ct. No. 03S01-9612-CR-00120

For Plaintiff-Appellee: For Defendants-Appellants:

John Knox Walkup Kenneth L. Miller
Attorney General & Reporter Logan, Thompson, Miller,
Nashville, Tennessee Bilbo, Thompson & Fisher, P.C.
Cleveland, Tennessee
Michael E. Moore
Solicitor General
Nashville, Tennessee

Karen M. Yacuzzo
Assistant Attorney General
Nashville, Tennessee

Jerry N. Estes
District Attorney General
Athens, Tennessee

Joseph A. Rehyansky
Assistant District Attorney General
Cleveland, Tennessee

OPINION

AFFIRMED. DROWOTA, J.
In this appeal we are asked to determine whether under Article I, Section 7
of the Tennessee Constitution a stop based upon probable cause is valid

irrespective of the subjective motivations of the police officer making the stop.

The defendant concedes that under the Fourth Amendment to the federal

constitution, the subjective motivations of police officers are irrelevant so long as

the stop is otherwise based upon probable cause.1 However, the defendant asks

us to hold that, in this context, the Tennessee Constitution’s prohibition against

unreasonable searches and seizures is more stringent than the Fourth

Amendment to the United States Constitution.

The Court of Criminal Appeals recognized that the state constitution may

grant greater protection from unreasonable searches and seizures than that

provided by the federal constitution,2 but found that the protection afforded in this

context is the same under both constitutions. Therefore, the Court of Criminal

Appeals affirmed the trial court’s denial of the defendant’s motion to suppress.

We conclude that, in this context, the protection afforded by Article I,

Section 7 of the Tennessee Constitution is co-extensive with the protection

afforded by the Fourth Amendment to the United States Constitution. Accordingly,

a stop based upon probable cause is valid under the Tennessee Constitution,

without regard to the actual subjective motivations of police officers. Accordingly,

1
United States v. Whren, __U.S . __, 116 S .Ct. 1769 , 135 L.Ed .2d 89 (1 996).

2
State v. Jac um in, 778 S.W .2d 430 (Tenn. 1989).

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the judgment of the Court of Criminal Appeals is affirmed.3

FACTUAL BACKGROUND

Both defendants, Davey Joe Vineyard and Jimmy Lee Cockburn, pled guilty

to possession of more than 10 pounds of marijuana for resale. Cockburn also

pled guilty to possession of drug paraphernalia and nolo contendere to speeding.

Pursuant to Rule 37(b)(2)(i),4 Tennessee Rules of Criminal Procedure, the

defendants reserved as a dispositive question of law the trial court’s refusal to

suppress the incriminating evidence discovered in the motor vehicle occupied by

them when they were arrested.

The only witness on behalf of the State at the suppression hearing was

Detective Gates, a narcotics officer with the City of Cleveland. Sometime prior to

the morning of May 6, 1994, Detective Gates said that he had received

information from an anonymous informant that a vehicle occupied by the

defendants would be traveling north on Interstate 75 (“I-75"). The vehicle would

pass through Bradley County en route to an undisclosed location, where the

defendants would obtain a load of marijuana and return, later that day, through

3
Ora l argu me nt wa s hea rd in th is cas e in C hatta noo ga, H am ilton C oun ty, as p art of this
Court’s S .C.A.L.E .S. (Supreme Court Advancing Lega l Education for Students ) project.

4
Rule 37(b)(2)(i), Tenn. R. Crim. P., provides in pertinent part as follows:
(b) An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and from any
judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo
contendere if: (i) Defendant entered into a plea agreement under
Rule 11(e) but explicitly reserved with the consent of the state and
of the cour t the rig ht to a ppe al a ce rtified ques tion o f law th at is
dispositive of the ca se. . . .

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Bradley County bound for Georgia.

At approximately 7:00 a.m., on May 6, 1994, Detective Gates, along with

Detective Queen, of the narcotics squad of the Cleveland city police department,

were conducting drug interdiction surveillance of traffic on I-75. Between 8:00 and

8:30 a.m., Gates saw the defendants’ vehicle, a pickup truck, as it proceeded

northbound. He notified Officer Queen that he had identified the vehicle, and he

then crossed I-75 to a position from which he could watch the southbound traffic.

At approximately 9:30 a.m., the vehicle passed Gates’ position traveling south.

Driving unmarked police vehicles, Gates and Queen followed the defendants.

Gates testified he had no intention of stopping the defendants’ vehicle at that time

but was instead waiting for the driver to commit a traffic violation. Gates said he

paced the defendants’ vehicle at about 75 miles per hour, ten miles per hour

faster than the posted speed limit. Gates also observed the defendants’ vehicle

move from the left lane to the right lane without displaying a turn signal, and about

one mile farther, the vehicle pulled back into the left lane without a signal. At that

point, Gates radioed the head of the narcotics squad, Lieutenant Wilcoxin, who,

accompanied by Officer Young, was stopped in a marked police car in the

highway median some distance south. Gates told Wilcoxin they were planning to

stop the defendants at Exit 25 and asked him to check the speed of the

defendants’ vehicle by radar when it passed his location. Wilcoxin attempted to

check the speed by radar, but because of the traffic, was unable to do so. When

the defendants’ vehicle passed by the marked police car, Gates saw Vineyard

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looking back at it.

Wilcoxin pulled onto the highway and turned on his blue lights. As the

defendants’ vehicle drove to the side of the highway at Exit 25, Gates saw the

passenger, Vineyard, “moving about” in the vehicle “doing something with his

hands.” Gates gave this account of the stop:

Due to his actions, when we stopped, they was ordered to put their
hands in view where we could see them. They did not comply with
the first order. At this time weapons were drawn. I believe three,
three of the officers, myself, Queen and Young did pull our weapons
as we did approach the vehicle. They were ordered to keep their
hands up . . . As we approached with the windows down we had a
strong odor of marijuana about the vehicle. It was real, real strong.

Detective Gates testified that the defendants got out with their hands on the

rail of the truck and told the officers there were no weapons or drugs in the truck.

Wilcoxin then asked, “Do you give us consent to search?” to which Cockburn

answered, “Yes go ahead.” The marijuana, which was the object of the motion to

suppress, was located in the cab of the truck only partially concealed in a plastic

bag. The vehicle was stopped approximately seven miles from the point where

the officers began following it.

Detective Gates testified that he had 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.” “Drug interdiction” consists of surveillance of the

highway and the stop of certain vehicles for traffic violations so that the officers

could observe the occupants and the contents of the vehicles and try to obtain

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permission to search the vehicles for illegal drugs. He stated that he does not

stop all traffic violaters, and, at times, uses a “courier profile” for selecting the

vehicles to be stopped. Detective Gates acknowledged that uniformed officers on

routine patrol usually do not try to search vehicles stopped for traffic violations.

The defendants moved to suppress the evidence seized as a result of the

stop, and after considering the proof, the trial judge denied the motion. The Court

of Criminal Appeals affirmed the trial court’s decision, concluding that the stop

was lawfully based upon probable cause to believe that a traffic violation had

occurred. Thereafter, we granted permission to appeal to consider this important

question of constitutional law, and for the reasons that follow, now affirm the

decision of the Court of Criminal Appeals.

PRETEXTUAL STOPS

The Fourth Amendment 5 to the United States Constitution guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures. . . .” Similarly, Article I,

Section 7 of the Constitution of Tennessee provides “that the people shall be

secure in their persons, houses, papers and possessions, from unreasonable

searches and seizures. . . .” The purpose of the prohibition against unreasonable

searches and seizures under the Fourth Amendment is to “safeguard the privacy

5
The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent.
Map p v. O hio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1 081 (1961).

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and security of individuals against arbitrary invasions of government officials.”

Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d

930 (1967).

In this appeal, the defendants urge this Court to hold that the evidence

against them should have been suppressed as the fruit of an illegal pretextual

stop and search of their automobile. The defendants assert that because the

officers initiating the stop were subjectively seeking to discover drugs as the result

of an anonymous tip, rather than enforce the traffic laws, the stop was pretextual.

They ask the Court to hold that pretextual stops violate Article I, Section 7 of the

Tennessee Constitution even when, based upon the facts and circumstances, the

police officer has probable cause to believe that the defendant has violated the

law. The defendants concede that the stop in this case does not violate the

Fourth Amendment. Their only insistence is that this Court should interpret Article

I, Section 7 as providing greater protection than the Fourth Amendment as

interpreted by the United States Supreme Court in United States v. Whren, ___

U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The State responds that this

Court should affirm the judgment of the Court of Criminal Appeals and hold that

the Tennessee Constitution provides no greater protection than the Fourth

Amendment as interpreted in Whren.

Though state courts are free to interpret their respective state constitutional

provisions as affording greater protections than the “base line” level of protection

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guaranteed by the federal constitution, this Court has previously stated that

“Article I, Section 7 is identical in intent and purpose with the Fourth Amendment.”

State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997), quoting Sneed v. State, 221

Tenn. 6, 13, 423 S.W.2d 857, 860 (1968). Federal case law interpreting the

Fourth Amendment is to be regarded as “particularly persuasive” when the scope

and intent of Article I, § 7 is at issue. Id. Indeed, when interpreting the state

constitutional provision, this Court has departed from federal precedent only

when: (1) adopting federal Fourth Amendment standards would require overruling

“a settled development of state constitutional law;” and (2) when linguistic

differences justify distinct interpretations of state and federal constitutional

provisions. State v. Jacumin, 778 S.W.2d 430, 435-36 (Tenn. 1989) (probable

cause standard for evaluation of affidavit); State v. Lakin, 588 S.W.2d 544, 549,

n. 2 (Tenn. 1979) (open fields doctrine).

Without question, the temporary detention of individuals during the stop of

a vehicle by police, even if only for a brief period and for a limited purpose,

constitutes a “seizure” which implicates the protection of both the state and federal

constitutional provisions. Whren, ___ U.S. at___, 116 S. Ct. at 1772; Delaware

v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); State

v. Pully, 863 S.W.2d 29, 30 (Tenn. 1993). As a general rule, however, the stop of

an automobile is constitutionally reasonable, under both the state and federal

constitutions, if the police have probable cause or reasonable suspicion to believe

that a traffic violation has occurred. Id.

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 Moreover, in Whren, the United States Supreme Court unanimously

rejected the proposition “that the constitutional reasonableness of traffic stops

depends on the actual motivations of the individual officers involved.” Id., ___

U.S. at ___, 116 S.Ct. at 1774. Instead, the Court held that a stop based upon

probable cause to believe that provisions of the traffic code have been violated is

constitutionally permissible, despite the subjective motivation of the police officer

making the stop.6 Whren, ___ U.S. at ___, 116 S. Ct. at 1774.

In that case, plainclothes vice-squad officers patrolling a “high drug area”

became suspicious when they observed the occupants of a truck stopped at an

intersection. Upon following the truck, the officers observed several traffic

violations. When the truck stopped at a traffic light, one officer approached the

vehicle, identified himself as a police officer, and directed the driver to put the

vehicle in park. As he approached the vehicle, the officer observed Whren

holding two large plastic bags of crack cocaine. The occupants of the vehicle,

including Whren, were arrested and quantities of illegal drugs were seized.

The United States Supreme Court rejected Whren’s assertion that

suppression of the evidence was required because the stop was pretextual. The

Court found the stop valid under the Fourth Amendment because the officers

executed the stop only after developing probable cause to believe that the driver

6
The Court noted that selective enforcement based on impermissible criteria would raise
equal pro tection issu es. Whren , _____ U.S. at _____, 116 S. Ct. at 1774.

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of the vehicle had violated the traffic code. The Court held that “[s]ubjective

intentions play no role in ordinary, probable cause Fourth Amendment analysis.”

Whren, __ U.S. at ___, 116 S.Ct. at 1774. The existence of “probable cause to

believe that the petitioners had violated the traffic code . . . rendered the stop

reasonable under the Fourth Amendment.” Id at 1777.

While acknowledging that earlier opinions contained language expressing

“disapproval of police attempts to use valid bases of action against citizens as

pretexts for pursuing other investigatory agendas,” the Court emphasized that

each of those prior statements appeared in a case addressing potential abuse of

a police practice that did not require probable cause for its initiation, for example,

an inventory search “used as a ruse . . . to discover incriminating evidence,”

Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990), or a

warrantless administrative search undertaken as “a ‘pretext’ for obtaining evidence

of violation of . . . penal laws.” New York v. Burger, 482 U.S. 691, 716-717, n. 27,

107 S.Ct. 2636, 265, n. 27, 96 L.Ed.2d 601 (1987). The Court explained that

none of those earlier statements endorsed the principle “that ulterior motives can

invalidate police conduct that is justifiable on the basis of probable cause to

believe that a violation of law has occurred.” Whren, ___ U.S. at ___, 116 S.Ct. at

1772. The danger to individual liberty and privacy posed by police abuses

discussed in the earlier decisions is not present when the police action at issue is

supported by probable cause. Despite the subjective motivations of police, the

“essential purpose” of the Fourth Amendment, imposition of a “standard of

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reasonableness upon the exercise of discretion by . . . law enforcement agents in

order to safeguard the privacy and security of individuals against arbitrary

invasions,”7 is entirely fulfilled when a traffic stop is initiated because the officers

have probable cause to believe that a violation of the law has been committed.

The probable cause requirement constrains the exercise of police discretion and

safeguards the citizenry against arbitrary intrusions. Whren, ___ U.S. at ___, 116

S.Ct. at 1777.

The defendants urge us to reject the analysis of the Supreme Court in

Whren and in support of their claim, the defendants rely upon prior decisions of

this Court which they claim condemn pretextual stops.

In Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633 (1947), highway

patrol officers, pretending a driver’s license inspection, stopped the defendant’s

vehicle because the passenger “looked back through the rear window in a way

that made [the officers] suspicious.” Id. at 634. The officers had no information

that the occupants were involved in any illegal activity, and they observed no

violation of the traffic code; consequently, they did not have probable cause.

Upon stopping the vehicle, the officers observed illegal liquor in the rear seat of

the vehicle. The Court held, “This Court will not permit an evasion of the

requirements of the law with regard to search warrants through the device, pretext,

or subterfuge of a pretended examination of a driver’s license,” id. at 635, where

7
Prouse, 440 U.S. at 654, 99 S.Ct. at 1396 (citations and internal quotations omitted) .

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“no impropriety in the driving of the defendants’ car” is observed. Id. at 636.

In Cox v. State, 181 Tenn. 344, 181 S.W.2d 338 (1944), highway patrol

officers followed a vehicle operated by the defendant from Davidson County,

where the possession of liquor was legal, into Sumner County, where possession

was not legal. The officers believed the vehicle was owned by another person

whom they suspected was involved in the illegal transportation of liquor. As in

Robertson, they stopped the vehicle and asked to see the defendant’s driver’s

license. And, as in Robertson, the officers observed liquor in the front seat of the

vehicle. This Court held the suspicionless stop was a violation of the defendant’s

constitutional rights against unreasonable seizure and reversed the conviction.

Contrary to the defendants’ assertions, the decisions in Robertson and Cox

did not condemn pretextual stops. Instead, those decisions condemned intrusions

that were not supported by probable cause or any level of individualized suspicion.

Such intrusions, as the United States Supreme Court recognized in Whren, allow

unfettered police discretion and pose the greatest risk of official abuse. Robertson

and Cox also do not support the proposition that the state constitution is more

protective, in this context, than the federal constitution. Indeed, those cases

would have been decided the same under federal law. In Prouse, the United

States Supreme Court held that a suspicionless traffic stop initiated by a police

officer on a “roving patrol” aimed at detecting unlicensed drivers is constitutionally

impermissible. The Court stated “except in those situations in which there is at

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least articulable and reasonable suspicion [that a motorist is unlicensed] or that an

automobile is not registered, or that either the vehicle or an occupant is otherwise

subject to seizure for violation of law, stopping an automobile and detaining the

driver in order to check his license and the registration of the automobile are

unreasonable under the Fourth Amendment.” Id., 440 U.S. at 663, 99 S.Ct. at

1401 (emphasis added). Since the officers initiating the traffic stops in Robertson

and Cox did not purport to have reasonable suspicion nor probable cause, those

stops were not valid under either the federal or state constitution.

Therefore, under this Court’s prior decisions, pretext is not the

determinative factor in evaluating the constitutionality of a traffic stop. For

example in McBride v. State, 200 Tenn. 100, 290 S.W.2d 648 (1956), a highway

patrol officer “had some general information that the defendant was transporting

liquor from [Dyer County, where possession was legal] into Henry County [where

possession was not legal] over Highway 54 . . . [in] a green Hudson automobile.”

While traveling on Highway 54 in Henry County, a highway patrol officer met the

defendant driving a green Hudson. In response to a radio call from the highway

patrol officer, a Paris city police officer undertook to intercept the defendant as he

entered the city of Paris. When the defendant failed to stop at a road block, a

high speed chase ensued and ended on a dead-end street. The defendant was

arrested, and the officers observed liquor in the rear seat. This Court refused to

suppress the evidence. The Court found that had the city officer intercepted the

defendant’s vehicle, an arrest at that point would have been unlawful, but, held

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that the defendant’s violation of the traffic code committed during the chase

justified the defendant’s arrest and the officer’s seizure of illegal liquor in plain

view. See also Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751, 752 (1964).

Therefore, despite the police officer’s subjective motivations, this Court upheld the

constitutional validity of the stop which was based upon probable cause that the

defendant had violated the traffic code.

Adoption of the Supreme Court’s interpretation of the Fourth Amendment in

Whren would not require overruling “a settled development of state constitutional

law.” Moreover, there are no linguistic differences which, in this context, justify

distinct interpretations of the state and federal constitutional provisions.

Accordingly, we conclude that probable cause justifies a traffic stop under Article I,

Section 7 of the Tennessee Constitution without regard to the subjective

motivations of police officers.

Applying that rule to the facts in this case, it is clear that the trial court and

Court of Criminal Appeals appropriately denied the defendants’ motion to

suppress. Although the subjective motivation for the stop may have been the

officers’ desire to search for illegal drugs, the stop was not accomplished until the

detectives had personally observed at least three violations of the traffic laws,

which constitutes probable cause justifying the stop. Since the stop was based

upon probable cause, its constitutional validity was not impaired by the officers’

subjective motivations.

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 CONCLUSION

Because we conclude that Article I, Section 7 of the Tennessee

Constitution does not preclude stops supported by probable cause, despite the

subjective motivations of police officers, the judgment of the Court of Criminal

Appeals upholding the trial court’s denial of the defendants’ motion to suppress is

affirmed.

___________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C.J.,
Reid, Birch and Holder, JJ.

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