IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE v. WILLIAM MACK GROSS Direct Appeal from the Criminal Court for Hamilton County

No. 225943 Douglas A. Meyer, Judge

No. E2000-00039-CCA-R3-CD - Decided July 6, 2000

Defendant

William Mack Gros s pled guilty to violation of the habitual motor vehicle offender law, reserving the right to appea l a certif ied question of law pursuant to Rule 37, Tennessee Rules of Criminal Procedure. The prec ise issu e reserved was whether the stop of his vehicle by a law enforcement officer, based upon a citizen’s call to the police department of a “suspicious vehicle” violated his constitutional rights to be free from unreasonable searches and seizures. The trial court deniedthe motion to suppress. After revi ew of the record, briefs of the parties, and hearing arguments of coun

sel, we reverse

the judgment of the

trial court and dis

miss the indictment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of t

he Criminal Court R

eversed and Dismissed. W OODALL , J. delivered the opinion of the court, in which WILLIAM S , J. and G LENN , J. joined. Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, William Mack Gross. Paul G. Summers, Attorne y General and Re

porter, Elizabe

th B. Marney, Assis

tant Attorney General, Willi amH. Cox, III, District Attorney General, and Parke Masterson, Assistant District Attorne y General, for the appellee, State of Tennessee. OPINION FACTS During the suppres sion heari ng, Officer Larry Na bors of the Soddy Daisy Police Department testified that at approximately 2 :00 a.m. on Septembe r 30, 1998, he was d

ispatched to inves

tigate a suspicious vehicle at a trailer park. The dispatcher advised Nabors that an upset woman had reported that she had been followed into the trailer park

by a decommissioned police vehicle. The woman also reported that thedriver of the veh icle had stopped in

front of her residence and turned the vehicle’s lights off. Officer Nabors testified that approximately five minutes after he rece ived th e dispatch, he drove to the traile

r park and went to

the lot number indicated by the dispatcher, but he did not see-2-

the vehicle that

had been described. Nabors then left the trailer park and he parked his vehicle in the parking lot of

an adjacent store. Approximately five minutes later, Nabors saw the decommissioned police car come out of the trailer park. At his point, Nabors activated his blue lights and stopped the vehicle. Nabors then lear

ned that Defenda

nt was driving the

vehicle in violation of a habitual motor vehicle offender order. O fficer Nabor s testified that the dispatcher had not reported that the vehicle had done anything illegal or that any one hadcommitted a crime that involved the vehicle. Nabors admitted that the “vehicle wa

sn’t involved in

any type of violation of law”, and the sole reason he stopped the vehicle was to find out what the driver was doing in the trailer park. ANALYSIS Defendant

contends that the trial court erre d when it denied his motion to suppress the evidence obtain

ed after he was

stopped by Of

ficer Nabors. A. A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the evidence preponderates against them. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, the application of the

law to the facts is a question of law whic h is reviewed de novo on appeal

. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997). B. The Fourth Amendment

to the United States Constitution provide s, “The right of

the people to be secure in their persons, houses, papers, and effects, aga

inst unreasonable

searches and se

izures, shallnot be violated, andno warrants shall issue, but upon probable cause . . . .” U.S. Const. amend IV. Similarly, Article I, Section 7 of the Tennessee Constit

ution guarante

es, “That the peo

ple shall be secure in their p

ersons, houses, pa

pers and possessio

ns, from unreason

able searches and

seizures

. . . .” Tenn. Const. art. I , § 7. Unless it falls

within a specifically established and well-delineated exception, a search conduc ted without a warr

ant is per se

unreasonable. Schneckloth v. Bu stamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (citations omitted). Evidence discovered

as a re s ult of a warrantless search or seizure is subject to suppression unless the prosecution demonstrates by a preponderance of the evidence that the search or seizure w as conducted

pursuant to an exception to the warrant requirement. State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). One such exception to the warrant requirement permits a police officer

to tempora

rily se ize a citizen if the offic

er has a reason

able suspicion, ba

sed upon specific

and artic ulable fac ts, that a criminal offense has been, is being, or is about to be committed. Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L .Ed.2d 889 (1968). Under this exception, “[a]n investigative stop of an automobile

is . . . constitutiona

l if law enforcement

officials have a reasonable suspicion, supported-3-

by specific and articulable facts, that the occupants of the vehicle have committed , are commit ting, or are about to commit a criminal offense.” Keith , 978 S.W.2d at 865. A court must consider the totality of the circumstances when determining whether a

police officer had a reasonable suspicion, supported by specific and articulable f acts, that criminal activity hadoccurred, was occurring, or would occur. Id. at 867. “Circumstances relevant to the evaluation include, but are not limited to, the officer’s per sonal objective observations,information obtained from other police officers or agencies, information obt ained from citizens, and the pattern of operation of certain offenders.” Id. “A court must also c onsider the ratio

nal infe rences and dedu ctions that a trained of ficer may

draw from the fa

cts and circumsta

nces known to him--inferences and deductions that might well elude an untrained person.” Id. C. A seizure implicating constitutional concerns occurs when, in view of all the circumstances surrounding an encounter with a police officer, a reasonable person would have believed that he or she was not free to leave. State v. Daniel , 12 S.W.3d 420, 425 (Tenn. 200 0). A person is

seized for Fourth Ame ndment purp oses when a police officer activates the blue lights on his or her patrol vehicle and stops the person’s vehicle. State v. Pulley , 863 S.W.2d 29, 30 (Tenn. 1993). D. There is no disput e that Defe ndant was “seized” for constitutional purposes when Officer Nabors activated his patrol vehicle’s blue lights and stopped Defendant’s vehicle. Thus , the o nly question is whether the stop was constitutional because Nabors had a reasonable suspicion, supported by specific

and articulable

facts, that crimi

nal activity

had occurred, w

as occ urring, or would occur. Although Offic er Nabors was able to articulate facts that made him suspicious of Defendant ’ s vehicle, Nabors was unabl e to articulate spe

cific facts that

would support a re

asonable suspicion that any occupant of Def

endant’s vehicle

had committed, was

committing, or wou

ld commit

a criminal offense. Although Nabors received a report that a vehicle had followed a woman into a trailer park andstopped in front of her house, the vehicle was not there when Nabors arrived approximately five minutes later. In addition, Nabors saw the vehicle leave the trailer park appr oximately five minutes after he arrived, so at most, Defendant’s vehicle was only in the trailer park for about ten minut

es. At the point that Nabors observed Defendant’s ve hicle, all he knew about t he vehicle was th

at it followeda woman into

the trailer park, parked in front of her residence for some period of less than five minutes, a nd then left the tra iler park about f

ive minutes after

Nabors arrived

. At this point, there was abs olu tel y no b asi s fo r su spe cti ng th at D efen dan t ha d co mmi tte d an y criminal offense. In fact, to Nabors’ credit, he essentially admitted that he had no reason to suspect that Defendant’s vehicle had done anything illegal or that any one had committed a crime that involved the vehicle.-4-

Officer Nabors admitted that he di d not observe any violation of the law when he saw Defendant’s vehicle leave th e trailer park.

Thus, Nabors cle

arly had no

reason to

suspe ct that Defendant

was commit ting a criminal off ens e at tha t ti me. Mor eov er, N abo rs d id n ot i den tif y a single fact that led him to believe that Defendant was going to engage in criminal activity

. Indeed, Nabors admitted that he did not stop Defendan

t’s vehicle beca

use of any

suspected violation of the law and instead, he stopped the vehicle for the sole purpose of finding out why the vehicle had been in the trailer park. In short, there are

no specific and a

rticulable fact

s in this c ase that woul d support a reas onable

suspi cion that criminal

activity ha

d occurred, wa

s occurring, or

would occur. I

n fact, Officer Nabors never even claimed that he had such a suspicion. Therefore, the stop of Defendant’s vehicle was invalid under

the Fourth Ame

n dment and Article I, Section 7 and all evidence discovered

as a result of the

stop should have be

en suppressed. A

ccordingly

, the judgment o f the trial court must be reversed, and the case dismissed.