IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT KNOXVILLE MAY 1996 SESSI ON

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9502-CR -00052 ) & NO. 03C01-95 02-CR-00053 Appellee ) ) BRADL EY CO UNTY v. ) ) HON. MAYO L. MASHBURN, DAVEY JOE VINEYARD, ) JUDGE ) Appellant ) Possession of mari juana for resale ) in an amount over ten pounds and and ) less than 70 pounds ) JIMMY LEE COCKBURN, ) Possession of marijuan a for resale ) in an amount over ten pounds and Appellant ) les s th an 70 poun ds; poss essi on of ) drug paraphernalia FOR TH E APPEL LANTS FOR THE APPELLEE Kenneth L. Mil ler Charles W. Burson Logan, Thompson, Mi ller, Bil bo, Attorney General & Reporter Thompson & Fisher, P.C. P.O. Box 191 Hunt S. Bro wn Cleveland, TN 37364-0191 Assistant Attorney General 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Jerry N . Estes Distric t Attorney General Joseph A. Rehyansky Assistant D istrict A

ttorney Gener

al 93 Ocoee St. N., Ste. 200 P.O. Box 1351 Cleveland, TN 37364

OPINION FILED

AFFIRMED

JOHN K. BYERS SENIOR JUD GE O P I N I O N-2- The Defendants entered pl eas of guilty and reserv ed the right to appeal the fol lowin g issu e onl y: DID THE T RIA L COURT ERR IN DENYING DEFENDANT’S MOTION TO SUPP RESS B ECAUS E TH E STOP O F DEFENDANT’S VEHIC LE WAS MADE WITHOU T P ROBA BLE CAUSE AND WAS A PRETEXTUAL STOP MADE FOR ILLEGAL REASONS? The trial judg e found the stop to be l awful. The judgment of the tr ial court i s affirmed. The state’s evidence in this case cam e from Detective Gates, a narcotics officer with the city o f Cleveland. Detective Gates had received an anonymous tip that the Defenda nts would be traveli ng north on I- 75, would pas s through Br adley County , would g o to an undisclosed l ocation, obtain marijuana and return throug h Bradley County en r oute to Georgia. At ap proxi mat ely 7: 00 a. m. on June 6, 19 94, D etec tive G ates and D etec tive Queen set up surv

eillance on I- 75. They saw the vehicl e in whic h the Defendants were tra veling go north on I -75 at approx imately 8:00 a.m. The detectives continued the sur

veillanc e and saw the vehicle r eturning 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 Quee n, each driving police vehicles , pulled out onto the highw ay and commenced t o follow the D efendants. Gates testified t he vehiclewas trav eling at 75m.p.h. at the time he got behind i t. Further, he testified the vehicle pulled into the right lane without giving a signal. The detectives

did not stop the vehicle at this time. R ather, they continued to follow the Defendants for another s ix to eig ht miles, w here they were stopped by another police vehicle.-3- Detectiv e Gates testified that he pursued theDefendants’ v ehicle “w ith the expectation and hope that there w ould be a traffic v iolation to g ive . . . a reason to pull the v ehicle ove r.” Furt her, Gates test ified the vehi cle was pulled over for speeding and illegal lane change, “. . . plus the inf ormation we had received, . . . .” Gates testified t hat it was customary for narcotics officers to do hig hway interdiction, which consists of surveillance of the highway and the stop of certain vehicles in the hope of obtain ing a consent to search the vehicles which are stopped. He further

testified the majo rity of tr affic control officers

do not attempt to obtain consent to search when the y make stops for traff ic violations. The Defendants’ brie fs rely on State of Tennessee v. Sidn ey Williams, Ivory D. Jones and Roy Kittles, C.C.A. No. 173 (Tenn. Cri m. App. at Knoxv ille, Apri l 30, 1991) for the arg ument that in Tennessee, as stated in Williams, “W e conclude that in determ ining whether an investigative stop is invalid as pretextual, the proper inquiry is whether a reasonable officer would h ave made the sei zure in t he absence of ille gitimate motivation.” However, the parties have submitted suppleme ntal authority in the case pursuant to T.R.A.P. 27 (d), as a result of a U. S. Supreme Court op inion recently released, United States v . Whren, 16 S.Ct. 1769 (1 996) filed June 10, 1996. In Whren, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Depar tment were pat rolling a “high dr ug area” of the city in an unmarked car. Their suspici ons were ar oused when they

passed a truck

with temporary l icense plates and youthful occ upants wait ing at a sto p sign, the driver looking dow n into the lap of the passenger at his rig ht. The truck remained stopped at the intersec

tion for what

seemed an unusuall y long t ime - - more than twenty seconds. When the police car executed a U -turn in or der to head back toward the truck, it t urned suddenly to its ri ght, wi thout signal ling, and s ped off at an “unreasonable”

speed. The polic emen followed, and in a short w hile over took the truck w hen it stopped behi nd other traffic at a red lig ht. They pull ed up alongsi de and an officer stepped out and approached the d river’ s door, identi fying himse lf as a police officer an d directing the driv er to put the vehicle in par k. When the officer drew up to the driver ’s windo w, he immediat ely obser ved two large plas tic bags of-4-

what appeared to be crack c ocaine in the pas senger’s hands. Driv er and passenger were arrested, and quantities of se veral types of illegal drugs were retriev ed from the vehic le. Defendants argued that the stop had not been justified by

probable cause to believe, or even rea sonabl e suspic ion, tha t they were en gaged in ille gal drugdealing acti vity; and that the poli ce officers’ ass erted ground for approaching the vehicle -- to giv

e the driv er a war ning concer ning traffic v iolations -- was pretextual. The Distri ct Court deni ed the suppressi on motion, conclu ding that “the facts of the stop were not controverted, and “[t]here was nothing to really demonstrate that th e actions of the of ficers were contrary to a normal traffic stop. ” The Defendants were convicte d of four counts of vi olation of var ious federal dru g laws. The C ourt of Appeals affirmed, holding w ith respect t o the suppressi on issue that, “reg ardless of w hether a polic e officer subjecti vely b elieves t hat the occupants of an automo bile may be engaging in some other illegal behavior, a traffic stop is perm issib le as long a s a rea sona ble o ff icer i n the same circu msta nces coul d have stopped the car for the suspected traff ic violation.” The U. S. Supreme Court af firmed, holding that a traf fic stop is reasonable where poli ce have proba ble cause to bel ieve that a traffic viol ation has occured, regardles s of the actual moti vations of the i ndividual officers invol ved, unless the stop is show n to be constitu tionally impermissibl e selective enforcement of the law based on consider

ations such as

race. Whren, supra

. Defendants contend that the State of Tennessee has authority

to protect the privacy of its citiz ens more stri ngently than does the U. S . Constituti on. We agree. However, we note that all case law on the issue of suppression of evidence because of a selecti ve stop ci ted in the Smith opin ion, upon which D efe nda nts re ly, is federal caselaw, in dicating t hat Tennessee has chos en to base its l evel of protection upon t he rights afforded all citi zens under t he U. S. Const itution. Therefore, we find the Whren decision shoul d be followed i n this case. Whren holds that inq uiry in to the motivat ions of the polic e is not constitutional ly mandated unl ess the stop i s alleged t o have been motiv ated by-5-

racial or other constit utionally impermissibl e selectiv ity. There is no such al legation of racial or o ther impermiss ible selecti vity in this case , therefore, the s top was proper. Since the traffic s top in questi on was law ful based upon probabl e cause to believe that

a traffic vi olation had occu rred, w e find that the soleissue the Defendants have reserved for ou r considerat ion is w ithout merit. We aff irm the judg ment of the trial c ourt.

John K. Byers, Sen ior Judge

CONCUR:

John H. P eay, Judge

Jerry L. Smith, Judge

# FILED

February 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

STATE OF TENNESSEE, ( ( 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 Reh ear Upon consideration of the petition to rehear filed by the appellants Davey

Joe Vi neyard and Jimmy Lee Cockburn, thi s Court is of the opinion that the petitio n should be and the same is hereby denied.

PER CURIAM