1 The evidence shows a police officer was on patrol on August 16 th at approximately 9:00 p.m. in an area he did not normally patrol and with which he was unfamiliar. The sun was going down

and it was dusky

dark. He saw fou

r young me

n standing aroun

d a vehicle on the end of a 7-11 parking lot which was not well-lighted and thought that was peculiar. He approached the people and asked them to produce identification. The officer did not testify to any objective facts to show a re asonable basis to suggest the people were involved in any wrongdoi ng. 1

IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION ) Plaintiff-Appellee, ) Filed: January 31, 2000 ) v. ) Knox Criminal ) ) Hon. Richard Baumgartner, BRIAN D ANIEL, ) Judge ) Defendant-App

ellant. ) No. E1997-00142- SC-R11-CD

CONCURRING/DIS

SENTING OPINION
I concur in th

e judgment reac

hed by the ma

jority in this c

ase. I would,

however, hold that for purposes of the Fourth Amendment to the United States Constitution and Article 1,
section 7 of the Constitution of the State of Tennessee a seizure occurred when the officer asked the defendant for his identification rather than, as the majority holds, when the of ficer
retained the identification for a records check. Additionally, my framing of the issue diffe

rs from that of the

majority in th

at I believe the correct question is whether a police officer may approach a citizen and require that person to produce identification when the officer has no reasonable basis for the approach. 1 I believe this case should be decided in accordance with the rulings of the United States Supreme Court in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
and Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), for federal constitutional analysis and under this court’s holding in Hughes v. State, 588 S.W.2d 296 (Tenn. 1979), for state constitutional analysis. I have found no sug gestion that the federal cases cited by the majority have ove rruled Terry v. Ohio or Brown v. Texas; nor, do I find any suggestion that the Tennessee cases cited by the majority have overruled Hughes v.
State

. I come to this conclusion because the facts in the case before us, for purpose s of constitutional analysis, are practically the sa me as those of the Browncase. Brown v. Texas, 443 U.S. at 48-9. Th

e facts in the ca

ses cited by

the majority

are significa

ntly 

# FILED

January 31, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk2 different–which leads me to believe the United States Supreme Court would adhere to the holding in Brown v. Texas and wou ld n ot n ull ify Terry v. Ohio based upon these f

acts.
In Brown v. Texas , officers on patrol saw Brown and another man walking away from one another in an area of high incidence of drug traff ic. Id. The officers stopped Brown, asked him to identify himself and explain what he was doing. One officer testified he stopped Brown because he “looked suspicious and [the officers] had never seen the subject in that area before.” Id. at 49. The officer did not claim to suspect Brown of any misconduct, nor did either officer have any reason to believe B rown was armed. Id. Brown refused to identify himself and was arrested and c harged with violation of a Texas statute criminalizing such refusal to provide identification to an officer “who has lawfully stopped him and requested the information.” Id. The United States Supreme Court
held: In the absence of any basis for suspe cting [Brown] of misconduct, the balance between the public interest and [Brown’s] right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which [Brown] was stopped and required to identify himself is designed to advance a weig hty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping a nd demanding ident

ification from an

individual without a

ny specific

basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police pra ctices exceeds tolerable limits. See Delaware v. Prouse, [440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)]. The application of [the Texas statute], to detain [Brown] and require him to iden

tify himself

violated the Four

th Amendment beca

use the officers lacked any reasonable suspicion to believe that [Brow n] was enga ged o r had enga ged i n cri min al c ond uct . Ac cord ingl y, [Brown] may not be punished for refusing to identify himself, and the conviction is reversed. Brown v. Texas, 443 U.S. at 52.
The factual scenario in the case before us is as cogent as the fac ts in Brownfor the purpose of holding as I would that the seizure in this case occurred when the office r asked Daniel and the others to supply identification.
In Hughes v. State, 588 S.W.2d at 296, a police officer went to a store at the owner’s request. The owner thought a man in the store–Neese–appeared suspicious because he remained in the store after the man he rode with–Hughes–drove away . The police seized
Neese and went i

n search of Hug

hes, whom they

located as he dro

ve up an interstat

e approach ramp. Id. at 300. Hughes voluntarily drove to the store where the episode beg an. An officer then approached Hughes’s vehicle and asked Hughes to show his driver’s license. I t is unclear whether the officer asked Hughes to roll down the car window; however, the opinion2 Footnote 5 of the m ajority opin

ion states Brown v. Texas is distinguishable from this case because the officer failed to recognize that a citizen has the right to walk a way. The Browncourt held the con frontation with Brown was constitut ionally imper

missible because “without any specific basis for believing he [was] involved in criminal activity , the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police pra ctices exceeds tolerable limits.” Brown v. Texas, 443 U.S. at 52. In footnote 5,

the majority

also says Hughes v. State is distinguishable because the seizure occurred when Hughes was directed to drive back to the store. The Hug hes opinion does not speak of Hughes being directed to drive back to the Country Store. The entire focus of the case’s Fourth Amendment issues centered around the conduct of the officer at the Country St

ore. The court ba

sed its ruling upon

this conduct.
3 indicates the officer did so. When the window was rolled down, the officer smelled marijuana. Hughes was arrested and subsequently convicted for possession of marijuana. I n reversing the conviction and dismissing the charge, this court stated:

There is not the slightest suggestion in the record that Hughes had violated, was violating, or was about to violate any law. None of the criteria of Delaware v. Prouse . . .was present to cause him to be brought under scrutiny. He was not in a high crime are a; there was nothing in his behavior to suggest law violation; the officers had not seen any tr

affic violations;

and there was not

hing about the ve

hicle to incite suspicion. As Judge Daughtr

ey phrase d it in dissent: Thus, the controlling question is whether the officer had a constitutionally valid basis for making the original intrusion into the privacy of an individual who had given the officer absolutely no reason to suspect that he was engage d in any cri min al a cti vit y. The answer is evident; the intrusion was illegal and impermissible. As held in Brown v. Texas . . . “none of the circumstances p

receding the o

fficers’ deten

tion justified a re

asonable suspicion that he was involved in criminal conduct.”

Hughes v. State, 588 S.W.2d at 308 (citation omitted).

There is not the sli

ghtest sugge

stion in this case tha

t Daniel had violat

ed or was about to violate the law when the officer requested that Daniel produce his identification.
The federal an

d state cases cite

d by the major

ity are disti

nguishable fro

m this case
and Brown and Hughes. The evidence in the cases cited by the majority shows the initial intrusion by the police officer was supported by articulable facts which would give rise to a reasonable or well-founded belief that a crime was being or was about to be committed. The
same is not true in this case or in Brown or Hughes

. 2 For the most part, the significant cases cited by the majority involved drug interdiction efforts and occurred in places of public conveya nce. The approach of the
officers in those

cases was based

upon the presenc

e of facts indica

ting the defend

ants in question fit drug profiles established to alert officers to potential drug traffickers at work. The drug profil

e, established by

experienced off

icers observing

the conduct of pe

ople involved in drug t

rafficking, ha

s generally

been recognize

d as sufficient to g

ive a reasonable3 State v. Crutcher , 989 S.W.2d 295 (Tenn. 999) (the case was based on an in

adequate search warra

nt); State v. Pulley , 863 S.W.2d 29 (Tenn. 1993)(the case was reversed be

cause the police offic

er stopped the ve

hicle without proba

ble cause to do so) ; State v. Butler, 795 S.W.2d 680 (Tenn. Crim. App. 1990) (distinguished the Hughes case on the facts).

4 In Bostick , the issues did not concern the police’s initial approach itself, but rather the place of the approach. Additionally, Crutcher was decided on a

probable cause

basis premised on a search and seizure issue, not a Terry , Brown , or Hughes type issue.

5 Although it may

seem far-fetc

hed that police of

ficers or other

state officials w

ould engage in or order widespread sweeps to check the identifica tion of vast numbers of citizens for no reason, su

ch city-wid

e identification c

hecks could conc

eivably occ

ur under the rule adopted by the majority position. A rule that could be (mis)used to sanction such unintended consequences should be considered to fall outside the constitutional pale.

6 In footnote 7, the majority opinion stresses, in spite of the concurring opinion’s assertions, that th

ey are not h

olding police may

approach any

citizen at any

time, regardle

ss of the circumstances, and demand the citizen show identification. If that is an op

tion reserved in t

he majority o

pinion in this case w

hen the state conceded the of

ficer lacked a

ny reasona

ble suspicion to supp

ort a seizure or pr

obable cause
4 indicia of objective assessment by officers rely ing on the profile. Reliance on the objective criteria prepared in an administrative setting separates constitutionally per missible intrusions from intrusions based on mere unsupported suspicions of an officer, which threaten the constitutional rights of citizens. In short, the profiling procedure preserves the ability of the police to carry

out their duties with

out unreasonable

interference

in the rights of c

itizens.
When the facts in th

e line of cases c

ited by the ma

jority 3 are reviewed and compared

to Brown v. Texas a

nd Hughes v. State , a clear and distinct difference emerges. I n each of the cases cited by the majority, the fa cts show a reasonable suspicion of wrongdoing by the
defendant. 4
In Florida v. Royer, 5 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2

d 229 (1983): Florida
v. Bostick , 501 U.S. 429, 111 S.Ct . 2382, 115 L.Ed

.2d 389 (1991); Michigan v. Cheste rnut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), the United States Supreme Court had the opportunity to overturn Brown v. Texas and did not do so. If police off

icers may a

pproach citizens u

nder circumstan

ces shown in this ca

se, it means that citizens may at any time and any place for any reason or no reason whatsoeve r be stopped by the police and asked what they are doing and who they are. I find this notion intolerable in a g

overnment such a

s we have creat

ed where we ea

ch have appropr

iated unto
ourselves t he right to b e free of unrea sonable in terference i nto our mos t basic freed om to go where we wish an

d retain the rig

ht to do so anony

mously, i.e. t

o protect who we a

re, unless
the state shows a r

easonable basis f

or intruding upon

these rights. These cases, like all search and seizure cases, must be decided on the factual bases of each case. However, when the facts in the case under considera tion so closely fit the facts of
Brown v. Texas andHughes v. State , it seems clear that the court should hold the seizure
occurred when the officer demanded that Daniel show his identification. 6to support a search, and where the officer testified to no articulable facts to show such circumstances, then that option should be exercised. The belief by the police officer that is was “peculiar” to see four young men standing around a vehicle at a time when it was “dusky dark” does not support a re asonable suspicion the men were engaged in criminal activity. F urther, the officer did not testify that when he arrived at the me

n’s location he obs

erved any thing to cause him

to believe unlawf

ul activity was afoot. This case meets the Brown v. Texas and Hughes v. State prohibition agai

nst Fourth Amendment violations by the state.

7 If the police

can do nothing wi

th the identificat

ion under these c

ircumstances, the intrusion serves no useful police purpose, prohibiting this type of conduct does not deter legitimate police function.
5 Allowing police o

fficer’s to req

uire people to show

their identifica

tion absent a
reasonable bas

is to do so serves no l

egitimate police

function–allowing

police officer

s to require people t

o show their identif

ication when the o

fficers have sh

own a reasonable

basis for the request d

oes. 7 By requiring officers to show a reasona ble basis to support the conduct, the constitutional rights of individuals are preserved and legitimate police function is not impeded. The potential for abuse is inherent in authority; unchecked it can be oppressive: by allowing police officers the right to intrude upon a citizen or group of citizens at any time or any place and require them to show identification without any reason to do so creates an atmosphere in which abuse and oppression can thrive. I would hold they do not have this authority because the right to go lawfully about
one’s business an

d the right to priv

acy in one’ s identity is pr otected by t

he Fourth Amendment to the United States Constitution and Article 1, section 7 of the Constitution of
the State of Tenne

ssee. To allow poli

ce officers to c

onfront citizens an

d require them to
show identificati

on without any

reason to do so sets

the balance of th

e right of the ci

tizen vis à vis the needs of the police to act seriously askew. To give police a uthority to do so serves no legitimate police function. To deny the authority deters no legitimate police function. I am authorized to state that Justice Birch joins in this concurring/dissenting opinion.

________________________________ John K. Byers, Special Justice