1

 The evidence shows a police officer was on patrol on August 16th 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 four young men standing around 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 reasonable basis to suggest the people were involved

in any wrongdoing.

1

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION

)

Plaintiff-Appellee, ) Filed: January 31, 2000

)

v. ) Knox Criminal

)

) Hon. Richard Baumgartner,

BRIAN DANIEL, ) Judge

)

Defendant-Appellant. ) No. E1997-00142-SC-R11-CD

CONCURRING/DISSENTING OPINION

I concur in the judgment reached by the majority in this case. 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 officer

retained the identification for a records check.

Additionally, my framing of the issue differs from that of the majority in that 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 suggestion that the federal

cases cited by the majority have overruled 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 purposes of

constitutional analysis, are practically the same as those of the Brown case. Brown v. Texas,

443 U.S. at 48-9. The facts in the cases cited by the majority are significantly

FILED

January 31, 2000

Cecil Crowson, Jr.

Appellate Court Clerk
2

different–which leads me to believe the United States Supreme Court would adhere to the

holding in Brown v. Texas and would not nullify Terry v. Ohio based upon these facts.

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 traffic. 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 Brown was armed. Id.

Brown refused to identify himself and was arrested and charged 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 suspecting [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 weighty social

objective in large metropolitan centers: prevention of crime. But even

assuming that purpose is served to some degree by stopping and

demanding identification from an individual without any 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 practices

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 identify himself violated the Fourth Amendment because

the officers lacked any reasonable suspicion to believe that [Brown]

was engaged or had engaged in criminal conduct. Accordingly,

[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 facts in Brown for the

purpose of holding as I would that the seizure in this case occurred when the officer 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 in search of Hughes, whom they located as he drove up an interstate

approach ramp. Id. at 300. 

Hughes voluntarily drove to the store where the episode began. An officer then

approached Hughes’s vehicle and asked Hughes to show his driver’s license. It is unclear

whether the officer asked Hughes to roll down the car window; however, the opinion
 

2 Footnote 5 of the majority opinion states Brown v. Texas is distinguishable from this

case because the officer failed to recognize that a citizen has the right to walk away. The

Brown court held the confrontation with Brown was constitutionally impermissible 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 practices 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 Hughes 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 Store. The court based 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. In 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 area; there was

nothing in his behavior to suggest law violation; the officers had not

seen any traffic violations; and there was nothing about the vehicle to

incite suspicion.

As Judge Daughtrey phrased 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 engaged in any

criminal activity.

The answer is evident; the intrusion was illegal and

impermissible. As held in Brown v. Texas . . . “none of the

circumstances preceding the officers’ detention justified a reasonable

suspicion that he was involved in criminal conduct.”

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

There is not the slightest suggestion in this case that Daniel had violated or was about to

violate the law when the officer requested that Daniel produce his identification.

The federal and state cases cited by the majority are distinguishable from 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 conveyance. The approach of the

officers in those cases was based upon the presence of facts indicating the defendants in

question fit drug profiles established to alert officers to potential drug traffickers at work. 

The drug profile, established by experienced officers observing the conduct of people

involved in drug trafficking, has generally been recognized as sufficient to give a reasonable
 3

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

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

the police officer stopped the vehicle without probable 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-fetched that police officers or other state officials would

engage in or order widespread sweeps to check the identification of vast numbers of citizens

for no reason, such city-wide identification checks could conceivably occur 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 they are not holding police may approach any citizen at any time, regardless

of the circumstances, and demand the citizen show identification.

If that is an option reserved in the majority opinion in this case when the state

conceded the officer lacked any reasonable suspicion to support a seizure or probable cause

4

indicia of objective assessment by officers relying on the profile. Reliance on the objective

criteria prepared in an administrative setting separates constitutionally permissible 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 without unreasonable interference in the rights of citizens.

When the facts in the line of cases cited by the majority3 are reviewed and compared

to Brown v. Texas and Hughes v. State, a clear and distinct difference emerges. In each of

the cases cited by the majority, the facts 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.2d 229 (1983): Florida

v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Michigan v. Chesternut,

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 officers may approach citizens under circumstances shown in this case, it

means that citizens may at any time and any place for any reason or no reason whatsoever be

stopped by the police and asked what they are doing and who they are. I find this notion

intolerable in a government such as we have created where we each have appropriated unto

ourselves the right to be free of unreasonable interference into our most basic freedom to go

where we wish and retain the right to do so anonymously, i.e. to protect who we are, unless

the state shows a reasonable basis for 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 consideration so closely fit the facts of

Brown v. Texas and Hughes v. State, it seems clear that the court should hold the seizure

occurred when the officer demanded that Daniel show his identification.6
to 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 reasonable suspicion

the men were engaged in criminal activity. Further, the officer did not testify that when he

arrived at the men’s location he observed anything to cause him to believe unlawful activity

was afoot. This case meets the Brown v. Texas and Hughes v. State prohibition against

Fourth Amendment violations by the state.

 

7

If the police can do nothing with the identification under these circumstances,

the intrusion serves no useful police purpose, prohibiting this type of conduct does not

deter legitimate police function.

5

Allowing police officer’s to require people to show their identification absent a

reasonable basis to do so serves no legitimate police function–allowing police officers to

require people to show their identification when the officers have shown a reasonable basis

for the request does.7

 By requiring officers to show a reasonable 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 and the right to privacy in one’s identity is protected by the Fourth

Amendment to the United States Constitution and Article 1, section 7 of the Constitution of

the State of Tennessee. To allow police officers to confront citizens and require them to

show identification without any reason to do so sets the balance of the right of the citizen vis

à vis the needs of the police to act seriously askew. To give police authority 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