### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 15, 2 005 Session

STATE OF TENN ESSEE v. ANTONIO D . JONES

Appeal from the Criminal Court for Davidson County No. 2002-A-290 Mark Fishburn, Judge

No. No. M2004-01349-CCA-R3-CD - F iled August 12, 2005

G ARY R. W ADE , P.J ., con curri ng.

I fully concur w

ithJu dge Hay

es' notable and well-written opinion. L ike Judge Haye s, I believe that the defendant was seized when the officer a sked him to step out of his vehicle and that the seizure w as not supp orted by reaso n able suspicion or probable cause. I also agree that the defend ant's consent

to searc h his pers on was not

sufficie ntly attenua ted from t he illeg al seizure

so
as to be f ree fro m an y tai nt . In consequence, the convictions for possession of cocaine and marijuana should be r

everse d and rem anded for a new tr ial.

I write separately

only to explain the factual distinction between this case and State v. James D. Nicholson , No. M2004-00111-CCA-R3-CD (Ten n. Crim. App., at Nashville, Jan. 25, 2005 ), wherein I filed a dissenting opinion with a view that would ha ve upheld the propriety

of an investigatory

stop under

compara ble circ umstance s. In Nicholson , the defendant ran when the officer said, "Hold up." It wa s the defendant's "head lo ng flight" coupled with significa nt other circumstances that, in my op inion, prov ided the officers with reasonable suspicion to pursue and stop. See Illinois v. Wardlow , 528 U.S. 119, 124-25 (2000) (holding that "[h]eadlong flight -- wherever it occurs -- is the consummate act of evasi on: i t is n ot nec essari ly indic ative of wro ngdoi ng, but it is cert

ainly sugge stive of su

ch" and that "un provoke d flight

is simply not a mer

e refus al to cooperate"). In Nicholson , the officers had just observed severalindividuals involved in hand-tohand drug tr ansacti ons in

the same location. All ran at the sight of the police. The incident occurred late at night in a high cr ime area well know

to the officers for illegal drug transactions. Nicholson, who had not been a part of the earlier c rowd, fled when an officer said, " Hold up."

In contrast, the defendant in this case was standing alone on a

street c orner in

the middle of the day . When the o fficer approac hed the de fendant
, he turned and walked a short distance before entering a parked car. There wa s no "headlong flight" or other circumstance warranting a stop. The offic er's statement, "[Y]ou need to step from the vehicle," was an unqualified dire ctive. See United States v. Drayton , 536 U.S. 194, 201-02 (2002) (holding that even when there is no basis to suspect

a crime, officers may

ask questions, ask for identification, and ask for consent to conduct a search,-2-

so long as the means used to induce the cooperation are not coe rcive. Cf. State v. Daniel , 12 S.W.3d 420, 426 (Ten

n. 2000) ( holding t hat no sei zure occ

urs when an offic er appr

oaches a vehicl e in a public place and asks questions of the occupant). The defenda nt was no lo

nger f ree, in m y vi ew, to refuse to comply. See Florida v. Bostick , 501 U.S. 429, 439 (1991) (holding that the critical question is whether

the law e nforce ment cond

uct indic ated a la

ck of fr eedom " to decline

the offic ers' r

equests

or otherwis e termina

te the encounter "); State v. Randolph , 74 S.W.3d 330, 335 (Tenn. 2002 ) (holding that the relevant question when distinguishing between a brief police-citizen

encounter

and

a seizure is whether "in view of all the circumstances surrounding the conduct, a reasonable person would h ave beli eved he or she was not free to leave " ). It is my view that the circumstances that might support a finding of reasonable suspicion in this case did not quite reac h the level of

those in Nicholson

.

___________________________________ GARY R. WADE, PRESIDING JUDGE