### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs F ebruary

16, 2005
STATE OF TENN ESSEE v. ANTONIO D . JONES
Direct Appeal from the Criminal Court for Davidson County

No. 2002-A-290 Mark Fishburn, Judge

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

T HOM AS T. W OODA LL , J., dissenting.

Irespectfully dissent. B ased upon my re view of the reco rd, the e ncounter leading up to Defendant’s consent

to submit to a search was a brief police-citizen encounter r equiring no objective justification. State v. Daniel , 12 S.W.3d 420, 424 (Tenn. 2000). Accordingly , Iwould affirm the judgmen t of the tr ial cour t.

In State v. Randolph , 74 S.W.3d 330, 336 (Tenn. 2002), the Court held that unde r Article I, section7 of the Tennessee Constitution, in determining whether there is a “seizure” of a person

(and nota brief

police- citiz en encounter) the proper standard is that set for th by the United States Supreme Court in United Sta tes v. Me ndenhall, 446 U.S. 544 (1980) whether “in view of all of the circumstances surround

ing the i ncident, a reasonable pe

rson woul dhave believed he or she was not free to leave.” Randolph , 74 S .W.3 d at 33 6 (quo ting Mendenh all , 446 U.S. at 554).

The Tenness ee Supre

me Court ha s identifi ed numer ous fact ors that a re rele vant t o t he totalit y of the ci rcumstan ces test:
the time, place and pur

pose o f the encounter; the words used by the officer; the officer’s tone of voice and general demeanor; the off

icer’s s tatement s to others who
were present during

the encounter; the threatening prese nce of several

officers; the display of a weapon by

an officer; and the physical touching of the person of the citizen. Randolph , 74 S.W.3d at 337 (quot ing Daniel , 12 S.W.3d at 427). Furthermore, in Daniel , the Court stated that while this analysis is “nece ssarily imprecise,” ther e are several police encounter s generally held to constitute “seizures”: [wh ere the o fficer] (1) pursues an individual who has attempted to terminate the contact by departing ; (2) continues to interrogate a person who has clea rly expressed
a des ire not to c ooperate; (3) renews interrog ation of a person who has earlier-2-

responded

fully to police

inquiries ; (4) ver

bally orders a citizen to stop and answer questions ; (5) retains a citizen’s identification or oth er prope

rty ; (6) phy

sically restrains a citizen or blo c ks the citizen’s path; (7) displays a we apon during the encounter. Randolph , 74 S. W.3d at 337 (quot ing Daniel , 12 S. W.3d at 426) . The Cour t’s analy sis in both Daniel and Randolph indicate that “the line of demarcation is drawn at the officer’s communication of mandator y c omplianc e with hisor

her request, as opposed to voluntary compliance by the

citizen.” State v. James D. Nicholson , No. M2004-00111-CCA-R3-CD, 2005 Tenn. Crim. App. LEXI S 78, *10 (Tenn. Crim. App., at Nashville, Jan. 25, 2005) (no Tenn. R. App. P. 11 applica tion filed). Specifically, in Daniel , the court held, . . . courts have consistently he ld that the Fourth A mendment

is not implicated and
no seizu re oc curs when police approach an individual, in a public place , or in a parked car, as k q ue st io ns , a nd re qu es t t o s ea rc h, so lo ng as po li ce do no t c on ve y a message that compliance with their requests is require d.

Daniel , 12 S.W.3d at 426. (emphasis in original).

In State v. Randolph , an officer observed the defe ndant riding a bicy cle a few blocks from the site of a possible burglary

. Randolph , 74 S.W.3d at 332. The only description available of the burglary suspect w as that th e suspect was a “white male”. Id. Acting on a “hunch,” the office r activated the blue lights in his patrol car with the intent to stop and identify the

defendant. Id. at 333. As the defendant neared the patrol car, the officer rolled down his window and told him to stop. Id. The defenda

nt, who wa s wit

hin thre e feet of the vehicle, looked at the office r but kept riding. Id. When the defendant was eventually apprehended, he had seve ral items i n his possession which linked him to the burglary

. Id. The Supreme Court ruled that the evidence should be suppressed, holding that “the defendant was seized when the officer activated the blue lights on his patrol ca r, ordered the defendant to stop, and pursued him for seve ral blocks.” Id. at 338.

The Court in Danie l , on the other hand, held that an officer’s initial approach of the defendant did not constitute a seizure where the officer mer ely approac hed the de fendant

and his friends , who were standing around outside a vehicle in a parking lot, inquired what was going on, and asked to s ee ident

ification. The Co urt he ld that at that point, there was no evidence that the officer phy sic ally

restr ained the defendant, instructed him not to walk away , or blocked his path. Therefore, no seizure occurred. However, when the officer retained the defenda nt’s identification to run a computer warrants check, the c onsensual police-citizen encounter matured into a seizure of the person.

A pane l of this Court recently followed Randolph and Daniel and held that the defendant
was seized when, in the presence of multiple officers, a de tective instructed the defenda nt to “hold up,” pursued him on foot, and event ually ap prehended him. State v. James D. Nicholson , No. M2004-00111-CCA-R3-CD, 2005 Ten. Crim. App. L EXI S 78, at *14-15 (Tenn. Crim. App., at-3-

Nashville, Jan. 25, 2005) (no Tenn. R. App. P. 11 applicationfiled). In State v. James D. Nicholson , several officers had arrived at the John Henry Hale Housing Projects for the purpose of conduc ting gang investigations, when they observed a large group of individuals, some of whom we re engaging in“hand-to-hand drug transactions.” Id . at *2. As the officers approached, seve ral individuals ran. Later, one detective noticed t he defe ndant wa lking tow ard Hen

ry Place an d told him to “hold up.” Id. at *3. The defendant ran, but was chased and a pprehended by

officers. Id. The defendant refused to identify himself to detectives and insisted he was visiting someone, though he refused to reveal t he name of the pe rson he was visiting or where the person lived. The de fendant was then placed under ar rest for trespas sing and

a searc h inciden t to arrest rev ealed crack co caine a nd cash in his possession. Id. at *3-4. The Court held that at the time the defendant was told to “hold up” and pursued by

an officer, the officer did not have sufficient grounds to warrant the se izure. Id. at *22. As a result, the Court suppressed all evidence collected a s a result of the seizure, vacated the conviction, and dismissed the charges. Id.

Inthe case sub judice , the first step of analy sis is to determine whether the initial encounter between Officer Martin and Defendant amounted to a “seizure” under the standard adopted by our Sup reme Court in Randolph . The facts are not in dispute. Officer Mar tin, in full unifo rm , approached

Defendant

in order to ascertain whether or not he wa s tr es pa ss in g o n M DH A p ro pe rt y. Defendant

saw the officer approaching , the two men looked at eac h ot her, and Defendant immediate ly

walked q uickly to a vehicle parked on the public street outside of MDHA property

and thengot into the back seat. The officer f ollowed him to the car, and

with the door open, the officer “asked him if [he] could talk to him . . . asked him to take his hands out of his pockets . . . and asked him to step from the vehicle.” While cross-examination of Officer Martin re sulted in some variance inthe sequence and specifics of the conve rsation, the trial judge made the following findings of fact following the suppression hearing: “Officer Martin approached

the vehicle, asked the defenda nt if he would mind exiting and speaking to the officer. The defe ndant agreed, exited the vehicle, and removed his hands from his pockets as requested.”

Iagree with the tr

ial cour t that Off icer Ma rtin did no t need re asonable suspicion or proba ble
cause to approach Defendant and conduct i nvestig atory

questioni ng in ord er to ascertain whether or notDefendant was a resident of the MDHA housing complex. Nothi ng that happened after the officer bega n to approac h Defendant indicates that it was more than a consensual police-citizen encounter. Nothing indicates that a reasonable person in Defendant's position would have believed he was not

free to leave . The enc ounter be tween De fendant

and Off icer Ma rtin does not fall within any of the pol ice-cit

izen enco unters wh ich our Sup

reme Cour

t listed in Daniel as being “seizures.” See Daniel , 12 S.W.3d at 426. According to Daniel , a police-citizen encounter is a seizure where
anofficer (1 ) pu rsues an individual who has attempted to terminate the contact by departing; (2) continues to interrogate a person who has cl early e xpressed a desire not to cooperate; (3) renews interrogation

of a per son who ha s earlie r respon ded fully to police inquiries ; (4 ) v er ba ll y orders a citizen to stop and

answer questions ; (5) ret

ains a ci t i zen’s identification or other property ; (6) phy sically

restrains a citizen or blocks the citizen’s path; (7) displays a we apon during the encounter. Daniel , 12 S.W.3d at 426. Defendant argues that the encounter in the case sub judice fits into several of these categor

ies.-4-

Defendant

argues that because Off

icer Martin continued

to pursue Defendant after he, in the words of the trial cou

rt,"att empted to evade O fficer

Martin,” the offic er's a

ctions fa ll within the

first two police-citizen encount er ca tegorized in Daniel as a "seizure" where a n officer "pursues an individual who has attempted to terminate the contact by departing” or, where an officer “continues to interrogate a person who has cle arly expressed a desire not to cooperate.” I ndeed, by noticing the approac hing off icer an d immediat

ely walking the other direction, Defendant clearly expresse d his desire to avoid Officer Martin. However, his mer e walking aw ay a short distance from Officer Martin cannot be said to be an attempt to terminate contact with the officer, since no contact had been made at that time. Unlike the officers in Randolph and Nicholson , Officer Martin did

not tell Defend a ntto stop. I

n fact, h e said not

hing to D efenda

nt nor mad

e any contact whatsoe ver with Defendant

until after Defendant was seated in the back sea tof the vehicle and the officer walked up to him and asked if he could talk to Defendant. There is nothing in the record to indicate that Defendant

made any a

ttempt to terminate the contac t with Officer Martin once their conversa tion began. On the contrary

, the record demonstrates that Defendant wa s “fully cooper ative.”
Next, Defendant

argues that Officer Mar

tin gave Defendant a verba l order to stop and answer questions when he a sked Def endant to “step from the vehicle.” L ikewise, he also argues that when the offic er walke d up to the open car door where Def endant was seated, he physically blocked h

is path, and thus seized him. I disagree. First, because D efendant was already seated in a

vehicle when the offic er walke d up to him, t he offic er’s as king him t

o step out o f the veh

icle cou ld not possi

bly be considered an “order to stop.” Defe ndant had already

“stopped” on his own volition when he sat downin the bac

k seat of a parke d vehicle . Second, althoug h the rec ord ref

lects tha t the of ficer walked up to the op en door o f the bac k seat of the vehic le where Defendant was seated, with his feet still outside the vehicle, it does not indicate that Defendant was attempting to e xit the vehicle or that the officer in any

way blocke d him from doing so . Regar dless, co urts have consistently held that the Fourth Amendment is not implicated and no seizure occurs wh en an offic er appr oaches a vehicle parked in a pu blic place and asks the occupant questions. Daniel , 12 S.W.3d a t 426; see State

v

. Pulley , 863 S.W.2d 29, 30 (Tenn. 1993).

Officer Martin asked Defendant if he would talk with the officer

. Defendant consente d to do so. Defendant

was also asked if he would removehis hands from his pockets, and step outside the vehicle he was sitting in, in the back seat, with the door open.

If Office r Martin had ordered Defendant to get out of the vehicle, and/or ha d ordered Defendant

to remove his hands from his pockets, and/or had ordered Defend ant to answer que stions, there would def

initely had bee n a “seizu

re.” However, there was n o evide nce th at the se thi ngs happened inthis described manner. The trial judge observed the testimony of Officer Martin during both direct and cross-examination, and concluded, at least implicitly , that Officer Martin “did not convey a message [to Defendant] that compliance with [Offi cer Mar

tin’s] req uests [was ] required.” Daniel , 12 S.W.3d at 426. Thus there was no seizure, and the judgment should be affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE