1 Oral argument was hear d in t his ca se on May 28, 2003, in Cookevill e, Putnam County, Tennessee, as part

of this Co urt's S.C.A .L.E.S . (Sup reme Co urt Ad vanc ing Le gal E duc ation fo r Stud ents) p roje ct.



### IN THE SUPREME COURT OF TENNESS EE

AT NASHVILLE May 28 , 2003 Ses sion Hear d at Cookevi lle

STATE O F TENNESSEE v. GONZ ALO MO RAN GA RCIA Appeal by pe rmissio n from the Court of Cr

iminal App eals, Criminal Court for Davidson County No. 99-C-01760 Steve Dozier, Judge

No. M2000-01760-SC-R11-CD - Filed October 1, 2003

Th e defendant, Gonzalo M. Garcia, was convicted in the Criminal Court for Da vidson Count y o f possession of one tho

usand g rams or more of methamphetamine with intent to deliver. We granted this appeal t

o determ ine wheth er the evid e nce obtained as a result of the stop should have been suppressed. After e

xamining th

e facts and law relevant to the issues, we hold that the de fendan t's traffic stop was not based upon reasonable suspicion, in violation of the Fourth Amendment to the Federal Constitution and Article I, section 7 of the Tennessee Constitution. We also hold thatthe evidence in this cas e must be suppressedbecause the defendant's c onsent to search his vehicle was not sufficiently attenuate d from his unlawful detention. 1
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed in Part and Reversed in Part.

W IL LI AM M. B ARKER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., E. R IL EY A NDERSON , and A DOLPHO A. B IR CH , J R ., JJ. joined. J ANICE M. H OLDER , J. filed a dissenting opinion.

Richa rd M. McGee a

nd James O. M artin, I

II , Nashvill e, Tenne ssee, fo r the app ellant, Gonzalo Moran Garcia.
Wesley MacNeil Oliver, New Haven, Connecticut, for the amicus curiae, Tennessee Association of Criminal D efense

Law ye rs.

Paul G. Summers, Attorney Gene ral and Reporter ; Micha el M oor e, S olicitor

Genera l; D ary l J. Brand, Associate Solicitor General; Victor S. Joh nson, III, District Attorney Gene ral; and John Zimmerman, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION-2- FACTUAL BACKGROUND

At approximately 10:50 p.m. on May 9, 1999, the defendant, Gonzalo M. Ga rcia, w as stopped in his vehicle by Offic er Deborah Kohl of the Metropolitan Nashville ("Me tro") Police Department

while driving on Interstat e H ig hw ay 24 in Nashville, Davidson County, Tennessee

. During the traffic stop, Metro police officers seized 40.1 pounds, or approximately 18,200 grams, of methamphetamine. On September 24, 1999, a Davidson County Grand Jury issued an indictment chargingthe defendant with one count of possession of one thousand grams or more of methamphetamine with intent to deliver. Prior to trial, the defendant filed a motion to

suppress any evidence obtained as a result of the traffic stop. The trial court de nied the motion, and the Court of Criminal Appeals upheld tha t ruling . We gra

nted review in this case to determine whether the lower courts erred by

refusing to suppress the evidence. Acc ordingly, our factual background will be limited to th

e relev ant portio ns of the s uppressi on hearing and t he trial.

At the suppression hearing, Officer Kohl testified that she had been with the Nashville Police Department

for eleven y ears and

was currently

assigned to the Twentieth Judicial District Drug Ta sk Forceand had beenso assigned for approximately eight months before the traffic stop in this case. She also testified that she had received specialized training in the f ield of highway

drug interdiction at conferences org an iz ed by the United States Custom Service and the Drug Enforceme nt Administration. Additionally, Officer Kohl stated that she had trained for a week in El Paso, Texas withthe United States Custom Service and that she had attended other conferenceson highway drug interdic tion in Nas hville an d Memphis.

Off icer Koh l testifie d that on th e evening of the

traffic stop in this c ase, she

had just completedan unrelated traffic stop and beg an traveling east on I nterstate Highway s 40 and 24 in a markedpolice c

ruiser. While driving in the center eastbound lane, Kohl testified that as she began to overtake the defendant's ca r, which was in the far right lane, she noticed

that the defendant's car "was swerving

in its lane

of traff ic." She then pulle d in behind the defenda nt's veh icle in order to observe its actions. Officer Kohl stated that vehicle' s erratic behavior continued:

The vehicle would drive in its lane -- it stay ed in its lane of traffic; but, as the ve

hicle wa s going

in its lane

of traff ic , it would swerve over to the right-hand marker, then it would swerve over tothe leftlane marker.

And I became conc erned for his safe ty, as well as the safety

of other motorists, and decided to stop the vehicle, at that point in time. Among other possibilities, Officer Kohl stated that shesuspectedthat the driver of the vehicle may have been intoxicated.
Upon stopping the defendant's vehicle, a white Pontiac Bonneville, Officer Kohl exited her vehicle and approached

the defendant's vehicle on the passeng er side. Upon reaching the passeng er door, she motioned for the defendant to roll down the window, which he did. Because the defendant appeared puzzled when she identified herself a s a Nas hville Metro Police Officer, Officer Kohl-3-

stated that she a sked the d efenda nt if he sp oke Spani sh, to which he replied, "Yes." Kohl then requested the defendant to exit the car and follow her to the rear of the vehicle. Office r Kohl told the defendant in Spanish: "I' m a police officer in Nashville, Tennessee. The reason I stopped y ou
was for a moving violation. The moving violation was weaving ." At that point, Kohl testifiedthat the defendant repl ied, in E nglish, " I wa s weavin g." B ecause the defe ndant wa s respons ive to English, the remainder of the conversation between Kohl and the defendant was in English.

After explaining to the defendant thereason h e had be en pulled

over, Of ficer K ohl asked him if he had been d rinki ng alco hol. The def endan t answ ered no , and K ohl t estified th at the defend ant's actions were no t consiste

nt with his being intoxicated. In fact, Kohl testified that two min

utes into the traffic stop, she was satisfied that the defendant wa s notintoxicated. Moreover, she admitted that she did not witness the defendant speed, drive too slowly , cross an y la nes of traff

ic, illeg ally

pass another vehicle , follow to o closely , commit a v iolation r egard ing use of the turning signal, or drive

on the shoulder. After the defendant denied drinking a lcohol, Kohl askedhim if he was tired. The defendant explained

to Kohl that he was tired because he had left L os Angeles, California, the day before and only briefly

stopped at rest areas to sleep. Kohl asked the defendant about his destination, and he explained that he was tra vel ing to Georgia. Kohl testified that the defe ndant gave inconsistentanswers concerning who owne d the vehicle and where he was going. However, the c ar
was not stolen and the registration matched the vehicle. At the suppression hearing, Kohl could not recall w hether t he name o n the vehi cle reg istration was the sa

me name that the defendant claimed

w as the owner. After obtaining the vehicle r egistration and the defendant's dr iver's lice nse, Koh l askedthe defendant about his driving record and a rrest record. Th e defen dant cla imed that h

is driving record was "good," although he admitted that he had one arrest for driving under the influence.

After examining the defendant's license and vehic le registration, Kohl informed him that she

was going to issue him a warning citation. Kohl a dvised the defendant that the warning citation would not carry a monetary fine , nor require him to come to court, nor affect his driving record. Kohl also gave the defendant directions to a location where he could park his vehicle and rest. She instructed the defendant to wait in his vehicle until she finished writing the citation. While retaining the defendant's license and reg istration, Kohl proceeded to her patrol car, whe re she radioed for a fellow office

r to transpor

t a drug -detec tion dog t

o the sce ne. Afte rwards, Kohl prepared a warning citation for a violation o f "lane r estricti ons," and also wro te out a " Consent to S earch" form in Spanish before returning to the defenda nt's vehicle.

When Officer Kohl approached the defe ndant, she beckoned him to get back out of the vehicle. When he co mp lied, K ohl retur ned to the

defenda nt his drive

r's lic ense, the

vehicle registration, and the warning citation. After explaining to the defenda nt that when he was tired, he needed to take a coffee or sleep brea k, Office r Kohl tha nked the d

efenda nt and told

him, "The st op's complete." When the defendant began to walk towards his ca r, Office r Kohl turned a s though to return to her vehicle. However, she promptly turned around an d asked the defe ndant if s he could ask him a few questions. When the defendant returne d to Kohl' s lo cation at her direction, Kohl2 A "rocke r pane l" i s def ined as "t

he port ion of the body pane ling of a v ehic le that i s sit uated below the doorsi ll s of

the pass enger

compartment. " W EBSTER ' S T HI RD N EW I NT ERN ATIO NA L D I CTI ONARY 1965 (19 93).

-4- askedhim if he had any we apons or long-bladed knives in his vehicle. The defe ndant replied, "No." Kohl then asked the defendant if he had any illegal drugs in the vehicle. Office r Kohl testified: At this point in time, his dem eanor changed. He g ave me a -- a nervous, laughing, "No." And he -- he became

fidget y. Y ou could

see him scrat

ching o n his back . He was n ervous and you co uld literally see his Adam['s] apple, a nervous sign, bobbing up and down, when I was talking

to him, which, to me, is an indicator of some type of deception.

Officer Kohl then asked the defendant for pe rmission to search his vehicle. Kohl claimed that the defendant promptly

invited Kohl to inspect the trunk. Kohl declined and asked the defendant if he could read in Spanish. When the defendant respo n ded that he could read in Spanish, Kohl askedhim to read the "Consent to Search" form that she had pr ep ar ed. She testified that "[a]s he read, you c ould follow his finger going along each sentence, which, to -- to me, demonstratedthat he was actu ally

reading the statement." The consent form indicated that the defendant had the rig ht to refuse consent, the right to limit consent to certain portions of the vehicle, as well as the right to revoke his consent at any time. The de fendant printed his name on the consent form and then signed it.

Su bs eq ue nt ly, Officer Dean Hunter, who had

arriv ed sho rtly befo rehand , perm itte d his drugdetection dog, Lou, to smell around the vehicle . The dog indicated that it detected the presenc e of illegal drugs onboth the driver and passenger side of the ve hicle. Because the drug-de tection dog indicateda positive response, Officers Kohl and Hunter beg an to search the v ehicle w hil e the defendant remained a short distance away with another police officer who had also arrived on the

scene. Kohl rec alled tha

t while examining the interior of the vehicle, Officer Hunte r noticedthat the vehic le's rocker

panels 2 had a fresh coat of paint that looked diff erent than the paint on the rest of the vehicle. Officer Hunter removed the molding that covered the rocker panel and inserted a probe into the pre-e

xi sti ng scre

w holes. A

round one -half inc

h into the holes, he m

et some mod

erate resistence. Hunter th

en inser ted a dri ll into the holes, and the drill c aused som e "white -terry

-cloth materia l" to exit the holes. Realizing that the cloth material should not be in the rocker panel, Kohl retrieved a "buster" or a density

meter and measured the density of the rocker panels. Kohl recalled: "I got a real hig h [density ] rating, a reading of a

sixty- eight which told

me that there was something insid e of [t he ro cker panel]. A n or ma l r ea di ng sh ou ld be , I w ou ld sa y pr ob ab ly, a t we nt y, t we nt yfive, somet hing like th at."
Following the high de

nsity reading, the officers drilled holes into the roc ker panels, resulting in "a pinkish-brown-ty

pe material" exiting the drill bit. Kohl testified that the officers tested the material for the presence

of cocainebut received negative results. Despite the negative result from the cocaine test, Kohl claimed that "we knew someth ing was there that didn't belong the re." Thereafter, officers used

a hammer

to break the rocker panels open, wher e they found " duct-taped-5-

bundles" inside the

rocker panels. Officer Kohl then placed the defendant under arrest. L aboratory testing revealed that the bundles contained 40.1 pounds, or approximately eightee

n thousand grams, of methamphetamine.

At the conclusion of Officer Kohl's direct examination, the State introduced a video tape of Kohl's traffic stop of the defendant. The audio portion of the video tape is indiscernible. Kohl stated that after the traffic stop, she discovered the battery which powered the audio equipment was dead. Ad di ti on al ly, the State introduced into evidence, without objection, a certified copy

of Metropolitan Nashville Code sec tion 12.68. 170, entit led "Car eless dr iving." Section 12 .68.170 pr ovides: A. Every pe

rson opera ting a vehicle upon the streets within the metropolitan gover

nment, or any private roador driveway

or parking area, shall drive the sa

me in a careful and prudent manner, ha ving regard for the w idth , g rade, curves, c orners, traffic and use o f these streets and priva

te area s, and all

other at tendant circumsta

nces, so as notto endanger the life, l imb or pr operty of any person. Failure to drive in such manner shall constitute careless driving and a violation of this chapter. At the close of the Sta

te's ev idence, the defe

ndant tes tifie d throu gh an interpreter. The defend ant's testimony at

the suppression hearing was limited to establish his standing to contest the search of thevehicle which he was driving on May 9, 1999. Garcia claimed that the owner of the vehicle, Efrain Orosco, had given him permission to drive it while Or osco wasaway

on vaca tion to Mexico. Moreover, the defendant claimed that Orosc o knew that t he defe ndant was pl annin g a vacation to Georg ia and ha d given him permis sion to driv e the veh icle on hi s trip. Lastly , th e defendant acknowledged that no one else had driven the vehicle within three day s immediately prior to the traffic stop.
Following th e heari ng o n the m otio n to s uppre ss, t he tri al cou rt den ied th e defen dant's motion, concluding that the initial stop was based upon reasonable suspicion. The trial court further held that the initial search of the defendant's vehicle was base d upon consent, and the more invasive search of the vehicle's roc ker panels was based upon consent and also probable cause.

At trial, the State again presented the testimony of Offi cer Kohl. Th ough Of ficer K ohl's testimonywas virtu ally

id entical to he r testimon y a t the suppr

ession he aring, she did re lay some information that was not

presented at the earlier hearing . For example, Kohl claimed that a ltho ugh she had conducted "several hundred" traffi c sto ps while w orking with the Dr ug Task Force , only approxima

tely ten resulted in

seizures of some kind of narcotics. Kohl also testified that when she witnessed the de fendan t's vehicle swerving within its own lane, in addition to beingconcerned that the driver was potentially intoxicated, she was also concerned that perhaps the dr iver "was getting tired and maybe he 's going to fall asleep at the w heel." Officer

Kohl also testified that because the window s of the vehic le being driven by the defendant were tinted, she did not actually view the defendant until she had stopped the vehicle and spoke to the defendant fr om the passenger

side of the vehicle.-6-

Kohl testifie d that the inter ior of the ve hicle was li ttere d wit h vari ous i tems i nclud ing a gallon jug of water, soda

cans, em pty juice co ntainer s, and ha

lf-eate n sandwic hes. I n contra st to the defenda nt' s claim tha

t h e was occasionally

stopping at rest areas, Officer Kohl said she saw no blanketsor pillowsin the veh ic le's int erio r. Kohl stated that the condition of the interior of the vehicl e, combined with the defendant's inconsistent responses to her questions conc erning hi s destination, indicate d to her th at perha ps the def endant w as trans porting

narcoti cs. Bas ed upon th is suspicion , she rad

ioed for a drug -detec tion dog h andler a nd prepa red a " Consent to S earch" form.

Kohl testified that when she aske d the def endant if he was c arry

ing wea pons or illegal dru gs, the defenda

nt becam e nervous and

offered to let her examine the vehicle's trunk. K ohl claimed that the defendant's invitation to look into the trunk only inc reased her suspicion, "[I ]n the past when I found drugs th at were

n't in the trunk, people alway s want you to look in the trunk. And, to me, they're trying to divert my attention away from where [the dru gs] are [loc ated]."

C onvers el y, at trial, the defe ndant tes tified, th

rough a n interpr eter, th at he did n ot state to Officer Kohl during the traffic stop that he did not know where he was g oing in G eorgia . He also claimedthat he di d not tell K ohl that a cousin owned the ve hicle that h e was dr ivin g. Moreover, the defendant denied offering to let Kohl search the trunk. However, the defendant did testify tha

t he consentedin writing to the search with the full understanding that he could re voke his consent at any time. At the conclusion of the trial, the jury found th e defendant guilty of possession of one thousand grams o

r more of methamphetamine. The tria l court sentenc ed the de

fendant to twenty years inc arceration in the Tennessee Depa rtment of Correction.

On appeal, the Court of Criminal Appeals held that the initial traffic stop and Officer Kohl's continued detention of

the defe ndant we re not ba sed upon r

easonab le suspic ion and we re in violation of the Fourth A

mendment

to the Unit

ed StatesConstitution

and Artic le I, Section 7 of the Tennessee Constitution. However, the Court of Criminal Appeals held that the defendant freely and volun

tarily consented to th e searc

h and, be cause th

e consen t was suff iciently attenua ted from t he unlaw ful traf

fic stop, the exclus ionary

ruledid not bar introduction of the seized methamphetamine. Ultimately, the Courtof Criminal Appeals reversed the defendant's conviction and remande d the case for a new trial basedupon the improper testimony of a Houston, Texas, police officer during trial. Ther eafter, we granted the defendant permission to appeal on the following issue: whether the Court of Criminal Appeals erred by

refusing to suppress evidence obtained as a result of the defendant's traffic stop.

For the rea sons stated herein , we rev erse that portion of the decision of the Court of Criminal Appeals finding

the conse nt suffic iently

attenua ted from t he illeg al stop to

render the search

legal. Having thoroughly r

eviewed the rec ord in

this case and the applicable authorities, we hold that the initial stop and c ontinued d etention of the defendant

i n t his case

were no t based up on reaso nable suspicion of crimin al activi ty a nd thus viol ated both

the United Sta

tes and Te nnessee Constitution s. We also hold that the defendant's consent was not sufficiently attenuated from the unlawful stop; thus, the evidence seized in the defendan t's tra ffic stop was frui t of the po isonous tr

ee and should-7-

have been ex clude d. Acco rdingl y, the defe ndant 's conviction is reversed, and this case is remanded to the Criminal Court for Davidson County for proce edings consistent with this opinion.

STANDARD

OF REVIEW

The instant case involves appellate review of a trial court's findings of fact and c onclusions of law in den

yin g a motio n to suppre ss. The iss u e of whether rea sonable s uspicion e xisted to validate a traffic stop is a mixed question of fact and law. We reviewthe factual determinations of

a trial court under the standard articulated in State v. Odom , 928 S.W.2d 18 (Tenn. 1996). In Odom , we held that

"a tria l court' s findings of fa ct in a suppression hearing will be upheld unless the evidence preponderates otherwise. " Id. at 23. Additionally, "[q]uestions regar di ng witnes s credibi lity

and 'resoluti on of confli cts in the ev idence are matt ers entrust ed to the tri al judge.'" State v. Walton , 41 S .W.3 d 75, 8 1 (Ten n. 200 1) (qu otin g Odom , 928 S.W.3d at 23).

In arguing that there wasreasonable suspicionto valida te the defendant 's traf

fic stop in this case, the State argues that the Court of Criminal Appeals failed to give proper weight to the tria l court 's findin g s of fact by a pplying an e

rroneous standard of review. The State maintains that the Court of Cr

iminal App eals wro ngly

applied the standard of review to the findings of facts that we articulated

in State v. Bi nette , 33S.W.3d 215, 217 (Tenn. 2000), rather than the proper Odom "preponderance" standard. In Binette , we applied a de novo standard of review with no presumption of corr ectnes s to t he tri al cou rt's fi ndin gs of fact because the only evidence presented on

behalf of the State at th

e suppre ssion hea

ring wa s a videot

ape of th e defendant's all eged driving errors. Id. Our rati onale fo

r so holdin g was th at "whe n a trial c ourt's f

indings o f fact o n a motion to suppress are based solely on evidence that does not involve issues of credibi lity , appella

te courts are just as capable to revi ew the evidenc e and draw thei r own conclus ions." Id. (emphasis added).

In contrast to Binette , in the instant case the State presented the testimony of Officer Kohl in addition to the videotape of the circumstances that led to his traffic stop. Moreove r, in its order deny ing the defendant's motion to suppress, the trial court specifica lly accredited Office r Kohl' s te st im on y. Neverth

eless, th e Court of

Criminal A

ppeals review ed the trial court 's find ings of fact de novo claiming

that "in [the trial court's] order deny ing the [defend]ant's motion to suppress, the trial court ultimately

cites its o wn obser

vations of

the video tape record

ing in sup

port of its determination of reasonable suspicion." Beca use the testimony of

Officer Kohl involves issues of

cr ed ib il it y, we will review the trial court's findings of fact under the Odom standard. In reviewing these finding s of fac t, we note that the te stimony

present e d a t t ri al ma y also "be considered by an appella te court in d

eciding the propr

iety of the tri al court 's rulin g on the motion to su

p press." Walton
, 41 S. W.3d at 81 ( quot ing State v. Perry , 13 S.W .3d 724, 737 (Tenn. Crim. App. 1997)); State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998).

However, while we afford some deference to the tria l court's findings of fact, the applica tion of the law to

those fa cts is a question of law which thisCourt rev iews de novo with no presumption of correctness. State v. Yeargen , 958 S.W.2d 626, 629 (Tenn. 1997) (citi ng Beare Co. v. Tennessee Dep't of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993)).3 Th e Fo urth A men dme nt to the Un ited Sta tes Co nstitution is a pplic able to the states v ia the Fo urteen th

Am end men t. M app v. Oh io , 367 U.S . 643 , 81 S .Ct. 16 84, 6 L.Ed .2d 1 081 (19 61)

. -8- ANALYSIS

REASONABLE SU SPICION

The Fo urth Amend ment to the United States Constitution guarantees that "the right of the people to be secure . . . a

gainst u nreaso n able searches and seizures shall not be violated and no

warran ts shall issue, but upon probable cause." 3 Likewise, Ar ticle I, s ection 7 of the Tennessee Constitution guarantees "that the people shall be secure in their persons, houses, papers and possessio ns, from unreasonable searches and se izures . . . ." We have often noted that Article I , section 7 of our sta

te constit ution "is i dentica

l in intent and purpose with the Fourth Amendment." Bine tte , 33 S.W. 3d at 2 18 (ci ting Sneed v. St ate , 423 S.W.2d 857, 860 (Tenn. 1968)). Thus, the langua ge of both the

federa l and state constituti ons manda

te that " a warra

ntless search

or seizure

is presumedunreasonable, and the evidence discovered as a r esult thereof is subject to suppression unless the State demonstrates that the se arch or seizure was conducted pursuant to one of the

narrow ly defined exceptions to t he warran t requiremen t." Yeargan , 958 S.W.2d a t 629; see also Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
Though a warrant

is normally required w

hen a police officer intrudes upon the privacy of a citizen, see INS v. Del Gado , 466 U.S. 210, 216, 104 S.Ct. 1758, 1762 (1984), there are exceptions to the warrant requirement. One exception exists "when a police officer makes an investigatory

stop basedupon reasonable suspicion, supported by specific and arti culable

facts, th at a crim

inal offe nse has been or is abo ut to be com mitted." Binette
, 33 S.W.3d at 218 (citing Terry v. Ohio , 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We have noted that " [u]pon turning on the blue lights of a vehicle, a police officer has clea rly initiated a stop and has seized the subject o f the stop

within the meaning of the Fourth Amendment of the Feder al Constitution and Article I, section 7 of the Tennessee Constitution." Id. (citi ng State v. Pulley , 863 S. w. 2d 29 , 3 0 ( Te nn . 1 99 3) ). Ac co rd in gl y, in the instant case, when Officer Kohl stopped Gar ci a' s vehicle by turning

on her blue lights, she must have ha d reason able susp icion, sup ported by specific and arti culable

facts, that the defendant had committed, or was about to c ommit, a cr iminal off ense in order f or the sto p to be con stitutiona

lly valid.
Determining whether reasona ble suspic ion existed in a parti cular tr affic st op is a fa

ctintensive and objective analy sis. The Unite d State Supreme Court has stated that "[i]n determining whether a police officer's rea sonable suspicion is supported by specific a nd articulable facts, a court must consider the totali ty of the circumstan ces." Alabama v. White , 496 U.S. 325, 330, 1 10 S.Ct. 2412, 110 L.Ed.2d 301 (1990 ) (cit ing United State v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed .2d 621 (1 981)); see also State v. Bridges , 963 S.W.2d 487, 492 (Tenn. 1997).

In the instan

t case, t he defe ndant, citing this Court's decisionin Binette , argues that there was

no reasona

ble suspic ion to validate

the initial traffic stop. In Binette , the defendant was convicted4 With due res pect to the aut hor of the d issenting o pinio n, we d id not find the vide otap e to b e "d ark, ind istinct, and mainlyconsis t[i ng] of di ffu sed li ght. " Conversel y, we were a ble to see cle arly what wa s dep icted w ith respe ct to the de fenda nt's driving, o ther traffic, an d the c ond ition of the road way.
-9- for DUI after

being stopped

by a Chattanoog a, Tennessee, police officer. The officer had followed Binette for several minutes and videotaped the defendant's driving befor e stopping him. During the videotape, the officer made several comments about driving errors he claimed wer e being made by Binette, including

speeding , crossin g the y

ellow line , and swe

rving w ithin his ow n lane all the way to the cen ter line. Upon a de novo review, this Court reversed the defendant' s conviction holding that "[w]hile Binette did move laterally at times within his lane while operating his vehicle, we find that hi s mov ement was not pronounced, and therefore did not g ive rise to reasonable suspicion." Binette , 33 S.W.2d at 220.

Co nv er se ly, the State argues in this case that the following spec ific and articulable facts gave riseto a reasonable suspicion that the defendant was either intoxicated while

operating his ve

hicle

or falling asleep shortly

before being stopped by

Officer Kohl: 1) the defendant was weaving back and forth wit

hin his own

lane in a

continua l manner in Davidso n County ; and 2) there was consider able high-s peed t raffic , som e of whi ch can b e seen b rakin g w hen appro achin g Garcia 's vehicle and try

ing to pass.

We have viewed the videotape and reviewed

the testimony of Office

r Kohl pertaining to the defend ant's driving shortly bef ore the traffic stop. Much like Binette , we find no evidence "of pronounced weavingor hard swerving" by Garcia. Binette , 33 S.W.3d at 219. In fact, despite the testimonyof Officer Kohl, we are unable to detect any

weaving upon viewing the videotape. 4 We also note that both the majority and dissenting opinions of the Court of Crimina

l Appeals in this case concluded

that the defendant remained within his lane at all times and didnot exhibit any weaving that was either exaggerate d or pronounced. However, "[t]he number of times that a vehicle touches

a center line or dr

ifts within

a lane is not dispositive" of whether reasona ble suspic ion existed t

o validate a traffic stop. Id. "Rather, as we have previously noted, a court mus t conside

r the tota lity of the circumstances in determining whether reasonable suspicion was present at the time a stopwas initiate d." Id.

Prior to Officer Kohl's stop of the defendant, the videotape reveals that Gar cia was traveling at what app ears to b e a safe

rate of speed in the far right lane of an interstate highwa y. The videotape also re ve al s t ha t G ar ci a s lo wl y mo ved his ve hicle slig htly within his la

ne of tra vel appr oximately twice ove r a peri od of app

roximately

two minute s. At no point does the vehicle exhibit any sharp

or jerking movement s. While

there is a short period of time when the vehicle is not visible on the videotape, we find n o test imony in t

he record suggesting

that the defendant exhibited any pronounced

or exaggerated swer

ving during that brief

time period. Moreover, we place little weight

on the fact that there was considerable tra ffic on the intersta

te on the n

ight of t he defe ndant' s traffi c stop. The videotape reveals that several ca rs approached the defendan t from t he rear and easi ly passedhis vehic le by

moving to

th e n ext lane. Additionally, the State does not contest that the-10-

defendant was driving in compliance with Tennessee Code Annotated section 55-8-123(1) (1998), which sta tes: Whenever

any roadwa y ha s been div

ided into two (2) or mo

re clea rly markedlanes for traffic . . . [a] vehicle shal l be d riven as nearly as practic able

entirely within a si ngle la

ne and sh all not be moved from such lane unti l the driver has first ascertained that such movement can be made safely

. . . . At the s uppre ssion hea

ring, th e State in troduce d section

12.68.170

of the Me

tropolita n Nashvill e Code which pr

oscribe s driving

carele ss ly " so as . . . to endanger the life, limb, or property of any person." Given that Officer Kohl testified that she did not witness the defend ant speed, drive too sl ow ly, cross any lane s of traffic, illegally pass another vehicle, follow too closel y, c ommit a violation regarding use of the turning signal, or driveon the shou lder, we agree withthe lower court that n eithe r the v ideot ape no r Offic er Kohl 's testimony reflect that, a t the time he was pulled over, the defendant was currently endangerin g "the life, lim b, or propert y of any person."

In short, in accordance with the Odom standard, we conclude that the trialcourt 's find ings of fact at the suppression hearing are not supported by the preponde rance of the evidence. Accord ingl y, we hold that as a matter of law there was no rea sonable suspicion to stop Garcia. While the defendant's driving may not have been perfect, we saw no e vi dence o f weaving on the videotape, and we reiterate that "it is the rare motorist indeed who can travel for several miles withoutoccasi on al ly v arying speed unnecessarily , moving laterally from time to time in the moto rist 's own lane, nearing the center line or shoulder , or exhibiting some s mall imper fection in his

or her driving." Binette , 33 S .W.3 d at 21 9 (quo ting State v. B inette , 1999 WL 427606 at *2 (Tenn. Crim. App. 1999) (Smith, J., dissenting)).

ATTENUATIO N
Having determined that there was no reasonable suspicion to stop the defe ndant, the ne xt inquiry is whether the evidence discovered during the illegal stop must be suppressed. Although the Courtof Criminal Appeal s h eld that the evidence was obtained during a n unlawful stop of the defenda nt, it nevertheless held that the exclusion ary rule would not bar introduction of the discovered

methamphetamine b ecause Garcia 's cons ent to sea rch the v ehicle w as sufficiently attenuated from the unlawful seizure. We disagree

.
The history and purpose of the exclusionary rule have been well chronicled. In Wong Sun

v. United States , 371 U.S. 4 71, 484, 83 S.Ct. 407 (1 963), the Supreme C ourt ack

nowledg ed that it acts as a p ro ph yla ct ic gu ar d t o b ar th e a dm is si bi li ty o f evidence obtained in violation of an indi vidu al's Fourth Amendment rights. However, the Court ref used to hold that all evidence obtained as a res ult

of police misconduct would be considered "' fruit of the poison ous tree ' simply because [the evide

nce] would

not have c ome to light but for the illegal actions of the police." Id. at 487-88.5 Both sides have argu ed that the other party has wai ved the at tenuat ion is sue by f

aili ng to rai se it

at the tri al level. However, becaus e the i ssue of att enuati on did not ar ise un tilthe Court of Crimi nal Appeals determined the traffic stop to be unlawful, we will address the issue on the merits.

6 Though the application of the attenuation doctrine to a consent following an ill egal seizure i s an issue of first impression for thi s Court, we have previously adopted the Brown attenuati on factors to evaluat e whether a conf essi on was ad missible followin g a Fo urth A men dme nt violatio n. Huddles ton , 924 S. W.2d at 674.

-11- We note at the outset that "a consent to search that is prec eded by a n illegal seizur e is not 'fruit of the poisonous tree' if the consent is both: 1) voluntary, and 2) not an exploitation of the prior illegality." See Wayne L

aFave, 3 Search and Seizure § 8.2(d) at 656 (3d ed. 1996). In this case, the defendant does not argue that his consent was involuntary. He

clearly a cknowledged at trial that he voluntar ily signed the consent t

o search form pr

epared by O fficer

Kohl, full

y understanding that he could revoke his consent at any time. Thus, the issue before us is whether the defendant's consent was an exploitation of the prior unlawful seizure. 5

We have previously note d that attenuation issues are highly factual. See Statev. Huddleston , 924 S.W.2d 666, 674 (Tenn. 1996). In making our evaluation, we look to the factors articulated by the Supreme Court

in Brown v. Illin ois , 442 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Though the Brownfactors were designed to aid courts in determining whether a confession

was obtained

by e xploitation o f an illeg al arre st, these fa ctors may also be used b y c ourts to evaluate whether the c ausal connection between an unlawful seizure and a subsequent consent has been broken, i.e. whether the primary taint of an unlawful seizure has been sufficiently attenuated from the voluntary consent. The Brown factors are as follows: 1) the temporal proximity of the illegal seizure and consent; 2) the presenc e of inte rvening circumst ances; and 3) the purpose and flagrancy of the official misconduct. Id. 6 Additional ly, we note that the burde n of showing attenuation lies with the State. See Brown , 422 U.S. at 604.

The first Brownfactor for our consideration is the temporal proximity of the illegal seizure and consent. Various courts addressing this factor have noted that "[a] brief time lapse between a Fourth Amendmen

t violation

and cons ent ofte

n indic ates explo itation [of the prior illegal police action] b ecause the effect s of the mis conduct have n ot had tim e to dissi pate." Statev. Hansen , 63 P.2d 650, 666 (Utah 2002) (citi ng State v. Shoulderblade , 905 P.2d 289, 293 (Uta h 1995)); see also United States v. M elendez- Garcia , 28 F.3d 1046, 1055 (10th C ir. 1994) ; State v. Will iams , 571 S.E. 2d 703, 711 ( S.C. Ct. App. 2002) (f inding no attenua tion wher e only a minimal time passe d between illegality

and consent). Here, the lapse of time betwee n the illegal detention and consent
was negligible. The illegal detention began when Officer Kohl turned on the blue lights during the traffic stop and did not end until she told Garcia that the stop was complete. Immediately thereafter, Kohl began asking t

he defe ndant mor

e questio ns and ha

d obtaine d his volunt

ary written c onse n t within a scant few minutes. Hence, no apprec iable time passed between the defendant' s unlawful detention and the consent that would have allowed the taint of the misconduct to dissipate. Thus, this factor weighs against a finding of attenuation.-12-

Next, we consi der whe

ther the presenc e of inte

rvening circumst ances support a finding of attenuation. The State argues that Officer Kohl' s unequivocal statement to the defendant that he was free to go was an intervening circumstanc e wh ich purg ed th e taint of the prior illegality . Several courts have held that c ommunication to a driver that he or she is free to go prior to r equesting consent serves to attenuate the consent from the illegal traffic stop. See, e .g. , State v. Ramos , 42 F.3d1160, 1163 (8th Cir. 1 994); United States v. Fernandez , 18 F.3d 874, 882 (10th Cir. 1994); United States v. Ramstad , 120 F.Su pp.2d 973, 980 (D. K

an. 2000) . While we a

gree with those courts that such an action by a police officer does act as an interve ning cir cumstanc e weighing in favor of attenuation, we are also mindful that a citizen who has been subjected to a traffic stop is not likely to walk aw ay

from con tinued pol

ice ques tioning, despite b eing tol d that he or she is free to leave. See Commonwealth v. Strickler , 757 A.2d 884, 898 (Pa. 2000) (noting that the "element of coercionis obviously enhanced whe n police actually de

tain a citizen . . . by means of a traffic stop"). In this case, the defendant's willingness to answe r more of Officer Kohl's questions could have been influenced

by the factthat another police car with flashing blue lights had arrive d on the scene during the traffic stop.

Several commentators, including Harvard La w Pr ofe sso r Willia

m J. Stuntz have opined that "ordinary people never feel free

to termina

te a con vers ation with a polic e off icer ." William J. Stunt

z, Terry 's Impossibi lity , 72 St. John ' s L. Re v. 1213, 12 15 (1998) . The Supr eme Court

of Virg inia recent ly echoed this concern in a case similar to the instant case when it held that a motorist who was told by an offic er that he was "free to lea ve" but immediately w as asked questions concerning whether he had any we apons or drugs was re-seized upon continued questioning

. Reittinger v. Commonwea

lth , 532 S.E.2d 25, 28 (Va. 2000). Th us, while w e ackno wledge the fac t that Gar

cia

was told he was free to go, we give this factor little weight given the immediacy

with which Officer Kohl began

questioni ng the d

efenda nt after telling h imhe was free to leave

and the presence of the other police cruiser.

Fi na ll y, we consider the purpose and flagr ancy of the

official misconduct. The fin al Brown factor we consi der par

ticularl y imp orta nt because it is most closely tied to the rationale of the exclusionary

rule -- t o discour age po lice misc onduct. See Brown , 422 U.S. at 604; Huddleston , 924 S.W.2d at 6 76; Sta te v. Richter , 612 N.W.2d 29, 41 (Wis. 2000). In this case, there was no

reasona ble suspicion

to st op th e defen dant. Howev er, ass umin g arguendo that Officer Kohl had

reasona ble suspicion

to suspect that the defendant was intoxicated, by her own account, Kohl knew two minutes into the stop that the defendant wa s not in tox icate d. Yet , she r etain ed his drive r's license and vehicle registration, wrote out a wa rning ticket even though no crime had bee n committed by t

he defe ndant, pr epared a consen t to searc h form in Spani sh, an d radi oed fo r a drugdetection dog . All these actions were taken despite there be ing no reasonable suspicion that the defendant was engaged in cr

iminal activity. Kohl's status as a member of the drug task forc e adds to the likelihood that her prolonged and unreasonable d etention of th e defendant was for the s ole purpose of obtaining consent to search his vehicle. Under suc h circumstances, we conclude that the defendant's consent was g ained in exploitation of the unlawful detention.-13-

In his dissenting opinion in the court below, Judge John Everett Williams emphasized that the extended d

ete ntion o f the defendant revealed that the def endant's consent was obtained by

ex pl oi ta ti on of

th e p ri or il le ga li ty: [T]he issuance of the warningticket resulted in the continuation of an unlawful detentio n, and ap pears to have be en pre- text to al low the officer the oppor

tunity to prepa re a con se nt form in Spanish. The warning ticket took some ten to twelve minutes to issue. . . .
My review o f the re cord and video tap e (sic ) reveal ed a per fectly choreographed

performance by

the office r subjec tively

calcula ted to and objectively res ult ing in exploitation of the illegal stop and de tention of the defendant in order to obtain his consent to sea rch

. Assuming argue

ndo that the purpose

of the ille gal stop

was n ot to obtain consent to search thevehi cle, the continued detention of the defendant und er the g

uise of iss uing a w arning ticket wa s clear

ly in pursuance of a conscious objective to obtain consent to sear ch. Statev. Garc ia , No. M2000-01760-CCA-R3-CD, at 2-3 (Tenn. Crim. App. May 15, 2001) (filed at Nashville) (Williams, J., dissenting).

After a thorough review of the rec ord, we agree with Jud ge Willia ms th at Offi cer Koh l's attempt to gain the defendant's consent to sea rch the vehicle was done through exploitation of the illegal detention of

the defe ndant. Officer Kohl's (unreasona ble) suspicion that the defendant was intoxicated was quelled two minutes into the traffic stop. As a result, she had no reaso nable ba sis to detain the defendant. Like wise, because the defendant had broke n no traffic law , we question under what authority she

issued the warning ticket. Thus, we conclude that this factor weighsagains t a finding of attenuation.

Ac co rd in gl y, after due consideration of the Brown attenuation factors, we conclude that the Statehas failed to carry

its burden of demonstrating that the consent was sufficiently attenuated from the unlawful detention. Thus, we are constrained to hold that the methamphetamine, obtained during an unlawful detention of the defendant, should have bee n suppressed.

CONCLUSION

In sum, we ho ld that the traffic stop of the

defenda nt in th is case was not based upon

reasona ble suspicion in violation of the Fo urth Amendment and

Article I, se ction 7. We

also hold that al th ou gh th e d ef

en da nt 's co ns en t t o s ea rc h h is ve hi cl e w as gi ve n v ol un ta ri ly, the evidence seized must be suppressed because the consent was not sufficien

tly attenuated from the unlawful detention. Ac co rd in gl y, the de fendan t's conviction is reversed, and the cause is remanded to the Criminal Court for Davidson County for pr oceedings consistent with this opinion.

Costs of thi s appeal a

re taxed to

the State of Tenne ssee, fo

r which e xecution ma

y is sue if

ne ce ss ar y.-14- _____________________________ WIL LI AM M. BARK

ER, JUSTICE