1

 Oral argument was heard in this case on May 28, 2003, in Cookeville, Putnam County, Tennessee, as part

of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 28, 2003 Session Heard at Cookeville

STATE OF TENNESSEE v. GONZALO MORAN GARCIA

Appeal by permission from the Court of Criminal Appeals,

 Criminal Court for Davidson County

No. 99-C-01760 Steve Dozier, Judge

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

The defendant, Gonzalo M. Garcia, was convicted in the Criminal Court for Davidson County of

possession of one thousand grams or more of methamphetamine with intent to deliver. We granted

this appeal to determine whether the evidence obtained as a result of the stop should have been

suppressed. After examining the facts and law relevant to the issues, we hold that the defendant'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 that the

evidence in this case must be suppressed because the defendant's consent to search his vehicle was

not sufficiently attenuated 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.

WILLIAM M.BARKER,J., delivered the opinion of the court, in which FRANK F. DROWOTA,III,C.J.,

E. RILEY ANDERSON, and ADOLPHO A. BIRCH, JR., JJ. joined. JANICE M. HOLDER, J. filed a

dissenting opinion.

Richard M. McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Gonzalo

Moran Garcia.

Wesley MacNeil Oliver, New Haven, Connecticut, for the amicus curiae, Tennessee Association of

Criminal Defense Lawyers.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Daryl J.

Brand, Associate Solicitor General; Victor S. Johnson, III, District Attorney General; and John

Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
-2-

FACTUAL BACKGROUND

At approximately 10:50 p.m. on May 9, 1999, the defendant, Gonzalo M. Garcia, was

stopped in his vehicle by Officer Deborah Kohl of the Metropolitan Nashville ("Metro") Police

Department while driving on Interstate Highway 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

charging the 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 denied the motion, and the Court of

Criminal Appeals upheld that ruling. We granted review in this case to determine whether the lower

courts erred by refusing to suppress the evidence. Accordingly, our factual background will be

limited to the relevant portions of the suppression hearing and the trial.

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

Department for eleven years and was currently assigned to the Twentieth Judicial District Drug Task

Force and had been so assigned for approximately eight months before the traffic stop in this case.

She also testified that she had received specialized training in the field of highway drug interdiction

at conferences organized by the United States Custom Service and the Drug Enforcement

Administration. Additionally, Officer Kohl stated that she had trained for a week in El Paso, Texas

with the United States Custom Service and that she had attended other conferences on highway drug

interdiction in Nashville and Memphis.

 

Officer Kohl testified that on the evening of the traffic stop in this case, she had just

completed an unrelated traffic stop and began traveling east on Interstate Highways 40 and 24 in a

marked police cruiser. While driving in the center eastbound lane, Kohl testified that as she began

to overtake the defendant's car, which was in the far right lane, she noticed that the defendant's car

"was swerving in its lane of traffic." She then pulled in behind the defendant's vehicle in order to

observe its actions. Officer Kohl stated that vehicle's erratic behavior continued:

The vehicle would drive in its lane -- it stayed in its lane of traffic;

but, as the vehicle was going in its lane of traffic, it would swerve

over to the right-hand marker, then it would swerve over to the leftlane marker.

And I became concerned for his safety, 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 she suspected that 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 passenger side. Upon reaching the passenger

door, she motioned for the defendant to roll down the window, which he did. Because the defendant

appeared puzzled when she identified herself as a Nashville Metro Police Officer, Officer Kohl
-3-

stated that she asked the defendant if he spoke Spanish, to which he replied, "Yes." Kohl then

requested the defendant to exit the car and follow her to the rear of the vehicle. Officer Kohl told

the defendant in Spanish: "I'm a police officer in Nashville, Tennessee. The reason I stopped you

was for a moving violation. The moving violation was weaving." At that point, Kohl testified that

the defendant replied, in English, "I was weaving." Because the defendant was responsive to

English, the remainder of the conversation between Kohl and the defendant was in English.

After explaining to the defendant the reason he had been pulled over, Officer Kohl asked him

if he had been drinking alcohol. The defendant answered no, and Kohl testified that the defendant's

actions were not consistent with his being intoxicated. In fact, Kohl testified that two minutes into

the traffic stop, she was satisfied that the defendant was not intoxicated. Moreover, she admitted that

she did not witness the defendant speed, drive too slowly, cross any lanes of traffic, illegally pass

another vehicle, follow too closely, commit a violation regarding use of the turning signal, or drive

on the shoulder. After the defendant denied drinking alcohol, Kohl asked him if he was tired. The

defendant explained to Kohl that he was tired because he had left Los 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 traveling to Georgia. Kohl testified that the defendant gave

inconsistent answers concerning who owned the vehicle and where he was going. However, the car

was not stolen and the registration matched the vehicle. At the suppression hearing, Kohl could not

recall whether the name on the vehicle registration was the same name that the defendant claimed

was the owner. After obtaining the vehicle registration and the defendant's driver's license, Kohl

asked the defendant about his driving record and arrest record. The defendant claimed that his

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

influence. 

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

was going to issue him a warning citation. Kohl advised 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 registration, Kohl proceeded to her patrol car, where she radioed for a

fellow officer to transport a drug-detection dog to the scene. Afterwards, Kohl prepared a warning

citation for a violation of "lane restrictions," and also wrote out a "Consent to Search" form in

Spanish before returning to the defendant's vehicle. 

When Officer Kohl approached the defendant, she beckoned him to get back out of the

vehicle. When he complied, Kohl returned to the defendant his driver's license, the vehicle

registration, and the warning citation. After explaining to the defendant that when he was tired, he

needed to take a coffee or sleep break, Officer Kohl thanked the defendant and told him, "The stop's

complete." When the defendant began to walk towards his car, Officer Kohl turned as though to

return to her vehicle. However, she promptly turned around and asked the defendant if she could

ask him a few questions. When the defendant returned to Kohl's location at her direction, Kohl
2

 A "rocker panel" is defined as "the portion of the body pane ling of a vehicle that is situated below the

doorsills of the passenger compartment." WEBSTER'S THIRD NEW INTERN ATIONAL DICTIONARY 1965 (1993).

-4-

asked him if he had any weapons or long-bladed knives in his vehicle. The defendant replied, "No."

Kohl then asked the defendant if he had any illegal drugs in the vehicle. Officer Kohl testified:

 At this point in time, his demeanor changed. He gave me a -- a

nervous, laughing, "No." And he -- he became fidgety. You could

see him scratching on his back. He was nervous and you could

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 permission 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 responded that he could read in Spanish, Kohl

asked him to read the "Consent to Search" form that she had prepared. She testified that "[a]s he

read, you could follow his finger going along each sentence, which, to -- to me, demonstrated that

he was actually reading the statement." The consent form indicated that the defendant had the right

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 defendant printed his name on the consent form and then signed

it. 

Subsequently, Officer Dean Hunter, who had arrived shortly beforehand, permitted his drugdetection dog, Lou, to smell around the vehicle. The dog indicated that it detected the presence of

illegal drugs on both the driver and passenger side of the vehicle. Because the drug-detection dog

indicated a positive response, Officers Kohl and Hunter began to search the vehicle while the

defendant remained a short distance away with another police officer who had also arrived on the

scene. Kohl recalled that while examining the interior of the vehicle, Officer Hunter noticed that the

vehicle's rocker panels2 had a fresh coat of paint that looked different 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-existing screw holes. Around one-half inch into the holes, he met some moderate

resistence. Hunter then inserted a drill into the holes, and the drill caused some "white-terry-cloth

material" 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 high [density] rating, a reading of a sixty-eight which told me that there was something

inside of [the rocker panel]. A normal reading should be, I would say probably, a twenty, twentyfive, something like that." 

Following the high density reading, the officers drilled holes into the rocker panels, resulting

in "a pinkish-brown-type material" exiting the drill bit. Kohl testified that the officers tested the

material for the presence of cocaine but received negative results. Despite the negative result from

the cocaine test, Kohl claimed that "we knew something was there that didn't belong there."

Thereafter, officers used a hammer to break the rocker panels open, where they found "duct-taped
-5-

bundles" inside the rocker panels. Officer Kohl then placed the defendant under arrest. Laboratory

testing revealed that the bundles contained 40.1 pounds, or approximately eighteen 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.

Additionally, the State introduced into evidence, without objection, a certified copy of Metropolitan

Nashville Code section 12.68.170, entitled "Careless driving." Section 12.68.170 provides:

A. Every person operating a vehicle upon the streets within the

metropolitan government, or any private road or driveway or parking

area, shall drive the same in a careful and prudent manner, having

regard for the width, grade, curves, corners, traffic and use of these

streets and private areas, and all other attendant circumstances, so as

not to endanger the life, limb or property of any person. Failure to

drive in such manner shall constitute careless driving and a violation

of this chapter.

At the close of the State's evidence, the defendant testified through an interpreter. The

defendant's testimony at the suppression hearing was limited to establish his standing to contest the

search of the vehicle 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 Orosco was away on vacation to

Mexico. Moreover, the defendant claimed that Orosco knew that the defendant was planning a

vacation to Georgia and had given him permission to drive the vehicle on his trip. Lastly, the

defendant acknowledged that no one else had driven the vehicle within three days immediately prior

to the traffic stop.

Following the hearing on the motion to suppress, the trial court denied the defendant'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 based upon consent, and the more invasive

search of the vehicle's rocker panels was based upon consent and also probable cause.

At trial, the State again presented the testimony of Officer Kohl. Though Officer Kohl's

testimony was virtually identical to her testimony at the suppression hearing, she did relay some

information that was not presented at the earlier hearing. For example, Kohl claimed that although

she had conducted "several hundred" traffic stops while working with the Drug Task Force, only

approximately ten resulted in seizures of some kind of narcotics. Kohl also testified that when she

witnessed the defendant's vehicle swerving within its own lane, in addition to being concerned that

the driver was potentially intoxicated, she was also concerned that perhaps the driver "was getting

tired and maybe he's going to fall asleep at the wheel." Officer Kohl also testified that because the

windows of the vehicle 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 from the passenger side of

the vehicle. 
-6-

Kohl testified that the interior of the vehicle was littered with various items including a

gallon jug of water, soda cans, empty juice containers, and half-eaten sandwiches. In contrast to the

defendant's claim that he was occasionally stopping at rest areas, Officer Kohl said she saw no

blankets or pillows in the vehicle's interior. Kohl stated that the condition of the interior of the

vehicle, combined with the defendant's inconsistent responses to her questions concerning his

destination, indicated to her that perhaps the defendant was transporting narcotics. Based upon this

suspicion, she radioed for a drug-detection dog handler and prepared a "Consent to Search" form.

Kohl testified that when she asked the defendant if he was carrying weapons or illegal drugs,

the defendant became nervous and offered to let her examine the vehicle's trunk. Kohl claimed that

the defendant's invitation to look into the trunk only increased her suspicion, "[I]n the past when I

found drugs that weren't in the trunk, people always want you to look in the trunk. And, to me,

they're trying to divert my attention away from where [the drugs] are [located]." 

Conversely, at trial, the defendant testified, through an interpreter, that he did not state to

Officer Kohl during the traffic stop that he did not know where he was going in Georgia. He also

claimed that he did not tell Kohl that a cousin owned the vehicle that he was driving. Moreover, the

defendant denied offering to let Kohl search the trunk. However, the defendant did testify that he

consented in writing to the search with the full understanding that he could revoke his consent at any

time. 

At the conclusion of the trial, the jury found the defendant guilty of possession of one

thousand grams or more of methamphetamine. The trial court sentenced the defendant to twenty

years incarceration in the Tennessee Department of Correction.

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

continued detention of the defendant were not based upon reasonable suspicion and were in violation

of the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee

Constitution. However, the Court of Criminal Appeals held that the defendant freely and voluntarily

consented to the search and, because the consent was sufficiently attenuated from the unlawful traffic

stop, the exclusionary rule did not bar introduction of the seized methamphetamine. Ultimately, the

Court of Criminal Appeals reversed the defendant's conviction and remanded the case for a new trial

based upon the improper testimony of a Houston, Texas, police officer during trial. Thereafter, 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 reasons stated herein, we reverse that portion of the decision of the Court of Criminal

Appeals finding the consent sufficiently attenuated from the illegal stop to render the search legal.

Having thoroughly reviewed the record in this case and the applicable authorities, we hold that the

initial stop and continued detention of the defendant in this case were not based upon reasonable

suspicion of criminal activity and thus violated both the United States and Tennessee Constitutions.

We also hold that the defendant's consent was not sufficiently attenuated from the unlawful stop;

thus, the evidence seized in the defendant's traffic stop was fruit of the poisonous tree and should
-7-

have been excluded. Accordingly, the defendant's conviction is reversed, and this case is remanded

to the Criminal Court for Davidson County for proceedings consistent with this opinion. 

STANDARD OF REVIEW

The instant case involves appellate review of a trial court's findings of fact and conclusions

of law in denying a motion to suppress. The issue of whether reasonable suspicion existed to

validate a traffic stop is a mixed question of fact and law. We review the 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 trial court's findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise." Id. at 23. Additionally, "[q]uestions regarding witness

credibility and 'resolution of conflicts in the evidence are matters entrusted to the trial judge.'" State

v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (quoting Odom, 928 S.W.3d at 23).

In arguing that there was reasonable suspicion to validate the defendant's traffic stop in this

case, the State argues that the Court of Criminal Appeals failed to give proper weight to the trial

court's findings of fact by applying an erroneous standard of review. The State maintains that the

Court of Criminal Appeals wrongly applied the standard of review to the findings of facts that we

articulated in State v. Binette, 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 correctness to the trial court's findings of fact because the only evidence presented on behalf of

the State at the suppression hearing was a videotape of the defendant's alleged driving errors. Id.

Our rationale for so holding was that "when a trial court's findings of fact on a motion to suppress

are based solely on evidence that does not involve issues of credibility, appellate courts are just as

capable to review the evidence and draw their own conclusions." 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. Moreover, in its order

denying the defendant's motion to suppress, the trial court specifically accredited Officer Kohl's

testimony. Nevertheless, the Court of Criminal Appeals reviewed the trial court's findings of fact

de novo claiming that "in [the trial court's] order denying the [defend]ant's motion to suppress, the

trial court ultimately cites its own observations of the videotape recording in support of its

determination of reasonable suspicion." Because the testimony of Officer Kohl involves issues of

credibility, we will review the trial court's findings of fact under the Odom standard. In reviewing

these findings of fact, we note that the testimony presented at trial may also "be considered by an

appellate court in deciding the propriety of the trial court's ruling on the motion to suppress."

Walton, 41 S.W.3d at 81 (quoting 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 trial court's findings of fact, the application

of the law to those facts is a question of law which this Court reviews de novo with no presumption

of correctness. State v. Yeargen, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Beare Co. v. Tennessee

Dep't of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)). 
3

 The Fourth Amendment to the United States Constitution is applicable to the states via the Fourteenth

Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 

-8-

ANALYSIS

REASONABLE SUSPICION

The Fourth Amendment to the United States Constitution guarantees that "the right of the

people to be secure . . . against unreasonable searches and seizures shall not be violated and no

warrants shall issue, but upon probable cause."3

 Likewise, Article I, section 7 of the Tennessee

Constitution guarantees "that the people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures . . . ." We have often noted that Article I,

section 7 of our state constitution "is identical in intent and purpose with the Fourth Amendment."

Binette, 33 S.W.3d at 218 (citing Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)). Thus, the

language of both the federal and state constitutions mandate that "a warrantless search or seizure is

presumed unreasonable, and the evidence discovered as a result thereof is subject to suppression

unless the State demonstrates that the search or seizure was conducted pursuant to one of the

narrowly defined exceptions to the warrant requirement." Yeargan, 958 S.W.2d at 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 when 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

based upon reasonable suspicion, supported by specific and articulable facts, that a criminal offense

has been or is about to be committed." 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 clearly initiated a stop and has seized the subject of the stop within

the meaning of the Fourth Amendment of the Federal Constitution and Article I, section 7 of the

Tennessee Constitution." Id. (citing State v. Pulley, 863 S.w.2d 29, 30 (Tenn. 1993)). Accordingly,

in the instant case, when Officer Kohl stopped Garcia's vehicle by turning on her blue lights, she

must have had reasonable suspicion, supported by specific and articulable facts, that the defendant

had committed, or was about to commit, a criminal offense in order for the stop to be constitutionally

valid.

Determining whether reasonable suspicion existed in a particular traffic stop is a factintensive and objective analysis. The United State Supreme Court has stated that "[i]n determining

whether a police officer's reasonable suspicion is supported by specific and articulable facts, a court

must consider the totality of the circumstances." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct.

2412, 110 L.Ed.2d 301 (1990) (citing United State v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66

L.Ed.2d 621 (1981)); see also State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997). 

In the instant case, the defendant, citing this Court's decision in Binette, argues that there was

no reasonable suspicion to validate the initial traffic stop. In Binette, the defendant was convicted
4

 With due respect to the author of the dissenting opinion, we did not find the videotape to be "dark, indistinct,

and mainly consist[ing] of diffused light." Conversely, we were able to see clearly what was depicted with respect to

the defendant's driving, other traffic, and the condition of the roadway.

-9-

for DUI after being stopped by a Chattanooga, Tennessee, police officer. The officer had followed

Binette for several minutes and videotaped the defendant's driving before stopping him. During the

videotape, the officer made several comments about driving errors he claimed were being made by

Binette, including speeding, crossing the yellow line, and swerving within his own lane all the way

to the center 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 his movement was not pronounced, and therefore did not give rise to reasonable suspicion."

Binette, 33 S.W.2d at 220. 

Conversely, the State argues in this case that the following specific and articulable facts gave

rise to a reasonable suspicion that the defendant was either intoxicated while operating his vehicle

or falling asleep shortly before being stopped by Officer Kohl: 1) the defendant was weaving back

and forth within his own lane in a continual manner in Davidson County; and 2) there was

considerable high-speed traffic, some of which can be seen braking when approaching Garcia's

vehicle and trying to pass. 

We have viewed the videotape and reviewed the testimony of Officer Kohl pertaining to the

defendant's driving shortly before the traffic stop. Much like Binette, we find no evidence "of

pronounced weaving or hard swerving" by Garcia. Binette, 33 S.W.3d at 219. In fact, despite the

testimony of 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 Criminal Appeals in this case

concluded that the defendant remained within his lane at all times and did not exhibit any weaving

that was either exaggerated or pronounced. However, "[t]he number of times that a vehicle touches

a center line or drifts within a lane is not dispositive" of whether reasonable suspicion existed to

validate a traffic stop. Id. "Rather, as we have previously noted, a court must consider the totality

of the circumstances in determining whether reasonable suspicion was present at the time a stop was

initiated." Id.

Prior to Officer Kohl's stop of the defendant, the videotape reveals that Garcia was traveling

at what appears to be a safe rate of speed in the far right lane of an interstate highway. The videotape

also reveals that Garcia slowly moved his vehicle slightly within his lane of travel approximately

twice over a period of approximately two minutes. At no point does the vehicle exhibit any sharp

or jerking movements. While there is a short period of time when the vehicle is not visible on the

videotape, we find no testimony in the record suggesting that the defendant exhibited any

pronounced or exaggerated swerving during that brief time period. Moreover, we place little weight

on the fact that there was considerable traffic on the interstate on the night of the defendant's traffic

stop. The videotape reveals that several cars approached the defendant from the rear and easily

passed his vehicle by moving to the next 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 states:

Whenever any roadway has been divided into two (2) or more clearly

marked lanes for traffic . . . [a] vehicle shall be driven as nearly as

practicable entirely within a single lane and shall not be moved from

such lane until the driver has first ascertained that such movement can

be made safely . . . .

At the suppression hearing, the State introduced section 12.68.170 of the Metropolitan Nashville

Code which proscribes driving carelessly "so as . . . to endanger the life, limb, or property of any

person." Given that Officer Kohl testified that she did not witness the defendant speed, drive too

slowly, cross any lanes of traffic, illegally pass another vehicle, follow too closely, commit a

violation regarding use of the turning signal, or drive on the shoulder, we agree with the lower court

that neither the videotape nor Officer Kohl's testimony reflect that, at the time he was pulled over,

the defendant was currently endangering "the life, limb, or property of any person." 

In short, in accordance with the Odom standard, we conclude that the trial court's findings

of fact at the suppression hearing are not supported by the preponderance of the evidence.

Accordingly, we hold that as a matter of law there was no reasonable suspicion to stop Garcia.

While the defendant's driving may not have been perfect, we saw no evidence of weaving on the

videotape, and we reiterate that "it is the rare motorist indeed who can travel for several miles

without occasionally varying speed unnecessarily, moving laterally from time to time in the

motorist's own lane, nearing the center line or shoulder, or exhibiting some small imperfection in his

or her driving." Binette, 33 S.W.3d at 219 (quoting State v. Binette, 1999 WL 427606 at *2 (Tenn.

Crim. App. 1999) (Smith, J., dissenting)).

ATTENUATION

Having determined that there was no reasonable suspicion to stop the defendant, the next

inquiry is whether the evidence discovered during the illegal stop must be suppressed. Although the

Court of Criminal Appeals held that the evidence was obtained during an unlawful stop of the

defendant, it nevertheless held that the exclusionary rule would not bar introduction of the

discovered methamphetamine because Garcia's consent to search the vehicle was 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. 471, 484, 83 S.Ct. 407 (1963), the Supreme Court acknowledged that it

acts as a prophylactic guard to bar the admissibility of evidence obtained in violation of an

individual's Fourth Amendment rights. However, the Court refused to hold that all evidence

obtained as a result of police misconduct would be considered "'fruit of the poisonous tree' simply

because [the evidence] would not have come to light but for the illegal actions of the police." Id. at

487-88. 
5

 Both sides have argued that the other party has waived the attenuation issue by failing to raise it at the trial

level. However, because the issue of attenuation did not arise until the Court of Criminal 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 illegal seizure is an issue of first

impression for this Court, we have previously adopted the Brown attenuation factors to evaluate whether a confession

was admissible following a Fourth Amendment violation. Huddleston, 924 S.W.2d at 674.

-11-

We note at the outset that "a consent to search that is preceded by an illegal seizure 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 LaFave, 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 acknowledged at trial that he

voluntarily signed the consent to search form prepared by Officer Kohl, fully 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 noted that attenuation issues are highly factual. See State v. 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. Illinois, 442 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416

(1975). Though the Brown factors were designed to aid courts in determining whether a confession

was obtained by exploitation of an illegal arrest, these factors may also be used by courts to evaluate

whether the causal 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 presence of intervening circumstances; and 3) the purpose and flagrancy

of the official misconduct. Id.6 Additionally, we note that the burden of showing attenuation lies

with the State. See Brown, 422 U.S. at 604.

The first Brown factor 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 Amendment violation and consent often indicates exploitation [of the prior illegal police

action] because the effects of the misconduct have not had time to dissipate." State v. Hansen, 63

P.2d 650, 666 (Utah 2002) (citing State v. Shoulderblade, 905 P.2d 289, 293 (Utah 1995));see also

United States v. Melendez-Garcia, 28 F.3d 1046, 1055 (10th Cir. 1994); State v. Williams, 571

S.E.2d 703, 711 (S.C. Ct. App. 2002) (finding no attenuation where only a minimal time passed

between illegality and consent). Here, the lapse of time between 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 the defendant more questions and had obtained his voluntary written consent

within a scant few minutes. Hence, no appreciable 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.
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Next, we consider whether the presence of intervening circumstances 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 circumstance which purged the taint of the prior illegality. Several

courts have held that communication to a driver that he or she is free to go prior to requesting

consent serves to attenuate the consent from the illegal traffic stop. See, e.g., State v. Ramos, 42

F.3d 1160, 1163 (8th Cir. 1994); United States v. Fernandez, 18 F.3d 874, 882 (10th Cir. 1994);

United States v. Ramstad, 120 F.Supp.2d 973, 980 (D. Kan. 2000). While we agree with those

courts that such an action by a police officer does act as an intervening circumstance 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 away from continued police questioning, despite being told that he or she is free to

leave. See Commonwealth v. Strickler, 757 A.2d 884, 898 (Pa. 2000) (noting that the "element of

coercion is obviously enhanced when police actually detain a citizen . . . by means of a traffic stop").

In this case, the defendant's willingness to answer more of Officer Kohl's questions could have been

influenced by the fact that another police car with flashing blue lights had arrived on the scene during

the traffic stop. 

Several commentators, including Harvard Law Professor William J. Stuntz have opined that

"ordinary people never feel free to terminate a conversation with a police officer." William J. Stuntz,

Terry's Impossibility, 72 St. John's L. Rev. 1213, 1215 (1998). The Supreme Court of Virginia

recently echoed this concern in a case similar to the instant case when it held that a motorist who was

told by an officer that he was "free to leave" but immediately was asked questions concerning

whether he had any weapons or drugs was re-seized upon continued questioning. Reittinger v.

Commonwealth, 532 S.E.2d 25, 28 (Va. 2000). Thus, while we acknowledge the fact that Garcia

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

Kohl began questioning the defendant after telling him he was free to leave and the presence of the

other police cruiser.

Finally, we consider the purpose and flagrancy of the official misconduct. The final Brown

factor we consider particularly important because it is most closely tied to the rationale of the

exclusionary rule -- to discourage police misconduct. See Brown, 422 U.S. at 604; Huddleston, 924

S.W.2d at 676; State v. Richter, 612 N.W.2d 29, 41 (Wis. 2000). In this case, there was no

reasonable suspicion to stop the defendant. However, assuming arguendo that Officer Kohl had

reasonable suspicion to suspect that the defendant was intoxicated, by her own account, Kohl knew

two minutes into the stop that the defendant was not intoxicated. Yet, she retained his driver's

license and vehicle registration, wrote out a warning ticket even though no crime had been

committed by the defendant, prepared a consent to search form in Spanish, and radioed for a drugdetection dog. All these actions were taken despite there being no reasonable suspicion that the

defendant was engaged in criminal activity. Kohl's status as a member of the drug task force adds

to the likelihood that her prolonged and unreasonable detention of the defendant was for the sole

purpose of obtaining consent to search his vehicle. Under such circumstances, we conclude that the

defendant's consent was gained in exploitation of the unlawful detention.
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In his dissenting opinion in the court below, Judge John Everett Williams emphasized that

the extended detention of the defendant revealed that the defendant's consent was obtained by

exploitation of the prior illegality:

[T]he issuance of the warning ticket resulted in the continuation of an

unlawful detention, and appears to have been pre-text to allow the

officer the opportunity to prepare a consent form in Spanish. The

warning ticket took some ten to twelve minutes to issue. . . .

My review of the record and video tape (sic) revealed a perfectly

choreographed performance by the officer subjectively calculated to

and objectively resulting in exploitation of the illegal stop and

detention of the defendant in order to obtain his consent to search.

Assuming arguendo that the purpose of the illegal stop was not to

obtain consent to search the vehicle, the continued detention of the

defendant under the guise of issuing a warning ticket was clearly in

pursuance of a conscious objective to obtain consent to search.

State v. Garcia, 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 record, we agree with Judge Williams that Officer Kohl's

attempt to gain the defendant's consent to search the vehicle was done through exploitation of the

illegal detention of the defendant. Officer Kohl's (unreasonable) suspicion that the defendant was

intoxicated was quelled two minutes into the traffic stop. As a result, she had no reasonable basis

to detain the defendant. Likewise, because the defendant had broken no traffic law, we question

under what authority she issued the warning ticket. Thus, we conclude that this factor weighs against

a finding of attenuation.

Accordingly, after due consideration of the Brown attenuation factors, we conclude that the

State has 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 been suppressed.

CONCLUSION

In sum, we hold that the traffic stop of the defendant in this case was not based upon

reasonable suspicion in violation of the Fourth Amendment and Article I, section 7. We also hold

that although the defendant's consent to search his vehicle was given voluntarily, the evidence seized

must be suppressed because the consent was not sufficiently attenuated from the unlawful detention.

Accordingly, the defendant's conviction is reversed, and the cause is remanded to the Criminal Court

for Davidson County for proceedings consistent with this opinion. 

Costs of this appeal are taxed to the State of Tennessee, for which execution may issue if

necessary.
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_____________________________

WILLIAM M. BARKER, JUSTICE