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

Following a bench

trial, the Appellan t, Antonio D . Jones, w as convic ted of one

count of C lass B felony possession of cocaine, one count of simple possession of marijuana, and one count of criminal trespas s
. The Ap pellant was sentenced to twelve y ears for felony

possession of cocaine, eleven months and twen

ty- nine day

s for poss ession of

marijuana, and thi

rty d ay s for tre spassing . All sentences were ordered to run concurrently for an effective sentence of twelve y ears. On appeal, the Appellant argues that the evidence pre s ented at tr ial was insufficient to establish his guilt of possession of over .5 grams of cocaine with intent to sell. He also argues that the trial court er red by deny ing his motion to suppress evidence seized during a warr antless search. After review, we conclude that the trial court erred i n deny ing Jones’ motion to sup

press. A ccordin

gly , the judg

ments of conviction for possession of marijuana and felony possession of cocaine are reversed and remanded for a new trial. Jones’ conviction for criminal trespa ss is affirmed. Tenn. R. App. P. 3, Appeal as of Right; Affirmed in Part; Reversed in Part and Rem anded

D AV ID G. H AYES , J., delivered the opinion of the court, i n w hich G ARY R. W ADE , P.J., filed a separate concurring opinion, and T HOM AS T. W OODA LL , dissented.
Richard McGee, Nashville, Tennessee; and James O. Martin, Nashvi lle, Tennessee, for the Appellan t, Antonio D . Jones.
Paul G. Summers, A

ttorney Genera l and Reporter; Mic

hael Mar kham, Ass istant Attorney Genera l; Victor S. (Torry) Johnson

II I, Di strict Att

orney Genera l; Pamela Sue Anderson, Assistant District Attorney General; an d Tam my Meade, Assistant District Attorney General, for the Appellee, the State of Tennessee.1 Offic er Melzoni, who was al so at t he scene, test ifi ed that

the Appell ant “ ran” t o the parke d vehicl e. -2- OPINION

Factua l Background
Du ring th e afternoon of August 5, 2001, Office r Richard Martin of the Metro Davidson County Police Department was patrolling the area near 156 Charles E. Davis Boulevard in Nashville. While in the area, Martin noticed the Appellant loitering on Metropolitan Development and Housing Agency (“MDHA ”) prope

rty , whic h was posted “ no trespassing.” Officer Martin admitted that whe n he initially approached the Appellan t, he was unawar e of the A ppellant ’s identit

y or if the Appellant lived at the MDHA

facility . Howeve

r, Martin recog nized the A

ppellant as the ind ividual wi th whom he had attempted to speak the prior week in the same area. On that oc casion, the Appellant had run away when Mar

tin a pproached. Not wa

nting to “ spook” the

Appellan t this time, O fficer

Martin parked his patrol car down the street and out of view and “tried to walk back w ithout letting [the Appellant] know I was coming to talk to him.” Martin’s plan, however, was thwarted when the A ppellant observed the officer approac hing him. As so on as th ey m ad e e ye c on ta ct , t he Ap pe ll an t b eg an to wa lk “b ri sk ly” in the other direction
an d proceeded “some dis tance” to a car parked on the publi c street. 1 Officer Martin followed the Appellan t, and upon h

is approach to the vehicle, he observed the rear door open and the Appellant seated inthe back

seat with one foot on the gr

ound and h

is hands in

his pocke

ts. The officer asked the Appellan

t to remove

his hands f

rom his p ockets, an d the Appe llant comp lied. Off icer Ma rtin thenasked the Appellant to “step from the vehicle” and asked

if he could talk to the Appellant. The Appellant stepped from

the vehicle as requested. At this poin t Office r John Melzon

i, who was

also inthe area, joined

Officer Martin. With Melzoni present, Martin asked the Appellant for permission to search his person, and the Appellant consented. Mar tin turned the Appellant arou nd to face Melzoni, patted him down, and searched his pockets. I

n one pocket, Martin found eighteen dollars incash and a plastic bag containing 1.7 grams of rock cocaine. In the other pocket, he found two thousand dollars in cash. Wrapped inside the cash was a plastic bag containing approximately two gramsof marijuana. Inside that bag was another

bag containing powdered c ocaine. The Appellant
was placed u

nder ar rest. The office rs later discover ed that the Appellant did not live on MDHA property a

nd charged him with criminal trespass, in addition to the drug-r elated charges.
OnFebruary

15, 2002, a Davids on County gra nd jury returne d a three-count indictment charging the Appe llant with

possession of over .5 grams of cocaine with the intent to sell or deliver, posse ssion of ma

rijuana, and criminal trespass. The Appellant filed a motion to suppress the evidence upon grounds that he was unlawfully seized at the time the search was conducted. The trial court denied the motion, finding that Officer Martin’s initial approach a nd questioning of

th e Appellant was cons titutional ly p ermissibl e and tha t the Appe llant volun

tarily consented to a

search of his person. On January 26, 2004, a benc h trial was held, and

the Appellant was convicted of the drug offenses as charged in the indictment based upon his possession of the contr olled subs tances. At trial, Officer Martin testified that no trespassing sig ns were posted on the MDHA property and-3-

that t he Ap pellant st

ated he d id not live “ on MDHA pr operty .” The Ap

pellant w as subseq

uently sentenced to twelve ye ars for the coca ine convi ction, el even mont hs and twenty-nine days for the marijuana conviction, and thirty day s for the trespass conviction. After his motion for new trial was denied on May 5, 2004, the A ppellant filed the instant appeal.

Analysis
A. Motio n to Suppress
Onappe al, the Appellant argues that he was illeg ally seized by Officer Martin when the officer initially pursued him from MDHA proper ty to the parke d car. Following an evidentiary hearin g, the trial court denied the Appellan t’s motion to suppress concluding that the Appellant’s consent to search aros e f

rom a consensual encounter with the police, who at the time wer e acting within the community care

taking or public safety

function. Alternatively, the trial court found

that Officer Martin had reasonable suspicion to conduct an investigatory stop of the

Appellan t becaus e the Appellant had tried to evade the officer on this occa sion, run fr om the officer on a previous occasion, and bec ause the Appellant engaged in furtive movement s such as p lacing his hands i

n his pockets.
The findings of fact by

the trial court at

the hearing on a motion to suppress are binding upon this court unl ess the e

vidence containe d in

the record preponderatesagainst them. State v. R oss , 49 S.W.3d 833, 839 (Tenn. 2001). The prevailing party is entitled to the

strongest legitimate view of the evidence and

all reasonable inferences dra wn from that evidence. State v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). The application of the law to the facts found by the trial court are questions of law that t his court reviews de novo

. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000).
Neither the Fourth Amendment of the United States Constitution nor Article I, Section 7 of the Tennessee Constitutionlimits all contact between police and citizens. Instead, the purpose and intentof Artic le I, Section 7, identic al with th at of the Fourth Amendment, is to “safeguar d the privacy and security of

individuals against arbitrary invasions of g overnment officials.” State v. Simpson , 968 S.W.2d 776, 779 (Tenn . 1998 ) (quo ting Camara v. Municipal Court , 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967)). Thus, these constitutional protections are implicated only when
a police officer’s interac tion with a citizen impermissibly intrudes upon the privacy or personal security of the c itizen. Daniel , 12 S.W.3d at 424.
Courts have recognized three ty pes of police-citizen interactions whe n constru ing the demands of the Fourth Amendmen t: (1) a fu ll scale a rrest wh ich must be

supporte d by

probable cause, Brown v. I

llinois , 422 U.S. 590, 95 S. Ct. 2254 (1975); (2) a brief investig atory detention whichmust be sup

ported by reasona ble suspicion, Terry v. O

hio , 392 U.S. 1 , 11 S. Ct. 1000 (1968); and (3) brief police-citizen encounters whichrequire no objective justification, Florida v. Bostick , 501 U.S. 429, 111 S. Ct. 2382 (1991). United Sta tes v. Be rry , 670 F.2d 583 (5th Cir. 1982) (discussing the three type s of police- citizen int

eractio ns); Daniel , 12 S.W.3d a

t 424. While

arrests and investigatory

detentions implicate varying degrees of

constitutional protection, “not all personal-4-

interco urse between policemen and citizens involves ‘seizures’ of persons. Only when the

officer, by means of physica

l fo rc e o r s ho w o f a ut ho ri ty, has in some way re strained the liberty of a citizen may we conclude that a ‘seizure’ has occur red.” Daniel , 12 S.W.3d at 424 (quot ing Terry , 392 U.S. at 19 n.16, 88 S. Ct. at 1868). “[C]ourts have repe atedly held that eve n when police have no basis for suspecting that an individual has committed or is about to c ommit a cr ime, the o fficer

may approac h an indivi dual in
a public place and ask questions without implicating constitutional protections.” Daniel , 12 S.W.3d at 425. The United States Supreme Court further explained the rule: [L]aw enforcement officers do not violate the Four th Amendment by merely

approaching an individual on the street or in another public place, by asking him if he is willing to answer
some questions, by

putting questions to him if the person is willing to listen, or by offering inevidenc e in

a crimina

l prosec ution his voluntar

y a nswers to such que stions. Nor

would the fact that the officer identifies himself as a police of fi cer, withoutmore, convert the encounter into a seizure requiring some level of objec tive justification. The person approached, however, need not answer any question put to him; indeed, he may decline to li stento the questions at all and may g o on his way. He may not be detai ned eve n momentar

ily without reasonable, objective grounds for doing so; and his refusal to listen or
answer does not, w

ithout more , furnish

those gr ounds.
Florida v. Royer , 460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983) (citations omitted). Ac co rd in gl y, a “seizure” implicating constitutional protections occurs when, in view of all of the circumstanc es surrounding the incid

ent, a re asonable

person w ould have

believe d that h e or she w as n ot free to leave. United States v. Mendenh all , 446 U.S. 544, 5 54, 100 S. Ct. 1870, 1877 (1980). A majority of the United States Supreme Court limited this standard in 1991 by holdin g that a seizure occurs for purposes of the Fourth Amendment only where an officer usesphy sical for ce to detain a person
or where a person submits or y ields to a show of authority by the officer. California v

. Hodari D. , 499 U.S. 621, 626, 11 S. Ct. 1547, 1550 (1991). However, because Article I , Section 7 of the Tennessee Co nstitution may extend gre ater privacy protections to the citizens of this State when appropriate, our supreme court rejected the Hodari D . majority’s analy sis on stat e const itutional grounds in State v. Randolph , 74 S.W.3d 330, 336 (Tenn. 2002). The cour t held tha t under A rticle I, Section 7 of the Tennessee Constitution, in determining whether a person ha s been se ized, the proper standard is that set forth by the United States Supreme Court in Mendenh all, i.e. wh eth er, “in v ie w of all of the circumstances surrounding the inc ident, a reasonable person would have believed he or she wa s not fre e to leave.” Randolph , 74 S .W.3 d at 33 6 (quo ting Mendenh all , 446 U.S. at 554, 111 S. Ct. at 1557-58).
The Tennessee Supreme Court has identified fa ctor s that are relevant to the totality of the circumstances test in determining whether an unla wful detention has occurred: “[T]he time, place and purpose of the encounter; the words used by the of ficer; the officer’s tone of

voice an d gene ral deme anor; the

office r’s state ments to others who-5-

were present during the encounte r; the thr eatenin g prese nce of se veral of ficers; the display of a weapo n by an offic er; and the physic al touching of the person of the citizen.” Randolph , 74 S. W.3d at 337 (quot ing Daniel , 12 S.W.3d at 425). Furthermore, in Daniel , the Court stated that wh ile this analysis is “necessa rily imprecise,” the

re are several police enc ounters gen erall y held to constitute “seizures”: “[where the officer] (1) pu r sues an individual who has attempted to terminate the contact by departing ; (2) continues to interr ogate a person who has clearly

expressed
a desire not to coope rate; (3) renews interroga tion of a person who has earlier responded

fully to police inquiries ; (4) ver

bally orders a citizen to stop and answer questions ; (5) retains a c itizen’s id entifica tion or oth er prope

rty ; (6) phy

sically restrains a c itizen or blocks the citizen’s path; (7) displays a wea pon during the encounter.”
Id

. (quot ing Daniel , 12 S.W.3d at 426). When considering whether an encounter betwe en an officer and a citizen a

mounts to an invest

igator y st op requir ing rea sonable s

uspicion o

r if it was merely an officer requesting information, insufficient to establish a belief that the individual would not be free to leave, courts must employ the obje ctive standard of the rea sonable p erson in l ike circ umstance s, so as to ensure that “the scope of these constitutional protections does not vary de pending upon the subjective state of mind of the partic ular citizen being approached.” Daniel , 12 S.W.3d at 425. Indeed, as obser

ved in Bostick , 501 U. S. at 438 , 111 S. Ct. a t 2388, “the ‘rea sonable p erson’ t est presupposes an innocent person.”
The State’s argument on a ppeal is twofold. First, the State argues that the sear ch resulted froma brief “police-citizen encounter ; ” thus, Fourth Amendment concerns are not implicated. Second, it contends that in the event a seizure o ccurre d, reasonable suspicion existed to support an investigatory

stop. In support of thelater argumen t, th e Stat e reli es upo n the t rial c ourt’ s find ings that upon the o fficer ’s appro ach, the Appellan t walked “

briskly” awa

y , the Appellant’s “furtive movement s such as placing his hands in his pockets and jumping hurriedly into a parked vehicle,” and the Appe llant’s f

li ght fro m t he officer the previous week. The State’ s argument that the Appellant’s “briskly” wa

lking away , jumping hurriedly into a c ar, and previous l y a ttempting to avoid the police c onstitute a

basis for reasona ble su s picion is clearly c ontrary to our supre me court’s holding in Randolph , whichexpressly rejecte d the Hodari D. , holding. The “use of flight or refusa l to s ubmit to aut

hority as reas on to execu

te an ar rest or se arch” i s subject to potentia

l abuse b y officers who pursue a subject without reasonable suspicion. Randolph , 745 S.W.3d a t 336. With regard to the trial court’s finding of “furtive movements,” we leave the definition

of this elusive term for another day

but conclude that the placing of one’s hands into a pocke t is not per se

suspicious conduct. At the bench trial, Officer Martin testified that the Appellant was standing alone on MDHA propert y during day

light hours and that he saw nothing to believe that the Appellant was “engaging inany criminal activity at that po int.” We c onclude t h at the fac ts in this ca se do not su pport a2 Fac tor 1, Randolph, 74 S.W.3d at 337. -6- reasonable, articulable suspicion of criminal activity to justify aninvestigative stop as authorized by Terry

. Next, the State a rgues that the search resulted fr om a consensual police-citizen encounter. As previously rec ited, the facts establish that the Appellant, upon observing the officer’s approach, walked “briskly ” away from the o fficer

to avoid contact. The offi cer fol lowed the Appellan t “some distance” to his vehic le. Afte r enter ing the v ehicle, the Appe llant was asked totake his hands out of his pockets. Next, the Appellant was asked to step out of the car. Impli cit in the determination of whether the encounter was c onsensua l is the question of whether the offic er’s conduct re

present s a show of

authority which an innocent person encountered would feel obligated to stop and respond to. Thus, “[i]f in the total ity o f th e circumstances, a
reasona ble person be li eves he o r sh e would be required to comply with the officer’s request, the individual is seized, constitutional protections are triggered, a nd reasonable suspicion is required.” Daniel , 12 S.W.3d at 425. Police conduct requires scrutiny under the totality of the c ircumstances of the en counter rather than comp artmenta

l review of the ev ents.
We conclude from these facts tha t a n innocen

t citizen after “a

ttempt[ing ] to termina

te [police] contact by

departing,” 2 after being asked to remove his/her hands from his/her pockets, and after being asked to get out of their car , would not h ave fel tfree to disregard the immediate pre sence of the two uniformed officers and simply walk away . A totality review of the officer’s actions under these fact s would demonstrate to a reasonable person a show of a uthority which conver

ted the encounter into an investigatory

stop without reasonable suspicion. Thus, we conclude that the “officer’s interaction with the [Appellant] impermissibly intrude[d] upon the privacy or personal security of the [Appe llant

]” resulting

inhis seizure. Id . at 424. T o sustain the State’ s position in this
casewould mean that the police could order citizens out of their automobiles under almost any circumstances. Notwithstanding our ho lding und er the greater protec tions of Article 1, Section 7 of the Tennessee Constitution, other jurisdictions applying federa l constitutional analysis have conclude d si mi la rl y. The following caselaw decisions are noted in which a police request or order to step from
a vehicle was held to constitute a seizure of the person. Mitchell v. U. S. , 746 A.2d 877, 889 (D. C. Cir. 2000) (citi ng Berkemer v. McCarthy , 468 U. S. 4 20, 439, 10 4 S. Ct. 3138 (1 984)); Frette v . City of Springdale , 959 S.W.2d 7 34, 735-3 7 (Ark. 1 998); Popple v . State , 626 S o. 2d 185, 188 (Fla. 1993).
Ad di ti on al ly, appella te decis ions in Florida hav e consist entl y held that orders or even request s to remove

a hand fr om a pocke

t cause a consensual encounter to become a seizure. See Lee
v. State , 868 So. 2d 577, 579-90 (Fla. 2004) ; see also B aker v. C ommonwea lth , 5 S.W.3d 142, 145 (K y. 1999). As

previous ly e stablishe d by the fac ts in this ca se, the A ppell a nt was ask

ed both to remove his hands from his pockets and to step out of the vehicle.-7-

Notwithstanding the u

nlaw ful se izu

re, we must next determine whether the Appellant’s consent, obtained during the illegal detention, was obtained by ex ploitation of the Fo

urth Amendment

il le ga li ty. State v. Huddleston , 924 S .W.2 d 666, 674 (T enn. 1 996) ( citi ng Wong Sun
v. United States , 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)). Applying the c onsiderations of Huddleston , the record does not reflect that Miranda wa rnings were provided to the Appellant

. Moreover, the proof establishes that the Appellant’s consent immediately followed the i llegal seizure and that no intervening event occurred be tween the conse nt and the se arch. T hese fa cts we igh agains t a fi nd in g o f a tt en ua ti on of

th e t ai nt . A cc or di ng ly, we conclude that the search and resulting se izure of the cocaine and marijuana was unre asonable under Fourth Amendment protections.
CONCLUSION
For the above reasons, we conclude that the trial c ourt erred in deny ing the Appellant’s motion to suppre ss based u pon his unla

wful s eiz ure. Accordingly , the Appellant’s conviction for felony possession of coca

ine with th e int ent to sell in excess of .5 grams and his conviction for simp le poss ession of marijuana are reversed a nd remanded for a new trial. The Appellant’ s conviction for criminal trespass is affirmed based upon the proof introduced at trial.

____________________________________ DAVID G. HAYES, JUDGE