### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

STATE OF TENNESSEE v. ROBERT H. HARPER, JR.
Direct Appeal from the Circuit Court for Hardin County No. 7747 C. Creed McGinley, Judge

No. W1999-00492-CCA-R3-CD - Decided April 6, 2000

The defendant, Robert H. Harper, Jr. appeals upon a certified question of law his conviction in the Hardin County

Circuit Court for felonious possession of marijuanafor which he received a threeyear sentence as a Ra

nge I, standard o

ffender and a f

ine of five th

ousand d ollars. The defendant asserts that the stop of his vehicle was not based upon reasonable suspicionand that the subsequent
warran tless search was unlawful. We conclude that the stop and search were improper, and we reverse the judgment of conviction and dismiss the case. T.R.A.P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, Case Dismissed

T IPTON , J., delivered the opinion of the court, in which W ELLES , J., and L AFFERTY , S R .J., joined. Terry L. Wood, Corinth, Mississippi, for the appellant, Robert H. Harper, Jr.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assist

ant Attorney Gene

ral; G. Robert Radford, D

istrict Attorney G

eneral; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee
OPINION
The defendant, R

obert H. Harper

, Jr., appeals

as of right from

his conviction in the

Hardin County Circuit Court pursua

nt to a guilty ple

a to possession of ma

rijuana with inten

t to manufacture, deliver or sell, a Class D felony. He received a three-year sentence as a Rang e I, standard offender, withsix months to be served in the county jail and the remainder to be served on probation. He was finedfive-thousand do

llars. The defendant reserved the following certified questions of law that are dispositive of the case, see Tenn. R. Crim. P. 37(b

)(2)(i): (1) whe ther or not on April 8 th , 1998, the officer of the Hardin County Sheriff’s Department

had reasonable susp

icion supported by

specific and ar

ticulable facts t

o stop the vehicle of the Defendant; and
(2) whether or not the search of the Defendant’s vehicle on or about April 8

th
, 1998,-2-

as a result of the

aforementioned

stop and without a wa

rrant was lawfu

l.

We hold that the officer

did not have reas

onable suspicion to

stop the defendant’s vehicle, and we reverse the judgment of conviction and dismiss the case.

At th e motion to suppress hearing, Sammy

Davidson testifie

d that he was the Sh

eriff o f Hardin County at the

time the defenda

nt was arrested.

Sheriff Davidson

said that a burgla

ry had occurred at the Tentucky One Stop on Highway 128 South a couple of nights before the defendant was stopped. He said that hehad received a description of a v

ehicle that was po

ssibly involved in the burglary

and that the description was originally from Max Ray A lexander, who lived behind the Tentucky One Stop. He said that Mr. Alexander provided the description of

the vehicle to Samm

y Shutt, the store owner, who then provided thedescription to Investigator Fielder. Sheriff Davidson testified that he received the description either from Fielder or Fielder’s report. He said he never spoke to Mr. Alexander or Mr. Shutt regarding the description of the vehicle. Sheriff Davidson said th at h e provided the description to his deputies, including Deputy John Murphy, and that the description was of a noisy, older model, dark colored pickup truck with a short wheelbase and round tail lights.

On April 8, 1998, the defendant was traveling east on U.S. Highway 64, proceeding out of Crump and intoSavannah, Tennessee, when Deputy John Murphy stopped him. The defendant was driving a dark colored, 1968 Chevrolet pickup truck with anOklahoma license plate. The pickup truck had a tool box in the bed. Sheriff Davidson testified that he went to the scene after hearing Deputy Murphy report that he had stopped an older model pickup truck. When he arrived, Sheriff Davidson asked the defendant where he was going. He testified that the defenda nt first told him that he was going to Mou

ntainview but then

said he was going to Monteagle. Sheriff Davidson said that the defendant

denied having any drugs, guns or money in the truck. He said that when he asked the defendant if he could look in the truck, the defendant initially replied that he was in a hurry. Sheriff Davidson said th at when he t old the defendant it would not take long, the defendant said, “Go ahead.”

Sheriff

Davidson testified that he searched the inside of the truck and the bed. In the

bed of the truck, he found a toolbox, and when he raised the toolbox lid, he found a metal container located underneath. Sheriff Davidson said that the defendant told him that the toolbox was rusted out and that he kept the conta

iner underneath

to keep the tools from falling out of the truck bed. Sheriff Davidson found two cardboard boxes inside the metal container, and when he removed the boxes, he found a large amount of marijuana. Sheriff Davidson testified that he later learned that a station wagon, not a pickup truck, had been involved in the burglary, but he said that the defendant’s truc k was very consistent with the description of the vehicle he had been provided. Deputy John Murphy tes

tified th at he received a description of a vehicle from Sheriff Davidson that was supposed to have been involved in a burglary the night before. He said that the defendant’s vehicle fit the descriptionhe was given of a black, older model vehicle with a toolbox in the bac k. He said that when he stopped the defendant, he “had no idea” whether the defendant-3-

was involved in

the burglary but

that the defendant’s dark, older model truck with a toolbox in the back was enough f

or him to chec k. He said that he s aw the defendan

t’s Oklahoma lice

nse plate before he stopped him.

The defendant denied telling Sheriff Da vidson that he was going to Monteagle or Mountainview. He

said he told the sherif

f that he was goi

ng to Lake Ch

icamauga. He s

aid he did not give Sheriff Davidson permission to search his truck.

The trial court denied the motion to suppress. The court found t hat Officer Murphy had reasonable

suspicion to stop the defendant beca use “the description of the vehicle [involved in the bur glar y] was the same or similar to the description of the vehicle that he actually stopped.” Th e court further foun d that the defendant volunt arily conse

nted to the searc

h of his vehicle an

d that, regardless,

Sheriff Davidson “probably” had probable cause to sear ch “based upon the observations of indicia of things that might lend themselves to drug trafficking.”

Init ial ly, we note

that a trial court’s factual findings on a motion to suppress are conclusive
on appeal unless the evidence preponderates against them. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones , 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). T h e application of the law to the facts as dete

rmined by the

trial court is a que

stion of law which i

s reviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

The defendant first

contends that the t

rial court erre

d by finding

that Officer Mu

rph y had reasonable

suspicion to stop him. Relying upon State v. Simpson , 968 S.W.2d 776, 781-82 (Tenn. 1998), he contends that the information obtained by the officers must be “sufficiently reliable” and must then justify rea

sonable suspicion. He arg

ues that the descr

iption of the vehic

le was unreliable in that it involved multip le layers o

f hearsay and that it was too sc

ant to hav e provided Officer Murphy with reasonable

suspicion. The sta

te contends that the defendant failed to object to the unreliability

of the description and

that the description nevertheless pr ovided Officer

Murphy with specific, articulable facts to justify reasonable suspicion.
First, we reject the state’s contention that the defendant waived the issue of the reliability of the description by failing to object at the suppression hearing. The purpose of the suppression hearing was to determine whether reliabl e information existe

d to create spec

ific, articulabl

e facts to justify a reasonable su

spicion. In es se n ce, the suppression hearing itself was an objection to the reliability of the evidence. We do not view the issue to be waived.

It is well-settled that an automobile stop constitutes a seizure within the meaning of both the Fourth Amendment of the U

nited States Constitu

ti on an d Article I, Section 7 of the Tennessee Constitution. See Michigan Dep’t of State Police v. Sit

z , 496 U.S. 444, 450, 110 S. Ct. 2481, 2485 (1990); State v. Pulley , 863 S.W.2d 29, 30 (Tenn. 1993). The police may stop a vehicle if they have reasonable

suspicion based up

on specific and a

rticulable fact

s that a criminal of

fense has been o

r is about to be committed. Terry v. Oh io , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (196 8); Hughes v. State, 588 S.W.2d 296, 305 (Tenn. 1979). This determination is based upon the t ota lity of the-4-

circumstances,

which includes, but is not limited to, objective observations, information obtained from other police officers or agencies, information obtained from citizen s, and the ratio nal inferences and deductions that a trained police officer may draw from the fa cts and circumstances. United States v. Cortez , 449 U.S. 411, 418, 10 1 S. Ct. 690, 695 (1981); Statev. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992).

We begin our

analysis of

this case by noting th

at the description

of the vehicle wa

s initially related by Mr. Alexander, the neighbor, who provided the informati on to Mr. Shutt, who in turn providedthe information to Investigator Fielder. Sheriff Davidson received the information from Investigator

Fielder, and Deputy Murphy r eceived the information from Sheriff Davidson. We believe that Deputy

Murphy’s reliance upon information provided by Sheriff Davidson, and Sheriff Davidson’s reliance upon information provided by Investigator Fielder was justified. Officers are entitled to rely upon i

nformation provid

ed to them by other officers. See Whiteley v. Warden , 401 U.S. 560, 568, 91 S. Ct. 1031, 1037 (1971); State v. Moore , 775 S.W.2d 372, 378 (Tenn. Crim. App. 1989). The problem, howe ver, lies with

the reliability of

Mr. Alexander’s d

escription to Mr. Sh

utt, and Mr. Shutt’s description to Investigator Fielder.

In Simpson , our supr eme cou rt considered whether information from a confidential informant, known to the officer, provided reasonable sus picion to effect an investigator

y stop. While recognizing that the reasona ble suspicion requ

ired for an inves

tigatory s top is a less demanding standardthan that required for probable cause, the court concluded that the factors set forth in State
v
. Jacumin , 778 S.W.2d 430, 436 (Tenn. 1989), “are helpful in determining whether a tip i s sufficiently

reliable to

support a finding of reasonable suspicion.” Simpson , 968 S .W.2 d at 78 1. In Jacumin , our supreme court adopted the two-prong test of Aguilar v. Texas , 378 U.S. 198, 84 S. Ct. 1509 (1964) , and Spinelli v. United States , 393 U.S. 410, 89 S. Ct. 584 (1969), which requires a showing of the informant’s veracity or credibility a nd his or her basis of knowledge. Keeping the foregoing

principles in

mind, we qu

estion the reliabili ty of th e descrip tion. We note that the record is particularly scant withrespect to exactly what Mr. Alexander saw and what he related to Mr. Shut

t. Mr. Alexander, M

r. Shutt, and In

vesti gator Field

er did not testify at the suppression hearing. Sheriff Davidson testified only that Mr. Alexander lived behind the Tentucky One Stop, heard the burglar alarm sound, and relayed information to Mr. Shutt about a truck that was “po ssi bly” involved in the bur glar y. Presumably, the information he relayed w as a description of
a vehicle, but the record does not indicate, for example, whether Mr. Alexander saw the vehicle driving away from the store or driving in the vicinity of t he store. Furthermore, we note that Mr. Alexander

did not provide the information to the police but to Mr. Shutt, and the record does not indicate when Mr

. Alexander provid

ed the descriptio

n to Mr. Shutt. See Simpson , 968 S.W.2d at 782 (noting that if a

n informant repor

ts an incident to pol

ice at or near th

e time it occurs,

the court
can often as sume th e report is firsth and and reliable

); Pulley , 863 S.W.2d at 32 (noting “the importance of the timing of the tip inasse ssing the reliability of the informant, for timing implies
an eyewitness basis of knowledge”). I n addition, the record shows that Mr. Alexander and Mr. Shutt
were not interviewed regarding their descriptions of the vehicle to ensure that the descriptions were the same or to cla

rify what Mr

. Alexander saw. U

nder these

circumstances, we hesitate to say that-5-

the description was sufficiently reliable.

In any event, we believe that even if the information were sufficiently reliable, it did not provide Deputy Murp

hy with specific, articulable facts to support a finding of reasonable suspicion. First, it is unclear when the burglary occurred in re lat ion to wh en the defendant’s vehicle was stopped. Sheriff Davidson testified that the burglary occurred a couple of days before, and Officer Murphy testified that

the burglary occurred the night before the defe

ndant was stopped.

The time that the burglary occurred

in relation to when the defendant was stopped is important in determining whether O fficer Murphy had reasonable suspicion to justify an investigatory stop. See Griffin v. State , 604 S.W.2d 40, 42 (Tenn. 1980) (noting that in a robbery case, one factor to beconsidered in determining whether an officer has reasonable suspicion to justify an investigatory stop is whether the stop “was reasonably close to the robbery, b

oth in time and space”

). In any event, the reco

rd is clear that the stop was not immediately following or even within several hours of the burg lary.

The only informa

tion upon which Dep

uty Murphy relied was that a

dark, older vehi

cle with
a toolbox in the backwas supposed to have been involved in a burglary at the Tentucky One Stop. We believe that unde

r the particular

facts of this case

, this information is

s imply not enoug h to warrant a reasonable suspicion

that would justify an investigatory stop of the defendant. The United States Supreme Court

has held that “reasonable suspicion, like probable cause, is dependent upon boththe content of the information possessed by police and its reliability.” Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 241 2, 2416 (1990). Cons idering that th

e descripti on of the vehicle was generic and based upon information of unproven rel iab ili ty; the time lapse between the burglary and the stop; and the fact that the defe ndant, with an Oklahoma li cense plate, wa

s stopped on U.S. Highway 64 as he entered

the town where the

burglary occurred, thes

e cir cumstances c ombined show that under the facts o

f this case, Depu

ty Murphy lack

ed the specific,

articulable fac

ts necessary

to create a reasonable suspicion that would warrant an investigatory stop. Thus, the stop was unlawful and the evidence obtained as a result of the stop should have been suppressed. Although unnecessary

to our resolution of t

he case, we will

briefly address the defendant’s remaining argument that he did not consent to the search of h is truck. “To pass constitutional muster, consent to

search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” State v. Brown , 836 S.W.2d 530, 547 (Tenn. 1992). The trial court accredited the testimony of Sheriff Davidson that the defendant told the officer to “[g]o ahead” a nd search the truck, and the defendant has failed to show that the record preponderates against this finding. The defendant further asserts

that assuming he d

id consent, the stressful nature of the circumstances, i.e., that the defendant was from

out of state and wa

s stopped and quest

ioned about drug

s, shows that his consent was not voluntary

. We disagree. N

o evidence exists in

the record of a coercive atmosphere that would negat

e the voluntarine

ss of the defenda

nt’s consent.

In consideration of

the foregoing and the record as a whole, the conviction is reversed and-6-

the case is dismissed.

PER CURIAM (Tipton and Welles, JJ., Lafferty, Sr.J.)