# FILED
February 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. No. 03C01-9702-CR-00081 * Appellee, * HAMBLEN CO UNTY * VS. * Hon. James E. Be ckner, Judge * DWIGHT D. WINN, * (Certifi ed questi on of law) * Appellant. *

For Appellant: For Appellee: Paul G. Whetstone John Knox Walkup 502 North Jackson Street Attorney General and Repor ter Morristown, TN 37814 Michael J. Fahey, II Assistant Attorney Gener al 425 Fifth Avenue North Second Floor, Cordell H ull Building Nashville, TN 37243 Victor Vaughn Assistant District A

ttorney General 510 Allison Street Morristown, TN 37814

OPINION FILED:__________________

REVERSED AND REMAND ED

GARY R. WADE, JUDGE2 OPINION The defendant, Dwight D. Winn, pled guilty to simple possession of marijuana, a Class A misdemeanor, reserving a certified question of law for appe al. Tenn. R. Crim. P. 37(b)(2) (i). The trial court i mposed a sentence of eleven months and twenty-nine day

s and fined the defendant two hundred fifty dollars.
In this ap peal, th e defen dant ass erts that the trial c ourt shou ld have sustained his motion to suppres s. Initially, the defendant asserts that the law enforce ment of ficer ha d no basis to frisk h im at the sobriety ch eckpoin t. Second ly, the defendant questions whether the officer had probable cause to re move the contents of his rear pants pocket under the "plain f eel" doctrine. We must reverse the judgment of the trial court and remand the cause to the trial court.

On March 23, 1996, Officer Phil Hurst, who by then had worked for the DUI enforcement unit of the Morri stown Police Department a lmost five years, beg an a random DUI checkpoint on Hi ghway 25-E at approx imately 10 p.m. Later, w hen the defendant stopped at the checkpoint and provided his driv er's license, Officer Hurst noticed he had “w atery or glassy

type eyes" and "seemed a little confused." When asked his destination, the defendant replied “ Mississippi Alabama.” Officer Hurst suspected the defendant might be under the influence and direct ed him to stop his vehicle for further investigation.

Officer Hurst, who descr ibed the defendant as cooperative a nd able to operate his vehicle w

ithout difficulty, conducted a fr isk as soon as the defendant stepped outside his car. When he "ran across a bundle" in the defendant's left rear pocket, the officer concluded the bund le was like marijuana he "had felt before in the past ...." The officer then remove d the substance from the defendant's pocket,3 arrested him and inventori ed his vehicle. Later,while at the police depar tment, the defendant performed sobriety tests satisfactorily. There w ere no charges for driv ing under the influence.

While Officer Hurst testified that the basis for his suspicions was the defendant’s "impaired drivin g," he acknowledged that he had not seen the defendant drive in an unusual manner. He conceded that he had not obtaine d consent for the frisk.

The officer denied that race was the basis for his further inv estigation of the defe ndant, who is Af rican-American . He recalled on th e same evening, asking a Caucasian female, w hom he did not frisk, to pull her vehicle to the side for further investigation. Although he admitted that he did not f risk everyone before conducting sobriety tests, Officer Hurst thought that the better practice was to do so in each instance.

At the time of the hearing, the defenda nt, a thirty-four-year-old Morristown resident, had been an employee of Lear Seating for f ourteen years. He testified that as he approached the c heckpoint, an officer directed hi m to the side of the roadway, requested his driver's license, and asked if he had been drinking or had any empty containers in the car. The defendant replied in the negative and told the officer that he had just awoken and was traveling to his aunt's funeral in "Alabama Mississippi." H e claimed that when Officer Hur st asked for clarification, he answered "Alabama via M ississippi" so that he co uld pick up his cousin al ong the way. The defendant recalled c onsenting to a search of his v ehicle and stepping out of his car. Officer Hurst, without any prior indication of his intentions, searched h is front pockets. The defendant explained that he pushed the officer's hands aw ay4 because he did not think the officer had an y reason to search. He acquiesced only when the officer became more forceful. The officer removed several items , such as business cards and chapstic k, from his front pockets then sear ched a rear pocket, where he found the marijuana.

The trial court ruled as follows on the motion to suppress: When the defendant exited the automobile to perform the field sobriety tes ts, the officer conducted a pat-down. Terry

allows a person [] detai n[ed] under articulable, reasonable su spicion of criminal activ ity to be patted down .... The pat-down would have to be before the field sobriety tests were given because that's the point at which danger w ould be to the officer. If an officer w[ere] neg ligent en ough to in tend to c onduct a pat-down subsequent to a field sobriety check ... this defendant wasn't, but if he was one of those that had a weapon in his pocket, the officer would probably be dead by the time field sobriety tests were over with. So the only sensible time to make a Terry pat-down is when the defendant would first leave the vehicle.... The next question is, in his search for weapons, when he felt this thing i n the defendant's pocket that felt, under his training ... and experience ... like a package of marijuana ... and you certa inly have exig ent circumstances then, and the sear ch is appropriate.... So from all those facts and circums tances, I believe the state can sust ain its position in making the detention and the subsequent pat-do wn and search. And the motion to suppress must be ov erruled.
Our scope of review is limited. A trial court's findings of fact are conclusive on appeal unles s the evidence preponderates otherwise. State v. Odom , 928 S.W.2d 18 (Tenn. 1996); State v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981); Graves v. State , 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973); see Tenn. R. Crim. P. 12(e). Yet, this court must conduct a de novo review of the trial court's application of law to fact. State v. Ray Anthony Bridges , ___ S.W.2d ___, No. 02S01-9606-CC-00053, slip op . at 4 (Tenn., at Jackson, Dec.31, 1997); State v.5 Wayne Lee Yeargan , ___ S.W.2d ___, No. 01S01-9604-CC-00080, sli p op. at 5 (Tenn., at Nashville, N ov. 24, 1997).

Initially, both the stat

e and federal constitutions prot ect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7. An automobile stop constitutes a "seizure." See Michigan D ep't of S tate Pol ice v. Sitz , 496 U.S. 444, 450, 110 S. Ct. 2481,2485 (1990); State v. Pully , 863 S.W.2d 29, 30 (Tenn. 1993). Sobriety checkpoints have been upheld as constitutional intrusions if operated under pr eviously determined g uidelines that limit the l aw enforcement officer's discretion and also limit intrusions into areas protected by th e Fourth Amendment. State v. Downey , 945 S.W.2d 102, 104 (Tenn. 1997); see Sitz , 496 U.S. at 455, 110 S. Ct. at 2488.In Terry , the United States Supreme Court ruled as follows:

We merely hold today that where a pol ice officer ... reasonably [ ] conclude[s ] ... that criminal activ

ity may be afoot and th at the persons with whom he is dealing may be armed and presently danger ous ... and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for ... safety, he i s entitled for [ ] protection ... to conduct a car efully limited search .. . to discover weapons.... 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968). The Fou rth Amendment permits a protective frisk w

here a law enforcement officer has r easonable suspicion that the suspect is armed. Id. at 27, 88 S. Ct. at 1883; Hughes v. State , 588 S.W.2d 296, 304 (Tenn. 1979). Reasonable suspicion is suspicion which is supported by specif ic and articulable facts. United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981). These facts may stem from i nformation provided by other law enforcement personnel, agencies o r citizens; it may be derived from known patt erns of criminal behavior or gleaned from the officer's exper ience. Bridges , slip op. at 10.1 See e.g. , Unite d Sta tes e x rel. R icha rdso n v. R und le , 461 F.2d 860 ( 3d Cir. 1972) (robber y); People v. My les , 50 Cal. Ap p. 3d 423 , 123 Ca l. Rptr. 348 ( 1975) (b urglary); People v. Shackelford , 546 P.2d 964 (C olo. 1976 ) (rape); United States v. Kikumura , 918 F.2d 1084 (3d Cir. 1990) (a ssault with a weap on); State v. Gilchri st , 299 N.W .2d 913 ( Minn. 19 80) (hom icide); United State s v. S inclair , 983 F.2d 598 (4th Cir. 1993) (drug trafficking).

2 See , e.g. , State v. Thomas , 542 A.2d 912 (N .J. 1988) (posse ssion of mariju ana); W hitten v. United Stat

es , 396 A.2d 208 (D .C. App . 1978) (s hoplifting); State v. Fales , 540 A.2d 1120 ( Me. 1988) (driving under the influence). 6

The defendant argues that Off icer Hurst was not justified in the frisk because a suspicion for driv ing under the influence wou ld not allow the officer to infer use of a weapon. In Hughes v. State , 588 S.W.2d 296, 30 4, 309 (Tenn. 1979), overruled on other gr

ounds by State v. L eveye , 796 S.W.2d 948 (Tenn. 1990), our supreme court, in ruling that the frisk was not w arranted, placed importance on b oth the nature of the suspected offense and the reas onableness of the belief that the suspect was armed:

In Terry , the suspected criminal activity was pr eparation for an armed robbery; here it was a mere possessory offense. In Terry , the pat-down was v alidated on the basis of a founded fear of the possession of weapons; here, again, it was a

possessory offense with no suspicion that [the] defendant w as going armed. A frisk has been upheld as reasonable when the suspected crime might typically involve the use of a w

eapon; for example, a suspicion of robbery, burglary , rape, assault with a weapon,homicide, and large scal e narcotics trafficking mi ght allow an officer to reasonably infer that a weapon might be in the poss ession of the suspect. 1 When, however, the likely crime does not involve a weapon, "other circumstance s" must be present to justify a Terry frisk. Sibron v. New York , 392 U.S. 40, 74, 88 S. Ct. 1889, 1907 (1968) (Harlan, J., concurring)). 2 Because a suspected driv er under the influence would not lik ely fall into the categor y of those who would be expected to be armed, this court must con sider examples of "other cir cumstances": [A] characteris tic bulge in the sus pect's clothing; observation of an object in the pocket which might be a weapon; an otherwise i nexplicable sudden movement toward a pocket or other place where a weapon co uld be concealed; an otherwise i nexplicable failure to r emove a7 hand from a pocket; backing aw ay by the suspect under circumst ances sug gesting he was moving b ack to give himself time and space to draw a weapon; awareness that the suspect had previous ly been engaged in ser ious criminal conduct; awar

eness that the suspect had previously been armed; [and] discovery of a weapon in the suspect's possession...

. LaFave, Search and Seizure , § 9.5(a) (3d ed. 1996 & Supp. 1997) (footnotes and citations omitted); accord State v. Sanders , 435 S.E.2d 842 (N.C. App. 1993) ( Terry frisk of driver stopped at roadblock was justified when driver prov

ided no license or registration, admitted he was not owner of car, an d had a bulge in front pocket the size of two fists); State v. Tilton , 561 N.W.2d 660 (S.D. 1997 ) ( Terryfrisk justified for vehicle passenger st

opped at sobriety checkpoi nt who was hostile and uncooperative, had suspici ous bulge in his pocket, a nd refused to remove his hands from his pockets).

The state's position is that law enforcement off icers are justified in conducting a protectiv

e frisk of a suspect because ve hicle stops subject officers to heightened danger. The state ar gues that the officer acted upon a r easonable, articulable suspicion i n conducting the frisk based on the following facts: (1) that the defendant had glassy eyes;(2) that his response to a question about his destination was a "little confused"; and ( 3) that he attempted to push away the officer's initial attempt to search. In support of its position, the state arg ues that Michigan v. Long , 463 U.S. 1032, 103 S. Ct. 3469 (1983) , controls. In that case, the United States Supreme Court made the followin g observation:

[I]nvestigative de

tentions involving

suspects in vehicles are especially fraught

with danger to polic

e.... In Pennsylv

ania v. Mi mms we held that police may order persons out of an automobile during a stop for a traf fic violation, and may frisk those persons for weapons if there is a reasonable belief tha t they are armed and dangerous

.... Id. at 1047-48, 103 S. Ct. at 3480 (c itations omitted)(emphasis a dded).8 In our view, Long is distingu ishable f rom thes e circums tances. Initially, the issue in Long was whether the officers could expand the Terryfrisk to the vehicle, not whether the frisk of his person was justified. Id. at 1037, 103 S. Ct. at 3474. Secondly, the behavi or of the suspect and the presence of a w eapon in the vehicle were deter

minative. Id. at 1051, 103 S. Ct. at 3482. Pri or to the stop, the officers had observed the car travel erratically and in excess of the speed limit before swerving into a ditch. When Long stepped out of his vehicle, he left the door ajar. He then failed to respond to requests by officers for license and registration information and he appeared to be under th e influence. It was only when Long turned toward the vehicle and the officers who followed observed a hunting knife in the floorboard of the front seat that the fri sk took place. Id. at 1035-37, 103 S. Ct. at 3473-74.

Here, the trial court concluded that the frisk was reasonable because there was a basis to sus pect criminal activi ty; it did not, howev

er, articulate a factual basis for any inference that the defenda nt might be armed and dangerous. Unlike the officers in Long , Officer Hurst offered no proof that he had obs erved a weapon or even suspected the defendant of posses sing a weapon. He obser ved no suspicious bulges and acknowledged that the defendant did not act defensively until he attempted to search his pockets. Officer Hurst had no prior knowledge of this defendant and no basis for any suspic ion of prior violence or

any history of going armed. The crime of driving under the influence does not necessarily imply the use of a weapon. Although the hour was late, the proof offered by the state was that the defendant was cooperative; that he provided a vali d driver's licens e; and that he had offered plausible explanations for the appearance of his eyes and des tination. The defendant carried luggage which was plainl y visible in the b

ack seat of his car. These factors tend to negate suspic ion of the defendant rather than enhance it.9 Although a detention for sobrie ty tests may have been warranted, Officer Hurst had no articulate basis to fris k the defendant for weapons. His suspicion that the defendant was under the influence tur ned out to be unfounded.

Where the search of a defendant was unlawful and inv alid, the exclusionary rul e generally requi res suppression of its fruits

. Weeks v. United States , 232 U.S. 383, 34 S. Ct. 341 (19 14); Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684 (1961); Hughes v. State , 238 S.W. 588 (Tenn. 1922); State v. Patton , 898 S.W.2d 732 (Tenn. Crim. App. 1994); Tenn. R. Cri m. P. 41(f). The dual purposes of the exclusionary r

ule are to protect fundamental indi vidual liberties and to deter improper police conduct. Patton , 898 S.W.2d at 734. Because the frisk of the defendant was an unconstitutional intrusion, we must hold that the marijuana was unlawfully seized and should have been suppressed.

In his second issue, the defendant ar gues that the "bulge" in his rear pocket was an insufficient bas is for the officer to conclude that i t was an illegal substance. The state contends that the officer's search and seiz ure of marijuana from the defendant is justified under the "p lain feel" doctrine because the c ontent of the lump was immediately apparent to the officer based on his ex perience and training.

In Bridges , our supreme court articul ated the three requirements for seizure of evidence under the "plain feel" doctrine: 1) a prior valid r

eason exists for the intru sion, i.e., the patdown must be permissible under Terry ; 2) the contraband is detected w hile the Terrysearch for weapons legitimately

is still in progr

ess; and, 3) the incriminating nature of the object perceived by the officer's sense of touch is immediatel y apparent giving the officer probable cause to believe the object is contraband prior to its s eizure.10 Slip op. at 15 (cit ing Minnesota v. Dicker son , 508 U.S. 366, 113 S. Ct. 2130 ( 1993)). In Bridges , the officer felt a pill bottle in the defen dant's jacket pocket while conducting a Terryfrisk. The officer testified that he i mmediately recogniz ed the bottle and "knew it was the kind that a lot of other dealers will use to keep their crack in." Id. , slip op. at 17. The court hel d that the officer lacked probable c ause to remove and open the container. Id. , slip op. at 19. It ruled that the officer could not have discerned the contents of the bottle from merely touching the container:

Courts should not surrender their common sense assessment of the sensory capacities of human touch to an offi cer's asse rtion tha t he or she "immedi ately knew" the natu re of the object to uched. T he offi cer's sub jective belief that the object is contraband is not suff icient unless it is objectively

reasonable in light of all the circumstances known at the time of the search. Id. , slip op. at 16.

In resolving the firs

t issue, we determined that the frisk was unjustifie d. Thus, the first requirement for seizure of evidence under "pla in feel," that the frisk is permissible under Terry , has not been satisfied. In our view, the state has also failed to satisfy the requi rement that the officer have probabl e cause to believe the object is contraband. Her e, as in Bridges , the officer provided no objective facts upon which to base his deter mination that the bundle in the defendant' s rear pocket was contraband. The bare ass ertion of his subjective belief that the contents of the bundle were "like [he] had felt before in the past that turned out to be marijuana" was inadequate. There are also policy reasons that tend to limit the authority of the officer in circumstances such as these. First, sobri ety checkpoints are law ful but must be conducted in such a w ay that minimizes dis

cretion of officers and limits intrusions into areas pr otected by the Fourth Amendment. Downey , 945 S.W.2d at 104. Second, the plain feel doctri ne must be applied with "ex acting limitations." Bridges , slip op. at 18-19.11 Accordingly, the j udgment of the trial court is reversed and the evidence is ordered to be suppressed. The cause is remanded to the trial court.

__________________________________ Gary R. Wad e, Judge CONCUR:

_______________________________ David H. Wel les, Judge

_______________________________ Jerry L. Smith, Jud ge