### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 9, 2002 Session
STATE OF TENN ESSEE v. LILLIE FRA N FERGUSON
Direct Appeal from the Circuit Court for Madison County

No. 99-938 Roger A. Page, Judge

No. W2002-00638-CCA-R3-CD - Filed Nove mber 19, 2002

After entering a guilty

plea, the defendant

reserved certified questions for revie w: (1) whether the Terry search was justified , a nd (2) whether the incriminating nature of the contraband was immediate

ly appare nt. We hold t

hat the of ficer la cked re asonable

su sp ic io n t o j us ti fy a Terry frisk and that the object felt was not immediately apparen t as con traband. We reverse and dismiss the defendant’s conviction.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed and Dismissed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined.
Lloy d R. Tatum, Henderson, Tennessee, for the appellant, L illie Fran Ferguson.

Paul G. Summers, A tto rney Genera l and Repo

rter; John H . Bledso e, Assista nt Attorne

y General ; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

The defendant, Lillie Fra

n Ferguson, was indicted for possession of coc aine with intent to sell and/or deliver, possession of drug parapher nalia, and failure t o obey a stop sign. After the defendant’s motion to suppress the evidence was denied, she entered a guilty plea to possession of less than .5 grams of

cocaine with intent to deliver, Tenn. Code An n. § 3 9- 17 -4 17 , a Cl as s C fe lo ny. The pl ea bargain was for a four-ye ar suspended sentence, with other conditions. Two c ertifie d questi ons o f law were properly reserved, pursuant to Tennessee Rules of Criminal Procedure 37(b)(2). The certified questions a re: (1) whether a Terry search was justified under the circumst ances, and (2) whe ther the incriminating nature of the contr aband wa s immediat

ely appare nt. The defendant also pled guilty to failure to obey a

stop sign, which was not appealed.-2- Background

On August 5, 1999, a bout 8:00 or 9:00 p.m., Officer Jeff Sheppard of the Jackson Police Department

was perfo rming surveill ance on a residence anony mously reported to be a

“crack house.” The officer

had within the last two days made a n arrest of two men for possession of crack cocaine after they left th e s am e r es id en ce . T he of fi ce r o bs er ve d t he de fe nd an t, Lil li e F ra n F er gu so n, a s ix tyone- year- ol d woman, and another female companion park their vehicle and enter the residence. After f ive to ten minutes, the women returned and left in the vehicle. Office r Sheppard followed and, shortly thereaf

ter, observed the defendant fail to obey a stop sign. He then initiated a stop and requ ested the defendant’s driver’s license. When the defe ndant did not immediately produce the license, the officer asked her to stepout of the car and performed a pat down or Terry

frisk. During this time, the defendant produced her license. The officer testified that it was his policy during traffic stops to pat down everyone he thought might have a weapon.

Pursuant to the pat

down, the

office r felt wh at he wa s “99% sur e” was a crack pi pe in the defendant’s right fr ont p ants pocket. He described it as an aluminum pipe, broken from a c ar antenna, w ith l ittle edges that were sharp and bent out. Contemporane ously with the frisk, he questioned the defe

ndant as t o whethe r she had a crack pipe and

if she had crack on her. She replied affirma tively to both que stions and

produce d the res pectiv e contraband items. A search of the vehicle produced another crack pipe with one or two crack cocaine rocks from unde r the passenger seat. Analysis

The findings of fact made by the trial court

at the he aring o n a motion to suppress are binding upon this C ourt unless the evidence contained in the record pr eponderates against them. Statev

. Ross , 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, i s able to assess the credibi lity

of the witnesses, determine the weight and value to be afforded the evidence, and re solve any conflicts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled t

o the stro ngest

legitima te view of the evidence and all reasonable inferences drawn from that evidence. State v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound by the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts found by the trial court are questions of law that this Court reviews de novo. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). T he defendan t has the burden of establishing that the evidence contained in the record preponderates ag ainst the findings of fact made by the trial court. Braziel v. State , 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).
A warrantless search is presumed unre asonable under both the f

ederal and Tennessee st

ate constitutions, and evidence seized from the warrantless searc h is subject to suppression unless the Statedemonstrates by a pr eponderance of the evidence that the sear ch was “ conducted pursuan t to
one of the narrowly de

fined exceptions to the warrant requirement.” State v. Simpson , 968 S.W.2d-3-

776, 7 80 (Tenn. 1 998); see Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564 (1971).

Under Tenness ee Code A

nnotated section 4 0-7-118, an offic er who wi tnesses c ertain misdemeanors is require d to cite a nd relea se the of

fender as oppose d to effec ting a custodial a rrest. Statev. Walker , 12 S.W.3d 460 (Tenn. 2000). There are eight exceptions to the “cite and release” requirement

containe d in the statut

e, none o f which a

re appli cable

to this case. Therefore, a citizen has a presumptive right to be cited and r eleased for

failure to obey

a stop sign, rather than being placed u nder cus todial ar

rest.
However, the Fourth Amendment permits a protective fri sk prio r to release where a law enforcement

officer has reasonable suspicion that the suspect is ar med. Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868 , 1880, 20 L . Ed. 2d 889 , 906 (196 8); State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1 992); State v. Winn , 974 S.W.2d 700, 703 (Tenn. Crim. App. 1998).

In determin

ing whe ther a po lice off

icer’s r easonab le suspic ion is supported by s pecific

and arti culable

facts, a court

must consider the totality of the circumstances. United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690 , 695, 66 L . Ed. 2d 621 , 629 (198 1). This includes, but i s not limited

to, objec tive obse

rvations , informa

tion obtain

e d from other police officers or age ncies, i nform ation obtained from citizens, and the pattern of operation of certain off enders. Id. , 449 U.S. at 418, 101 S.Ct. at 695 , 66 L. Ed. 2d at 6 29. A cour t must also consider the rational inferences and deductions that a tra ined police officer m ay draw fr

om the fa cts and c ircumsta

nces kno wn to him. Terry , 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906. Watkins , 827 S.W.2d at 294.

The officer had approximately five to six months experience on the Jackson Metro Narcotics Unit and eight y ears total experience in police work and arrests involving drug of fenders. Based on his experience, he testified that, “My e xperiences with people that are involved in the narcotics trade
or use tend to have some type of weapon on them.” According to the officer, le ss than two minutes had elapsed sincethe defendant had emerge d from an alleged crack house whe n he performed the frisk. On cross-examination, when asked if he frisked every body he stopped, the officer answered: “Eve rybo dy

that I have rea son to think might have a weapon, yes, sir.” Officer Sheppard further testified that on routine traffic stops such as speeding or running a stop sign, he may

not perf orm a frisk.

Frisks have been deemed reasonable when the suspecte d crime ty pically involves the use of
a weapon; for example, a suspicion of robbery , burglary , rape, assault with a weapon, homicide, and large scale narcotics trafficking. Winn , 974 S.W.2d at 703. If the suspected crime, as here, does
no t typ ically involve the use of a weapon, then “other circumstances” must be pr esent. Sibron v. New York , 39 2 U. S. 40, 74, 88 S . C t. 188 9, 1 907 , 20 L. Ed. 2d 917 (1968 ); Winn , 974 S.W.2d at 703-704.-4-

This Court h as previ ously consider ed a plet hora of “ other ci

rcumstan ces” asfollows: [A] charact erist ic bul ge in th e susp ect’s cloth ing; observation of an object in the pocket which might be a weap on; a n otherw ise inexplicab le sudden movement toward a pocket or other place where
a weapon c ould be co nceale d; an o therwise inexplicab le failur

e to
remo ve a h and from a pocket; backing awa y by the suspect under circumstances suggesting he was moving bac k to gi ve himself

time
an d space to draw a weapon; awar eness that the suspe ct ha d previous ly

been en gage d in serious crimina l conduct ; awareness that the suspect had previously been armed; [and] discovery of a weapon in the suspect’s possession . . . . Winn , 974 S.W.2d at 704. LaFave, Search and Sei zure , § 9.5(a) (3d ed. 1996 & Supp. 1997) (footnotes and citations omitted).

The record is devoid of any “other c ir cumstances” such as furtive movements, suspicious bulges, or prior knowledge of the defenda nt at the ti me of the

stop and se

izure. The

Stateposits that the office r believ ed he wa s subject

ed to a “h eighte ned leve l of dang er” whe

n stopping

the defe ndant, basedon defendant’s ju st leaving an alleg ed crac

k house a nd that the office r had, two days pr ior, arrested two other men for cocaine possession after they left the same residence. While mindful of law enforc ement of

ficers’ need to e

nsure the ir safety when con

fronting suspects , under th

ese fac ts, we cannot discern a reasonable a nd articulable suspicion to justify a Terry frisk.

The defe ndant fu rther complains that the crack pipe’s incriminating na ture was not immediate

ly apparent as contraband. The defendant relies upon Minnesota v. Dickerson , 508 U.S. 366, 113 S. Ct. 213 0, 1 24 L. Ed. 2d 334 (1993), and State v. Bridges , 963 S.W.2d 487 (Tenn. 1997). Under this authority, the “pla in feel” doctrine allows a warrantless sea rch and seizure if: (1) a prior valid reason e xists for the intrusion, i.e., the pat down must be permissible under Terry ; (2) the contraban d is det ected while the Terry search for weapons legitimately is still in progre ss; and (3) the incrimina

ting nat ure of the object percei ved by the off icer’s
sense of touch is immediat ely

appare nt giving the offic er proba

ble cause to believe the object is contraband prior to its seizure. Having held that

the frisk in this case was not justified by articulable a nd reasonable suspicion, the intrusive frisk would fail on that basis. However, for complete ness of review we will analyze the defendant’s second issue on the assumption of a valid Terry frisk.

Statev. Bridges contains a succinct summary as to when an officer’s tactile perceptions give probable cause to believe the item is contraband prior to seizure:

Probable cause e xists when th

e facts and circ

umstance s within

th e officer’s knowl edge are sufficient to warrant a person of reasona ble caut ion in the belief that the item may be contraband. Brown , 460 U.S. at 742, 103 S.Ct. at 1543. Probable cause “does not demand any-5- showing that such a belief be correct or more likely true

than false.” Id. In determining whe ther probab le cause

exists, cou

rts must consider the total i ty of the circ

umstances including the officer’s testimonyand factual knowledge based upon pr ior law enforcement experience. See State v. Rushing , 935 S.W.2d 30, 33 (Mo.banc. 1996); see also State v. Trine , 236 Conn. 216, 673 A.2d 1098, 1100 (1996). Courts shou

ld not surrender their common sense assessment of the sensory ca

pacities of human touch to an officer’s assertion that he or she “immediately kne w” the nature of the object touched. See e.g. , Jones v. Stat

e , 343 Md. 448, 682 A.2d 248, 252 (1996) (“it’s not just a question of

being an expert

and comin g in and

say ing the magic words”). The officer’s subjective belief that the object is contraband is not suffic ient unle ss it is obje ctively rea sonable in light of all the circumst ances known at the time of the search. Trine , 673 A.2 d a t 1109. An office

r’s testi mony

is a factor in determining the legality of
a seizure under the plai n feel doctrine, but it is not dispositive and does not end a court’s inquiry

. Wonders , 929 P.2d at 799. 963 S.W.2d at 494-95 (Tenn. 1997).

Officer Sheppard d escri bed the object as a pipe made of aluminum, broken from a c ar antenna, with little edges, sharp and bent out. The o f ficer, in his word s, felt “9 9% sure”it was a crack pipe upon feeling it. Based upon this testimony , as well as the experience of Officer Sheppard,
we conclude that, under the“plain feel” doctrine, he was justified in his belief that this object was
a crack pipe. However, since we have concluded that his pa t d own of the defendant was not justified, this belief cannot justify the unlawful se arch.
Having concl uded tha t the officer lacked reasonable suspicion to justify a Terry frisk, it i s necessary to suppress the evidence seized.

Conclusion

After a review of

the record, we reverse a

nd dismiss the defendant’s conviction of possession of less than .5 grams of cocaine with intent to deliver and r emand to the trial court.



### _________________

_________________ JOHN EVERETT WILLIAMS, JUDGE