# FILED January 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSO N OCTOBER 19 97 SES SION

STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9705-CC-00167 Appellan t, ) ) MADISON COUNTY VS. ) ) HON. WHIT LAFON, DEWAYNE MOORE, ) JUDGE ) Appellee. ) (Interlocutory ap peal: motion to suppress)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP JAMES D. GASS Attorney General

& Reporter P.O. Box 7624 Jackson, TN 38308 KENNETH W. RUCKER Asst. Attorney

General Cordell H ull Bldg., 2n d Fl. 425 5t h Ave. N. Nashville, TN 37243-0493 JERRY WOODALL District Att

orney General AL EARLS SHAU N A. BROWN Asst. Distri

ct Attorney s General Lowell Thomas State Office Bldg. Jackson, TN 38301
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 Officer Coleman's description of the defendant' s intention in making t

hese turns is unsupported by any independent

proof. I n other wor

ds, her de script

ion of t he defendan

t's dr iving a s “evasi ve” and done “

in an at tempt to shake me

” was based,

as far a s we can t

ell fr om the recor

d, solel y on the f

act tha t the def endant had ma

de several turns. She did not test ify that he had sped up or made the turns with any particular alacrity . The mere making of m ultiple turns in a ne ighborho od is not ind icative of crimin al activity, even wh ile being follow ed by a police car
. Cf. State v. Scar lett , 880 S.W.2d 707 , 708 (Tenn. Crim. App. 1993) (where this Court, in reversing the trial cour

t's gra nt of the def

endant's mot

ion to suppress,

relied in par

t on proof that

, when the poli

ce officer followed the defendant's car, he made “several quick, hard-angled turns.”) 2 

### O P I N I O N

The defendant was indicted for two weapons violations, possession of drug paraphernalia,

and driving without a license. He fi led a motion to suppr

ess as evidence “all drugs and drug paraphernalia, and firearms, which were taken from the v ehicle [he] was driving at the time of h is arre st.” A fter a hear ing, t he co urt b elow gran ted th e def end ant's motion. The State filed this interloc utory appeal, co ntesting the tr ial court 's rul ing . We affi rm.

Belinda Colema n, a patrol of ficer with th e Jackson Poli ce Departm ent, testified that, at a

pproximately

11:00 p.m. on May 31, 1996, she had been i n a residenti al neighborhood taking a missing person report. While she was taking the re port, she saw the vehicle which the defendant was driving “tr aveling very , very sl

owly, five t

o ten miles an hour through the neighb orh ood. . . . Approx imately five to ten minutes late r the vehicle circle[d] again.” At thi s time, she t estified,one of the people w ho lived in t he neighborhood had“advised [her] t hat the vehicl

e had been circling t

he neighborhood for quite some time.” Wh en she finished taking h er re port , she followed the ve hicle in her police car. She test

ified that i

t had had four people in it , and that as she had followed it, “It made evasive actions

and kept turning down different roads, taki

ng side streets, back roads, in an attem pt to sha ke me .” 1 She further test ified that s

he had been given a descript ion the2 Officer Coleman's testimony ref ers to both automobile burglaries and stolen vehicles ; it appears that she may have b een using the ter ms interchan geably. 3 nightbefore “of a small r ed vehicle which was occupied by four black males that had been involved in sever

al auto burglar

ies 2 the night before. ”
After following it

for some unspecified distance, Officer Cole man stopped the vehicle. She i

nitiall y testi fied that the

defendant had not been t he driv er. However, after reviewing her report, she acknowledged on cross-exa mination that

the defendant had been the driv er. She also testi fied on cross-exami

nation that,

“The burglarieshad occurred
over in the Daughtery

Street area. ” Shortly aft er this te stimony, t

he trial cour

t interr upted the defendant's cr

oss-examination and asked the State if it had any further

proof. The State responded that its only remaining test imony would come from the poli ce officer who had found the weapons after the stop. At t

hat point, t

he court below held “t

he search was b ad.” No findings of fact were set forth on the recor

d.

We first note that “s topping an automob ile and detain ing its occup ants constitute a 

### <

seizure' wit

hin the meaning of [the Fo urth and Fourteenth Amendments to t he United States Constit

ution], even t

hough the purpo se of the sto p is limited and t he resulti ng detention quite brief. ” Delaware v. Prouse , 440 U. S.648 , 653 ( 1979) . In s ome circumstances, a police of ficer may brief ly detain a suspect without pr obable cause in order to investig ate pos sible crim inal activ ity. Brown v. Texas , 443 U.S. 47, 51 (1979). In these situations, an investiga tory stop is perm issible only wh en a police o fficer has a reasonab le suspicion, supported by speci fic and artic

ulable facts,

that a criminal offens e has been or is about to be com mitted. Terry v. Ohio , 392 U.S. 1 (1968 ). In order to determine specific4

and articulabl

e facts, thi s Court must consider the “total

ity of the circumstances. ” United States v. Cortez , 449 U.S. 411, 417 (1981) . Among the relevant elements to be considered
are objective obser

vations, i nformation obtai

ned from other police off icers, and

the pattern of ope ration o f certain offen ders. Id. at 418. This Court must also consider “the rational inferences and dedu ctions that a trained poli ce officer may dr

aw from the facts and circumstancesknown to him.” State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992) citing Terry v. Ohio
.

In this case,the only specific and arti culable facts

that Officer Coleman had in her possession at the time she pulled the defendant

over were that (1)she had seen the
car drive by twic e at a slow rate of s peed; (2) the vehi

cle matched a descr

iption she had been given of a car seen i n an area where several vehicl es had been burglarized (or stolen) the night before; and (3 ) wh ile she had followed it, the car made several turns. Add ition ally, she testifi ed that she had been t

old by someone that

the car hadbeen “circli

ng the neighborhood for quit e some time.” There was no proof as to the speed limit of th e neighborhood or the proximit y of the neighborhood to the area where the vehicles had be en burglarized (or stolen).

Prior to pul ling the de fenda nt ove r, Off icer Colema n was con stitutionally required to have a reasonable

suspicion, supported byspecific and articulable facts,that a criminal offense

had been or was about to be committed. Thefacts addu ced by the Sta te at the suppression hearing simply do no t form th e basis for su ch a suspic ion. Prior to stopping him,Offi cer C olem an had not obse rved the d efen dant violate any tra ffi c la w, cf. Whren v. U.S. , __ U.S. __, __ , 116 S.Ct. 17 69, 1772 (1996) (“As a general mat ter, the5

decisionto stop an au tomobile is re asonable w here the po lice have pr obable ca use to believe that a traffic v iolatio n has occu rred.”); she had not received r eliable i nformation that the defendant had just committed a cri me, or that he w as about to c ommit one, cf. State
v. Banner , 685 S.W.2d 298 (T enn. C rim. Ap p. 1984); nor was she aware of an outstanding capias for the d efend ant's arre st, cf. State v. W atk i ns , 827 S.W.2d 29 3 (Tenn. 1992). In short, Officer Coleman stopped the de fendant's car

without a suffici

ent basis to do

so and thereby violated his c onstitutional r ights. A ccordingly, the e vidence o btained as a result of the unconstit

utional st

op was properly suppr

essed.
The judgment below is affir med.

________________________________ JOHN H. PEAY , Judge

CONCUR:

_______________________________ PAUL G. SUM MERS, Judge

_______________________________ DAVID G. HA YES, Judge