1

"Because the investigatory stop in t his case was based upon

reasona ble susp icion, it w as valid u nder bo th the fed eral and state

constitu tions.” M ajority O pinion a t _____ [slip op. a t 16]. 

Particularly alarming is t he statement: “Indeed, the availabil ity of

less intrusive invest igatory techniques does not vitiat e the

constitu tional va lidity of a stop wh ich is sup ported b y reason able

suspicion.” I d .

FILED

November 24, 1997

Cecil W. Crowson

Appellate Court Clerk

1 FOR PUBLI CATION

2

3 IN THE SUPREME COURT OF TENN ESSEE

4

5 AT NASHVILLE

6

7 HEARD AT C OOKEVILLE

8

9

10

11

12 STATE OF TENNESSEE, (

13 (

14 Plaintiff-Appellee, (

15 ( Coffee Criminal

16 (

17 v . ( Hon . Gera ld L. E well, S r.,

18 ( Judge

19 (

20 WAYNE LEE YEARGAN, ( No. 01S01-9604-CC-00080

21 (

22 Defen dant-A ppellan t . (

23

24

25

26

27 C O N C U R R I N G I N R E S U L T S

28

29

30

31

32 I agree that the motion to suppress t he evidence be

33 denied . I write sep arately be cause th e langu age of th e majo rity

34 opinion reduce s the con stitutional s tandard for search and seiz ure

to “rea sona ble sus picion . ” 1

35 The m ajority miscon strues Terry v.

36 Ohio , 39 2 U.S . 1, 88 S. Ct. 1868 (19 68) , t he Uni ted Sta tes Supr eme

37 Court case which recognized the validity of i nvestigative st ops

38 based on e xigent circum stances, and ign ores Whren v. U nited States , 

39 _____ U.S. ____ _, 116 S. Ct. 1769 (1996), the m ost recent United
2

Tenn. Co de Ann. § 55-10-401 (1 993).

3

Tenn. Co de Ann. § 55-50-504 (1 993).

-2-

1 States Supr eme Cou rt case discus sing th e requ ireme nts for proba ble

2 cause. The majori ty also fa ils to f ollow, or even menti on, the

3 holdings in Hugh es v. State , 588 S.W.2d 296 (Tenn. 197 9) and State

4 v. Pul l y , 863 S.W.2d 29 (T enn. 1993) in which this C ourt discussed

5 in deta il the ra tionale and re quirem ents fo r an in vestiga tive sto p. 

6 

7

8 I

9

10 The appeal is f rom convictions of driving under the

influence of an intoxicant, second offense, 211 and driving a motor

vehicle with a revoked driver license, 312 entered upon the

13 defendant' s pleas of gui lty, re serving a di spositi ve question of

14 law. 

15

16 On Thursday, January 28, 1993, at approximately 2:20

17 p.m., Tullahoma Poli ce Officer Jason Ferrel l observed t h e

18 defen dant, W ayne Lee Y earga n, driv ing a p ickup truck o n a pu blic

19 street i n Tullahoma. Previous ly, Offi cer Ferrel l had arrest ed the

20 defendant for driving under the inf luence of an intoxicant and had

21 been present i n the general s essions cour t on July 2, 1992 when the

22 defendant pleaded guilty to the off ense and was sentenced to 11

23 months and 29 days in jai l, a fi ne of $250, and the revocation of

24 his driv er licen se for o ne ye ar from the da te of th e judg men t. 

25
-3-

1 When the officer began following the defendant's t ruck,

2 the de fenda nt, acc ordin g to th e office r's testim ony, " sped u p som e, 

3 he wasn 't going at a high rate of speed, bu t he accelerated." In

4 the off icer's vie w, the defen dant " attem pted to put so me tra ffic

5 between us." The def endant then drove i nto the parki ng lot of

6 Rub y’s Lo unge , a loca l bar; th e office r follow ed an d put o n his

7 blue light s. The defendant parked and got out of his truck. The

8 officer asked to see hi s driver l icense, and he produced a

9 restricted license issued pursuant to a court order which perm itted

10 the defen dant to d rive “in C offee Co unty on ly as nec essary to

11 complete job t asks” between the hours of 7 a.m. and 7 p. m. The

12 defendant’s employment was liste d on the order gra nting the

13 restri cted lic ense as farming a nd "rental pr operty owner." The

14 officer test ified that when he asked the defendant why he had

15 driven to t he bar, the def endant repli ed that he “had come to t h e

16 bar to meet a guy about a cow.” Based on his obser vations and a

17 field sobriet y test, the off icer concluded that the defendant was

18 under the inf luence of an i ntoxicant and ar rested him for driving

19 under the influence and driving o n a revoked license. The po lice

20 officer admitted that he was aware of the avai labili ty of

21 restricted licenses for driving offenders. However, he testified

22 that if h e had tried to establi sh the status o f the de fenda nt’s

23 license before st opping him, it would have taken approximately 15

24 minutes for t he police ra dio operator to determine whethe r the

25 defen dant h ad a re stricted license . 

26

27 The Court of Criminal Appeal s found that "a prudent
-4-

1 officer could reasonably have bel ieved that the appellant was

2 driving on a revoked license" and held that t he officer had

3 "probable caus e to conduct an inv estigat ive stop. " In reaching

4 that conclus ion, the Court of Criminal Appeals relied upon Terry v.

5 Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968) and State v. Watkins , 827

6 S.W .2d 29 3 (Ten n. 199 2). 

7

8 I I

9

10 This Court recently clarified the standard of review

11 under which a trial court’s findings of fact on suppression issues

12 are to be revi ewed:

13

14 Questions of cr edibili ty of the

15 witnesses, the weight and val ue of the

16 evidence, and r esolution of conflict s in the

17 evidence are matters entrusted t o the trial

18 judge a s the trier of fact. The party

19 prevailin g in the tria l court is en titled to

20 the strongest legitimate view of the evidence

21 adduced at the suppression hearing as well as

22 all reasonable and legit imate inferences that

23 may be drawn from that evidence. So long as

24 the grea ter weigh t of the ev idence s upports

25 the trial court ’s findings, t hose findings

26 shall be upheld. In other words, a tr ial

27 court’s f indings of f act in a suppr ession

28 hearing will be upheld unless the eviden c e

29 preponderates otherwise. We also note that

30 this stand ard of rev iew is co nsistent w ith

31 Tenn . R. A pp. P. 13(d) , whic h pro vides t hat in

32 civil cases, fin dings of fact by a tr ial court

33 are presumed correct “un less the preponderance

34 of the evidenc e is otherwi se.” Hereaft er, the

35 proper standar d to be applie d in reviewing

36 suppressi on issues i s the “preponder ance of

37 the evidence” s tandard.

38

39

State v. Odom 40 , 928 S.W.2d 18, 23 (Tenn. 1996). The appli cation of
4

The Fo urth Am endm ent states , 

Unreasonable searches and seizures. - The rig ht of the people

to be secure in their persons, h ouses, pape rs, and effects,

against unreasonable searches and seizures, shall not be

violated , and no warran ts shall issu e, but up on prob able

cause, su pported by oath or affirm ation, an d particu larly

describing the place to be searched, and the per sons or

things to be seized.

U.S. Const. amen d. IV. The Fourth A mendmen t is applicable to the states

throug h the Fo urteenth Ame ndme nt. Mapp v. Ohio , 367 U.S. 643, 655, 81

S. Ct. 1684, 1 691 (1961).

Article 1, Sectio n 7 of the T ennessee C onstitution state s ,

Unreasonable searches and seizures - General warrants. - That

the people sh all be secure in their persons, h ouses, pape r s

and possessions, from unreasonable searches and seizures; and

that gen eral wa rrants, w hereby an office r may b e comm anded to

search suspected places, withou t evidence of the fact

comm itted, or to seize a ny person o r persons no t named, w hose

offences are not particularl y described and supported by

evidence, are dangerous to liberty and ought not to be

granted.

Tenn. C onst. art. I , § 7. 

-5-

1 the law to the facts found by the trial court, how ever, is a

2 quest ion of law w hich th is Cou rt revie ws de novo . Beare Co. v.

3 Tennessee Dept. of Revenue , 858 S .W.2 d 906 , 907 (T enn. 1 993). 

4

5 III

6

7 A .

8

9 The rele vant co nstitution al provisio ns are th e Four t h

10 Amendment to the United States Constituti on and Article 1, Section

7, of the Tennes see Constit ution. 411 The Fo urth Am endme nt "exists,

12 primar ily, for the b enefit of th e citizen; its o rigin and history

13 clearly man ifest that the Fou rth Am endme nt was inten ded as a

14 restrai nt upon the acti vities of the sovere ign authori ty to the
-6-

1 extent that a citize n may be secure in the unmole sted enjoyment of

2 home a nd possessio ns, except by v irtue of process d uly issued." 

3 State v. Burr oughs , 926 S.W .2d 243 , 245 (Te nn. 199 6). The C ourt

4 recently reaffirmed this historic principle:

5

6 [B]oth the Fourth A mendm ent to the United

7 States Consti tution and Arti cle 1, Sect ion 7

8 of the T enne ssee C onstitu tion p rohib i t

9 "unreasonable " searches and s eizures. The

10 State may not invade this personal

11 constitutional right of the individual citizen

12 except und er the mos t exigent circum stances.

13

14 . . .

15

16 A warrantless search and seizure,

17 therefo re, is pre sum ed un reaso nable unles s it

18 falls into one of the narrowly defined

19 exceptions, or exigent ci rcumstances, to the

20 warrant requi rement. The mere exis tence of

21 these c ircum stance s does not n ecessa rily

22 validate a warrantless search. As point ed out

in [ United States v. Nelson 23 , 459 F.2d 884, 885

24 (6th Cir. 1972)], exc eptions are jealousl y and

25 carefully drawn." There must be a showing by

26 those asser ting the exc eption that the

27 exigencies of the situation made the search

28 imperative. The burden is on those seeking

29 the excepti on to show the need.

30

31

32

33 State v. Bartram , 925 S.W.2d 227, 229- 30 (Tenn. 1996) ( citati ons

34 omitt ed). 

35

36 The stop o f the defenda nt’s vehicle in this case

37 implicates the protect ion of both the state and federal

38 constitut ions: "Temporary de tention of individual s during the s top

39 of an automobile by t he police, even if only f or a brief period and

40 for a lim ited pu rpose , cons titutes a 'seizur e' of 'per sons' w ithin

41 the mean ing of this provision ." Whren v. U nited States , ___ U.S.
5

The correc t spelling of the d efendant's na me is "Pulle y"; howev er,

it is cited b y Wes t Publish ing Co mpan y as "Pu lly."

-7-

1 ____ ,___, 1 16 S. C t. 1769 , 1772 (1996 ); Delawa re v. Prouse , 440

2 U.S. 64 8, 654, 99 S. Ct. 13 91, 139 6 (1979 ) .

3

4 When an officer tur ns on his blue l ights, he

5 or she has cle arly in itiated a stop. See

6 United States v. Hensley , 469 U.S. 221, 226,

7 105 S. C t. 675, 679 , 83 L.E d.2d 60 4 (1985 ) ;

8 Colorado v. Ban nister , 449 U.S. 1,4 n. 3, 101

9 S. Ct. 4 2, 44 n . 3, 66 L .Ed.2 d 1 (19 80). 

10 More over, as th e Unite d States S uprem e Cou r t

11 observed in Terry v. Oh i o , 392 U.S. 1, 16, 88

12 S. Ct. 18 68, 187 7, 20 L.E d.2d 88 9 (1968 ) ,

13 “[i]t mu st be reco gnized that wh enever a

14 police off icer accos ts an indivi dual and

15 restrains his f reedom to walk away, he has

16 ‘seized’ that per son.” See also United States

17 v. Brignoni-Ponce , 422 U.S. 873, 878, 95

18 S. Ct. 2 574, 2 578, 4 5 L.E d.2d 6 07 (19 75). 

19

20

State v . Pully ,

5

21 863 S .W.2 d 29, 3 0 (Ten n. 199 3). "A n auto mob ile

22 stop is t hus subject t o the consti tutional imperative t hat it not

23 be 'unreason able' under the circumstan ces." Whren v. U nited

24 States , ___ U .S. at __ _, 116 S. Ct. a t 1772 ; see State v. Downey ,

25 945 S.W .2d 102 , 106 (Te nn. 199 7).

26

27 The F ourth A mend ment a nd Ar ticle I, Sectio n 7 requ ire

28 the existence of “probable cause” f or making an arrest without an

29 arrest w arran t. Beck v. Oh i o , 379 U.S. 89, 85 S. Ct. 223, 225

30 (1964 ); State v. Melson , 638 S .W.2 d 342 , 350 (T enn. 1 982), cert .

31 denied , 459 U.S. 1137, 103 S. Ct. 770 (1983). In order t o have

32 probable cause for an arres t without a warra nt, at the moment of

33 the arrest , the fact s and circumstanc es within the knowledge of the
-8-

1 officer s, and of which t hey had reasonably t rustworthy i nformation,

2 must be “suffi cient to warr ant a prudent man in bel ieving that the

3 [defendant] had committed or was committing an offense.” Beck v.

4 Ohio , 379 U .S. at 91 , 85 S. C t. at 225 ; Melson , 638 S.W.2d at 350.

5

6 Although probable c ause is the onl y basis on which a

7 person may be arrest ed without a warrant , under cert ain 

8 circumstances, a person m ay be detained briefly by a police officer

9 without a w arrant or prob able cause. U nder exigen t circumstanc es,

10 "a po lice offic er ma y ma ke an invest igative stop o f a mo tor veh icle

11 whe n the o fficer h as a rea sona ble sus picion , supp orted b y spec ific

12 and articul able fact s, that a c riminal off ense has been or i s about

to be com mitted." State v. Watkins 13 , 827 S.W.2d 293, 294 ( Tenn.

14 1992 ); see also Terry v. Oh i o , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

15 (1968)).

16

17 The motion to suppress is direc ted to evide nce of the

18 defendant' s intoxic ation, which was appar ent to the of ficer upon

19 observing hi s appearance and demeanor, consequently, the

20 admissibil ity of the evidence depends e ntirel y upon the legal ity of

21 the sto p. Th e stop was p ermis sible an d the e viden ce adm issible if

22 there was probabl e cause for an ar rest or i f there were gr ounds for

23 an inv estigat ive sto p. 

24

25 Two distinct but closely related issues, both governed

26 by the Fou rth A men dme nt and Art. I, S ection 7, are p resent ed in

27 this case. The facts and ci rcumstances of the case must be
-9-

1 examined firs t to deter mine if they cons titute grounds just ifying

2 the defendant' s arrest . If the f acts and cir cumstances do not

3 warrant the re asonable beli ef that a cr ime has been or is b eing

4 comm itted and , therefore , there is no probab le cause fo r arrest,

5 then sec ondly, th ose facts a nd circu mstan ces ma y be exa mined to

6 determ ine if th ey per mit an invest igative stop. 

7

8 B .

9

10 Although the deter mination of probab le cause tur ns on

11 the fac ts and circum stance s of eac h case , the fra mew ork w ithin

12 which that dete rmination is made is well set tled. Si gnificant

13 aspects of that fr amework are set forth in the following material

in 2 W ayne R. La Fave , Search and Se izure 14 § 3.1(b), pp. 6, and §

15 3.2, p. 22 (3d ed. 1 996):

16

17 It i s ge ner all y as sume d by t he Su pre m e

18 Cour t an d th e lo wer c our ts t hat the same

19 quan tum o f evide nce is r equire d wh ether o ne is

20 concerned with prob able cause t o arrest or

21 probable cause to search. For this rea son,

22 discussions by courts of the pro bable cause

23 requirement of ten refer to and rely upon pri o r

24 decisions w ithout regard to whether th ese

25 earlier cases were concer ned with the grounds

26 to arre st or th e grou nds to search . . . .

27

28 . . . .

29

30 Notwithstanding the frequ ency with which

31 police, lawyers and judges m ust decide whether

32 a give n set o f facts a mou nts to p robab l e

33 cause , it rem ains "a n exc eedin gly diff icult

34 concept to obj ectify. " As noted in United

35 States v. Da vis :

36

37 The contours and salient principles

38 of probable cause have be e n
-10-

1 faithf ully catal ogued in a surfe it of

2 decisional law . Probable ca use

3 exists when known fact s and

4 circum stances a re sufficien t to

5 warrant a man of reasonable prudence

6 in the belief t hat an offense has

7 been or is be ing co m m itted. . . . A

8 signifi cantly lower qua nta of proof

9 is requ ired to establi sh pro bable

10 cause than g uilt. . . . P robab l e

11 cause does not emanate from an

12 antise ptic co urtroo m, a s terile

13 library or a sacrosanct adytum, nor

14 is it a pris tine "philosophical

15 conc ept ex isting in a vacu um," . . .

16 but ra ther it re quires a prag matic

17 analysis of "everyday life on which

18 reasonable and prudent men, not legal

19 technicians, act. " . . . It i s to be

20 viewed from th e vanta ge poin t of a

21 prudent, reasonable, cautious police

22 officer on the scene at t he time of

23 the arrest guided by his experience

24 and tr aining . . . . It is "a plastic

25 concept whose exis tence depends on

26 the facts and circumstances of the

27 particul ar case." . . . Because of

28 the kaleidoscopic myriad that goe s

29 into the prob able cause mix "s eldom

30 does a decisio n in on e case hand ily

31 dispo se of th e nex t." . . . It is

32 howe ver the to tality of the se facts

33 and circumstances which is the

34 relevant consideration. . . . Viewed

35 singly these fact ors may not be

36 dispo sitive, y et wh en vie wed in

37 unison the puz zle ma y fit.

38

39

40

41 The most recent deci sion by this Court consideri n g

probable cau se to arrest is State v. Melson 42 , 638 S.W.2d 342 (Tenn.

43 1982 ), cert. denied , 459 U.S. 1137, 103 S. Ct. 770 (1982). In that

44 case, the C ourt fou nd that th e inform ation giv en to po lice officers

45 imm edia tely a fter th e ho mic ide w as co m m itted, the d efen dan t's

46 presence nearby, and the blood spots on the defendant' s clothing,

47 constitute d proba ble caus e for the d efendan t's seizure a nd arres t ,
-11-

1 stating , 

2

3 Since there w as no wa rrant, we m ust pass

4 upon the validi ty of the ar rest under t h e

5 statute permitting an officer to make a

6 warrantless arrest when a felony ha s been

7 com mitted and h e has r eason able o r prob able

8 cause to believe that the arrestee comm itted

9 the felony. Te nn. Cod e Ann. § 4 0-803(3). It

10 is conce ded tha t probab le cause m ust be m ore

than m ere su spicio n, West v . State 11 , 221 Tenn.

12 178, 425 S.W .2d 602 (196 8), but neither m ust

13 it be ab solute certain ty, Grey v . State , 542

14 S.W .2d 10 2 (Ten n. Cr. A pp. 19 76). R eason able

15 or probable cause consists of ground s which

16 would lead a reasonable man to believe that

17 the person arrested was guilty of the felony,

18 Davis v . State , 2 Tenn. Cr. App. 297, 453

19 S.W.2d 438 (1969). I n Dav i s , we quoted from

20 Jones v . State , 161 Tenn. 370, 33 S.W.2d 59

21 (1930), wherei n it was stat ed:

22

23 "In Beck v. Stat e of O hio , 379

24 U.S. 89, 85 S. Ct. 223, 13 L.Ed.2d

25 142 (1964), the [United States

26 Supreme] Court stat ed:

27

28 'Whether that arrest was

29 const itution ally va lid dep ends . . .

30 upon whether, at t he moment the

31 arrest was made, the officers had

32 probable cause to make it--whether at

33 that moment the fact s and

34 circumstances within their knowledge

35 and o f whic h they had re ason able

36 trustwo rthy infor mation were

37 sufficient t o warrant a prudent man

38 in believing that t he petitioner had

39 com mitte d . . . a n offe nse.'"

40

41 453 S.W.2d at 440.

42

43

Id. 44 at 350-5 1. Thu s, probab le cause is establishe d whe n the fac t s

45 and circumstances w ithin the knowledge of the officer and of w hich

46 he has reasonabl y trustwort hy information warr ant a prudent per son

47 in believing the defendant has committed or is committing an
-12-

1 offens e. 

2

3 The S uprem e Co urt of th e Un ited Sta tes rece ntly

4 empha sized that wh ere there is proba ble cause, the “ reasonablen ess”

5 of the s earch and s eizure requir ed by the Fo urth A men dme nt is

establi shed. In Whren v. U nited States 6 , _____ U.S. _____, 116

7 S. Ct. 1769 (199 6), poli ce offic ers observe d the defendant

8 viola ting s ever al tra ffic or dina nces . The y pu rsue d the defe nda nt's

9 vehicle and an officer approached the vehicle while it was stopped

10 at a tr aff ic l igh t . The o f f ice r , who wa s no t i n uni for m ,

11 identif ied himself to the defendant as a police of ficer and

12 directed the defendant to put t he vehicle in park. The office r saw

13 the defendant ope nly holding cont raband in his hands . The

14 defendant in Whren pressed the Supr eme Court to suppress the

15 evidence obtai ned on the ground that the stop was pret extual. The

16 defendant insisted that the officer used the t raffic viol ations as

17 a pretex t for stopp ing the d efendan t when his real pu rpose w as to

18 find ev idenc e of illeg al dru g activ ity. Inst ead, th e Co urt he l d

19 that the ulterior motives of the officer do not invalidate police

20 cond uct tha t is justifie d on th e basis of pro bable cause . 

21

22 It is of co urse tru e that in princip l e

23 every Fourth Amendment case, s ince it t urns

24 upon a “reasonablene ss” determinat ion,

25 involv es a ba lancin g of all r elevan t factor s. 

26 With rare exceptions not ap plicable here,

27 however, the res ult of that balancing i s not

28 in doubt where the search or seizure is based

29 upon p robable cause. T hat is wh y petition ers

must rely upon cases like Prouse 30 to provide

31 exam ples of actua l “bala ncing ” ana lysis. 

32 There, the po lice action in que stion was a

33 random traffi c stop for t he purpose of
-13-

1 check ing a m otorist ’s licens e and vehic l e

2 registration, a practice that ... involves

3 police int rusion without the probable cau s e

4 that is i ts tradi tional j ustifi cation .

5

6

7

8 Id. at ___ __, 11 6 S. C t. at 177 6 (199 6) (em phasi s in orig inal). 

9 See also Ohio v . Robin ette , ____ U.S. ____, ____, 117 S. Ct. 417,

10 420-21 (199 6). The Su preme C ourt did not sp ecifically discuss

11 investigative s tops authorized by Terry and its p rogeny , but its

12 holding validates, under f ederal law, all detent ions authorized by

13 probable cause.

14

15 Where probable cause has existed, the

16 only ca ses in w hich w e have fo und it ne cessary

17 actua lly to p erform the “b alanc ing” a nalys i s

18 involved searches or seizures conducted in an

19 extraordinary manner, unusually harmful to an

20 individual’s pri vacy or even physical

21 interests - such as, for example, seizure by

22 mean s of dead ly force .... T he ma king of a

23 traffic sto p out- of-un iform does n ot rem otely

24 qualify as suc h an e xtrem e prac tice, an d so is

25 governed by the usua l rule that probab le cause

26 to believe the law has been brok e n

27 “outbalances” private i nterest i n avoiding

28 police co ntact.

29

Whren v. U nited States 30 , ____ _ U.S . at ___ __, 11 6 S. C t. at 177 6-77. 

31 Conse quently , a balan cing an alysis un der Terry is not nec essary

32 whe re ther e is pro bable cause . 

33

34 C .

35

36 However, as recogni zed in Whren , the most rec ent

37 decision by the U nited Sta tes Supr eme C ourt on this issue, w here

38 there is no probab le cause th ere mu st be “de tailed ‘bala ncing’ to
6

The m ajority sta tes that Whren does not support the proposition

that balancing is necessary in the absen ce of probable cause wh ere a

reasona ble susp icion is p resent. See Major ity Opin ion at __ ___. [Slip

op. at 8, n . 8]. Whren specifica lly states, “ Wha t is true of Prouse is

also true of other cases that engaged in det ailed “balancing” to decide

the constitutionalit y of automobile stops, . . . the det ailed “balancing”

analysis was ne cessary becaus e they in volved seizures withou t probab l e

cause.” Id. at _____, 116 S. Ct. at 1776.

-14-

1 decide the cons tituti onality of automobile stop s” involvi n g

2 suffici ent, speci fic, i dentifi ed facts i n order to jus tify even a

limited i ntrusion. 6

3 Id. at _____, 116 S. Ct. at 1776.

4

5 The validit y of an invest igative s top under exigent

6 cir cums tan ces was f i r st r eco gni zed by t he Uni ted Sta tes Supr eme

7 Court in Terry v. Oh i o . In that ca se, the Court addressed the

8 issue of whether the police have the ri ght to stop and question an

9 individual in the absence of probable ca use. In Terry , a policeman

10 became suspicious of two men who separately walk ed up and down a

11 street several times peering into a store, talked to a third man

12 and followed him up the street a short time later. A police

13 officer followed the s uspects, c onfronted and sea rched them, and

14 found a pistol on two of them. Terry, charged with the crime of

15 carrying a concealed weapon, moved to suppress the weapon as

16 evidence. The Court held:

17

18 Each case of this sort will , of course, have

19 to be d ecided on its o wn fa cts. W e me rely

20 hold today that whe re a police officer

21 obser ves un usua l cond uct w hich le ads h i m

22 reaso nably to con clude in ligh t of his

23 experience t hat criminal activit y may be afoot

24 and that the per sons with whom he is deali n g

25 may be arm ed an d pres ently d ange rous, w here in

26 the course of investi gating thi s behavior he

27 identifies himself as a policeman and m akes

28 reasonable i nquiries, and where nothing in t h e
-15-

1 initial stages of the en counte r serves to

2 dispel hi s reasonable fear for hi s own or

3 others’ s afety, he i s entitl ed for the

4 protection of himself and others in the area

5 to conduct a care fully l imited sear ch of the

6 outer clothing of such persons i n an attempt

7 to discov er wea pons w hich m ight be u sed to

8 ass aul t hi m .

9

10

11

Terry v. Stat e of O hio 12 , 392 U.S. at 30, 88 S. Ct. at 1884-85.

13

14 The m ajority op inion state s that Terry requir es onl y a rea sona ble

15 suspicion suppo rted by sp ecific and articulated facts that a

16 crimina l offense h as been or is abo ut to be c omm itted. Ho wever ,

17 Terry specifi cally li mited its hol ding to all ow a stop where the

18 officer ha s not on ly a reaso nable su spicion th at “crim inal activity

19 may be afoot,” but al so a reasonable suspicion t hat the pers ons

20 “may be arm ed and presently dange rous,” a nd to allo w a sea rch wh ere

21 after re ason able in quiries , noth ing “s erves t o disp el his

22 reasonable fear for his own or others’ safety.” Terry v. Stat e of

23 Ohio , 392 U.S. at 30, 88 S. Ct. at 1884 -85. The requi rement of

24 exigent ci rcumstances is not included i n the rule announced by the

25 majo rity. 

26

27 Subs eque nt dec isions h ave re affirm ed the holdin g in

28 Terry that inve stigative sto ps are lim ited to ex traordina r y

29 situati ons. In Delawa re v. Prouse , the Supreme Court f ound the

30 stop to b e constitu tionally u nreason able. Th e Cou rt held tha t a

31 stop to check a licen se and registra tion is u nreas onab le "exc ept in

32 those sit uations in whic h there is a t least articul able and

33 reasonable suspicion that a motoris t is unlicensed or that an

34 automobile is not register ed, or that either t he vehicle or an
7

See also Tenn. C ode A nn. §40 -7-103 (S upp.19 96)(settin g forth

grounds for arrest by an officer wit hout a warrant). The issue of

whether section 40-7-103 was complied with in this case is not bef ore the

Court.

-16-

occu pant is other wise s ubjec t to seiz ure fo r viola tion o f law.” 71 

2 Delawa re v. Prouse , 440 U .S. 648 , 664, 9 9 S. C t. 1391 , 1401 (1979 ). 

3 In Delawa re v. Prouse , a polic e office r stopp ed an autom obile

4 though “he had observed ne ither tr affic or equipment violat ions nor

5 any suspicious activit y.” I d . at 651, 99 S. Ct. at 1394. The s top

6 was made solely to chec k the driver ’s lic ense and regis tration

7 because the of ficer “s aw the car in the a rea and wasn’t answer ing

8 any complaints ....” I d . Upon approaching the ve hicle, t h e

9 officer smelled marij uana, and seized mari juana in plai n view on

10 the floor of the ca r. The Co urt suppressed this evidence b ecause

11 there was no reasonable basis for the s top.

12

13 The majority rel ies on Prouse to sup port its positio n. 

14 In Prouse , the Court f irst di scussed Unite d State s v. Bri gnon i -

15 Ponce , 422 U.S. 873, 95 S. Ct. 2574 (1975 ) and United States v.

16 Martin ez-Fue rte , 428 U.S. 543, 96 S. Ct. 3074 (1976 ), where the

17 Cou rt uph eld ch eckpo int stop s and disallo wed rovin g patro l stops.

18 These determinations w ere based on the exigent circum stances

19 surrou nding illegal a liens. Prouse , 440 U.S. at 656, 99 S. Ct. at

20 1397. The Prouse Court found that i n the case of ot her random

21 stops which were not based on any suspic ion of a viol ation of the

22 law, no inter ests (or exigent ci rcumstances) e xisted to j ustify t h e

23 intrusi on. The majority i nterpret s the holding t o support the

24 conclusion t hat in the pr esence of a re asonable suspi cion, a st o p
8

Nor do the case s of Michig an v. Sitz or State v. Downey , holding

constitutiona l sobriety chec kpoints, supp ort the majo rity’s position. In

both of those cases, the Court vividly i llustrates the exige n t

circumstances surrounding the drunken driving problem which prompted the

decision s. Michig an De pt. of Sta te Police v. Sitz , 496 U.S. 455, 451,

110 S. C t. 2481, 2 485-86 (1990); State v. Downey , 945 S.W.2d 102, 104

(Tenn. 199 7).

-17-

1 is alwa ys con stitutio nal. See Majority Opinion _____ [slip op. at

2 11]. Su ch an interp retatio n is inc onsiste nt with the lan guag e in

3 Prouse specificall y limiting its hol ding: “We hold only that

4 persons in aut omobiles on publi c roadways may not for tha t reason

5 alone have thei r travel and privacy int erfered wit h at the

6 unbridled discreti on of police officer s.” I d . at 664, 99 S. Ct. at

1401. 87

8

9 Guidance as to the circumstances in which an

10 invest igative stop is justified is foun d in Ju stice Ja ckson ’ s

11 dissent i n Brinegar v. United States , 338 U .S. 160, 1 83, 69 S . Ct.

12 1302, 1 314 (19 49):

13

14 If we a ssum e, for ex amp le, that a child is

15 kidnapped and the officers throw a roadblock

16 about th e neighb orhoo d and s earch ev ery

17 outgoing car, it would be a dras tic and

18 undiscriminat ing use of the search. The

19 officers migh t be un able to show proba ble

20 cause for sea rching any p articul ar car. 

21 How ever, I sho uld can didly strive hard to

22 sustain suc h an action .. .. But I shoul d not

23 strain t o sustain suc h a roadblock and

24 universal search to sal vage a few bottl es of

25 bourbo n and c atch a b ootlegge r .

26

27

28

29 In balancing publ ic and privat e interes ts, exi gent

30 circumstances are necessary to justify the intrusion. The Terry

31 decision as deve loped b y other c ases wh ich hav e allow ed shor t term
-18-

1 seizures wi thout a probabl e cause for ar rest, c reated a bal ancing

2 analy sis wh ich ha s been sum mariz ed by this C ourt a s follow s: 

3

4 In general, although the Fourt h Amendment

5 requir es “pr obab le cau se” be fore an arrest is

6 deemed to be reasonabl e, the reas onableness of

7 seizur es less in trusive than a full-sca l e

8 arrest i s judged by weighi ng the gravit y of

9 the public c oncern, the deg ree to which the

10 seizure advanc es that concer n, and the

11 severity of the i ntrusion into indivi dual

privac y. See, e.g., Brown v. Texas 12 , 443 U.S.

13 47, 50, 99 S. Ct. 2637, 2640, 61 L.Ed.2d 357

14 (1979). In Terry v. Oh i o , 392 U.S. at 20-21,

15 88 S. Ct. at 1879-80, the Un ited States

16 Suprem e Court ack nowledg ed police officers’

17 need for “a n esca lating s et of flex ible

18 responses, graduated in r elation t o the amount

19 of information they possess.” I d . at 10, 88

20 S. Ct. at 1874. The Terry Court h eld that to

21 justify a st op, “the police offi cer must be

22 able to point to spe cific an d articu lable

23 facts which, taken together wit h rational

24 inferen ces fro m tho se facts , reaso nably

25 warrant that intrusion. ” I d . at 21, 88 S. Ct.

26 at 1880.

27

28

29

30 State v . Pully , 863 S.W.2d at 30.

31

32

33

34 This Court has, i n several dec isions, addressed the

35 constitut ional vali dity of i nvestigat ive stops. In Hughes v.

36 State , 588 S.W.2d 296 , 309 (Tenn. 1979), after reviewing the U nited

37 States Su preme Court d ecisions o n investig ative stop s, the Co urt

38 stated : 

39

40 A citizen has a c onstitut ionally or dered right

41 to be secure i n his person and poss essions and

42 to be free from “arbitrar y invasions solely at

43 the unfettered discretion” of the police.

44

45
-19-

1 In that case , the defendant and a companion drove to a st ore, the

2 defendant dropped of f his companion at t he store and l eft. The

3 companion bought some snacks which he c onsumed while reading

4 magazines at the magazi ne rack. The propr ietor cont acted the

5 police, relat ed these facts and concluded that the defe ndant was

“acting a litt le strange or suspici ous.” I d 6 . at 299. When

7 officer s arrived at the store, they restr ained the companion i n the

8 rear seat of the patr ol car while i t was determined t hat he had no

9 crimina l record. T he officers began searchin g for the d efendan t ,

10 who was then returning to the stor e parking lot . The defendant

11 rolled dow n the w indow whe n an o fficer ap proac hed th e auto mob ile

12 and asked for his driver license. Because the officer smelled

13 burning marijuana w hen the window was lowered, the officer searched

14 the automobile and di scovered the c ontraband. In Hughes , the Co urt

15 held that the seizure was not based on information w hich contained

16 “specific and a rticulable facts or inferen ces from facts,

17 sufficient t o generate a reasonable conclusion that a cr ime had

been, was, or was about to be committed.” Id. 18 at 308.

19

20 In State v. Watkins , 827 S.W .2d 293 , 294 (Te nn. 199 2),

21 the offi cer, who had made an invest igative s top, test ified at the

22 suppression hearing that he had personal knowledge that a capias

23 was outstanding for the defend ant’s arrest, that other police

24 officers had informed him tha t the defendant often drove a black

25 Cadillac inscribed with t he words “The Duke,” and that when he saw

26 this car, because of the outstanding capias, the officers stopped

27 the vehicl e. This Court f ound that the pol ice offi cers had the
9

Although the charge on which the capias had issu ed for W atkins is

not stated in the opinion, it apparently was a major factor on which the

Court relied in finding the stop justified. Even tho ugh the stop which

resulted in the defendant's ar rest was sustained as an investigati v e

stop, the facts and circumstances als o would support a finding of

probable cause, which issue was not discussed in the opinion.

-20-

1 required r easonable susp icion, s upported by speci fic and

2 articul able fact s, to withs tand the const itutiona l challeng e to the

stop. I d 3 . at 295 . The Cou rt stated that, 

4

5 In det ermin ing w hethe r a pol ice offic er’s

6 reaso nable suspic ion is su pport ed by specific

7 and articulable facts, a court must consider

8 the totality of the circum stances United

9 States v. Cortez , 449 U.S. 411, 417, 101

10 S. Ct. 6 90, 69 5, 66 L .Ed.2 d 621 , 629 (1 981). 

11 This includes , but is not limited t o ,

12 objective observations, information obtained

13 from othe r police officers or age ncies,

14 information obt ained from cit izens, and t h e

15 pattern of ope ration of certa in offen ders. 

16 I d ., 449 U.S. at 418, 101 S. Ct. at 695, 66

17 L.Ed.2d at 629. A co urt must also consider

18 the ration al inferen ces and deduc tions tha t a

19 trained p olice office r may draw fro m the fa cts

20 and c ircum stance s kno wn to him. Terry , 392

21 U.S. at 21, 88 S. Ct. at 1880, 20 L.Ed.2d at

22 906.

23

Id. at 294. 9

24

25

26

27

28 In State v . Pully , 863 S.W.2d 29 (Tenn. 1993 ), the

29 officer recei ved an anonymous radio report that the defendant was

30 in a yellow Ford i n a trail er park, was ar med with a shotgun, and

31 was “supposed to shoot someone.” I d . On the way to the trailer

32 park, t he offic er rece ived a nothe r simila r repo rt. The officer did

33 not find the defendant at the tr ailer park; he then drove to a gas

34 station where the defendant was par ked in a yell ow Ford. The

35 officer turned on his bl ue lights , asked the def endant to get out
-21-

1 of the c ar, and saw a shotg un on the fro nt floo rboar d of th e car. 

2 He arre sted the d efendan t for drivin g on a re voked license, for a

3 second offens e of drivi ng under the inf luence of al cohol, and for

4 possessing a loaded weapon, a hunti ng knife, and a bi lly club. The

5 trial court suppres sed the weapons and the r esults of the

6 blood/alcohol t est on the grounds that the of ficer had no

7 reasona ble suspic ion that th e defend ant had or wo uld com mit a

8 crime. This Court reversed t hat decisi on, analyzing t he tests f o r

9 determining t he reliabi lity of informants’ tips in t he context of

10 “probable cause” determinations, and stat ing,

11

12 In this case, the publi c interest ser ved by

13 the sto p wa s the p reven tion o f violen t crim e. 

14 The scope of the intrusion was minor; it was

15 intended to be onl y a temporary stop of the

16 defendant’s car. Final ly, the “i ndicia of

17 reliability” were sufficien t in light of these

18 other considerations to warrant a brief

19 investi gatory stop. .... Although the

20 reliabi lity of the tip would cer tainly not

21 establish p robable cause to search o r arrest,

22 and w ould no t furnish re asonab le suspicio n to

23 stop the d efen dant i n all cir cumst ances , we

24 conclude that, given the threat of violence,

25 the po lice ha d “sp ecific a nd art iculab l e

26 facts” t o wa rrant th e inve stigato ry stop in

27 this case.

28

29

30

Id. 31 at 34. 

32

33

34

35 This Cou rt recently balanc ed public interest a gainst

36 private rig hts in dec iding tha t sobriety ro adblock s do no t per s e

37 violate th e Four th Am endm ent or A rticle I, Sectio n 7. Th e Cou r t

38 stated:

39
-22-

1 In orde r for us to d etermin e whe ther a

2 seizure which i s less i ntrusive t han a

3 traditional arrest is reason able, we m ust

4 balance the publ ic inter est serve d by the

5 seizure with the severity of the interference

6 with individual liber ty.

7

8

9

State v. Downey 10 , 945 S.W .2d 102 , 104 (Te nn. 199 7).

11

12

13

14 Recognition that an investigat ive stop may be

15 constitutionall y reasonable, even though an arrest would not be

16 constitut ionally r easonable, was not intended to be a relaxati on of

17 const itution al prot ection again st intru sions b y the S tate. See

18 Minnesota v. Dicker son , 508 U.S. 366, 374, 113 S. Ct. 2130, 2136

19 (1993 ); Adams v. Wi l l iams , 407 U.S. 143, 146, 92 S. Ct. 1921, 1923

20 (1972). Ins tead, it is a recogni tion that a limited i ntrusion

21 unde r exige nt circu msta nces m ay be justified as con stitutio nally

22 reaso nable . Two essen tial con dition s char acteriz e a va lid

23 invest igative stop, e xigen t circum stance s and limited intrusi on. 

24 After reviewing decisions from oth er jurisdictions in which

25 investi gative st ops were found to be j ustifi ed, the Court i n Pully

26 stated: "T hese cas es show that the g ravity of th e perceiv ed harm

27 is a crucial el ement in assessing the reasonableness of an

28 investigative Terry stop." Pully , 863 S.W .2d at 33 . The C ourt

29 then approved thi s statement f rom a concurring opi nion in United

30 States v. M ende nhall , 446 U.S. 544, 561, 100 S. Ct. 1870, 1881

31 (1980) (P owell, J., c oncurrin g):

32

33 The reasonablenes s of a stop t urns on the

34 facts and circum stances of each case. In

35 particul ar, the Court has emphasized (i ) the
-23-

1 public interes t serve d by th e seizu re, (ii)

2 the nature and s cope of the int rusion, and

3 (iii) t he objective facts upon which the law

4 enforc eme nt offic er relied in ligh t of his

5 know ledge and e xperie nce. 

6

7

8

State v . Pully 9 , 863 S .W.2 d at 34 . 

10

11

12

13 The burden is on the St ate to show that exigent

14 circum stance s ma ke the search impe rative. State v. Bartram , 925

15 S.W .2d 22 7, 230 (Ten n. 199 6); State v. Watkins , 827 S.W.2d 293, 295

16 (Tenn . 1992).

17

18 D .

19

20 As stated pre viously, the reco rd will be exam ined first

21 to dete rmin e if ther e was proba ble cau se to ar rest the defen dant in

22 this ca se. Th e facts a nd circ ums tance s show that O fficer F errell

23 had probable cause to believe that the def endant was violat ing the

24 law. Initia lly, th e offic er's kn owl edge that t he d efen dan t's

25 driver license had been revok ed for a year w as not reason able cause

26 to believe that the def endant was committing an of fense. Si nce he

27 also knew that restricted licenses w ere available for bu siness

28 purpos es, his obs ervation of the de fendan t, who w as a farm er,

29 drivin g a pic kup tr uck d uring work ing ho urs, w ould r eason ably

30 support nothing more than a suspicion that the defendant was

31 driving without authority. Stated another way, he did not have

32 reasonable ca use to beli eve the defendant had not applied f or or

33 had been denied a restricted license. However, the officer knew
-24-

1 that a restric ted license would not auth orize a fa rmer to drive to

2 a bar. The defendant 's furt ive drivi ng behavior and his stopping

3 at the b ar we re suffic ient to elevat e susp icion to proba ble cau se. 

4 Had the defendan t not been in v iolation of the restricted license

5 by driving whil e drinking i ntoxicants , there was no obvi ous reason

6 to avo id Off icer Fe rrell. A lso, ha d the d efend ant be en ab out hi s

7 business purposes, he wo uld not have violated the restricted

8 license by stoppin g at a ba r. These facts and circum stances w ere

9 suffici ent to support a finding of probable cause justif ying the

10 stop an d the su bseque nt arrest.

11

12 E .

13

14 Even though Officer Ferrell ha d probable cause to stop

15 the de fenda nt’s ve hicle, it s hould be ob served that th e stop wou l d

16 fail t he balancing t est that must be applied t o the facts and

17 cir cumst ances where ther e is rel ianc e on an i nvest igat ive s top. As

stated i n Hugh es v. State 18 , 588 S.W.2d at 303:

19

20 Thus, in the cont ext of a "st op and

21 frisk" situatio n, the C ourt freed Fourth

22 Amendment analysis from the r igidit y of the

23 proba ble cau se stan dard b ut in so doing it

24 impo sed a s tanda rd of sp ecific a nd art iculab l e

25 fac ts. The d ete cti on an d pr eve nti on of cri m e

26 and the safety of the officer are balanced

27 against t he nature and exte nt of and the

28 reasons for the intrus ion.

29

30

31

32 The decisions require an arti culable and reasonable suspicion t hat

33 the vehicl e or the occupant is subjec t to seiz ure for a vi olation
-25-

1 of the law, and, further, “‘that a se izure must be base d on

2 specific, ob jective facts indicatin g that soc iety’s legitim ate

3 interests re quire the seizure of t he particular indivi dual.” Id.

4 at 307 (quoting Brown v. Texas , 443 U.S. 47, 52, 99 S. Ct. 2637,

5 2640 (1979)). The facts and ci rcumstances of t his case suppor t the

6 first req uirem ent, rea sona ble sus picion (and e ven p robab le cau se). 

7 However, those fac ts and circ umstances do not show exige n t

8 circumstances requiring that the defendan t be seized. Officer

9 Ferrell had no basis on which to suspect that t he defendant was

10 intoxicat ed. The defendant was not speeding, nor was he, to the

11 officer's obser vation , violati ng an y traffic regula tions. H i s

12 obser vable opera tion o f the ve hicle p osed n o dan ger to t he pu blic. 

13 The only suspecte d violati on was driving on a re voked license . The

14 public's interest in enforcing the law could as well have been

15 protected by checking the r ecords regar ding the sta tus of the

16 defendant' s license and procuring a warr ant for his arrest or

17 making an accusati on to the grand j ury. The purpose of the stop

18 was not limite d to insuri ng the offi cer's s afety or t he protecti o n

19 of the publi c. In contr ast to thi s situat ion, the exi gent

circumstance i n Pully 20 was that the of ficer had r eliable information

21 that the defendant was in po ssession of a shotgun and "w as supposed

22 to shoot som eone." Pully , 863 S.W.2d at 29. The cases reli ed upon

23 in Pully to justify the stop involved situations where the officer

24 reasonably sus pected that the person st opped was in the posse ssion

25 of a concealed weapon, or items take n from the vict im of a recent
10For addition al decisions ba sed on exig ent circum stances,

see 4 Wharton's Crim inal Evidence § 717, p . 826 (14 th ed. 19 87). 

-26-

mur der. Pully , 863 S.W.2d at 33-34. 1 0 1 Consequently, the evidenc e

2 does not su pport a finding of exigent circum stances.

3

4 The m ajority states th at a brie f inves tigator y stop is

5 const itution ally pe rmiss ible if th e office r has a reaso nable

6 suspicion , suppo rted by sp ecific and articulable facts, that a

7 crimina l offense h as been or is abo ut to be c omm itted. M ajority

8 Opinio n at ___ __ [slip op . at 14]. As a practical matter , the

9 langu age of the maj orit y would allo w the de tent ion an d at l east a patd own

10 search of any person suspe cted of possessi ng illegal dr ugs or other

11 contraband. The major ity, t hen, would eliminat e the need for

12 exigent ci rcumstances and al low officer s to proceed onl y on

13 “reasonable s uspicion, ” only. The language of the majorit y would 

allow deten tion u pon m ere su spicio n. See 14 Minnesota v. Dicker son ,

15 508 U.S. 366, 381, 113 S. Ct. 2130, 2140 (1993). Such an

16 interpretation of the law contradicts the consistent holdings under

17 Terry and th is Cou rt t hat e ach ca se must be dec ided on it s own

18 facts and t hat the “exig encies of t he situati on [must make] the

19 search imperative.” State v. Bartram , 925 S.W.2d 227, 229-30

20 (Ten n. 199 6); Terry , 392 U .S. at 30 , 88 S. C t. at 188 4. 

21

22 I V

23

24 The c onclu sion is t hat be cause the off icer ha d pro bable

25 cause to arrest the defendan t, I agree that the m otion to supp ress
-27-

1 should be denied.

2

3 _____________________________

4 Reid, J.