1 "Because the investigatory stop in t his case was based upon reasona ble susp icion, it w as valid under 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 Cou rt Clerk FOR PUBLI CATION 1 2 IN THE SUPREME COURT OF TENN ESSEE 3 4 AT NASHVILLE 5 6 HEARD AT COOKEVILLE 7 8 9 10 11 STATE OF TENNESSEE, ( 12 ( 13 Plaintiff-Appellee, ( 14 ( Coffee Criminal 15 ( 16 v . ( Hon . Gera ld L. E well, S r., 17 ( Judge 18 ( 19 WAYNE LEE YEARGAN, ( No. 01S01-9604-CC-00080 20 ( 21 Defen

dant-A ppellan t . ( 22 23 24 25 26 C O N C U R R I N G I N R E S U L T S 27 28 29 30 31 I agree that the motion to suppress t he evidence be 32 denied . I write separately be cause the language of the majo rity 33 opinion

reduce s the con stitutional s tandard for search

and seiz ure 34 to “rea sonable suspicion . ” 1 The m ajority miscon strues Terry v. 35 Ohio , 39 2 U.S . 1, 88 S. Ct. 1868 (19 68) , t he Uni ted Sta tes Supr eme 36 Court case which recognized the validity of i nvestigative st ops 37 based on exigent circum stances, and ignores Whren v. U nited States , 38 _____ U.S. ____ _, 116 S. Ct. 1769 (1996), the most recent United 392 Tenn. Co de Ann. § 55-10-401 (1 993). 3 Tenn. Co de Ann. § 55-50-504 (1 993).

-2- StatesSupr eme

Court case discus sing the requ irements for proba ble 1 cause. The majori ty also fa ils to f ollow, or even menti on, the 2 holdings in Hughes v. State , 588 S.W.2d 296 (Tenn. 197 9) and State 3 v. Pul l y , 863 S.W.2d 29 (T enn. 1993) in which this C ourt discussed 4 in deta il the ra tionale and re quirem

ents fo r an in

vestiga tive stop. 5 6 7 I 8 9 The appeal is f rom convictions of driving under the 10 influence of an intoxicant, second offense, 2 and driving a motor 11 vehicle with a revoked driver license, 3 entered upon the 12 defendant' s pleas of gui lty, re serving a di spositi ve question of 13 law. 14 15 On Thursday, January 28, 1993, at approximately 2:20 16 p.m., Tullahoma Poli ce Officer Jason Ferrel l observed t h e 17 defen

dant, W

ayne Lee Yeargan, driv ing a p ickup truck on a pu

blic 18 street i n Tullahoma. Previous ly, Offi cer Ferrel l had arrest ed the 19 defendant for driving under the inf luence of an intoxicant and had 20 been present i n the general s essions cour t on July 2, 1992 when the 21 defendant pleaded guilty to the off ense and was sentenced to 11 22 months and 29 days in jai l, a fi ne of $250, and the revocation of 23 his driv

er licen se for one ye ar from the da te of th e judg men t. 24 25-3- When the officer began following the defendant's t ruck, 1 the de fenda

nt, acc ording to th e office r's testimony, " sped u p some, 2 he wasn 't going at a high rate of speed, bu t he accelerated." In 3 the off icer's vie w, the defen dant " attem

pted to

put so

me tra ffic 4 between us." The def endant then drove i nto the parki ng lot of 5 Rub

y’s Lo unge , a loca l bar; the office r followed an d put on his 6 blue light s. The defendant parked and got out of his truck. The 7 officer asked to see hi s driver l icense, and he produced a 8 restricted license issued pursuant to a court order which perm itted 9 the defen

dant to d

rive “in C offee County on ly as nec essary to 10 complete job t asks” between the hours of 7 a.m. and 7 p. m. The 11 defendant’s employment was liste d on the order gra nting the 12 restri cted lic ense as farming a nd "rental pr operty owner." The 13 officer test ified that when he asked the defendant why he had 14 driven to t he bar, the def endant repli ed that he “had come to t h e 15 bar to meet a guy about a cow.” Based on his obser vations and a 16 field sobriet y test, the off icer concluded that the defendant was 17 under the inf luence of an i ntoxicant and ar rested him for driving 18 under the influence and driving on a revoked license. The po lice 19 officer admitted that he was aware of the avai labili ty of 20 restricted licenses for driving offenders. However, he testified 21 that if he had tried to

establi sh the

status o f the de fenda nt’s 22 license before st opping him, it would have taken approximately 15 23 minutes for t he police ra dio operator to determine whethe r the 24 defen

dant h ad a re stricted

license

. 25 26 The Court of Criminal Appeal s found that "a prudent 27-4-

officer could reasonably have bel ieved that the appellant was 1 driving on a revoked license" and held that t he officer had 2 "probable caus e to conduct an inv estigat ive stop. " In reaching 3 that conclus ion, the Court of Criminal Appeals relied upon Terry v. 4 Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968) and State v. Watkins , 827 5 S.W .2d 29 3 (Ten n. 199 2). 6 7 I I 8 9 This Court recently clarified the standard of review 10 under which a trial court’s findings of fact on suppression issues 11 are to be revi ewed: 12 13 Questions of cr edibili ty of the 14 witnesses, the weight and val ue of the 15 evidence, and r esolution of conflict s in the 16 evidence are matters entrusted t o the trial 17 judge a s the trier of fact. The party 18 prevailing in the tria l court is en titled to 19 the strongest legitimate view of the evidence 20 adduced at the suppression hearing as well as 21 all reasonable and legit imate inferences that 22 may be drawn from that evidence. So long as 23 the grea ter weight of the ev idence s upports 24 the trial court ’s findings, t hose findings 25 shall be upheld. In other words, a tr ial 26 court’s f indings of f act in a suppr ession 27 hearing will be upheld unless the evidenc e 28 preponderates otherwise. We also note that 29 this standard of rev iew is consistent w ith 30 Tenn . R. A pp. P. 13(d) , which provides that in 31 civil cases, fin dings of fact by a tr ial court 32 are presumed correct “un less the preponderance 33 of the evidenc e is otherwi se.” Hereaft er, the 34 proper standar d to be applie d in reviewing 35 suppressi on issues i s the “preponder ance of 36 the evidence” s tandard. 37 38 39 State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The appli cation of 404 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, and particu larly describing the place to be searched, and the per sons or things to be seized.

U.S. Const. amend. IV. The Fourth A mendmen t is applicable to the states throug h the Fo urteenth Ame ndme nt. Mappv. 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, whereby an office r may b e commandedto 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- the law to the

facts found by

the trial court, however, is a 1 quest ion oflaw w hich th is Cou

rt reviews de

novo . Beare Co. v. 2 Tennessee Dept. of Revenue , 858 S .W.2 d 906 , 907 (T enn. 1 993). 3 4 III 5 6 A . 7 8 The relevant co nstitutional provisions are th e Four t h 9 Amendment to the United States Constituti on and Article 1, Section 10 7, of the Tennes see Constit ution. 4 The Fourth Amendment "exists, 11 primar ily, for the benefit of the citizen; its o rigin and history 12 clearly man ifest that the Fourth Am endment was inten ded as a 13 restrai nt upon the acti vities of the sovere ign authori ty to the 14-6-

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

nd possessions, except by v irtue of process d uly issued." 2 State v. Burr oughs , 926 S.W .2d 243 , 245 (Tenn. 199 6). The C ourt 3 recently reaffirmed this historic principle: 4 5 [B]oth the Fourth A mendment to the United 6 States Consti tution and Arti cle 1, Sect ion 7 7 of the T enne ssee C onstitu tion p rohib i t 8 "unreasonable " searches and s eizures. The 9 State may not invade this personal 10 constitutional right of the individual citizen 11 except under the mos t exigent circum stances. 12 13

. . . 14 15 A warrantless search and seizure, 16 therefo re, is pre sum ed unreaso nable unles s it 17 falls into one of the narrowly defined 18 exceptions, or exigent ci rcumstances, to the 19 warrant requi rement. The mere exis tence of 20 these c ircum stance s doesnot n ecessa rily 21 validate a warrantless search. As point ed out 22 in [ United States v. Nelson , 459 F.2d 884, 885 23 (6th Cir. 1972)], exc eptions are jealousl y and 24 carefully drawn." There must be a showing by 25 those asser ting the exc eption that the 26 exigencies of the situation made the search 27 imperative. The burden is on those seeking 28 the excepti on to show the need. 29 30 31 32 State v. Bartram , 925 S.W.2d 227, 229- 30 (Tenn. 1996) ( citati ons 33 omitt ed). 34 35 The stop o f the defenda nt’s vehicle in this case 36 implicates the protect ion of both the state and federal 37 constitut ions: "Temporary de tention of individual s during the s top 38 of an automobile by t he police, even if only f or a brief period and 39 for a lim ited purpose , cons titutes a 'seizur e' of 'per sons' w ithin 40 the mean ing of this provision ." Whren v. U nited States , ___ U.S. 415 The correc t spelling of the d efendant's name is "Pulle y"; howev er, it is cited b

y Wes t Publish ing Co mpany as "Pu lly."

-7- ____ ,___, 1 16 S. C t. 1769 , 1772 (1996 ); Delaware v. Prouse , 440 1 U.S. 64 8, 654, 99 S. Ct. 13 91, 139 6 (1979 ) . 2 3 When an officer tur ns on his blue l ights, he 4 or she has cle arly in itiated a stop. See 5 United States v. Hensley , 469 U.S. 221, 226, 6 105 S. C t. 675, 679 , 83 L.E d.2d 60 4 (1985 ) ; 7 Colorado v. Ban nister , 449 U.S. 1,4 n. 3, 101 8 S. Ct. 4 2, 44 n . 3, 66 L .Ed.2 d 1 (19 80). 9 More over, as the United States S upreme Cour t 10 observed in Terry v. Oh i o , 392 U.S. 1, 16, 88 11 S. Ct. 18 68, 187 7, 20 L.E d.2d 88 9 (1968 ) , 12 “[i]t mu st be reco gnized that whenever a 13 police off icer accos ts an indivi dual and 14 restrains his f reedom to walk away, he has 15 ‘seized’ that per son.” See also United States 16 v. Brignoni-Ponce , 422 U.S. 873, 878, 95 17 S. Ct. 2 574, 2 578, 4 5 L.E d.2d 6 07 (19 75). 18 19 20 State v . Pully , 5 863 S .W.2 d 29, 3 0 (Ten n. 199 3). "A

n auto mob ile 21 stop is t hus subject t o the consti tutional imperative t hat it not 22 be 'unreasonable' under the circumstan ces." Whren v. U nited 23 States , ___ U .S. at __ _, 116 S. Ct. a t 1772 ; see State v. Downey , 24 945 S.W .2d 102 , 106 (Tenn. 199 7). 25 26 The F ourth A mend ment a nd Ar ticle I, Section 7 requ ire 27 the existence of “probable cause” f or making an arrest without an 28 arrest w

arran t. Beck

v. Oh i o , 379 U.S. 89, 85 S. Ct. 223, 225 29 (1964 ); State v. Melson , 638 S .W.2 d 342 , 350 (T enn. 1 982), cert . 30 denied , 459 U.S. 1137, 103 S. Ct. 770 (1983). In order t o have 31 probable cause for an arres t without a warra nt, at the moment of 32 the arrest , the fact s and circumstanc es within the knowledge of the 33-8-

officer s, and of which t hey had reasonably t rustworthy i nformation, 1 must be “suffi cient to warr ant a prudent man in bel ieving that the 2 [defendant] had committed or was committing an offense.” Beck v. 3 Ohio , 379 U .S. at 91 , 85 S. C t. at 225 ; Melson , 638 S.W.2d at 350. 4 5 Although probable c ause is the onl y basis on which a 6 person may be arrest ed without a warrant , under cert ain 7 circumstances, a person m ay be detained briefly by a police officer 8 without a w

arrant or prob

able cause. U

nder exigen t circumstanc es, 9 "a po lice offic er ma y make an

invest igative

stop o f a mo tor veh icle 10 whe n the o fficer has a rea sonable suspicion , supp orted b y spec ific 11 and articul able fact s, that a c riminal off ense has been or i s about 12 to be com

mitted." State v. Watkins , 827 S.W.2d 293, 294 ( Tenn. 13 1992 ); see also Terry v. Oh i o , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 14 (1968)). 15 16 The motion to suppress is direc ted to evide nce of the 17 defendant' s intoxic ation, which was appar ent to the of ficer upon 18 observing hi s appearance and demeanor, consequently, the 19 admissibil ity of the evidence depends e ntirel y upon the legal ity of 20 the stop. Th e stop was p ermis sible an d the eviden ce admissible if 21 there was probabl e cause for an ar rest or i f there were gr ounds for 22 an investigat ive stop. 23 24 Two distinct but closely related issues, both governed 25 by the

Fou rth A

men dment and

Art. I, S ection

7, are p resent ed in 26 this case. The facts and ci rcumstances of the case must be 27-9-

examined firs t to deter mine if they cons titute grounds just ifying 1 the defendant' s arrest . If the f acts and cir cumstances do not 2 warrant the re asonable beli ef that a cr ime has been or is b eing 3

comm itted and , therefore , there is no probab le cause fo r arrest, 4 then sec ondly, those facts a nd circu

mstan ces ma

y be exa

mined to 5 determ ine if th ey per mit an invest igative

stop. 6 7 B . 8 9 Although the deter mination of probab le cause tur ns on 10 the fac ts and circumstance s of each case , the fra mework w ithin 11 which that dete rmination is made is well set tled. Si gnificant 12 aspects of that fr amework are set forth in the following material 13 in 2 Wayne

R. La Fave , Search and Se izure § 3.1(b), pp. 6, and § 14 3.2, p. 22 (3d ed. 1 996): 15 16 It i s ge ner all y as sume d by t he Su pre m e 17 Cour t an d th e lo wer c our ts t hat the same 18 quan tum o f evidence is r equired whether one is 19 concerned with prob able cause t o arrest or 20 probable cause to search. For this rea son, 21 discussions by courts of the probable cause 22 requirement of ten refer to and rely upon pri o r 23 decisions w ithout regard to whether these 24 earlier cases were concer ned with the grounds 25 to arre st or th e grou nds to search . . . . 26 27

. . . . 28 29 Notwithstanding the frequ ency with which 30 police, lawyers and judges m ust decide whether 31 a give n set o f facts a mou nts to p robab l e 32 cause , it remains "a n exc eedingly diff icult 33 concept to obj ectify. " As noted in United 34 Statesv. Da vis : 35 36 The contours and salient principles 37 of probable cause have be e n 38-10- faithf ully catal ogued in a surfe it of 1 decisional law . Probable cause 2 exists when known fact s and 3 circum stances a re sufficien t to 4 warrant a man of reasonable prudence 5 in the belief t hat an offense has 6 been or is be ing co

m m itted. . . . A 7 signifi cantly lower qua nta of proof 8 is requ ired toestabli sh probable 9 cause than g

uilt. . . . P robab l e 10 cause does not emanate from an 11 antiseptic co urtroo m, a s terile 12 library or a sacrosanct adytum, nor 13 is it a pris tine "philosophical 14 conc ept ex isting in a vacu

um," . . . 15 but ra ther it re quiresa prag matic 16 analysis of "everyday life on which 17 reasonable and prudent men, not legal 18 technicians, act. " . . . It i s to be 19 viewed from the vantage poin t of a 20 prudent, reasonable, cautious police 21 officer on the scene at t he time of 22 the arrest guided by his experience 23 and tr aining . . . . It is "a plastic 24 concept whose exis tence depends on 25 the facts and circumstances of the 26 particul ar case." . . . Because of 27 the kaleidoscopic myriad that goe s 28 into the prob able cause mix "s eldom 29 does a decision in one case hand ily 30 dispo se of the nex t." . . . It is 31 however the to tality of the se facts 32 and circumstances which is the 33 relevant consideration. . . . Viewed 34 singly these fact ors may not be 35 dispo sitive, yet when viewed in 36 unison the puz zle ma

y fit. 37 38 39 40 The most recent deci sion by this Court consideri n g 41 probable cau se to arrest is State v. Melson , 638 S.W.2d 342 (Tenn. 42 1982 ), cert. denied , 459 U.S. 1137, 103 S. Ct. 770 (1982). In that 43 case, the C ourt fou nd that the inform ation given to po lice officers 44 imm

edia tely a fter the homic ide w as co m m itted, the d efen dan t's 45 presence nearby, and the blood spots on the defendant' s clothing, 46 constituted proba ble caus e for the defendan t's seizure and arres t , 47-11-

stating , 1 2 Since there w as no wa rrant, we m ust pass 3 upon the validi ty of the ar rest under t h e 4 statute permitting an officer to make a 5 warrantless arrest when a felony ha s been 6 com mitted and he has r eason able o r prob

able 7 cause to believe that the arrestee comm itted 8 the felony. Tenn. Cod e Ann. § 4 0-803(3). It 9 is conce ded tha t probab le cause m ust be more 10 than m ere su spicio n, West v . State , 221 Tenn. 11 178, 425 S.W .2d 602 (196 8), but neither m ust 12 it be ab solute certain ty, Grey v . State , 542 13 S.W .2d 10 2 (Ten n. Cr. A

pp. 19 76). R eason able 14 or probable cause consists of ground s which 15 would lead a reasonable man to believe that 16 the person arrested was guilty of the felony, 17 Davis v . State , 2 Tenn. Cr. App. 297, 453 18 S.W.2d 438 (1969). I n Dav i s , we quoted from 19 Jones v . State , 161 Tenn. 370, 33 S.W.2d 59 20 (1930), wherei n it was stat ed: 21 22 "In Beck v. Stat e of Ohio , 379 23 U.S. 89, 85 S. Ct. 223, 13 L.Ed.2d 24 142 (1964), the [United States 25 Supreme] Court stat ed: 26 27 'Whether that arrest was 28 const itutionally va lid dep ends . . . 29 upon whether, at t he moment the 30 arrest was made, the officers had 31 probable cause to make it--whether at 32 that moment the fact s and 33 circumstances within their knowledge 34 and o f which they had re asonable 35 trustwo rthy infor mation were 36 sufficient t o warrant a prudent man 37 in believing that t he petitioner had 38 com mitted . . . an offense.'" 39 40 453 S.W.2d at 440. 41 42 43 Id. at 350-5 1. Thu s, probab le cause isestablished when the fac t s 44 and circumstances w ithin the knowledge of the officer and of w hich 45 he has reasonabl y trustwort hy information warr ant a prudent per son 46 in believing the defendant has committed or is committing an 47-12-

offens e. 1 2 The S uprem e Co urt of the Un ited Sta tes recently 3 empha sized that where there is proba ble cause, the “ reasonableness” 4 of the s earch and s eizure

requir ed by

the Fourth A

men dment is 5 establi shed. In Whren v. U nited States , _____ U.S. _____, 116 6 S. Ct. 1769 (199 6), poli ce offic ers observe d the defendant 7 viola ting s ever al tra ffic or dinances . The

y pu rsue d the

defe ndant's 8 vehicle and an officer approached the vehicle while it was stopped 9 at a tr aff ic l igh t . The o f f ice r , who wa s no t i n uni for m , 10 identif ied himself to the defendant as a police of ficer and 11 directed the defendant to put t he vehicle in park. The office r saw 12 the defendant ope nly holding cont raband in his hands . The 13 defendant in Whren pressed the Supr eme Court to suppress the 14 evidence obtai ned on the ground that the stop was pret extual. The 15 defendant insisted that the officer used the t raffic viol ations as 16 a pretex t for stopp ing the d efendan t when his real purpose w as to 17 find ev idenc e of illegal drug activ ity. Inst ead, the Co urt he l d 18 that the ulterior motives of the officer do not invalidate police 19 cond

uct tha t is justified on th e basisof probable cause . 20 21 It is of course true that in princip l e 22 every Fourth Amendment case, s ince it t urns 23 upon a “reasonablene ss” determinat ion, 24 involv es a ba lancin

g of all r elevan t factor s. 25 With rare exceptions not ap plicable here, 26 however, the res ult of that balancing i s not 27 in doubt where the search or seizure is based 28 upon probable cause. T

hat is wh

y petition ers 29 must rely upon cases like Prouse to provide 30 exam ples ofactua l “bala ncing ” ana lysis. 31 There, the po lice action in que stion was a 32 random traffi c stop for t he purpose of 33-13- check ing a m

otorist ’s licens e and vehic l e 1 registration, a practice that ... involves 2 police int rusion without the probable cau s e 3 that is i ts tradi tional j ustifi cation

. 4 5 6 7 Id. at ___

__, 11 6 S. C t. at 177 6 (199 6) (em phasi s in orig inal). 8 See also Ohio v . Robin ette , ____ U.S. ____, ____, 117 S. Ct. 417, 9 420-21 (199 6). The Su preme C ourt did not sp ecifically discuss 10 investigative s tops authorized by Terry and its p rogeny , but its 11 holding validates, under f ederal law, all detent ions authorized by 12 probable cause. 13 14 Where probable cause has existed, the 15 only ca ses in w hich w e have found it ne cessary 16 actua lly to p erform the “b

alanc ing” a

nalys i s 17 involved searches or seizures conducted in an 18 extraordinary manner, unusually harmful to an 19 individual’s pri vacy or even physical 20 interests - such as, for example, seizure by 21 mean s of dead ly force .... T he ma king of a 22 traffic sto p out- of-un iform

does not remotely 23 qualify as such an extreme prac tice, an d so is 24 governed by the usua l rule that probab le cause 25 to believe the law has been broke n 26 “outbalances” private i nterest i n avoiding 27 police contact. 28 29 Whren v. U

nited States , ____ _ U.S . at ___

__, 11 6 S. C t. at 177 6-77. 30 Conse quently , a balan cing analysis un der Terry

is not nec essary 31 whe re ther e is probable cause . 32 33 C . 34 35 However, as recogni zed in Whren , the most rec ent 36 decision

by the U

nited Sta tes Supr eme C ourt on this issue, w

here 37 there is no

probab le cause th ere mu st be “de tailed ‘bala ncing’ to 386 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 involvedseizures withou t probab l e cause.” Id. at _____, 116 S. Ct. at 1776.

-14- decide the cons tituti onality of automobile stop s” involvi n g 1 suffici ent, speci fic, i dentifi ed facts i n order to jus tify even a 2 limited i ntrusion. 6 Id. at _____, 116 S. Ct. at 1776. 3 4 The validit y of an invest igative s top under exigent 5 cir cums tan ces was f i r st r eco gni zed by t he Uni ted Sta tes Supr eme 6 Court in Terry v. Oh i o . In that ca se, the Court addressed the 7 issue of whether the police have the ri ght to stop and question an 8 individual in the absence of probable ca use. In Terry , a policeman 9 became suspicious of two men who separately walk ed up and down a 10 street several times peering into a store, talked to a third man 11 and followed him up the street a short time later. A police 12 officer followed the s uspects, c onfronted and sea rched them, and 13 found a pistol on two of them. Terry, charged with the crime of 14 carrying a concealed weapon, moved to suppress the weapon as 15 evidence. The Court held: 16 17 Each case of this sort will , of course, have 18 to be d ecided on its own fa cts. W e me rely 19 hold today that whe re a police officer 20 obser ves un usua l cond

uct w hich le ads h i m 21 reaso nably to con clude

in ligh t of his 22 experience t hat criminal activit y may be afoot 23 and that the per sons with whom he is deali n g 24 may be arm

ed an d pres ently d

ange rous, w

here in 25 the course of investi gating thi s behavior he 26 identifies himself as a policeman and m akes 27 reasonable i nquiries, and where nothing in t h e 28-15- initial stagesof the en counte r serves to 1 dispel hi s reasonable fear for hi s own or 2 others’ s afety, he i s entitl ed for the 3 protection of himself and others in the area 4 to conduct a care fully l imited sear ch of the 5 outer clothing of such persons i n an attempt 6 to discover wea pons w hich m ight be u sed to 7 ass aul t hi m . 8 9 10 11 Terry

v. Stat e of Ohio , 392 U.S. at 30, 88 S. Ct. at 1884-85. 12 13 The m

ajority op inion state s that Terry requir es onl y a rea sonable 14 suspicion

suppo rted by sp ecific and articulated

facts that a 15 crimina l offense h as been

or is abo ut to be c omm itted. However , 16 Terry

specifi cally li mited its hol ding to all ow a stop where the 17 officer ha s not on ly a reasonable su spicion th at “crim inal activity 18 may be afoot,” but al so a reasonable suspicion t hat the pers ons 19 “may

be armed and

presently

dange rous,” and to allo w a sea rch where 20 after re asonable inquiries , noth ing “s erves t o disp el his 21 reasonable fear for his own or others’ safety.” Terry v. Stat e of 22 Ohio , 392 U.S. at 30, 88 S. Ct. at 1884 -85. The requi rement of 23 exigent ci rcumstances is not included i n the rule announced by the 24 majo rity. 25 26 Subs eque nt dec isions h ave re affirm ed the holdin

g in 27 Terry

that inve stigative sto ps are lim ited to ex traordinar y 28 situati ons. In Delaware v. Prouse , the Supreme Court f ound the 29 stop to be constitu tionally u nreason

able. The Court held tha t a 30 stop to

check a licen se and

registra tion is u nreas onab le "exc ept in 31 those sit uations in whic h there is a t least articul able and 32 reasonable suspicion that a motoris t is unlicensed or that an 33 automobile is not register ed, or that either t he vehicle or an 347 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 isother

wise s ubjec t to seiz ure fo r viola tion o f law.” 7 1 Delaware v. Prouse , 440 U .S. 648 , 664, 9 9 S. C t. 1391 , 1401 (1979 ). 2 In Delaware v. Prouse , a polic e office r stopp ed an autom obile 3 though “he had observed ne ither tr affic or equipment violat ions nor 4 any suspicious activit y.” I d . at 651, 99 S. Ct. at 1394. The s top 5 was made solely to chec k the driver ’s lic ense and regis tration 6 because the of ficer “s aw the car in the a rea and wasn’t answer ing 7 any complaints ....” I d . Upon approaching the ve hicle, t h e 8 officer smelled marij uana, and seized mari juana in plai n view on 9 the floor of the ca r. The Court suppressed this evidence because 10 there was no reasonable basis for the s top. 11 12 The majority rel ies on Prouseto sup port itsposition. 13 In Prouse , the Court f irst di scussed United State s v. Bri gnon i - 14 Ponce , 422 U.S. 873, 95 S. Ct. 2574 (1975 ) and United States v. 15 Martinez-Fue rte , 428 U.S. 543, 96 S. Ct. 3074 (1976 ), where the 16 Court upheld checkpo int stop s and disallowed

roving patro l stops. 17 These determinations were based on the exigent circum stances 18

surrou

nding illegal a liens. Prouse , 440 U.S. at 656, 99 S. Ct. at 19 1397. The ProuseCourt found that i n the case of ot her random 20 stops which were not based on any suspic ion of a viol ation of the 21 law, no inter ests (or exigent ci rcumstances) e xisted to j ustify t h e 22 intrusi on. The majority i nterpret s the holding t o support the 23 conclusion t hat in the pr esence of a re asonable suspi cion, a st o p 248 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- is alwa

ys con stitutio nal. See Majority Opinion _____ [slip op. at 1 11]. Such an interp retatio n is inc onsistent with the lan

guag e in 2 Prouse specificall y limiting its hol ding: “We hold only that 3 persons in aut omobiles on publi c roadways may not for tha t reason 4 alone have thei r travel and privacy int erfered wit h at the 5 unbridled discreti on of police officer s.” I d . at 664, 99 S. Ct. at 6 1401. 8 7 8 Guidance as to the circumstances in which an 9 invest igative stop is justified is foun

d in Ju stice Ja ckson ’ s 10 dissent i n Brinegar v. United States , 338 U .S. 160, 1 83, 69 S . Ct. 11 1302, 1 314 (19 49): 12 13 If we a ssume, for ex amp le, that a

child is 14 kidnapped and the officers throw a roadblock 15 about the neighb orhoo d and s earch ev ery 16 outgoing car, it would be a dras tic and 17 undiscriminat ing use of the search. The 18 officersmigh t be unable to show proba ble 19 cause for sea rching

any p articul ar car. 20 However, I should can didly strive

hard to 21 sustain suc h an action .. .. But I shoul d not 22 strain t o sustain suc h a roadblock and 23 universal search to sal vage a few bottl es of 24 bourbon and c atch a bootlegge r . 25 26 27 28 In balancing publ ic and privat e interes ts, exi gent 29 circumstances are necessary to justify the intrusion. The Terry 30 decision

as deve loped b

y other c ases wh ich have allow ed shor t term 31-18-

seizures wi thout a probabl e cause for ar rest, c reated a bal ancing 1 analy sis wh ich ha s been sum mariz ed by

this C ourt a s follow s: 2 3 In general, although the Fourt h Amendment 4 requir es “pr obab le cau se” be fore an arrest is 5 deemed to be reasonabl e, the reas onableness of 6 seizur es less in trusive than a

full-sca l e 7 arrest i s judged by weighi ng the gravit y of 8 the public c oncern, the deg ree to which the 9 seizure advanc es that concer n, and the 10 severity of the i ntrusion into indivi dual 11 privac y. See, e.g., Brown v. Texas , 443 U.S. 12 47, 50, 99 S. Ct. 2637, 2640, 61 L.Ed.2d 357 13 (1979). In Terry v. Oh i o , 392 U.S. at 20-21, 14 88 S. Ct. at 1879-80, the Un ited States 15 Supreme Court ack nowledg ed police officers’ 16 need for “an esca lating s et of flex ible 17 responses, graduated in r elation t o the amount 18 of information they possess.” I d . at 10, 88 19 S. Ct. at 1874. The Terry Court h

eld that to 20 justify a st op, “the police offi cer must be 21 able to pointto spe cific an d articu lable 22 facts which, taken together wit h rational 23 inferences fro m tho se facts , reaso nably 24 warrant that intrusion. ” I d . at 21, 88 S. Ct. 25 at 1880. 26 27 28 29 State v . Pully , 863 S.W.2d at 30. 30 31 32 33 This Court has, i n several dec isions, addressed the 34 constitut ional vali dity of i nvestigat ive stops. In Hughes v. 35 State , 588 S.W.2d 296 , 309 (Tenn. 1979), after reviewing the U nited 36 States Su

preme Court decisions on investigative stop s, the Court 37 stated : 38 39 A citizen has a c onstitut ionally or dered right 40 to be secure i n his person and poss essions and 41 to be free from “arbitrar y invasions solely at 42 the unfettered discretion” of the police. 43 44 45-19-

In that case , the defendant and a companion drove to a st ore, the 1 defendant dropped of f his companion at t he store and l eft. The 2 companion bought some snacks which he c onsumed while reading 3 magazines at the magazi ne rack. The propr ietor cont acted the 4 police, relat ed these facts and concluded that the defe ndant was 5 “acting a litt le strange or suspici ous.” I d . at 299. When 6 officer s arrived at the store, they restr ained the companion i n the 7 rear seat of the patr ol car while i t was determined t hat he had no 8 crimina l record. T he officersbegan searchin

g for the defendan t , 9 who was then returning to the stor e parking lot . The defendant 10 rolled dow

n the w indow

whe n an o fficer ap proached the auto mob ile 11 and asked for his driver license. Because the officer smelled 12 burning marijuana w hen the window

was lowered, the officer searched 13 the automobile and di scovered the c ontraband. In Hughes , the Co urt 14 held that the seizure was not based on information w hich contained 15 “specific and a rticulable facts or inferen ces from facts, 16 sufficient t o generate a reasonable conclusion that a cr ime had 17 been, was, or was about to be committed.” Id. at 308. 18 19 In State v. Watkins , 827 S.W .2d 293 , 294 (Tenn. 199 2), 20 the offi cer, who had made an invest igative s top, test ified at the 21 suppression hearing that he had personal knowledge that a capias 22 was outstanding for the defend ant’s arrest, that other police 23 officers had informed him tha t the defendant often drove a black 24 Cadillac inscribed with t he words “The Duke,” and that when he saw 25 this car, because of the outstanding capias, the officers stopped 26 the vehicl e. This Court f ound that the pol ice offi cers had the 279 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- required r easonable susp icion, s upported by speci fic and 1 articul able fact s, to withs tand the const itutiona l challeng e to the 2 stop. I d . at 295 . The Court stated that, 3 4 In det ermin ing w hethe r a pol ice offic er’s 5 reaso nable suspic ion is su

pport ed by

specific 6 and articulable facts, a court must consider 7 the totality of the circumstances United 8 States v. Cortez , 449 U.S. 411, 417, 101 9 S. Ct. 6 90, 69 5, 66 L .Ed.2 d 621 , 629 (1 981). 10 This includes , but is not limited t o , 11 objective observations, information obtained 12 from othe r police officers or agencies, 13 information obt ained from cit izens, and t h e 14 pattern of ope ration

of certa in offen ders. 15 I d ., 449 U.S. at 418, 101 S. Ct. at 695, 66 16 L.Ed.2d at 629. A court must also consider 17 the ration al inferen ces and deduc tions tha t a 18 trained p olice office r may draw fro m the fa cts 19 and c ircum stance s known to him. Terry , 392 20 U.S. at 21, 88 S. Ct. at 1880, 20 L.Ed.2d at 21 906. 22 23 Id. at 294. 9 24 25 26 27 In State v . Pully , 863 S.W.2d 29 (Tenn. 1993 ), the 28 officer recei ved an anonymous radio report that the defendant was 29 in a yellow Ford i n a trail er park, was ar med with a shotgun, and 30 was “supposed to shoot someone.” I d . On the way to the trailer 31 park, the offic er rece ived anothe r similar repo rt. The officer did 32 not find the defendant at the tr ailer park; he then drove to a gas 33 station where the defendant was par ked in a yell ow Ford. The 34 officer turned on his bl ue lights , asked the def endant to get out 35-21-

of the c ar, and

saw a shotgun on

the fro nt floo rboard of th e car. 1 He arre sted the defendan t for driving on a re voked license, for

a 2 second offens e of drivi ng under the inf luence of al cohol, and for 3 possessing a loaded weapon, a hunti ng knife, and a bi lly club. The 4 trial court suppres sed the weapons and the r esults of the 5 blood/alcohol t est on the grounds that the of ficer had no 6

reasona

ble suspic ion that the defend ant had

or wo uld com

mit a 7 crime. This Court reversed t hat decisi on, analyzing t he tests f o r 8 determining t he reliabi lity of informants’ tips in t he context of 9 “probable cause” determinations, and stat ing, 10 11 In this case, the publi c interest ser ved by 12 the stop wa s the p reven tion o f violen t crim e. 13 The scope of the intrusion was minor; it was 14 intended to be onl y a temporary stop of the 15 defendant’s car. Final ly, the “i ndicia of 16 reliability” were sufficien t in light of these 17 other considerations to warrant a brief 18 investi gatory stop. .... Although the 19 reliabi lity of the tip would cer tainly not 20 establish p robable cause to

search o r arrest, 21 and would no t furnish re asonab le suspicion to 22 stop the d efen dant i n all cir cumst ances , we 23 conclude that, given the threat of violence, 24 the po lice had “sp ecific and art iculab l e 25 facts” t o wa rrant the inve stigato ry stop in 26 this case. 27 28 29 30 Id. at 34. 31 32 33 34 This Cou rt recently balanc ed public interest against 35 private rig

hts in dec iding tha t sobriety ro adblock s do no t per s e 36 violate th e Four th Amendment or A rticle I, Section 7. The Cour t 37 stated: 38 39-22- In orde r for us to determine whe ther a 1 seizure which i s less i ntrusive t han a 2 traditional arrest is reason able, we m

ust 3 balance the publ ic inter est serve d by the 4 seizure with the severity of the interference 5 with individual liber ty. 6 7 8 9 State v. Downey , 945 S.W .2d 102 , 104 (Tenn. 199 7). 10 11 12 13 Recognition that an investigat ive stop may be 14 constitutionall y reasonable, even though an arrest would not be 15 constitut ionally r easonable, was not intended to be a relaxati on of 16 const itutional prot ection again st intru sions b y the S tate. See 17 Minnesota v. Dicker son , 508 U.S. 366, 374, 113 S. Ct. 2130, 2136 18 (1993 ); Adams v. Wi l l iams , 407 U.S. 143, 146, 92 S. Ct. 1921, 1923 19 (1972). Ins tead, it is a recogni tion that a limited i ntrusion 20 unde r exigent circu mstances m

ay be justified

as con stitutio nally 21

reaso nable . Two essen tial con

dition s char acteriz e a va lid 22 invest igative stop, exigen t circumstance s and limited

intrusi on. 23 After reviewing decisions from other jurisdictions in which 24 investi gative st ops were found to be j ustifi ed, the Court i n Pully 25 stated: "T

hese cas es show

that the gravity of the perceived harm 26 is a crucial el ement in assessing the reasonableness of an 27 investigative Terry stop." Pully , 863 S.W .2d at 33 . The C ourt 28 then approved thi s statement f rom a concurring opi nion in United 29 Statesv. M ende nhall , 446 U.S. 544, 561, 100 S. Ct. 1870, 1881 30 (1980) (P owell, J., c oncurrin g): 31 32 The reasonablenes s of a stop t urns on the 33 facts and circumstances of each case. In 34 particul ar, the Court has emphasized (i ) the 35-23- public interes t serve d by the seizure, (ii) 1 the nature and s cope of the int rusion, and 2 (iii) t he objective facts upon which the law 3 enforc eme nt offic er relied in ligh t of his 4 know ledge and experience. 5 6 7 8 State v . Pully , 863 S .W.2 d at 34 . 9 10 11 12 The burden is on the St ate to show that exigent 13 circumstance s make the search

impe rative. State v. Bartram , 925 14 S.W .2d 22 7, 230 (Ten n. 199 6); State v. Watkins , 827 S.W.2d 293, 295 15 (Tenn . 1992). 16 17 D . 18 19 As stated previously, the reco rd will be examined first 20 to dete rmin e if ther e wasproba ble cau se to ar rest the defen dant in 21 this ca se. The facts a nd circums tance s show that O fficer F errell 22 had probable cause to believe that the def endant was violat ing the 23 law. Initia lly, th e offic er's knowl edge that t he d efen

dan t's 24 driver license had been revoked for a year w as not reason

able cause 25 to believe that the def endant was committing an of fense. Si nce he 26 also knew

that restricted licenses were available for bu siness 27 purpos es, his obs ervation of the de fendan t, who w as a farmer, 28 driving a pic kup truck d uring work ing hours, w ould r eason ably 29 support nothing more than a suspicion that the defendant was 30 driving without authority. Stated another way, he did not have 31 reasonable ca use to beli eve the defendant had not applied f or or 32 had been denied a restricted license. However, the officer knew 33-24-

that a restric ted license would not auth

orize a fa rmer to drive to 1 a bar. The defendant 's furt ive drivi ng behavior and his stopping 2 at the b

ar we re suffic ient to elevat e susp icion to proba ble cau se. 3 Had the defendan t not been in v iolation of the restricted license 4 by driving whil e drinking i ntoxicants , there was no obvi ous reason 5 to avo id Off icer Fe rrell. A lso, had the defendant be en about hi s 6 business purposes, he would not have violated the restricted 7 license by

stopping at a ba r. These facts and

circum stances were 8 suffici ent to support a finding of probable cause justif ying the 9 stop an

d the su

bsequent arrest. 10 11 E . 12 13 Even though Officer Ferrell ha d probable cause to stop 14 the de fenda

nt’s vehicle, it s hould be ob served

that the stop

wou l d 15 fail t he balancing t est that must be applied t o the facts and 16 cir cumst ances where ther e is rel ianc e on an i nvest igat ive s top. As 17 stated i n Hughes v. State , 588 S.W.2d at 303: 18 19 Thus, in the cont ext of a "st op and 20 frisk" situation, the C ourt freed Fourth 21 Amendment analysis from the r igidit y of the 22 proba ble cau se stan

dard b ut in so

doing it 23 impo sed a s tanda rd of sp ecific and art iculab l e 24 fac ts. The d ete cti on an d pr eve nti on of cri m e 25 and the safety of the officer are balanced 26 against t he nature and exte nt of and the 27 reasons for the intrus ion. 28 29 30 31 The decisions require an arti culable and reasonable suspicion t hat 32 the vehicl e or the occupant is subjec t to seiz ure for a vi olation 33-25-

of the law, and, further, “‘that a se izure must be base d on 1 specific, ob jective factsindicating that soc iety’s legitim ate 2 interests re quire the seizure of t he particular indivi dual.” Id. 3 at 307 (quoting Brown v. Texas , 443 U.S. 47, 52, 99 S. Ct. 2637, 4 2640 (1979)). The facts and ci rcumstances of t his case suppor t the 5 first req

uirement, rea sonable suspicion (and e

ven p robab le cau se). 6 However, those fac ts and circ umstances do not show exige n t 7 circumstances requiring that the defendan t be seized. Officer 8 Ferrell had no basis on which to suspect that t he defendant was 9 intoxicat ed. The defendant was not speeding, nor was he, to the 10 officer'sobser vation , violati ng an y traffic

regula tions. H i s 11 obser

vable opera tion o f the vehicle p osed no dan ger to the pu

blic. 12 The only suspecte d violati on was driving on a re voked license . The 13 public's interest in enforcing the law could as well have been 14 protected by checking the r ecords regar ding the sta tus of the 15 defendant' s license and procuring a warr ant for his arrest or 16 making an accusati on to the grand j ury. The purpose of the stop 17 was not limite d to insuri ng the offi cer's s afety or t he protecti o n 18 of the publi c. In contr ast to thi s situat ion, the exi gent 19 circumstance i n Pully was that the of ficer had r eliable information 20 that the defendant was in po ssession of a shotgun and "w as supposed 21 to shoot som eone." Pully , 863 S.W.2d at 29. The cases reli ed upon 22 in Pully

to justify the stop involved situations where the officer 23 reasonably sus pected that the person st opped was in the posse ssion 24 of a concealed weapon, or items take n from the vict im of a recent 2510 For 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- murder. Pully , 863 S.W.2d at 33-34. 1 0 Consequently, the evidenc e 1 does not su

pport a finding

of exigent circumstances. 2 3 The m ajority

states th

at a brie f inves tigator y stop is 4 const itutionally pe rmiss ible if th e office r has a reaso nable 5 suspicion , suppo rted by sp ecific and articulable

facts, that a 6 crimina l offense h as been

or is abo ut to be c omm itted. M ajority 7 Opinion at ___ __ [slip op . at 14]. As a practical matter , the 8 langu age of the maj orit y would allo w the de tent ion an d at l east a patd own 9 search of any person suspe cted of possessi ng illegal dr ugs or other 10 contraband. The major ity, t hen, would eliminat e the need for 11 exigent ci rcumstances and al low officer s to proceed onl y on 12 “reasonable s uspicion, ” only. The language of the majorit y would 13 allow

deten tion u

pon m ere su spicio n. See Minnesota v. Dicker son , 14 508 U.S. 366, 381, 113 S. Ct. 2130, 2140 (1993). Such an 15 interpretation of the law contradicts the consistent holdings under 16 Terry

and th is Cou rt t hat e ach ca se must be dec ided on it s own 17 facts and t hat the “exig encies of t he situati on [must make] the 18 search imperative.” State v. Bartram , 925 S.W.2d 227, 229-30 19 (Ten

n. 199 6); Terry , 392 U .S. at 30 , 88 S. C t. at 188 4. 20 21 I V 22 23 The c onclu sion is that be cause the off icer had pro bable 24 cause to arrest the defendan t, I agree that the m otion to supp ress 25-27-

should be denied. 1 2

_____________________________ 3 Reid, J. 4