# FILED
December 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE (HEARD AT CHATTANOOGA)

FOR PUBLICA

TION STATE OF TENNESSEE, ( Filed : December 22, 1997 ( Plaintiff-Appellee, ( ( Bradley Crimi nal ( v. ( Hon. Mayo L. Mas hburn, ( Judge ( DAVEY JOE VINEYARD ( AND JIMMY LEE COCKBURN, ( ( Defendants-Appellants. ( S.Ct. No. 03S01-9612-CR-00120
For Plaintiff-Appellee : For Defendants-Appellants : John Knox Walkup Kenneth L. Miller Attorney General & Repor ter Logan, Thompson, Miller, Nashville, Tennessee Bilbo, Thompson & Fisher, P.C. Cleveland, Tennessee Michael E. Moore Solicitor General Nashville, Tennessee Karen M. Yacuzzo Assistant Attorney Gener al Nashville, Tennessee Jerry N. Estes District Attorney General Athens, Tennessee Joseph A . Rehyansk y Assistant District A

ttorney General Cleveland, Tennessee



### O P I N I O N
AFFIRMED. DROWOTA, J. In this appeal we are ask ed to determine whether under Article I, Section 71 United Stat es v. Whren , __U.S . __, 116 S .Ct. 1769 , 135 L.Ed .2d 89 (1 996).

2 State v. Jac um in , 778 S.W .2d 430 (Tenn. 1989).

-2- of the Tennessee Constitution a stop base d upon probable cause is valid irrespective of the subj ective motivations of the police officer making the stop. The defendant concedes that under the Fourth Amendment to the federal constitution, the subjectiv e motivations of police officers are irrelevant so l ong as the stop is otherwise b ased upon probable cause. 1 However, the defendant asks us to hold that, in this context, the Tennessee Constitution ’s prohibition against unreasonable searches and seizures is more stringent than the Fourth Amendment to the United States Consti tution.
The Court of Criminal Appeals r ecognized that the state c onstitution may grant greater protection from unreasonable searches and s eizures than that provided by the federal c onstitution, 2 but found that the protection aff orded in this context is the same under both constitutions. Therefore, the C ourt of Criminal Appeals affirmed the trial court’s denial of the defendant’s motion to suppr ess.
We conclude that, in this context, the pr otection afforded by Article I , Section 7 of the Tennessee Constituti on is co-extensive with the protection afford ed by the Fo urth Ame ndment to the Uni ted Stat es Consti tution. Accordin gly, a stop based upon probable cause is valid under the Tennessee Con stitution, without re gard to th e actual s ubjective motivatio ns of pol ice off icers. Acc ordingly,3 Ora l argu me nt wa s hea rd in th is cas e in C hatta noo ga, H am ilton C oun ty, as p art of this Court’s S .C.A.L.E .S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents ) project.

4 Rule 37(b)(2) (i), Tenn. R. Crim. P., provides i n pertinen t part as f ollows: (b) An appeal l ies from any or der or judgment i n a criminal proceeding where the law provides for such ap peal, and f rom any judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo contendere i f: (i ) Defendant entered into a plea agreement under Rule 11(e) but

explicitly

reserved with the consent of the state and of the cour t the rig ht to a ppe al a ce rtified ques tion o f law th at is dispositive of the ca se. . . .

-3- the judgment of the Court of Crimi nal Appeals is affirmed. 3

FACTUAL BA

CKGROUND Both defendants, Davey Joe Vi neyard and Jimmy Lee Cock burn, pled guilty to possession of more than 10 pounds of marijuana for resale. Cockburn also pled guilty to posses

sion of drug paraphernalia and nolo contendere to speeding. Pursuant to Rule 37(b)(2)(i), 4 Tennessee Rules of Criminal Pr ocedure, the defendants reserved as a dispos itive question of law the trial court’s refusal to suppress the incriminatin g evidence discove red in the motor vehicle occupied by them when they were ar rested.
The only witness on behalf of the State at the suppression heari ng was Detective Gates, a narc otics officer with the Ci ty of Cleveland. Sometime pr ior to the morning of May 6, 1994, Detective Gates said that h e had received information from an anonymous informant that a vehicle occupied by the defendants would be traveling north on Interstate 75 (“I-75"). The vehicle would pass through Bradley C ounty en route to an undiscl osed location, where the defendant s would obtain a loa d of marijuan a and return, la ter that day, thro ugh-4-

Bradley County bound for G eorgia.
At approximately 7:00 a.m. , on May 6, 1994, Detectiv e Gates, along with Detective Queen, of the narcoti cs squad of the Cleveland city police department, were conducting drug

interdiction survei llance of traffic on I-75. Betwee n 8:00 and 8:30 a.m., Gates saw the defendants’ vehicle, a pickup tr

uck, as it proceeded northbound. He notified Officer Queen tha t he had identified the vehicl e, and he then crossed I-75 to a positi on from which he could wat ch the southbound traffic. At approximately 9:30 a.m. , the vehicle passed Gates’ position traveling south. Driving unmarked pol ice vehicles, Gates and Queen followed the defendants. Gates testified he had no i ntention of st opping the d efendants’ v ehicle at th at time but was instead waiting for the driver to commit a traffic violation. Gates said he paced the defendants’ vehicle at about 75 miles per hour, ten mil es per hour faster than the posted speed limit. Gates also obse rved the defendants’ vehicle move from the left lane to the rig ht lane without display ing a turn signal, and about one mile farther, the vehicl e pulled back into the left lane w ithout a signal. At that point, Gates radioed the head of the nar cotics squad, Lieutenant Wilcoxin, who, accompanied by Officer Young,was stopped in a marked pol ice car in the highway median some di stance south. Gates told Wilcoxin they were planning to stop the defendants at Exit 25 and as ked him to check the speed of the defendants’ vehicle by r adar when it passed his l ocation. Wilcoxin attempted to check the speed by radar, but because of the traffic, was unabl e to do so. When the defendants’ vehicle passed by the marked police car, Gates saw Vineyard-5-

looking back at it.
Wilcoxin pulled onto the highway and turned on his blue lig hts. As the defendants’ vehicle drove to the side of the highway at Exit 25, Gates saw

the passenger, Vineyard, “moving about” in the vehicle “doing something with his hands.” Gates gave thi s account of the stop: Due to his actions, when we stopped, they was ordered to put their hands in view wh ere we could see them. They did not comply with the first order. At this time weapons were draw n. I believe three, three of the officers, myself, Queen and Y oung did pull our weapons as we did approach the vehicle. They were ordered to keep their hands up . . . As we appro ached with the window s down we had a strong odor of m arijuana abou t the vehicle. It was re al, real strong.
Detective Gates testified that the defendants got out with their hands on the rail of the truck and told the officers there were no w eapons or drugs in the tr uck. Wilcoxin then asked, “Do you give us consent to search?” to which Cockburn answered, “Yes go ahead.” The marijuana, whic h was the object of the motion to suppress, was located in the cab of the truck only partially concealed in a plastic bag. The vehicle was stopped approximately seven miles from the point where the officers began following it.

Detective Gates testified that he had pursued the defendants’ v ehicle “with the expectation and hope that ther e would be a traffic viol ation to give . . . a reason to pull the vehicl e over.” “Drug interdiction” consists of surveillance of the highway and the stop of certain vehicles for traffic violations so that the off icers could observe the occupants and the contents of th e vehicles and try to obtain5 The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent. Map p v. O hio , 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1 081 (1961).

-6- permission to search the v ehicles for illegal dr

ugs. He stated that he does not stop all traffic violater

s, and, at times, uses a “cour ier profile” for selecting the vehicles to be stopped. Detective Gates acknowledged that uniformed officers on routine patrol usually

do not try to search v

ehicles stopped for traffic vi olations.
The defendants moved to suppress the ev idence seized as a resul t of the stop, and after considering the proof, the trial judge denied the motion. The Court of Criminal Appeals affirmed the tri al court’s decision, co ncluding that the stop was lawfully bas

ed upon probable cause to believ e that a traffic violation had occurred. Thereafter, we g ranted permission to appeal to consider this important question of constitutional l aw, and for the reasons that foll ow, now affirm the decision of the Court of Criminal Appeals.

PRETEXTUAL ST

OPS The Fourth Amendment 5 to the United States Constitution guarantees “[t]he right of the people to be secure in their persons,houses, papers, and effects, against unreasonable sear ches and seizures. . . . ” Similarly, Article I, Section 7 of the Constitution of Tennessee provides “that the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures. . . .” The purpose of the prohibition against unrea sonable searches and seizures under the Fourth Amendment is to “saf eguard the privacy-7-

and security of individuals against arbitrary invasions of government officials.” Camara v. Municipal Court , 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).
In this appeal, the defendants urge this Court to hold tha t the evidence against them should have been suppressed as the fruit of an ill egal pretextual stop and search of their automobile . The defendants assert that because the officers initiating the stop were subjectively seeking to discover drugs as the result of an anonymous tip, rather than enfor ce the traffic laws, the stop was pretextual. They ask the Court to hold that pretextual stops v iolate Article I, Secti on 7 of the Tennessee Constitution even w hen, based upon the facts and circumst ances, the police officer has probable cause to believe that the defendant has v iolated the law. The defendants concede that the s top in this case does not v iolate the Fourth Amendment. Their only insistence is that this Court should interpret Article I, Section 7 as providi ng greater protection than the Fourth Amendment as interpreted by the Unite d States Supreme Court in United States v. Whren , ___ U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (199 6). The State responds that this Court should affirm the judgment of the Court of Criminal Appeals and hold that the Tennessee Constitution prov ides no greater protecti on than the Fourth Amendment as interpreted in Whren

.
Though state courts are free to i nterpret their respectiv e state constitutional provisions as affording g reater protections than the “base line” level of protec tion-8-

guaranteed by the federal cons titution, this Court has previously stated that “Article I, Section 7 is identical in intent and purpose with the Fourth Amendmen t.” State v. Downey , 945 S.W .2d 102, 106 (T enn. 1997), quo ting Sneed v. State , 221 Tenn. 6, 13, 423 S.W.2d 857, 860 (1968). Federal case law interpreting the Fourth Amendment is to be regar ded as “particularly

persuasive” when the scope and intent of Article I, § 7 is at issue. Id . Indeed, when interpreti ng the state constitutional provision, this Court has departed from fed eral precedent only when: (1) adopting federal Fourth Amendment standards woul d require overrul ing “a settled development of state constitutional law;” and (2) when linguistic differences justify distinct interpretations of state and federal constitutional provisions. State v. Jacumin , 778 S.W.2d 430, 43 5-36 (Tenn. 1989) (probable cause standard for evaluation of affidavit); State v. Lakin , 588 S.W.2d 544, 549, n. 2 (Tenn. 1979) (open fields doctrine).
Without question, the temporary detention o f individuals during the stop of a vehicle by polic

e, even if only for a brie f period and for a limited purpose, constitutes a “seizur

e” which implicates the protection of both the state and federal constitutional provis ions. Whren , ___ U.S. at___, 116 S. Ct. at 1772 ; Delaware v. Prouse , 440 U.S. 648, 654, 99 S. Ct. 1391,1396, 59 L.Ed.2d 660 (1979); State v. Pully , 863 S.W.2d 29, 30 (Tenn. 1993). As a general r ule, however, the stop of an automobile is constitutional ly reasonable, under both the state and federal constitu tions, if the polic e have pro bable ca use or rea sonable suspicio n to belie ve that a traffic violation has occurred. Id

.6 The Court noted th at select ive enforcement based on impermissible criteri a would rai se equal pro tection issu es. Whren , _____ U.S. at _____, 116 S. Ct.at 1774.

-9- Moreover, in Whren , the United States Supreme Court unanimously rejected the proposition “ that the constitutional reaso nableness of traffic stops depends on the actual motivations of the individual of ficers involved.” Id ., ___ U.S. at ___, 116 S.Ct. at 1774. I nstead, the Court held that a s top based upon probable cause to believe that provisions of the traffic code have been violated is constitutionally permi ssible, despite the subjective motivation of the poli ce officer making the stop. 6 Whren , ___ U.S. at ___, 116 S. Ct. at 1 774.
In that case, plainclothes v ice-squad officers patroll ing a “high drug ar ea” became suspicious when they observed the occupants of a tr uck stopped at an intersection. Upon following the truck, the officers observed several traffic violations. When the truck stopped at a t raffic light, one officer approached the vehicle, identified himsel f as a police officer, and directed the driver to put the vehicle in park. As he approached the vehicle, th e officer observed Whren holding two large

plastic bags of crack c ocaine. The occupants of the vehic le, including Whren, were arrested and quantities of illegal

drugs were seiz

ed.
The United States Supreme Court r ejected Whren’s assertion that suppression of the evidence w as required because the st op was pretextual. The Court found the stop valid under the Fourth Amendm ent because the officers executed the stop only after developing probable caus e to believe that the driv er-10-

of the ve hicle had violated t he traff ic code. T he Court h eld that “[s]ubje ctive intentions play no role in ordinary, probable cause Fourth Amendment an alysis.” Whren , __ U.S. at ___, 116 S.Ct. at 1774.The existence of “probable ca use to believe that the petitioner s had violated the traffic code . . . rendered the stop reasonable under the Fourth Amendment. ” Id at 1777.
While acknowledging that earli er opinions contained langu age expressing “disapproval of police at tempts to use valid bases of ac tion against citiz

ens as pretexts for pursuing o

ther investigatory

agendas,” the Court emphasiz ed that each of those prior statements appear ed in a case addressing pot ential abuse of a police practice that did not require probable caus e for its initiation, for ex ample, an inventory search “used as a ruse . . . to dis cover incriminating

evidence,” Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2 d 1 (1990), or a warrantless administrative search undertaken as “a ‘pretext’ for obtaining evidence of violation of . . . penal laws.” New York v. Bur ger , 482 U.S. 691, 716-717, n. 27, 107 S.Ct. 2636, 265, n. 27, 96 L.Ed.2d 601 (1987). The Court explai ned that none of those earlier statements endor sed the principle “that ulterior motives can invalidate police conduc t that is justifiable on the bas is of probable cause to believe that a violation of law has occurred.” Whren , ___ U.S. at ___, 116 S.Ct. at 1772. The danger to indivi dual liberty and priv acy posed by police abus es discussed in the earlier decisions is not present when the police action at issue is supported by probable cause.Despite the subjectiv e motivations of police, the “essential purpose” of the Fou rth Amendment, imposition of a “standar d of7 Prouse , 440 U.S. at 654, 99 S.Ct. at 1396 (citations and internal quotations omitted) .

-11- reasonableness upon the exercise of discretion by . . . law enforcement agent s in order to safeguard the privacy and security of individuals against arbitrary invasions,” 7 is entirely fulfilled when a traffic stop is initiated because the of ficers have probable cause to beli eve that a violation of the law has been committed. The probable cause requirement constrains the exerci se of police discretion and safeguards the citizenr y against arbitrar

y intrusions. Whren , ___ U.S. at ___, 116 S.Ct. at 1777.
The defendants urge us to reject the analysis of the Su preme Court in Whren and in support of their claim,the defendants rely upon prior decisions of this Court which they claim condemn pretextual stops.

In Robertson v. State , 184 Tenn. 277, 198 S.W.2d 633 (1947), highway patrol officers, pretending a driver’s license inspection, stopped the de fendant’s vehicle because the passenger “looked back through the rear window in a way that made [the officers] suspicious.” Id. at 634. The officers had no information that the occupants were inv olved in any illegal activity, and the y observed no violation of the traffic code; co nsequently, they did not have probable cause. Upon stopping the vehicl e, the officers observed ill egal liquor in the r ear seat of the vehicle. The Court hel d, “This Court will not permit an evasion of the requirements of the law w ith regard to search w

arrants through the dev ice, pretext, or subterfuge of a pretended examination of a driver’s license,” id. at 635, where-12-

“no impropriety in the driving of the defendants’ car ” is observed. Id. at 636.

In Cox v. State , 181 Tenn. 344, 181 S.W.2d 338 (1944), highway patrol office rs followe d a vehicle operate d by the de fendan t from Da vidson Cou nty, where the possession of li quor was legal, i nto Sumner County, where possession was not legal. The officers believed the vehicl e was owned by another person whom they suspected was involved in the illegal transportation of liquor. As in Robertson , they stopped the vehicle and asked to see the defenda nt’s driver’s license. And, as in Robertson , the officers observed liq uor in the front seat of the vehicle. This Court held the suspicionless stop was a violation of the defendan t’s constitutional rights

against unreasonable seizure and reversed the conv iction.
Contrary to the defendants’ as sertions, the decisions i n Robertson and Cox did not condemn pretextual stops. Instead, those decisions condemned intrusions that were not supported by probable cause or any level of individualized suspicion. Such intrusions, as the Uni ted States Supreme Court recog nized in Whren , allow unfettered police discretion and pose the greatest risk of official abuse. Robertson and Cox also do not support the proposition that the state constitu tion is more protective, in this c

ontext, than the federal constitution. Indeed, those cases would have been decided the same under federal law. In Prouse , the United States Supreme Court held that a suspicionless traff ic stop initiated by a police officer on a “roving patrol” aimed at detecting unlicensed drivers is constitutionally impermissible. The Court s tated “ except

in those situations in which there is at-13-

least articulable and reas onable suspicion [that a motorist is unlic ensed] or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for v iolation of law, stopping an automobile and detaining the driver in order to check his license and the registration of the automobile are unreasonable under the Fourth Amendme nt.” Id ., 440 U.S. at 663, 99 S.Ct. at 1401 (emphasis added). Since the officers initiating the tr affic stops in Robertson and Cox did not purport to have reasonable suspicion nor probable cause, tho se stops were not vali d under either the federal or st ate constitution.

Therefore, under this Court’s prior decisions, pretex t is not the determinative factor in ev aluating the constitutional ity of a traffic stop. For example in McBride v. State , 200 Tenn. 100, 290 S.W.2d 648 (1956), a highway patrol officer “had some general information that the defendant was tr ansporting liquor from [Dyer County, where possession was legal] into Henry County [where possession was not legal] over Highway 54 . . . [in] a green Hudson automobile.” While traveling on Highwa y 54 in Henry County, a highway patrol officer met the defendant driving a gree n Hudson. In response to a radi o call from the highway patrol officer, a Paris city police officer undertook to inter cept the defendant as he entered the city of Paris. When the defendant failed to stop at a road block, a high speed chase ensued and ended on a dead-end street. The defendant was arrested, and the officers observ ed liquor in the rear s

eat. This Court refused to suppress the evidence. The C ourt found that had the city officer intercepted the defendant’s vehicle, an arrest at that point would have been unlawful, bu t, held-14-

that the defendant’s violation of the traf fic code committed during the chase justified the defendant’s arrest and the of ficer’s seizure of illegal liquor in plain view. See also Batchelor v. State , 213 Tenn. 649, 378 S.W.2d 751, 752 (1964). Therefore, despite the police officer’ s subjective motivations, this Court upheld the constitutional validi

ty of the stop which w

as based upon probable cause that the defendant had violated the traffic code.
Adoption of the Supreme Court’s interpretation of the Fourth Amendment in Whren would not require ov erruling “a settled d evelopment of state constitutional law.” Moreov er, ther e are no l inguis

tic diffe rences which,in this contex t, just ify distinct interpretations

of the state and federal constitutiona l provisions. Accordingly, w

e conclude that probable cause j ustifies a traffic stop under Arti cle I, Section 7 of the T ennesse e Constit ution with out regard to the sub jective motivations of police officers.
Applying that rule to the facts in this case, it i s clear that the trial c ourt and Court of Criminal Appeals appr opriately denied the defendants’ motion to suppress. Although the subj ective motivation for th e stop may have been the officers’ desire to search for illegal drugs, the stop was not accomplished u ntil the detectives had personally observed at least three violations of the traffic laws, which constitutes probable cause justifying the stop. Since the stop was based upon probable cause, its constitutional validity was not impaired by the officers’ subjective motivations.-15- CONCLUSION Because we conclude that Ar ticle I, Section 7 of the Tennessee Constitution does not precl ude stops supported by probabl e cause, despite the subjective motivati ons of police officers, the judgment of the Court of Criminal Appeals upholding the trial court’s denial of the defen dants’ motion to suppress is affirmed.

___________________________ FRANK F. DROWOTA, III, JUSTICE

Concur: Anderson, C.J., Reid, Birch and Holder, JJ.