### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

STATE OF TENNESSEE v. FRE D ARTHUR STIER
Appeal from the Circuit Court for Henry County No. 12812 Julian P. Guinn, Judge

No. W1999-600-CCA-R3-CD - Decided April 7, 2000

The Defendant, Fred Arthur Stier, was charged with violation of the “light law”; resisting stop, frisk, halt, arre

st, or search; pos session with intent to manufacture, deliver, or sell a controlled substance; possession of a controlled substance; and possession of drug paraphern a lia. Upon dismissal of the remaining charges, the Defendant pleaded guilty to resisting stop, frisk, halt, arre st,
or search and to possession with intent to manufacture, deliver, or sell a controlled s ub stance, reserving a certified questionof law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question presented to us is whether the trial court erred in overruling the Defendant’s motion to suppress the evidence obtained against him as the result of an unlawful stop and frisk. The Stateconcedes on app

eal that the trial

court erred in

overruling the Defendant’ s motion to suppress. We agree; accordingly, we reverse the Defendant’s convictions and dismiss the case.

Tenn. R. App. P. 3; Appeal of Certified Questi

on; Judgment of the T

rial Court is Reve

rsed; Case Dismissed

W ELLES , J., delivered the opinion of the court, in which T IPTON ,J., and L AFFERTY ,S R .J., joined.
Matthew M. Maddox, Huntingdon, Tennessee for the appellant, Fred Arthur Stier.

Paul G. Summers, Attorney Generaland Reporter, Mark E. Davidson, Assistant Attorney

General, Robert "Gus" Radford, District Attorney General, for the appellee, State of Tennessee.

OPINION

Two police officers with the Henry County Sheriff’s Department testified at the suppression hearing. Officer Scott Lynn Wyrick stated that on February 20, 1998, he was working as a narcotics officer with the Sheriff’s Department. He said that one or two days before February 20, he received information from a “concer ned citizen” tha

t th e Defen dant “would possibl y be carrying some cocaine to the Henry County area” on February 20. The informant told Officer Wyrick the type of
car the Defendant would be driving, the license number of that car, an approxima

te time that the Def en dant would be in Henry County, and that the Defendant would be coming from Antioch, Tennessee. Officer Wyric k provided very lit

tle information about the informant other than that the-2-

informant was a “concerned citizen” as opposed to someone

from the “crimina

l milieu.” He said

that the informant contacted him with the information and that he met with the informant in person. He didnot ask the person why he or she was providing the information. He said that he had previously received information about

an alleged drug dealer from this informant, but he did not follow up on the information.

Officer Wyrick testified that based on the information from the i nformant, he set up surveillance and located

the Defendant at about

1:00 or 1:30 in the afternoon in Paris, Tennessee on February 20, 1998. The Defend ant was parked at the Union Planters Bank when he was located. Officer Wyrick said that he did not think he had probable cause to obtain a search warrant to search the Defendant’s car, so he told the other officers to observe the Defendant when the Defendant left the parking lot and to pull the Defendant over if he committed a traffic violation. Officer Wyrick
was informed by Offic

er Archie that th

e Defendant com

mitted some traffi

c violations, but he

didnot personally see th

e Defendant viol

ate any traffic

laws.
Officer Donnie Archie testified that he was employed in the uniform patrol division of the Henry County Sheriff’s Department on February 20, 1998. He received information from Officer Wyrick to stop the Defendant

if the Defendant committed a traffic violation. He was also informed by Officer

Wyrick that the Defendant was possibly bringing drugs into Henry County from Antioch. He said that he observed the Defendant “make an illegal right turn” and that one of the bulbs in the Defendant’s left tail light was inoperative. He explained that the street upon which the Defendant
was driving was divided into a left turn lane, a lane that went straight, and a lane to turn right. The Defendant

was in the lane that went straight, but he turned right from that lane at the intersection. The Defendant did signal briefly before turning.

Officer Archie testified that he stopped the Defendant based only on these traf

fic violations. He asked the Defendant whether he had any weapons on his person and told the Defendant that he “needed t o pat him down” for safety. He said th

at did not have any

reason to think tha

t he migh t have been in

danger, bu t he “pat[s] down everybody that [he] ask[s] to get out of the car.” When questioned about this procedure by the trial judge, Officer Archie said that he would have patted down a seventy-five year old grandmother or grandfather

if he or she had c

ommitted the same tr

affic violation.

Officer Archie said that w

hile he was “patting [the Defendant] down,” he felt a bulge on the inside of one of

the Defendant’s socks. At this point, the Defendant attempted to run from Officer Archie. The Defendant

was app rehended and placed under arrest. Drugs were found in the Defendant’s sock and in the vehicle.

After he a ring this testimony, the trial court ruled that “Officer Wyrick had reasonable and trustworthy information from a responsible citizen that a felony was going to be committed and had the details of

the felony to the extent that he could have obtained a search warrant. . . . He could have stopped the vehi cle at the bank and searched the man because he had probable cause.” The trial court thus found that the stop of the Defendant’s vehicle and sub sequent s earch of the Defendant-3-

were lawful because

the officers ha

d probable cause

to believe that the Defendant was transporting drugs. With respect to the traffic stop, the trial judge stated,
Now, the traffic stop itself, t h ere’s nothing in the world that says you can search a person’s socks for making a wrong right-hand turn a nd not having a tra

ffic [sic] light. And I suspect that if

that’s what the policy is now we’re getting ready to get a bunch of lawsuits here. The first

time they grab some

body’s granny and

search her soc

ks, well, she’s going to file a lawsuit. And that’s not the law, and, to my knowledge, it’s
never been the law. You don’t arrest people for this, you give them a traffic citation. A traffic stop doesn’t have any thing to do with

this lawsuit. The ma

n had probable cause, he had a good search. Let the motion to suppress be overruled.

On appeal, the Defendant argues that the trial court erred in finding the officers had probable
cause to stop the Defend

ant and search h

is p erson a nd his car. He argues that the officers did not have reasonable suspicion of criminal activity to justify an investigatory stop of the Defendant based
on the informant’s ti

p, that the office

rs did not have probable cause to believe the Defendant committed a traffic

violation, and that they did not have reasonable suspicion that the Defendant was armedto justify the “pat-down” of the Defendant. The State asserts that it is not necessary to ad

dress whether the informant’s tip provided the officers with probable cause or reasonable suspicion to stop the Defendant because Officer Archie tes t ified that he stopped the Defendant based only on the allegedtraffic violatio

ns. The State then con cedes that the of ficer did not have

probable cause

to believe the Defendant

committed a traff

ic violation or rea

sonable suspicion to believe the Defendant
was armed and

dangerous; thus, the seizure and subs equent search o

f the Defendant

were unlawful. We agree. We also conclude that the officers did not have probable cause or reasonable suspicion to seize the Defendant’s vehicle based on the informant's tip.
When reviewing the grant or denial of a motion to suppress, we accept the trial court’s findings of

fact unless the evidence preponderates otherwise. See State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, t he application of the law to the fac

ts as found by the tr

ial court is a question of law which the appella te court reviews de novo

. See State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997) (ci

t ing Beare Co. v. Tennessee Dept. of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993)). Because the facts in this case are undisputed, we are called upon only to address questions of law. As such, our review of the decision below will be de novo

.
Both the United States and Tennessee Co nstitutions protect

against unreasonable searches and seizures. See U.S. Const. amend IV ; Tenn. Const. art. 1, § 7. Under both the United States and Tennessee Constitutions, a search or seizure conducted without a warrant is presumed unreasonable. See Coolidge v. New Hampshire , 403 U.S. 443, 454-55 (1971); State v. Simpson , 968 S.W.2d 776, 780 (Tenn. 1998); State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). Therefore, evidence seized
as a result of a sea

rch or seizure c

onducted without a

warrant must be su

ppressed unless th

e State proves by a preponderance of the evidence that the search was rea sonable. See id.
The stop of anautomobile and the detention of its oc

cupants constitute

s a seizure, eve

n if the purpose of the stop is limited and the detention is brief. See Wren v. United States , 517 U.S. 806,-4-

809-10 (1996); Delaware v. Prouse , 440 U.S. 648, 563 (1979); United States v. Ma rtinez-Fuerte, 428 U.S. 543, 556-5 8 (1976); State v. Vineyard , 958 S.W.2d 730, 734 (Tenn. 1997). Thus, the Defendant

in this case was seized by Officer Archie when his auto mobile was stopped, thereby calling into play the prote ctio ns of the United States and Tennessee Constitutions. However, a police officer may stop or “seize” an automobile without a

warrant if the of

ficer has proba

ble cause to believ e that a criminal offense or a traffic violation has occurred. See Wren , 517 U.S. at 810 ; Prouse , 440 U.S. at 655, 659; Vineyard , 958 S.W.2d at 734. If the officer ha s probable cause to believe that a violation of the traffic code has occurred, the s eizure will be uph

eld even if the stop is a complete pretext for

the officer’s subjective motivations in making the stop. See Wren, 517 U.S. at 813-17; Vineyard , 95 8 S.W.2d a t 734-35. A police officer may also seize an automobile and question its occupants if the o fficer has rea

sonable suspicion,

based on specific

and articulable

facts, that the occupant s have been involved in or are about to be involved in criminal activity. See Ornelas v. United States , 517 U.S. 690, 693 (1 996); Terry v. Ohio , 392 U.S. 1, 30 (1968) ; Statev. Simpson , 968 S.W.2d 776, 780 ( Tenn. 1998); State v. Vineyard , 958 S.W.2d 730, 734 (Tenn. 1997).

The facts forming the basis for the officer’s probable cause or reasonable suspicion neednot rest upon the personal knowledge or observation of the officer. See Adams v. Williams , 407 U.S. 143, 147 (1972); Simpson , 968 S.W.2d at 780. H owever, when a s

t op is based on the tip of an informant, the danger of false reports becomes a concern. See State v. Pulley , 863 S.W.2d 29, 31 (Tenn. 1993). Consequently, wemust apply tests for determining the reliability of an informant’s tip. Id. Under

Tennessee law, to establish probable cause based on an informant’s tip, there must be a showing of both the informant’s credibility and his or her ba sis o f knowledge. See State v. Jacum in , 7 78 S.W.2d 430, 436 (Tenn. 1989). Although reasonable suspicion “requires ‘a lower quantumof proof than probable cause,’” these Jacumin factors are use

ful in consi dering the reliability of an informant’s tip for establishing reasonable suspicion as well as pr ob able cause. Pulley , 863 S.W.2d at 31. Our supreme court has maintained that “while independ ent police corroboration c

ould make up defic

iencies in either prong, each pron

g represents an i

ndependently importantconsideration that ‘must be separat

ely considered and satisfied in some way.’” Jacumin , 778 S.W.2d at 436.

In considering the reliability of informant

tips, the supreme court has distinguished between informat ion provide d by a known citizen informant and information provided by a criminal or professional informant. See State v. Stevens , 989 S.W.2d 290, 293 (Tenn. 1999); State v. Melson , 638 S.W.2d 342, 354 (Te

nn. 1982). Inform

ation provided by a

citizen or bystan

der witness who is known to the officer is

presumed to be reliable; thus, the State is not required to establish either the informant’s credibility or the reliability of the information. See Stevens , 989 S.W.2d at 293. This is because an ordi

n ary citi zen who reports a crime does so with an intent to aid the police in law enforcement due to his or her concern for society or for his or her own safety; on the other hand, a criminal informant gener ally reports crim

es in exchange for some type of consideration from the police. See id. at 294; State v. Luke , 995 S.W.2d 630, 636 (T enn. Crim . App. 1998). Notwithstanding, for an informant to be considered a citizen informant as opposed to a cri minal informant, there must be some evidence of the

informant’s statu

s or relationsh

i p to the events or persons involved, indicating the informant’s basis of knowledge. See Luke , 995 S.W.2d at 637. As our supreme court noted in State v. Stevens with respect to inf ormants who repor

t drug crimes,-5-

[A]s a general proposition it is an inf ormant from the criminal milieu rather than a law-abiding citizen who is most likely to be present under such circumstances

. This is not to suggest

that a person giving information about the location of narcotics may
nev er qualify as a citizen-informer, for it is sometimes possible to show wit h particularity

how a law-abiding individual happened to come upon such knowledge. R ather, the point is that in such a case it should not be deemed sufficient that th e police have alleged in a rather conclusory fashion that the person was “an

individual who is neither a paid nor habitual informant ,” “aresponsible citiz en of utmost character and integrity” or “a reputable member of the community.”Perhaps a more particularized

showing of the law-abiding nature of the person s uppl ying the information will suffice.

Stevens , 989 S.W.2d at 294-9 5 (emphasis in orig

inal) (quotin

g 2 Wayne R. LaFave, Search and Seizure § 3.4(a) (3d ed. 1996)).

The evidence here contains only conclusory allegations tha t t he informant was a “citizen informant”

who was not from the “criminal milieu.” Officer Wyrick testified that the informant provided information beca use he was conce

rned for his

safety, but the of

ficer did not expl

ain how the informant was related to the events or parties. Under Stevens , we do not believe this is enough evidence for

the informant to be

considered a cit

izen informant. A

lso, as the supreme

court noted in Stevens , a citizen infor mant “‘usually wou

ld not have mor e than one opportu nity to supply information to the police, thereby precluding proof of his reliability by pointing to previous accu rate information which he has supplied.’” Id. at 294 (quotin g St ate v. Smith , 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993)). Officer Wyric

k testifie d that this informant had provided information about a drug dealer in the past, even though the officer did not follow up on the information. This goes against the finding that the informant was mer

ely a concerne

d citizen who happ

ened upon some information about drug transactions. Therefore, we may not presume the informant’s credibility or the reliability of the information, and we must apply the test for relia

bility espoused by th

e supreme court in Jacumin

. See 778 S.W.2d at 436.

We first find that the

re is no proof of the informant’s credibility or his basis of knowledge. The only testimony was that the informant was a “concerned citizen.” Since the informant cannot be considered a cit

izen informant, th

is is not sufficient to satisfy the requirements of Jacumin

. See Stevens , 989 S.W.2d at 294-9 5. Recognizing tha

t deficiencies in

eit he r of the two prongs of the Jacumin test may made up by independent police corroboration, see Jacumin , 778 S.W.2d at 436; Pulley , 863 S.W.2d at 31, we further find th

at there was insuff

icient corrobor

ation in this case to make up for the defici

encies. Office

r Wyrick testifie

d that the informan

t to ld him the Defendant would possibly be coming f

rom Antioch to Henr

y Countywith drugs, along with the appr oximate time the Defendant would be in Henry County, the Defendant’s make and model of car, and the license number on the car. Officer Wyrick located the Defendant in the car as describe d. These facts
are substantially simila

r to those in State v. Coleman , 791 S.W.2d 504 (Te nn. Crim. App. 1989) , in which we found no probable cause or reasonable suspicion to stop the defendant’s vehicle.-6-

In Coleman , an informant, wh om the officer “

had previously

arrested,” told the officer that between2:00 and 2:30 p.m. on August 10, a w hite female betw

een the ages of tw

enty-five and thi

rty five whose name was Carla would be en route to Rob ertson Co unty from Davidson County on Highway 431 South. Id. at 504. The informant further stated that Carla would be driving an older model black Monte Carlo , that she would hav e several pounds

of marijuana, an

d that she would ultimately

drive to a location on Washington Road. Id. The informant did not explain how he knew this information. Id. The officer instructed other officers

to stop any vehicle

meeting the description given. Id. Around 2:30 p.m. on August 10, after about forty-five minutes of surveillance, an officer observed an older model black Monte Carlo traveling from Davidson County to Rob ertson County
on Highway 431 South

. Id. The officer ran a check on the license plate, learned the plates were registered in the name of Carl

a Coleman, and the

n initiated a sto

p. I d. at 504-05. In holding that the officer did not have probable cause or reasonable suspicion to stop the vehicle, we stated,

We know of no attempt ma de by the officer

s t o verify the credibility of the ir i nformant or the reliability of the information provided. The detention took p lac e before the officers ha

d an opportunity to

corroborate Washington Road in Robertson Co unty a s the point of final destination. There was no significant period of surveillance before the deputy made the investigative stop. That the car was in fact registered in the nam e of Carla Coleman, innocent in and of

itself, was the onl

y independently acquired fact supporting the tip’s veracity.

Id. at 506.
Here, as in Coleman , the facts corrobo rate d were innocent in and of themselves. The Defendant

was in his car in

Henry County. That the De fendant owned a

particular vehi

cle and would be in Henry County on a particular day were facts readily discoverable. Similar facts could be discovered

about many of the o ther people who were in Henry County that day. Without more information about the informant’s credibility or basis of knowledge concerning drug activity, this
was not enough evidenc

e to establish eithe

r probable

cause or reasonable suspicion to the make the stop to search for drugs. Thus, the trial court erred in finding that the officer’s stop was lawful based on the informant’s tip.

We now turn to the traf

fic violations. Officer Archie testified that he stopped the Defendant because the Defendant c

omm itt ed two traffic violations. It is clear that if Officer Archie had probable cause to believe the Defendant committed a traffic violation, he could stop the Defendant for the violation even

if his subjective intention was to investigate drug transportation. Wren, 517 U.S. at 813-17; Vineyard , 958 S.W.2d at 734-35. However, the State concedes that the testimony didnot establish t hat O fficer Archie had probable cause to believe the Defendant committed any traffic violations.

Officer Archie testified that one of the Def endant’s brake lights on the left side was inoperable, thereby indicating that the Defendant had more than one brake light on each side and that at least one of the brake lights on each side was working. Office r Archie chara

cterized this as a violation of the “light law.” The relevant statute is Tennessee Code Annotated § 55-9-402(b)(1)-(3),-7-

which requires all motor

vehicles to be equ

ipped with one red

tail lamp and one red “stoplight” on eachside of the vehicle, requires the “stoplight” to be visible upon the depression of the brake, and provides that the “stoplight” may be inco rporated with the tail lamp. Because it appears the Defendant

had at least one brake light visible on each sid

e of his car, he w

as not in violation of

this statute. Curiously, the Defe ndant was not charged with a violation of the relevant “light law.” Instead, he was charged with violating Tennessee Code Annotated § 55-9-401(a), which provides as follows:
Every vehicle other than a motor vehicle , when traveling upon a state highwa y, state aid road or other road, highway or street . . . shall be equipped with a light attached to and on the upper left side of such vehicle, capable of displaying a light visible five hundredfeet

(500') to the rea

r of such vehicle

under ordinary a

tmospheric condit

ions, and such light shall be displayed during the period from one-half (1⁄2) hour after sunset to one-half (1⁄2) hour be fore sunris e and at all other times when there is not sufficient light to render clearly discernible any person on the road or highway at

a distance of two hundred feet (200') ahead of such vehicle.
(Emphasis

added). Because the Defendant was driving a motor vehicle and because he was driving in mid-afternoon, this statute is clearly inapplicable.

Officer Archie also testified that the Defendant made an improper right turn from the center lane. However, the State failed to establish what traffic law this turn violated. We have found no law which is clearly applicable. Therefore, we must hold that the State failed to meet its burden of establishing by a preponderance of the evidence that the

police officer

s had probable

cause to believe the Defendant had committed a traffic violation which would have justified the stop of the Defendant’s vehicle. Accordingly, we conclude that the stop of the Defendant’s vehi cle wa s not justified by either probable cause or reasonable suspicion, thereby making the stop unlawful under the Fourth Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution.

Because we hold that the stop of the Defendant’s vehicle wasunlawful, we need not address the actual search of the Defendant. Notwithstanding, we will briefly discuss the “pat-down” of the Defendant

after the seizure. Officer Archie testified that he had no reason to believe either that he
was in danger from the Defendant or that the D efendant was armed, but he frisked the Defendant because that is his standard procedure. He said that he would frisk a seventy- five year ol d grandmother

who com mitted the s ame traffic violation. In Terry v. Ohio , 392 U.S. 1 (1968), the Supreme Cou rt approved the limited and temporary seizure of a person for questioning and for a “pat-down” for weapons if an o ffi cer has a “reasonable suspicion” that the person is armed and dangerous. Id. at 30. Terry did not approve a “pat-down” for weaponsas standard procedure. See id. Assuming for the sake of argument that Off

icer Archie did h

ave probable ca

use to believe the Defendant

committed a traffic violation, that still did notgive him a reasonable suspicion that the Defendant

was armed and da

ngerous. If the D

efendant had co

nsented to

a search upon questioning-8-

by the officer, that would present a different issue; but where the only lawful reason to stop a vehicle is because of a traffic violation, there must be other circumstances givin g rise to a reason

able suspicion that the occupan t is armed and dang

erous before a

“pat-down” for

weapons will b

e justified.

CONCLUSION

We conclude that the

trial court erre

d in finding that the

police officer

s had probable

cause to stop the Defend

ant’s vehicle

based on the tip from the informant. We further conclude that the stop was not justified based on reasonable suspicion of criminal activity or probable cause to believe the Defendant had committed a traffic violation . Theref ore, the seizure of the Defendant was unlawful, and the evidence obtained as a result of that seizure must be suppressed. The order of the trial court overruling the Defendant’s motion to suppress is reversed, and the case is dismissed.