IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
JULY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR-00037 )
Appellee, ) CARTER COUNTY )
) HON. LYNN W. BROWN, JUDGE V. )
)
TER RY FR EEM AN, ) (CERT IFIED QU ESTIO N OF L AW ) POS SES SION OF SC HED ULE VI Appe llant. ) DRUGS WITH INTENT TO SELL)
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 606 West Main Street, Suite 350 P.O. Box 84 SANDY COPOUS PATRICK Knoxville, TN 37901-0084 Assistant Attorney General (On A ppea l) 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
Nashville, TN 37243-0943
DAVID F. BAUTISTA DAVID E. CROCKETT District Public Defender District Attorney General
ROBERT Y. OAKS KEN NET H C. B ALDW IN Assistant Public Defender Assistant District Attorney General Main Courthouse Carter County Courthouse Annex Elizabethton, TN 37643 Elizabethton, TN 37643 (At Tr ial)
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
Pursuant to a nego tiated plea agreem ent, the D efenda nt, Terry Freeman, pled guilty in the Criminal Court of Carter County to the Class E felony offense of possession of marijuana with intent to sell. The trial court denied the Defe ndan t’s motion to suppress evidence. With the consent of the State and the trial court, Defendant reserved the right to appeal a certified question of law which is dispos itive of the cas e. See T.R.A.P. 3(b)(2). The precise question of law certified in this appeal is as follows: “Whether the stop of the Defe ndan t’s vehicle was made with reasonable suspicion based on articulable facts under the Tennessee and U nited Sta tes Con stitutions.” We affirm the judgment of the trial court.
On September 19, 1995 , Dete ctives G rayso n W inters a nd Ro nnie McClure received information from a confidential informant that Terry Freeman would be leaving his residence at 227 South Hills around 1:00 p.m. or 2:00 p.m. to go to his work at Red Lobster. The informant also sta ted tha t Defe ndan t would be driving a Silver Toyota vehicle and would have marijuana in his possession. Further, the informant advised the officers that Defendant had a revoke d drive r’s license.
The officers went to the area of the address on September 19 after checking Defe ndan t’s driver ’s licens e histo ry and confirm ing tha t it was in a revoked status. They observed the described vehicle at the residence and stayed in the area for a brief period of time, but did not see the Defendant leave.
3
The officers did not know the confidential informant prior to September 19 and obviou sly had never used information from the person on any prior occasion. On September 20, 19 95, the officers again went to Defendant’s residence between 1:00 and 2:00 p.m. They saw the describe d silver To yota leave the residence at 227 South Hills, but could not positively identify Defendant because all that they could se e was th e back of the driver a s the veh icle pulled o ut.
Detective Winters testified that they immediately began following the vehicle, radioed to the dispatcher for a check on the license plate number of the car, and were informed that the vehicle was registered to Defendant. The officers then stopped the Defendant. This stop by the officers is the specific action comp lained of b y Defen dant in this appea l.
In this court, the Defendant principally relies upon ou r court’s decisions in State v. Coleman, 791 S.W.2d 504 (Tenn. Crim. App. 1989) and State v. Norword, 938 S.W.2d 23 (Tenn. Crim. App. 1996). In Norword , our court recognized that sto pping an au tomo bile an d deta ining th e occ upan ts is a seizure within the meaning of the 4th and 14th Amendments of the United States Constitution “even though the purpose of the stop is limited and the resulting detention quite brief.” 938 S.W.2d at 24, quoting from Delaware v. Prouse, 440 U.S. 64 8, 653 (1 979).
Furthermore, our court in Norword specifically held:
In som e circu msta nces , an offic er may briefly detain a suspect without probable cause in order to investigate possible criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979). In these situations, an inve stigato ry stop is
4
only permissible when a police officer h as a re ason able suspicion, supported by specific and articulable facts, that a criminal offense has been or is about to be com mitted. Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 18 79-80, 20 L.E d.2d 889 (1 968). In order to determine specific an d articulab le facts, this C ourt mu st consider the “totality of the circumsta nces.” United States v. Cortez, 449 U.S.
411, 41 7, 101 S .Ct. 690, 6 94-95, 6 6 L.Ed.2 d 621 (1 981).
Norword , 938 S.W.2d at 24-25.
In Norword , the defendant was operating a vehicle which belonged to the arres ting officer’s brother. The officer knew that his brother did not regula rly loan the vehicle. While on routine patrol, the officer saw the car being driven by a stranger and based upon this “suspicious” circumstance, the officer stopped the defendant and ultimately found marijuana, drug paraphernalia, and that the de fenda nt was driving th e vehic le with a revoked licen se. Our cou rt ruled that the police officer had no specific objective basis for suspecting criminal involvement by the de fendan t and th at therefore the stop violated the defen dant’s rights gua ranteed by the Fo urth and Fourtee nth Ame ndme nts to the United S tates Co nstitution. Norword , 938 S.W .2d at 25.
In Coleman, our court affirmed the judgmen t of the trial court granting the defendant’s motion to suppress evidence seized as a result of an investigatory stop by a law enforce ment o fficer. In that case, the defendant was stopped for inves tigation base d upo n inform ation received from a confidential informant who had never before been used as a source of information in any police investigation and did not reveal to the officer the basis of his or her knowledge conce rning the informa tion. Our court specifically noted that the stop was not ma de upo n the office r’s own o bservatio ns. In Coleman, the grounds for
5
justifying the investigato ry stop we re related solely to the inform ation pro vided to law enforcement officers by the c onfide ntial info rman t. Our c ourt he ld that even though the vehicle was registered in the name of a person who had the same first name as provided by the informant, that this was not enough to provide reason able an d articulab le suspic ion to justify the stop and detention .
Howeve r, the facts in the case sub judice are more similar to the facts involved in State v. Watkins, 827 S.W.2d 293 (Tenn. 1992) than the facts in Norword and Coleman. In Watkins, one of the arresting officers had personal knowledge that there was a capias outstanding for Watkins’ arrest. Other police officers had informed the arresting officer that defendant drove a black Cadillac vehicle which had the words “The Duke” inscribed on the car. On the date of the arrest, the officer and his partner were parked when they observed the particular black Cadillac drive by them. Due to the outstanding capias, the officers decided to stop the vehicle an d “investigate the iden tity of the driver.” W atkins, 827 S.W.2d at 294.
After the defendant identified himself at the request of the arresting officer, a call was made to the police dispatcher to verify the capias, and defendant was then placed under arrest. The defendant argued on appeal that the seizure of his vehicle by way of the in vestiga tory sto p was a violatio n of his rights guaranteed by the Fourth Amendment to the United States Constitution.
Noting that a court must consider “rational inferences and deductions” that a police officer may draw from the facts and circumstances known to him, our supreme court rejected the defendant’s argument and held:
6
Considering the totality of these circumstances, we find that the police officers had the required reasonable suspicion, supported by specific and articula ble facts, that the defendant was the driver of the vehicle and that he was the person wanted on the outstanding capias.
Watkins, 827 S.W.2d at 295.
In the case sub judice, the officers knew from verified information that the De fenda nt’s drive r’s licen se wa s in a revoked status. They observed a white male driving the vehicle registered in Defendant’s name on a public road. Under W atkins, there were sufficient specific and articulable facts to make an investigatory stop to determ ine the identity of the driver. Eve n if the officers thought that they ha d enou gh inform ation to base the stop solely upon the information obtained from the confidential informant (which they did not since the neither the basis of kn owledg e nor the veracity of the in forma nt is shown in the record), the sto p is still legal if it is based on reasonable grounds other than those relied upon b y the officers . See State v. Smith, 787 S.W.2d 34, 35 (Tenn. Crim. App. 19 89).
The judgment of the trial court is affirmed.
7
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
(See Separate Concurring Opinion)____ DAVID H. WELLES , Judge
(See Separate Concurring Opinion)____ JOHN K. BYERS, Senior Judge
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
JULY SESSION, 1997
FILED
October 22, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
C.C.A. NO. 03C01-9701-CR-00037 Appellate C ourt Clerk
)
Appellee, )
)
) CARTER COUNTY
VS. )
) HON . LYNN W. BR OW N, TERRY FREEMAN, ) JUDGE )
Appe llant. ) (Certified Question of Law ) Possession of Schedule VI ) Drug s with In tent to S ell)
CONCURRING OPINION
I concur in the opinion of my colleague, Judge Woodall. I agree that, under our supreme court’s holding in State v. Watkins, 827 S.W .2d 293 (Te nn. 1992), the police officers in the present case had the required reasonable suspicion based on specific and articulable facts to make an investigatory stop of the Defen dant. I write separately, how ever, to exp ress m y conce rn abou t a significant difference between Watkins and the case sub judice.
As Judge Woodall points out, an investigatory detention, although less intrusive than a full-blown arrest, is neverthele ss subject to the constitutional protection of the Fo urth Am endm ent against “unreasonable searches and seizures .” Terry v. O hio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Interactions between the police and the public that constitute seizures but not arrests are judged by their reasonableness rather than by a showing of proba ble cause . Id. The reasonableness of the intrusion is “judged by weighing the gravity of the public concern, the degree to which the seizure advances that
9
concern, and the severity of the intrusion into individual privac y.” State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993) (citing Brown v. Texas, 443 U.S . 47, 50, 99 S.Ct. 2637, 264 0, 61 L.Ed.2d 357 (1979 )).
The law is well settled in Tennessee that an investigative detention requires only a showing of reasonable suspicion rather than probable cause. See, e.g., Watkins, 827 S.W.2d at 294. Reasonable suspicion must be based on spec ific and articulable facts that a criminal offense has been or is about to be committed. Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Pulley, 863 S.W.2d at 30; Watkins, 827 S.W .2d at 294 ; State v. Seaton, 914 S.W.2d 129, 131 (Tenn. Crim. App. 1995). In evalu ating w hethe r reaso nable susp icion is b ased on sp ecific and articula ble facts, we must consider the totality of the circumstances, including the personal observations of the police officer, information obtained from other officers or agencies, information obtained from citizens, and the pattern of operation of certain o ffenders . Watkins, 827 S.W.2d at 294 (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)); see also Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); Pulley, 863 S.W.2d at 31. We must also consider the rational inference s and d eduction s that a trained police officer may draw from the circumstances. Watkins, 827 S.W.2d at 294 (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 2 0 L.Ed.2d a t 906).
In Watkins, one of the police officers had personal knowledge that a capias was outstanding for the defendant’s arrest. He had also learned from other officers that the defend ant frequently drove a black Cadillac which had the words “The Duke ” written on the vehicle . The c ar was registe red to th e defe ndan t’s
10
mother. On the day in q uestion, the officer an d his partner ob served the black Cadillac drive by them. Be cause of the o utstanding ca pias, the officers decided to stop the vehicle and investigate the identity of the driver. After the stop of the vehicle, the defen dant iden tified hims elf to the officers. They confirmed with the police dispatcher that there was an outstanding capias for the defendant’s arrest and the n placed the defen dant un der arres t. Watkins, 827 S.W.2d at 294-95.
On appe al, our s uprem e cou rt rejecte d the d efend ant’s argument that the investigatory stop of the black C adillac was n ot sup ported by reas onab le suspicion. In so doing, the court held as follows:
Considering the totality of these circumstances, we find that the police officers had the required reasonable suspicion, supported by specific and articulable facts, that the defendant was the driver of the vehicle and that he was the person wanted on the outstanding capias.
Id. at 295 (empha sis added). Thus, the court concluded that the defendant had not been subjected to an unconstitutional stop.
I agree with Judge Woodall that the Watkins holding controls the case at bar. In the present case, the officers knew that the Defendant’s driver’s license was in a revoke d status. One of the officers had arrested the Defendant in 1987 and apparently knew that he was a white male. The officers observed a white male driving a ve hicle regis tered to the Defen dant. Prior to stopping the vehicle, however, the o fficers did not know the identity of the driver.
From these facts, I believe that the co nstitutiona lity of the stop in the case sub judice turns on the question of whether the officers had a reaso nable suspicion that the driver of the vehicle was the Defendant. Under similar
11
circumstances, the Watkins court stated that the officers in that case had sufficient reasonable suspicion “that the defendant was the driver of the v ehicle.” Watkins, 827 S.W.2d at 295. Given that language from Watkins, I can only conclude that the officers in the case at bar had a reasonable suspicion supported by specific and articulable facts that the Defendant was the driver of the vehicle that they stopp ed. Accordin gly, I agree w ith Judge Woodall that the stop of the Defendant’s vehicle wa s a constitutionally perm issible investigatory stop.
I believe, however, that the existence of a cap ias for th e defe ndan t in Watkins is highly significant. In my judgment, the existence of a capias for the defendant in Watkins heightens the gravity of the public concern, one of the factors courts must we igh to evaluate the re asonablen ess of an inves tigatory stop. See Pulley, 863 S.W.2d at 30. T he he ighten ed gra vity of the public concern involved in Watkins tips the balance m ore in favor of the stop being reasonable than in the case sub judice, where there was no capias for the Defen dant. Furthermore, I believe that the actions of the o fficers in Watkins, who stopped the de fenda nt bec ause of the o utstan ding c apias , were n ot sole ly investigatory but were also aimed at ensuring the efficient administration of the criminal justice system by taking the defendant into custody. In contrast, the actions of the officers in the present case we re purely in vestigator y, seeking to confirm information about possible traffic and drug offenses.
The Watkins court did not, however, note any special significance for the outstanding capias in the analysis of the reasonableness of the stop. Instead, the plain language of the opinion clearly and simply states that the officers had
12
reaso nable suspicion that the defendant was the driver of the vehicle. Given that language, I feel constrained by the holding in W atkins to conclude that the investigatory stop of the Defendant in the case at bar was supported by reaso nable susp icion. I th erefor e con cur in th e opin ion of J udge Wo odall.
____________________________________
DAVID H. WELLES, JUDGE
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY 1997 SESSION October 22, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701- CR-00037 )
Appellee ) CARTER COUNTY )
v. ) HON. LYNN W. BROWN, ) JUDGE
TERRY FREEMAN, )
) (Certified Question of Law Defendant/Appellant ) Possession of Schedule VI ) Drug s with In tent to S ell)
CONCURRING OPINION
I concur in the Concurring Opinion written by Judge Welles.
John K. Byers, Senior Judge