State v. Kelly

948 S.W.2d 757, 1996 Tenn. Crim. App. LEXIS 733
CourtCourt of Criminal Appeals of Tennessee
DecidedNovember 25, 1996
StatusPublished
Cited by9 cases

This text of 948 S.W.2d 757 (State v. Kelly) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelly, 948 S.W.2d 757, 1996 Tenn. Crim. App. LEXIS 733 (Tenn. Ct. App. 1996).

Opinion

OPINION

WELLES, Judge.

This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. In his plea agreement, the Defendant pleaded guilty to possession of cocaine for resale, a Class B Felony. He expressly reserved a certified question of law that is dispositive of the case. The certified question originates from the trial court’s denial of a motion to suppress evidence obtained from a search of the Defendant’s automobile. We affirm the ruling of the trial court.

On February 23, 1995, Officer Nichols, with the Special Operations Unit of the Clarksville Police Department, received several anonymous telephone calls pertaining to the Defendant. The same person made three separate calls to the police. During the first call, the caller stated that the Defendant, Ricky Kelly, and a black male passenger would be leaving Clarksville, Tennessee and driving towards Dickson, Tennessee in a 1980’s model gray Cadillac. The caller told the officer that the automobile contained drugs and directed the officer to Riverside Drive, in Clarksville. A few minutes after Officer Nichols left, there was another call, which the secretary answered, but the caller insisted on speaking only to Nichols.

Officer Nichols was notified and returned to the station. He received a third call from the same person, who stated that Ricky Kelly was “leaving now” and going towards Dickson. Officer Nichols returned to Riverside Drive along with two officers in another police cruiser. Shortly thereafter, they observed a gray vehicle traveling on Riverside Drive. The officers observed the vehicle until it turned onto highway 48/13, towards Dickson.

Officer Nichols knew the Defendant, Ricky Kelly, prior to receiving the anonymous call. He was aware that the Defendant had a history of arrests in Clarksville, that he had a reputation for dealing drugs there, and that there was a pending criminal case from a drug arrest in Dickson.

Sergeants Atkins and Hagewood were in the cruiser closer to the Defendant and observed a four-door Oldsmobile or Cadillac with tinted windows. The number of persons in the vehicle was unclear. At the direction of Officer Nichols, who was following behind them in traffic, the officers used their emergency lights to stop the vehicle. The Defendant pulled the car into a service station. Apparently, there were other trucks and automobiles between the officers and the Defendant’s vehicle. Another automobile also was attempting to pull over, but Sergeant Atkins motioned to the Defendant to pull over. The Defendant contends that the officer had his service revolver in his hand when he waved the vehicle off the road. The officer testified that from his recollection, he did not display the gun.

The Defendant stepped out of his vehicle and Sergeant Atkins asked for his driver’s license. The Defendant asked why he had been stopped, and the officer said they were investigating a drug complaint and asked whether he had any weapons or drugs in the vehicle. Sergeant Atkins then asked whether he could search the Defendant and the automobile, and the Defendant consented to the searches. The officer also obtained consent from the other person in the vehicle, the owner of the ear. The Defendant was placed in a search position, patted down, but no contraband was discovered. Officer Nichols arrived and participated in the search of the vehicle. He discovered 67 rocks of crack cocaine in a plastic bag stuffed under the seat.

[760]*760The Defendant was indicted for one count of possession of cocaine with intent to sell and one count of possession of cocaine with intent to deliver.1 Pursuant to his plea agreement entered on November 17, 1995, the second count of the indictment was dismissed and this certified question was reserved for appellate review.

The Defendant argues that the initial stop of the the automobile was a seizure violating the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution. He contends that the stop was a warrantless seizure based on exigent circumstances requiring a showing of probable cause. Information provided by the anonymous tip and further corroboration by the investigating officers did not provide probable cause. Therefore, the Defendant argues that the subsequent search of his automobile and the cocaine seized was obtained illegally and that the evidence should be suppressed.

The State does not argue that stopping the Defendant’s automobile was not a seizure. It counters that the initial restraint of the Defendant was an investigatory stop of the vehicle, not rising to the level of a full-blown arrest. The State asserts that reasonable suspicion is the proper standard to evaluate the circumstances leading the police to the interaction with the Defendant.

First, the Defendant argues that the police officers “seized” him when they turned on their emergency lights and motioned for him to pull off the road. According to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), when a person is approached by a police officer and is restrained from leaving, this constitutes a seizure. 392 U.S. at 1, 88 S.Ct. at 1877. Our supreme court has applied Terry when an automobile is stopped by police. State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993). “When an officer turns on his blue lights, he or she has clearly initiated a stop.” Id. We agree that the police seized the Defendant.

Although less than a full-blown arrest, a Terry stop is subject to the constitutional protection of the Fourth Amendment against “unreasonable searches and seizures.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Interactions between the police and the public that are seizures but not arrests, are judged by their reasonableness, rather than by a showing of probable 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 concern, and the severity of the intrusion into individual privacy.” Pulley, 863 S.W.2d at 30 (citing Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979)).

Reasonable suspicion must be based on specific 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; State v. Watkins, 827 S.W.2d 293, 294 (Tenn.1992); State v. Seaton, 914 S.W.2d 129, 131 (Tenn.Crim.App.1995). Establishing the basis for reasonable suspicion is not limited to the personal observations of the investigating officer, and has been extended to include information supplied by another person. 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.

However, when information is provided by another source, this raises heightened concerns about the reliability of the information, such as the possibility of “false reports, through police fabrication or from vindictive or unreliable informants.” Pulley,

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Bluebook (online)
948 S.W.2d 757, 1996 Tenn. Crim. App. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-tenncrimapp-1996.