IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED JANUARY SESSION, 1999 March 23, 1999 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9803-CC-00126 ) Appellee, ) ) ) DICKSON COUNTY VS. ) ) HON. ALLEN W. WALLACE, MICHAEL ALLEN PRICE, ) JUDGE ) Appe llant. ) (Certified Question; Search and Seizure)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF DICKSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL J. FLANAGAN JOHN KNOX WALKUP White Bridge Road #208 Attorney General and Reporter Nashville, TN 37205 KIM R. HELPER Assistant Attorney General Fifth Avenu e North Nashville, TN 37243 DAN ALSOBROOKS District Attorney General ROBERT WILSON Assistant District Attorney General P.O. Box 580 Charlotte, TN 37036

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defen dant, Mic hael Allen Price, pleaded guilty to one count of possession of LSD with inte nt to se ll and one count of possession of marijuana with intent to sell. He reserved a certified question of law—whether sufficient articula ble facts existed to justify a reasonable sus picion supporting an investigatory stop of Defendant’s vehicle—which we now address. We conclude that the investigatory stop was based on specific and articulable facts such that the officer h ad rea sona ble suspicion that Defendant possessed illegal narcotics.

On September 19, 1997, officers seized 440 grams of marijuana and 50 squares, or “hits,” of LSD from Defen dant’s person and vehicle. Officer S tewart Goodwin, the Dickson County narcotics officer who effected the seizure, provided the only testimony at the trial court’s hearing on Defendant’s Motion to Suppress.

Based upon his testimony, we affirm the decision of the trial court to admit the seized e vidence .

According to Offic er Go odwin , he rec eived a teleph one c all from an informant with whom he had previously worked to facilitate ap proxima tely twenty drug “buys” over the course of two years. Goodwin stated that every time the informant told him he had ordered drugs from a dealer, the informant had been correct, and Goodwin considered him reliable. On this occasion, the informant told Good win that he heard fro m a frien d that Defendant dealt drugs. After consu lting with Goo dwin, the in forman t ordered a poun d of ma rijuana an d fifty hits of LSD, to be delivered on September 19, 1997.

-2- The inform ant told Office r Goo dwin th at the d ealer, a white m ale in h is early twenties named Michael Price, would deliver the drugs with an other m ale in a white ve hicle with o ut-of-cou nty plates to the Perfe ct Pig resta urant in W hite Bluff at 10:00 to 10:30 p.m. on Sep tember 19 . Goodwin a nd two other o fficers waited for the vehicle, which appeared at 10:40 that evening, after the restaurant had closed . The v ehicle , which Goo dwin s tated “e xactly” fit the description given by the informan t, entered the park ing lot of the Perfect P ig, slowly traveled through the lot, and then exited onto Hig hway 70 .

Officer Goodwin activated his blue lights and followed the vehicle, which did not yield to the officers for at least a mile, until it had reached the county line of Cheatham County. There is no question that after Goodwin performed the investigatory stop, he gathered sufficient prob able cau se to arre st Defen dant.

The sole issue certified to this Court is whether Goodwin possessed sufficient reaso nable suspicio n prior to activating his blue lights, thus initiating the Terry stop. See Terry v. Ohio , 392 U.S . 1 (1968 ); Whren v. United States, 517 U.S. 806, 809-10 (1996) (“Temporary detention of individuals during the stop of an autom obile by the police, even if only for a brief period and for a limited purpose, constitutes the ‘seizure’ of ‘persons’ within the me aning o f [the Fou rth Amen dment].”).

The United States Supreme Court in Dela ware v. Prouse, 440 U.S. 648 (1979), s tated, Except in those situations in which there is at leas t articula ble and reaso nable suspicio n that . . . either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automo bile and detaining the driver in order to che ck his driver's

-3- license and the registration of the automobile are unre ason able under th e Fourth Ame ndme nt. Id. at 663. In addition, when evaluating whether a police office r’s reas onab le suspicion is supp orted b y spec ific and articula ble facts, a court must consider the totality of the circumstances. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

In State v. Pulley, 863 S.W.2d 29 (Tenn. 1993), our supreme court uphe ld the constitutionality of an investigatory stop of a vehicle based upon an inform ant’s tip and concluded that traditional Jacu min criteria s hould be use d to determine whether the tip is “sufficiently reliable” to support a finding of reaso nable suspicion. Id. at 32 (referencing State v. Jacu min, 778 S.W.2d 430, 436 (Tenn. 1989) (holding th at the Te nness ee Co nstitution re quires fac ts indicating an inform ant’s basis of kno wledge an d veracity or credibility)).

As the United States Supreme Court expressed, Rea sona ble suspicion is a less demanding standard than proba ble caus e not o nly in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable tha n that req uired to sh ow prob able cau se.

Alabama v. Wh ite, 496 U.S. 32 5, 330 (1990 ). Recently, our sup reme cou rt observed that when applying this analysis to the area of informant’s tips, “the two- pronged test of reliability [in Jacu min] need not be as strictly applied if the inform ant’s tip is being used to establish reasonable suspicion rather than probable ca use.” State v. Simpson, 968 S.W .2d 776 , 782 (T enn. 19 98).

-4- In Jacumin , the court adopted the Aguilar-Spine lli test for magistrates determining whether probable cause exists to issue a search warrant. 778 S.W.2d at 436; see Aguilar v. Texas, 378 U.S . 108 (19 64); Spinelli v. United States, 393 U.S. 410 (1969). As modified for an investigatory stop, the test measures wheth er the tip was s ufficien tly reliable to perm it the inve stigating officer to determine whether “reasonable suspicion” existed. Pulley, 863 S.W.2d at 32. The test requires the officer to have facts that establish (1) the inform ant’s basis of knowledge of the information, and (2) circumstances indicating the veracity or credibility of th e inform ant. Jacu min, 778 S.W.2d at 432.

Furtherm ore, [c]ircumstances relevant to the evaluation include, but are not limited to, the officer’s personal objective observations, information obtained from other police officers or agencies, information obtained from citizens, and the pattern of operation of certain offenders . A court must also consider the rational inferences and deductions that a trained officer may draw from the facts and circumstances known to him.

State v. Yeargan, 958 S.W .2d 626 , 632 (T enn. 19 92).

W ithin this framework, we review whether the informant’s tip in this case was sufficiently reliab le to support the officer’s fin ding of rea sonab le suspic ion to stop Defen dant. “Ques tions of cre dibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the e vidence are m atters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Findings of fact by th e trial co urt upo n a m otion to supp ress w ill be up held unless the evidenc e prepo nderate s agains t them. Id. However, the application of law to these facts is a question of law, which an appellate court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Beare C o. v. Tennessee Dep’t of Revenue, 858 S.W .2d 906 , 907 (T enn. 19 93)).

-5- W e find this case to be analogous to the recent case of State v. Keith, 978 S.W.2d 861 (Tenn. 1998), in which the supreme court affirmed, on interlocutory appe al, denial of th e defen dant’s m otion to su ppress . Id. at 867. Wh ile the facts are not directly on point to the case at bar, we conclude that the result should be the same.

In Keith, a confidential informant who had previously given several reliable tips to police informed officers that the defendant and another man had been storing illegal narcotics at a precise location . Id. at 863. This confidential informant also provided a physical description of the m en. Id. Three da ys later, an anonym ous in formant told po lice that persons a t the same a ddress “we re involved in the possession and sale of illegal drugs.” Id. The anonymous informant claimed that he saw drugs inside the residence within four days of the call and that “shortly before placing the call he observed marijuana in a red Honda CRX vehicle which was pa rked ou tside the re sidence and sa w both suspe cts present at the res idence.” Id. Finally, this informant gave a physical description of both suspects that matched that given by the confidential informa nt. Id.

Officers corroborated portions of the inform ation given by both info rmants by setting up surveillance at the home after eac h call. Id. They observed persons matching the ph ysical description of the men leave the residence, get into the red H onda C RX, an d drive aw ay. Id. Officer s follow ed the vehicle for a short distance before stopping it and ultimately seizing the narcotics . Id. at 863- 64. The Keith court found that both prongs of the Aguilar-Spine lli-Jacu min test

-6- were met and that reasonable suspicion by the officers was suppo rted. Id. at 866-67 .

Likewise, in this case we conclude both (1) that the informant’s tip was sufficie ntly reliable to support a finding of reasonable suspicion, and (2) that Officer Goo dwin corroborated enough of the inform ation by d irect obse rvation to create a ctual reas onable suspicio n base d upon specific an d articulab le facts.

The tip satisfied the “basis of knowledge” prong of the Aguilar-Spine lli- Jacu min test because the informant had personally ordered specific types and quantities of drugs from D efendan t, sche duled to be d elivere d at a c ertain location on a certain date at a certain time. The tip satisfied the “veracity or credibility” prong because the officer testified he had received reliable and accura te tips from this confidential informant approximately twenty times in the past.

With respec t to indepe ndent corroboration o f the tip, O fficer G oodw in testified at the hearing on the motion to su ppress that he observed a man matching the description given by the informant, accomp anied by one passeng er, driving a vehicle matching the description, at the precise location given, at the approxim ate time g iven. Fu rtherm ore, the Perfe ct Pig restaurant was closed for business at that time, and the suspect drove slowly through the parking lot and back onto the road way for no app arent reason. As a matter of law, Officer Goo dwin possessed sufficient reasonab le suspicion to co nduct an inves tigatory stop of D efenda nt.

-7- Because the officer had reasonable suspicion to conduct an investigatory stop of Defen dant, we affirm the trial court’s de nial of De fendan t’s motion to suppress. The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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