IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JUNE SESSION, 1997

STATE OF TENNESSEE, ) FILED C.C.A. NO. 02C01-9701-CC-00043 ) October 1, 1997 Appellee, ) ) Cecil Crowson, Jr. ) HENRY COUNTY Appellate C ourt Clerk VS. ) ) HON. JULIAN P. GUINN MICHAEL RAY GRICE, ) JUDGE ) Appe llant. ) (Possession of Controlled Substance)

DISSENTING OPINION

I respectfully dissent from the opinion of my colleagues. Based on the testimony presen ted at the suppression hearing, I believe that the detention of the Defe ndan t violated his pro tection against unreasonable searches and seizures as secu red by the Fourth A mend ment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution.

I first note that the facts and circumstances surrounding a stop, search or seizure are always of paramount importance in determining whether actions taken by law enforcement authorities are reasonable when judged by constitutional standa rds. See Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (19 68); State v. Pulley, 863 S.W.2d 29, 30 (T enn. 19 93); State v. Watkins, 827 S.W .2d 293, 295 (Tenn. 199 2). Officers mus t exercise “an escalating set of flexible responses, graduated in relation to the amount of information they pos sess. " Terry, 392 U.S . at 10, 88 S.Ct. at 1874. W here factual issues are involved in determining a motion to suppress, our rules require the trial court to state its essential findings on the record. Tenn. R. Crim. P. 12(e). While the trial judge engaged in a colloquy with defense counsel concerning the motion to suppress, the judge made no specific oral or written findings of fact. Testimony of the officers at the m otion to suppre ss was very brief, comprising only twelve pages in the transcript. The burden was on the State of Tennessee to establish the legality of the warrantless search, and a more detailed presentation of the facts would have facilitated appellate review.

Tennessee Highway Patrol Sergeant Edwards testified that on the evening in question about nine state troopers and the sheriff’s department were conducting a “satura tion” in He nry Cou nty and were “checking the taverns.” He said that as he pulled into the parking lot of this particular tavern he observed a pickup truck th at was turning aroun d in the park ing lot. He said that it appeared that the truck ma y have hit a vehicle wh ich was park ed approximately one foot from the bumper of the truck. When asked what made him think there had been a collision, the officer stated that he noticed some damage on the front of the vehicle which was close to the back bum per of th e picku p truck . Edwa rds sa id that he then blocked the Defendant’s truck with his patro l car and g ot out to speak to the Defe ndant. T he De fendan t got out of h is truck an d both men walked to the rear o f the vehicle . The office r was ap parently a ble to determine very quick ly that there had not, in fact, been contact between the two vehicles. When the officer was asked what he did after he determined that the Defendant had not hit the other vehicle, the officer stated , “I was goin g to go inside and continue our search or investigation, you know, inside pertaining to this vehicle to mak e sure that they hadn’t had a problem with Mr. Grice on the inside.” Sergeant Edwards -2- testified that his determination that there had not been a collision was made before the deputies started interrogating the Defendant. Edwards stated that he then went insid e the tave rn and le ft the seco nd officer, a deputy s heriff, talking with the Defendant. Once inside the tavern, Sergean t Edwards s aid the tavern manager told him that there was no problem with the Defendant and when Edwards went back outside, the other officers had placed the Defendant under arrest.

Officer Powell, the deputy sheriff, testified that when the law enforcement officials involved p ulled into th e tavern in question, he recalled that Sergeant Edwards said that it ap peare d as th ough the De fenda nt’s veh icle ha d hit another vehicle “due to the way the vehicles were positioned when we pu lled in.” H e said that Sergeant Edwards and another officer approached the back of the Defe ndan t’s vehicle to see if he ha d, in fac t, hit the other vehicle and that he (the deputy) approached the driver of the pickup. He said that as he spoke to the Defen dant, “I notice d that h e had the sm ell of alco hol ab out his person . His eyes were bloodshot. Upon my approach, he exited the vehicle and appeared extrem ely nervous about what was going on.” He said that while Sergeant Edwards entered the tavern, he requested the Defendant to perform some field sobriety tests. It was during the admin istering of the field sobriety tests that the officer noticed the bulge in the Defendant’s jacket which the n led to the ensuing search es.

As Judge Summers notes, an investigative detention of an individual requires only a showing of reasonable suspicion rather than probable cause.

Rea sona ble suspicion must be based on specific and articulable facts indicating -3- that a crimina l offense h as bee n or is abo ut to be com mitted. Terry, 392 U.S. at 21, 88 S.C t. at 1880; Pulley, 863 S.W .2d at 30; Watkins, 827 S.W .2d at 294 .

The articulated fact leading to Sergeant Edwards’ blocking the Defendant’s truck was that the back bu mper of the truck was close to a parked vehicle which appeared to have some damage on it. A deputy sheriff working with Sergeant Edwa rds app arently pu lled in and blocked the Defe ndant’s tru ck from behind .

Judge S umm ers states that the fact that the officer “thought” that he had just witnessed the Defendant back into a parked vehicle, coupled with the lateness of the hour and the fact that the De fendant was leaving a tavern, ga ve the officer reas onable suspicio n to susp ect that the Defen dant had just com mitted or was in the process of committing an offense. Although not stated by anyone during the hearing on the motion to suppress, the “criminal offense” which the officer suspected the Defendant was “about to commit” was apparently not notifying the owner or operator of the parked vehicle that he had hit it. See Tenn. Code Ann. § 55-10-104. Wh ile the o fficer’s s uspic ion ce rtainly co uld reaso nably have led him to examine the vehicle he “thought” the Defendant had hit, I do not believe that his sus picion was b ased upon spec ific and articula ble facts such that blocking the Defe ndant’s ve hicle with h is patrol ca r was justified .

The reasonableness of a stop turns on the facts and circumstances of each case. In particular, th e Cou rt has e mph asize d (i) the p ublic interest served by the s eizure , (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied in light o f his know ledge a nd expe rience.

Pulley, 863 S.W.2d at 34 (citing United States v. Mend enha ll, 446 U.S. 544, 561, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980) (Powell, J., concurring)). Here,

-4- Edwards suspected that a collision ha d occ urred and s toppe d the D efend ant’s vehicle ostensibly to protect the public from a traffic violatio n. He b ased his response on the fact that he saw what looked like damage to another car and that the vehicles were close together. Apparently, Edwards also based his further “investigation” on a factu ally unsu bstan tiated h unch that the re had been trouble with the Defendant in the tavern.

In any event, whate ver rea sona ble su spicio n the o fficer ha d certa inly disappeared when he quickly determined that no collision had occurred. Even though Serg eant E dward s quick ly determined that no collision had taken place, he said that he imm ediate ly went insid e to “con tinue our search or investiga tion.”

As Judge Summers states, at that time the officer did not have any lawful justification to detain the De fenda nt furthe r and c ertainly had n o reas onab le suspicion that the D efenda nt had committed a crime inside the tavern. Such further inve stigation w as not “re asona bly related in scope to the justification for their initiation ,” which here w as a p ossib le minor tra ffic collision. Terry, 392 U.S. at 29, 88 S.Ct. at 1884. Thus, any further detention of the Defendant amounted to an intrusio n that exceeded the scope of a constitutionally permissible stop.

See United States v. Blum, 614 F.2d. 537, 539 (6th. Cir. 1980). Judg e Sum mers concludes, therefore, that any evidence which might have been found inside the tavern would have been illegally obtained and subject to suppression. To establish that a defendant's Fou rth Am endm ent righ ts have been implica ted, it must be shown that the state infringed upon "an expectation of privacy that society is prepare d to conside r reason able." United States v. Jacobsen, 466 U.S. 109, 113, 104 S .Ct. 1652, 165 6, 80 L.Ed.2d 85 (1984). Because the F ourth Amendment protects people and not places, I believe that evidence obtained -5- from a search of the Defendant shou ld be suppressed, not evidence that might have been obtained from the tavern. See Katz v. United States, 389 U.S. 347, 351, 88 S.C t. 507, 511, 19 L.E d.2d 576, 58 2 (1967).

Judge Summers concludes that when D eputy Powell went to question the Defen dant, he had not conferred with Sergeant Edwards and was thus unsure of whether the Defendant had or had not committed any crime. He therefore concludes that his questioning of the Defendant was supp orted b y reaso nable suspicion. Sergean t Edwards testified that he had already determined that no collision had take n place b efore the deputies started qu estioning the Defe ndant.

Judge Summers concludes that the conduct of Sergeant Edwards, after determining that the Defen dant had n ot backed into a parked ca r, “was not unrea sona ble but exceeded constitutional parameters.” Because the United States and Ten nessee C onstitutions prohibit on ly unreaso nable searches and seizures, I believe if the officer’s conduct in detaining the Defendant was not unreasonable, then it was not constitutionally prohibited.

Based on the tota lity of the facts and circumstances that I glean from th is record, I believe that the detention and subsequent search of the Defendant do not pass the test of reasonableness guaranteed all of our citizens by the United States and Tennessee Constitutions.

For thes e reaso ns, I respe ctfully dissen t.

-6- ____________________________________ DAVID H. WELLES, JUDGE

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