IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 8, 2013 Session STATE OF TENNESSEE v. SHAUN ANTHONY DAVIDSON AND DEEDRA LYNETTE KIZER Appeal from the Criminal Court for Davidson County No. 2011-C-2863 Monte Watkins, Judge

No. M2012-02692-CCA-R3-CD - Filed November 26, 2013

J AMES C URWOOD W ITT, J R., J., concurring.

I agree that Tennessee Code Annotated section 55-9-107(c) is not vague or overbroad, but such does not mean it is flawless.

On the one hand, the statute is superfluous; police officers do not need statutory authority to stop a vehicle pursuant to constitutional principles expressed in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. Thus, a statute authorizing a detention based upon a reasonable belief of wrongdoing is a nonstarter.

On the other hand, the statute grants “probable cause” to certain officers with reasonable beliefs in wrongdoing. “[C]ourts have recognized three distinct types of police- citizen interactions: (1) a full scale arrest which must be supported by probable cause; (2) a brief investigatory detention which must be supported by reasonable suspicion; and (3) brief police-citizen encounters which require no objective justification.” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000) (citations omitted). “Probable cause” is a more demanding standard than “reasonable suspicion.” See e.g., State v. Kailyn Loren McKeown, No. E2011- 02209-CCA-R3-CD, slip. op. at 5 (Tenn. Crim. App., Knoxville, Sept. 25, 2012). Obviously, the State may not diminish the ambit of protection afforded its citizens by the federal constitution. A mere reasonable belief or suspicion does not equate to probable cause and affording it the consequences of a probable cause determination is constitutionally impermissible. For this reason, subsection 55-9-107(c) is a flawed statute.

Of course, it matters not; if the officers in the present case had the requisite reasonable belief or suspicion, their properly limited investigation would have been authorized by Terry, code subsection 55-9-107(c) notwithstanding.

JAMES CURWOOD WITT, JR., JUDGE

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