          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE             FILED
                            FEBRUARY SESS ION, 1998          June 10, 1998

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                  )   C.C.A. NO. 03C01-9709-CR-00404
                                     )
            Appellee,                )
                                     )   KNOX COUNTY
V.                                   )
                                     )
                                     )   HON . RICH ARD B AUM GART NER ,
BRIAN EUGENE DANIEL,                 )   JUDGE
                                     )
            Appe llant.              )   (POSS ESSIO N OF M ARIJUAN A)



FOR THE APPELLANT:                       FOR THE APPELLEE:

MARK E. STEPHENS                         JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

PAULA R. VOSS                            TODD R. KELLEY
Assistant Public Defender                Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
JAMIE L. NILAND                          425 Fifth Avenue North
Assistant Public Defender                Nashville, TN 37243
1209 Euclid Avenue
Knoxville, TN 37921                      RANDALL E. NICHOLS
                                         District Attorn ey Ge neral

                                         SCOTT GREEN
                                         Assistant District Attorney General
                                         City-County Building
                                         Knoxville, TN 37902




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
               Defen dant, Brian D aniel, a ppea ls pursuant to Rule 37(b)(2)(i) of the

Tennessee Rules of Criminal Procedure. He pled guilty to possession of marijuana

and reserved, with the consent of the State and the trial court, the right to a ppea l a

certified question of law that is dispositive of the case. After review of the entire

record and the briefs and arguments of both parties, we affirm the judgment of the

trial court.



               The issue certified, as set forth in the trial court’s order is as follows:

       The defendant avers that he was subjected to an invalid stop and illegal
       search on August 15, 1995. The defendant avers that the arresting
       officer did not have the requisite reasonable suspicion to stop the
       defend ant, and because the stop led directly to the searc h, the
       subsequent seizure of contraband without probable cause was ille gal,
       in that it was a violation of the constitutions of the United States and the
       state of Tennessee, (see Terry v. Ohio , 392 U.S. 1 (1968)), and any
       evidence seized as a result of the search should have been
       suppressed. The question on appeal is whether, under the facts and
       circumstances of this ca se, the seizur e of this defen dant w as illegal,
       and should result in the suppression of the seized evidence.



               Depu ty Jim Wright of the Knox County Sheriff’s Department was the

only witness who testified at the suppression hearing. At approximately 9:00 p.m.

on August 16, 1995, Deputy Wright was on patrol when he observed the Defendant

and three (3) other men standing around a vehicle on the dark side o f Beng ie’s

Market in Knox C ounty. The sun was going down and it was “dusky dark.” The

lighting for the marke t was on ly on the fron t side of the store.



               Since the location was an area known for illegal drug trafficking and the

young men “just did not look right,” Deputy Wright drove his patrol car up to the men

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“to see what the ind ividuals were doing.” Wright, in a general conversation, asked

the men what was going on and then requested them to produce I.D. to identify

themselves.    All four (4) of the young men voluntarily produced some form of

identification. Wh ile Wr ight was c hecking the identifica tions, two (2 ) of the men

asked to be allowed to go inside the market to either use the restroom or purchase

a soft drink . Wrig ht allowed the two m en to do so.



              After examining Defendant’s identification and “running his nam e,”

Wright discover ed that the re was a n outstan ding wa rrant for the arrest of D efenda nt.

Wright imme diately put h andcu ffs on the D efendant and placed him under arrest

pursuant to the outstanding warrant and advised Defendant of the status of the

warran t.   Wright then searched Defendant pursuant to the arrest and asked

Defendant if there was anything in his pockets that would stick or otherwise hurt

Wright in any m anner. D efenda nt replied th at he had a bag of ma rijuana in his

pocket. This was discovered by Wright during the search and led to the criminal

charg e whic h is the subje ct of this appe al.



              There is noth ing in th is rather sparse re cord which indicates th at there

was any search of the other men who were with the Defendant. It is clear from the

record that D efend ant wa s not p hysica lly searched until after Deputy Wright was

advised of the outstanding warrant for the arrest of Defendant on other charges.



              The Defendant argues that the initial seizure of D efenda nt by De puty

Wright by requiring prod uction of identification was an illegal seizure not based upon

either probable cause or reasonable suspicion, and in violation of the constitutional

rights of Defen dant un der the F ourth Amendment of the United States Constitution

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and Article I, Section 7 of the Tennessee Constitution. He principally relies upon

Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) and Hughe s v.

State, 588 S.W.2d 296 (Tenn. 1979). Defendant further argues that the discovery

of the contraband was a direct result of an illegal search, and, therefore, the

evidence should have been suppressed.



              In contrast, th e State a rgues th at the De fendan t voluntarily agree d to

stay in the presence of the officer, answer his questions, and produce an

identification. Conse quently, the State su bmits that the De fenda nt was not illeg ally

seized u nder the Fourth A mend ment to the Unite d States Constitu tion.



              W e have concluded that it is not necessary to determine whether or not

Defendant was illegally seized at the time W right asked for iden tification to resolve

this issue. It is undisputed that Defendant was not formally arrested or searched by

Depu ty Wright until after the officer discovered that there was an outstanding

criminal warrant for the Defe ndan t’s arres t. The refore , the on ly “evide nce” d irectly

obtained as a resu lt of Defen dant volu ntarily prod ucing his identification for Depu ty

Wright was the knowledge of the existence of a warrant authorizing the arrest of the

Defen dant.



              The Defendant does not challenge his actual arrest pursuant to the

arrest warrant. In essence, in his certified question prese nted fo r review and in his

brief, Defendant argues that the initial illegal stop mandates suppression of evidence

discovered during a search incident to an arres t pursua nt to a wa rrant. Defendant

subm its that this result is required based upon the fact that the officer only became

aware of the existence of the arrest warrant during the illegal stop.

                                            -4-
             Assuming arguendo that a seizure of Defendant by Deputy Wright

occurred when the officer requested proof of identification, and that this seizure was

in violation of the constitution al rights of D efendant, we find that the “degree of

attenuation here was sufficient to dissipate the connection between” the purported

illegal seizure and the discovery of the marijuana during a search incident to a

lawful arrest pursuant to an ou tstanding arrest wa rrant.       See United States v.

Ceccolini, 435 U .S. 268, 9 8 S.Ct. 1 054, 55 L.Ed.2d 268 (19 78); State v. Story, 608

S.W .2d 599, 602 (Tenn. Crim . App. 1980 ).



             The opinio n of the court in this cas e sho uld in no manner be construed

as blanket approval of any law enforcement tactic to randomly detain individuals,

without probable cause or reasonable suspicion of criminal activity based upon

specific and articulable facts, in order to ascertain the identification of citizens who

may be ga thered in public places. Under the specific and narrow facts of this case,

espe cially the uncontradicted testimony that Defendant voluntarily complied with the

request to show an ide ntification, a limited exception to the “fruit of the poisonous

tree doctrine,” Wong Sun v. United States, 371 U.S . 471, 83 S .Ct. 407, 9 L.Ed.2d

441 (1963) applies, e ven if it is assu med th at the initial de tention by Depu ty Wright

was a seizure of Defendant in violation of his constitutional rights. Accordingly, the

judgment of the trial court is affirmed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:




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___________________________________
JERRY L. SMITH, Judge


___________________________________
WILLIAM B. ACREE, JR., Special Judge




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