         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 3, 2009

         STATE OF TENNESSEE v. THOMAS DEWAYNE MOFFATT

                    Direct Appeal from the Circuit Court for Obion County
                       No. CC-08-CR-36     William B. Acree, Jr., Judge



                     No. W2008-01048-CCA-R3-CD - Filed June 12, 2009


This appeal involves the question of whether a passenger in a car may be subjected to a pat-down
search following a traffic stop if officers suspect the presence of a weapon. The appellee, Thomas
Dewayne Moffatt, was indicted by an Obion County grand jury for possession of more than .5 grams
of Schedule II cocaine with intent to sell or deliver within 1000 feet of a park (a Class B felony) and
tampering with evidence (a Class C felony). He was the passenger in a car which was stopped for
a traffic violation, and officers testified that, based upon their belief that a weapon was present, both
the driver and the passenger were asked to exit the vehicle with the intent to conduct a pat-down
search for weapons. The appellee filed a motion to suppress the evidence seized, the drugs, asserting
that the officers did not have reasonable suspicion or probable cause to search him. After hearing
testimony at the motion to suppress hearing, the Obion County Circuit Court, relying upon Johnson
v. State, 601 S.W.2d 326 (Tenn. Crim. App. 1980), concluded that “there was nothing amiss” and
that the officers were not entitled to conduct the pat-down search. Because the State was unable to
prosecute the case without the suppressed evidence, the charges against the appellee were dismissed.
The State now appeals the denial of the motion to suppress. Following review of the record, we
conclude that the trial court erred in granting the motion as the evidence presented preponderates
against the court’s findings. As such, we reverse the court’s decision granting the motion, and the
case is remanded to the trial court for further action consistent with this opinion.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
                                       Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and
CAMILLE R. MCMULLEN , JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James Cannon, Assistant District Attorney
General, for the appellant, State of Tennessee.

Charles S. Kelly, Sr., Dyersburg, Tennessee (at hearing), for the appellee, Thomas Dewayne Moffatt.

                                              OPINION
                                        Factual Background

       Two members of the Drug Task Force, Officer Shawn Palmer and Deputy David Crocker,
were on patrol in Union City on November 2, 2007, as part of their regular duties. While stopped
at a stop sign, they observed a blue Crown Victoria pass in front of them. Through the front
windshield of the Crown Victoria, Officer Palmer observed that the driver was not wearing a
seatbelt, and Deputy Crocker observed that neither the driver nor the passenger was wearing
seatbelts. A traffic stop was initiated.

        Once the car had stopped, Officer Palmer approached the driver’s side of the vehicle while
Deputy Crocker approached the passenger side, where the appellee was seated. Officer Palmer
explained to the driver why he had initiated the stop and asked for his driver’s license. He noticed
that the driver began acting “very strange” and “kept looking left and right.” He then observed the
driver lean over and pull his shirt down, as if he was concealing something. Officer Palmer asked
the driver if he had any weapons in the car, and the driver “did a dead stare for about ten seconds”
and failed to answer. At this point, believing that the driver could be in possession of a weapon, he
informed Deputy Crocker of his concerns by hand signals and mouthing the word “gun.” Officer
Palmer then got the driver out of the car and performed a pat-down search.

        When Officer Palmer signaled him, Deputy Crocker was not aware if Officer Palmer “had
actually seen a gun on the driver [or] if he [had] seen a gun in the seat beside him.” At that point,
he asked the appellee, who had been sitting “like a statute” staring straight ahead, to step outside the
vehicle with the intent to conduct a pat-down search of him for weapons. As he emerged from the
car, the appellee immediately stuck his hand in the pocket of his sweatshirt and refused Deputy
Crocker’s request to remove it. The appellee began shouting, “You can’t search me.” Still
concerned about the possibility of a weapon, Deputy Crocker pushed the appellee against the car and
again ordered him to remove his hand from his pocket. When the appellee finally complied, he was
holding a plastic bag containing a white substance. The appellee proceeded to stuff the bag in his
mouth. Deputy Crocker then threatened to “tase” the appellee if he did not spit out the bag, which
the appellee did. The substance in the plastic bag was analyzed and determined to be 6.8 grams of
cocaine base.

        The appellee was indicted for possession of more than .5 grams of cocaine and tampering
with evidence. He filed a motion to suppress, asserting initially that the entire stop was a pretext and
that there was “no probable cause or right to search the [appellee’s] person or the vehicle in which
he was a passenger.” At the subsequent motion to suppress hearing, Officer Palmer and Deputy
Crocker testified to the facts of the stop and search as stated above. No other evidence was
introduced. After hearing the testimony, the trial court granted the motion. Without the suppressed
evidence, the State was unable to prosecute the case, and the trial court entered judgments dismissing
the charges. The State now timely appeals the trial court’s decision to grant the motion to suppress.
We note that the appellee has failed to file any responsive brief in the case, and, as such, the case is
being reviewed solely upon the record and the State’s brief.



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                                               Analysis

        On appeal, the State argues that the evidence preponderates against the trial court’s findings
that the officers did not have the right to search the appellee after stopping the driver for a seat belt
violation. The State further argues that the trial court reached an erroneous conclusion of law
applicable to the issue and that the ruling must be reversed. We agree.

       When a ruling on a motion to suppress is challenged, the trial court’s findings of fact are
presumed correct unless the evidence contained in the record preponderates against them. State v.
Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). “Questions of credibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of facts.” State v. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). However, appellate review of a trial court’s conclusions
of law and application of law to facts on a motion to suppress evidence is de novo. State v.
Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).

         Both the state and federal constitutions protect individuals from unreasonable searches and
seizures. U.S. Const. amend. IV; Tenn. Const. Art. I, § 7. Therefore, a search or seizure conducted
without a warrant is presumed unreasonable, and any evidence discovered as a result of such a search
is subject to suppression. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022 (1971);
State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). However, the evidence will not be suppressed
if the State proved that the warrantless search or seizure was conducted pursuant to one of the
narrowly defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn.
2000) (quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

         One such exception is a brief investigatory stop by a law enforcement officer if the officer
has a reasonable suspicion, based upon specific and articulable facts, that a person has either
committed a criminal offense or is about to commit a criminal offense. Terry v. Ohio, 392 U.S. 1,
21, 88 S. Ct. 1868 (1968); Binette, 33 S.W.3d at 218. In evaluating whether a police officer has a
reasonable suspicion supported by specific and articulable facts, a court must consider the totality
of the circumstances. Binette, 33 S.W.3d at 218.

         At this initial juncture, we note that there does not appear to be a dispute as to whether the
initial stop of the vehicle for the seatbelt violation was supported by reasonable suspicion. Although
there was some questioning at the hearing with regard to whether the officers were able to observe
that the occupants of the vehicle were not wearing seatbelts, the trial court did not address this issue
and appears to have concluded it was a valid traffic stop. Indeed, based upon both officers’
testimony, we must also conclude that they were justified in initiating the traffic stop because they
observed that the occupants of the vehicle not wearing seatbelts, a violation of Tennessee law. See
State v. Berrios, 235 S.W.3d 99, 105 (Tenn. 2007) (“As a general rule, if the police have probable
cause to believe a traffic violation has occurred, the stop is constitutionally reasonable.”). Thus, the
only issue before us is whether the officers were justified in their decision to conduct a pat-down
search of the appellee for weapons.


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        In Terry, the United States Supreme Court ruled as follows:

        We merely hold today that where a police officer . . . reasonably [] conclude[s] . . .
        that criminal activity may be afoot and that the persons with whom he is dealing may
        be armed and presently dangerous . . . and where nothing in the initial stages of the
        encounter serves to dispel his reasonable fear for . . . safety, he is entitled for []
        protection . . . to conduct a carefully limited search . . . to discover weapons. . . .

392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968). Thus, the Fourth Amendment permits a protective
frisk where a law enforcement officer has reasonable suspicion that the suspect is armed. Id. at 37,
88 S. Ct. at 1883; Hughes v. State, 588 S.W.2d 296, 304 (Tenn. 1979). A frisk has been upheld as
reasonable when the suspected crime might typically involve the use of a weapon. When, however,
the likely crime does not involve a weapon, “other circumstances” must be present to justify a Terry
frisk. Sibron v. New York, 392 U.S. 40, 74, 88 S. Ct. 1912 (1968) (Harlan, J., concurring)). “Other
circumstances” include:

        a characteristic bulge in the suspect’s clothing; observation of an object in the pocket
        which might be a weapon; an otherwise inexplicable sudden movement toward a
        pocket or other place where a weapon could be concealed; an otherwise inexplicable
        failure to remove a hand from a pocket; backing away by the suspect under
        circumstances suggesting he was moving back to give himself time and space to draw
        a weapon; awareness that the suspect had previously been engaged in serious
        criminal conduct; awareness that the suspect had previously been armed; [and]
        discovery of a weapon in the suspect’s possession. . . .

LaFave, Search and Seizure, § 9.5(a) (3d ed. 1996) (footnotes and citations omitted). In the recent
case of Arizona v. Johnson, ___ U.S. ___, 129 S. Ct. 781 (2009), the United States Supreme Court
reaffirmed prior holdings and made clear that, following a lawful traffic stop, police need not have
additional cause to believe any occupant of the vehicle is involved in further criminal activity to
justify a pat-down, rather “[t]o justify a pat[-]down of the driver or a passenger during a traffic stop,
. . . the police must harbor reasonable suspicion that the person subjected to the frisk is armed and
dangerous.” Arizona v. Johnson, ____ U.S. ____, 129 S. Ct. 781, 784 (2009); see also Maryland
v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997) (extending the holding in Pennsylvania v. Mimms,
434 U.S. 106, 98 S. Ct. 330 (1977), that following a valid traffic stop, drivers could be ordered out
of the vehicle in the interest of officer safety without violating their Fourth Amendment rights to
include passengers in the vehicle as well). The Court has noted that the risk of a violent encounter
in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding
violation, but from the fact that evidence of a more serious crime might be uncovered during the
stop.” Maryland v. Wilson, 519 U.S. at 414, 117 S. Ct. 886. “[T]he motivation of a passenger to
employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great
as that of the driver.” Id.

        In granting the motion to suppress in this case, the trial court found as follows:


                                                  -4-
               I think the general rule is well stated in the case of Johnson v. State, reported
       in 601 S.W.2d, beginning at page 326. Quoting the Court, “The [ ] question we face
       is whether a police officer, after having stopped a motor vehicle for a traffic
       violation, has the right to check the passengers who happen to be in the vehicle and
       nothing else appears amiss. We hold the officers have no such right.”

               In this particular case, the Court finds that the officer had no right to search
       the passenger; there was nothing amiss. I don’t think there was any reasonable
       suspicion to search the driver either. But even if there were, it did not give the officer
       the right to order the passenger out of the vehicle, and accordingly, the motion is
       granted.

        However, we cannot conclude that the evidence does not preponderate against these findings,
as the facts of Johnson are distinguishable. In that case, a police officer stopped an automobile for
a misdemeanor traffic offense, and the driver voluntarily exited the vehicle and spoke with the police
officer near the patrol car. Johnson, 601 S.W.2d at 327. The officer then walked to the automobile
to “check the passengers.” Id. The court found that the police officer had provided no reason for
approaching the vehicle to check out the passengers other than curiosity. Id. at 329. There was no
testimony that the officer feared for his safety, and no pat-down search of the driver was conducted.
Id. The court specifically noted that, “The narrow question we face is whether a police officer, after
having stopped a motor vehicle for a traffic violation, has the right to ‘check the passengers’ who
happen to be in [a] vehicle, nothing else appearing amiss. We hold that officers have no such right.”
Id. at 328.

         Based upon the testimony given by Officer Palmer and Deputy Crocker, which the trial court
in no way discredited, we must conclude that something was “amiss.” Officer Palmer testified that
the driver of the car was acting in a suspicious manner, including making motions pulling his shirt
down as if to conceal something near his waist. When Officer Palmer asked the driver if he had a
weapon, and the driver did not respond, it was reasonable for Officer Palmer to become concerned
for his and Deputy Crocker’s safety based on the possibility of a weapon either on the driver’s person
or in the vehicle. It was further reasonable that he communicate that concern to Deputy Crocker.
At that point, Deputy Crocker specifically testified that he was unaware if Officer Palmer had seen
an actual gun and, if so, where it was located. His action of asking the appellee to step outside the
car was entirely reasonable. Upon exiting the car, the appellee’s behavior of sticking his hand in his
pocket and refusing to remove it further justified additional reasonable suspicion for the pat-down.
Contrary to the trial court’s findings, based upon the totality of the circumstances, we conclude that
the officers reasonably concluded that the suspects could be armed and were, thus, entitled to
conduct a limited pat-down search or frisk to discover weapons. See Arizona v. Johnson, ___ U.S.
___, 129 S. Ct. at 184. Because the evidence preponderates against the court’s findings, we conclude
that it was error to grant the motion to suppress.

                                          CONCLUSION



                                                  -5-
        Based upon the foregoing, the decision of the Obion County Circuit Court granting the
motion to suppress is reversed, and the case is remanded to the court for further action consistent
with this opinion.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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