          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE
                                                           FILED
                                                          September 30, 1997
                          FEBRUARY 1997 SESSION
                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
STATE OF TENNESSEE,                      )
                                         )
             Appellee,                   )      C.C.A. No. 01C01-9604-CC-00137
                                         )
vs.                                      )      Grundy County
                                         )
JOHN ALLEN CHAPMAN,                      )      Hon. Thomas W. Graham, Judge
                                         )
             Appellant.                  )      (First Degree Murder,
                                         )      Aggravated Kidnapping,
                                         )      Aggravated Sexual Battery)


                            CONCURRING OPINION

             I concur with the well-reasoned and scholarly majority opinion

authored by Judge Hayes, although my analysis of the issue regarding the motion

to suppress reaches the same result through different reasoning than that employed

by the majority. I write separately to express concern over the Tennessee Bureau

of Investigation's use of an investigative subpoena as a means for obtaining

evidence from the defendant. See Tenn. Code Ann. § 38-6-102(a) (Supp. 1996).



             The TBI subpoena issued for the defendant commanded him to

appear for questioning at the Grundy County Jail. The language of the subpoena,

quoted supra at note 27, is compulsory. There is no indication on the subpoena

that the defendant had the option of refusing to appear at the appointed time and

place. There is nothing indicating that, unlike other subpoenas, this one was not

enforceable through the contempt powers of the court. A person untrained in the

law could reasonably believe he had no choice whether to comply with this

subpoena. If a record reflects that the accused was in fact coerced through the use

of such a subpoena in a criminal investigation, the use of the subpoena would raise

substantial questions under the Fourth Amendment to the United States
Constitution and Article I, section 7 of the Tennessee Constitution. The use of an

investigative subpoena by the TBI in the course of a criminal investigation cannot

circumvent Fourth Amendment protections by causing an unlawful seizure of the

person. Cf. State v. Moore, 722 S.W.2d 367, 373 (Tenn. 1986) (in the context of

a civil investigative summons issued by the Department of Revenue relative to bank

records pertaining to an individual's tax liability, "civil investigative authority will not

permit the government to expand its criminal discovery powers"). See Terry v. Ohio,

392 U.S. 1, 19, 88 S.Ct. 1868, 1879 (1968).



               That said, a citizen may certainly agree to cooperate with law

enforcement. When compliance with an investigation is voluntary, constitutional

concerns of unreasonable search and seizure evaporate. See Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973) (citations omitted);

State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996) (citations omitted). In this

case, all of the evidence demonstrates the defendant cooperated with the

investigation prior to the issuance of the subpoena. Moreover, he appeared at the

time and place designated in the subpoena and never voiced any objection to

continued participation in the investigative process. He gave further consent for

blood samples to be drawn from his person. The defendant did not testify -- nor

is there any other evidence to indicate -- that his compliance with the subpoena was

involuntary.   In the total absence of evidence demonstrating nonconsensual

behavior by the defendant, I agree with the majority that the evidence supports the

trial court's denial of the motion to suppress.



                                              _______________________________
                                              CURWOOD WITT, JUDGE
