         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

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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

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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,



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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.




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____________________________________
DAVID H. WELLES, JUDGE




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