                     IN THE SUPREME COURT OF TENNESSEE
                                AT NASHVILLE
                            May 8, 2008 Session Heard at Jacksboro1

                     STATE OF TENNESSEE v. TYSON LEE DAY

                    Appeal by Permission from the Court of Criminal Appeals
                              Criminal Court for Sumner County
                            No. 286-2005    Jane Wheatcraft, Judge



                    No. M2006-00989-SC-R11-CD - Filed September 22, 2008



WILLIAM C. KOCH , JR., J., dissenting in part.


        The State of Tennessee filed its Tenn. R. App. P. 11 application in this case to determine
whether Tennessee recognizes the “community caretaking” exception to the requirement that police
officers have at least reasonable suspicion when they make a traffic stop. I agree with the Court’s
conclusion that we cannot address this question because it is beyond the scope of the legal issue
certified to this Court in accordance with Tenn. R. Crim. P. 37(b)(2). Rather than dismissing the
appeal as being improvidently granted, the Court has decided to determine whether, under the
essentially undisputed facts, Officer Jeff Tarkington acted reasonably when he stopped Tyson Lee
Day’s automobile on May 16, 2004. The Court has decided that Officer Tarkington did not act
reasonably. I cannot concur with this conclusion.

                                                      A.

        The facts are straightforward and compelling. On May 16, 2004, while on a routine patrol
on New Shackle Island Road, Hendersonville Police Officer Tarkington observed a vehicle being
driven by Lisa C. Ferrell. Although Officer Tarkington did not know Ms. Ferrell’s identity at that
time, he observed that she was signaling him by flashing her vehicle’s headlights and by waving her
arms. Ms. Ferrell was also pointing at the white sport utility vehicle (SUV) in front of her.

       Based on these observations, Officer Tarkington performed a U-turn and pulled between the
white SUV and Ms. Ferrell’s vehicle. He activated his blue lights to signal the driver of the white
SUV to pull over. The driver complied. Officer Tarkington stopped his cruiser in back of the white
SUV, and Ms. Ferrell pulled over in back of Officer Tarkington. After a brief conversation with Ms.


        1
        Oral argument was heard M ay 8, 2008, in Jacksboro, Campbell County, Tennessee, as a part of the Supreme
Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.
Ferrell, Officer Tarkington approached the white SUV which was being driven by Tyson Lee Day.
Officer Tarkington could smell the odor of alcohol on Mr. Day’s breath. After Mr. Day failed
several field sobriety tests, Officer Tarkington arrested him.

        Mr. Day’s blood alcohol content proved to be .25 percent. Officer Tarkington’s subsequent
investigation revealed that Mr. Day was driving on a revoked license and that he had two prior DUI
convictions. Mr. Day was charged by presentment with his third offense of driving under the
influence and with driving on a revoked license. When the trial court denied his motion to suppress
the evidence of his intoxication based on his claim that Officer Tarkington did not have a reasonable
suspicion to stop him, Mr. Day pleaded guilty to both offenses and was sentenced to one hundred
and twenty days in jail followed by seven months on probation. As part of his guilty plea, Mr. Day,
acting in accordance with Tenn. R. Crim. P. 37(b)(2), reserved the right to challenge the
admissibility of the evidence of his intoxication on appeal. On March 7, 2007, the Court of Criminal
Appeals reversed Mr. Day’s convictions on the ground that Officer Tarkington did not have a
reasonable suspicion to stop Mr. Day on May 16, 2004. State v. Day, No. M2006-00989-CCA-R3-
CD, 2004 WL 677867, at *4-5 (Tenn. Ct. App. Mar. 7, 2007).

                                                             B.

       There is no question that stopping an automobile and detaining its occupants constitutes as
“seizure” for the purpose of the constitutional protections against unreasonable searches and
seizures.2 Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Pulley, 863 S.W.2d 29, 30
(Tenn. 1993). These acts necessarily interfere with the occupants’ freedom of movement. In
addition, they are inconvenient, they consume time, and they can create substantial anxiety.
Delaware v. Prouse, 440 U.S. 648, 657 (1979). Thus, the police must have at least an “articulable
and reasonable suspicion” that a motorist is subject to being stopped for a violation of the law before
stopping an automobile. Delaware v. Prouse, 440 U.S. at 663.

        An articulable and reasonable suspicion must be something more than an “inchoate and
unparticularized suspicion or hunch.” Terry v. Ohio, 392 U.S. 1, 27 (1968). It must have a
particularized and objective basis. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). When the
courts are called upon to determine whether a police officer had an articulable and reasonable
suspicion to justify stopping an automobile, they should consider the totality of the circumstances,
see Alabama v. White, 496 U.S. 325, 330 (1990); State v. Nicholson, 188 S.W.3d 649, 659 (Tenn.
2006), particularly (1) the objective observations of the officer, (2) the information obtained from
other officers or agencies, (3) information obtained from citizens, and (4) the pattern of operation
of certain offenders. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

        As it has developed over the years, the “reasonable suspicion” standard is a common sense
standard that permits an officer to make a brief investigatory stop when he or she reasonably suspects
that a specific person has engaged in, is engaging in, or is about to engage in criminal activity. The


       2
           U.S. Const. amend IV; Tenn. Const. art. I, § 7.

                                                             -2-
reasonableness of an officer’s suspicion depends on both the content of the information the officer
possesses and the degree of reliability of that information. Alabama v. White, 496 U.S. at 330. The
burden is on the State to present sufficient facts to demonstrate that the officer had a reasonable
suspicion to justify the stop. See State v. Nicholson, 188 S.W.3d at 656-57, 659 (holding that the
officer making the investigatory stop must be able to point to specific and articulable facts which,
taken together with the rational inferences from those facts, reasonably warrant the intrusion).

                                                           C.

        The Court has decided that Officer Tarkington acted unreasonably because he did not know
Ms. Ferrell’s identity when he stopped Mr. Day and because he did not follow Mr. Day’s vehicle
until Mr. Day committed an infraction that would justify pulling him over. I disagree. Police
officers are often called upon to make split-second judgments in circumstances that are tense,
uncertain, and rapidly evolving. See Graham v. Connor, 490 U.S. 386, 396-97 (1989); State v.
Davis, No. E2003-02214-CCA-R3-CD, 2004 WL 2583893, at *8 (Tenn. Crim. App. Nov. 15, 2004),
perm. app. denied (Tenn. Mar. 21, 2005). They must frequently rely on information provided to
them by bystanders or eyewitnesses to alleged criminal activity. In circumstances that require a very
quick police response, the information provided by a victim or an eyewitness will generally be
sufficient to provide reasonable suspicion, even without specific corroboration of reliability. 2
Wayne R. LaFavre, Search and Seizure § 3.4(a), at 224-25 (4th ed. 2004) (“Search and Seizure”).3

        Dismissing Ms. Ferrell as an anonymous informant artificially undermines her significance.
The manner in which police officers receive information from citizens runs the gamut from
completely anonymous telephone calls to citizens who have face-to-face contact with the officer.
A completely anonymous tip is the least reliable and must be corroborated with additional facts. See
Florida v. J.L., 529 U.S. 266, 270 (2000). In contrast, information given by a witness or bystander
is inherently more reliable. Thus, the same amount of corroboration that is required in anonymous
informant cases should not be required in cases involving information provided directly to the officer
by a victim or witness because (1) these circumstances generally require a rapid police response and
(2) average citizens providing information to law enforcement officers should be presumed to be
credible in the absence of circumstances suggesting that they are not. Search and Seizure § 3.4(a),
at 225; see also Commonwealth v. Kelly, 180 S.W.3d 474, 478 (Ky. 2005); State v. Griffey, 241
S.W.3d 700, 704-05 (Tex. App. 2007).

       Other federal and state courts have differentiated between the reliability of information
provided by a completely anonymous informant and information provided by a citizen informant


         3
          People v. Johnson, 93 Cal. Rptr. 534, 536 (Ct. App. 1971) (upholding the arresting officer’s reliance on the
unverified contention of a woman that the defendant had kidnaped her child by noting that “responding officers should
not be required to insist that the reporting mother ‘prove her case’ in the street before acting in reliance upon her
representations”); Barry Kamins, New York Search and Seizure § 2.04 (2006) (stating that “[w]hen the police observe
a defendant being chased on the street by an individual, the police have reasonable suspicion to stop the defendant, even
though the police do not learn until after the chase that the pursuer was the victim, a witness, or a bystander who was
helping the victim”).

                                                          -3-
who witnessed a criminal act and who provided the information in a face-to-face meeting with the
police or who have placed their anonymity at risk and who may be identified by the police. Justice
Kennedy has observed that:

                       If an informant places his anonymity as risk, a court can
               consider this factor in weighing the reliability of the tip. An instance
               where a tip might be considered anonymous but nevertheless
               sufficiently reliable to justify a proportionate police response may be
               when an unnamed person driving a car the police officer later
               describes stops for a moment and, face to face, informs the police that
               criminal activity is occurring.

Florida v. J.L., 529 U.S. at 276 (Kennedy, J., concurring). Many jurisdictions now hold that the
information provided by a citizen informant who is identifiable is sufficient to establish reasonable
suspicion for an investigatory stop. See, e.g., United States v. Sanchez, 519 F.3d 1208, 1213-14
(10th Cir. 2008); State v. Jensen, 952 A.2d 95, 100 (Conn. App. Ct. 2008); A.D.J. v. State, 813 So.2d
127, 129 (Fla. Dist. Ct. App. 2007); Village of Mundelein v. Thompson, 793 N.E.2d 996, 1003 (Ill.
App. Ct. 2003); Commonwealth v. Costa, 812 N.E.2d 371, 376 (Mass. 2007); State v. Gowen, 837
A.2d 297, 299 (N.H. 2003); State v. Golotta, 837 A.2d 359, 367-68 (N.J. 2003).

        Ms. Ferrell placed her anonymity at risk when she signaled Officer Tarkington to stop the
white SUV being driven by Mr. Day. In light of the proximity between Mr. Day’s vehicle and Ms.
Ferrell’s vehicle, Officer Tarkington could reasonably have concluded that Ms. Ferrell had witnessed
the commission of a crime or that she was signaling him that Mr. Day needed assistance. The
contours of the constitutional protection against unreasonable searches and seizures are shaped by
the concept of reasonableness. Florida v. Jimeno, 500 U.S. 248, 250 (1991); State v. Meeks, ___
S.W.3d ___, ___, 2008 WL 4007429, at *9 (Tenn. 2008); State v. Scarborough, 201 S.W.3d 607,
616 (Tenn. 2006). Based on the facts of this case, I cannot agree that Officer Tarkington’s decision
to stop Mr. Day’s vehicle was unreasonable.



                                                       ______________________________
                                                       WILLIAM C. KOCH, JR., JUSTICE




                                                 -4-
