            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE             FILED
                          JUNE SESSION, 1999          July 2, 1999

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt
                                                                   Clerk


STATE OF TENNESSEE,           )
                              )    No. 03C01-9810-CR-00357
      Appellee                )
                              )    HAMILTON COUNTY
vs.                           )
                              )    Hon. Douglas A. Meyer, Judge
DAVID ALLEN SNOWDEN,          )
                              )    (Poss. of Cocaine For Resale)
      Appellant               )
                              )    CERTIFIED QUESTION OF LAW



For the Appellant:                 For the Appellee:

Johnny D. Houston, Jr.             Paul G. Summers
Houston & Warren                   Attorney General and Reporter
Suite 402, Flatiron Bldg.
707 Georgia Avenue                 Marvin S. Blair, Jr.
Chattanooga, TN 37402-2048         Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   William H. Cox III
                                   District Attorney General

                                   Bates Bryan
                                   Asst. District Attorney General
                                   City and County Courts Building
                                   600 Market Street
                                   Chattanooga, TN 37402




OPINION FILED:

REVERSED AND DISMISSED



David G. Hayes
Judge
                                               OPINION



        The appellant, David Allen Snowden, appeals from a judgment of conviction

entered by the Hamilton County Criminal Court. The appellant entered a best

interest guilty plea on February 2, 1998, to possession of cocaine for resale, a class

B felony, see Tenn. Code Ann. 39-17-417(c)(1) (1996 Supp.), reserving the right to

appeal as a certified question of law the trial court’s denial of his motion to suppress.

See Tenn. R. App. P. 3(b); Tenn. R. Crim. P.37(b). 1 Specifically, he argues that

the police lacked either reasonable suspicion or probable cause to initiate seizure of

his person.



        After review of the record, we reverse the judgment of the trial court and

dismiss the judgment of conviction.



                                            Background



        The proof at the suppression hearing revealed the following facts. At about

11:00 p.m. on October 21, 1996, Chattanooga Police Officers Nathan Vaughn and

Rick Cook were on patrol in separate cars on or about Stuart Street in East

Chattanooga. Officer Vaughn, driving the lead patrol car,

        observed the [appellant] and a second party standing in the middle of
        the street at approximately 2600 Curtis Street. . . . The parties
        appeared to be involved in some type of casual exchange.[2] This is a
        known drug area where known drug arrests have been made in the
        past. When the parties looked up and observed the police cars
        approaching, they turned, began leaving in opposite directions in a
        quick manner. I stopped my patrol car and asked the [appellant] there
        to stop, I wanted to talk to him further, for further investigation.




        1
          The admissibility of the evidence sought to be suppressed by the appellant is a
dispositive issue in this case due to the lack of other sufficient evidence connecting the appellant
with the commission of the offense.

        2
          Officer Cook, who was driving in the rear patrol car, testified at the suppression hearing
that when he observed “[the two individuals], they were standing in the street real close to each
other is all.”

                                                  2
         [The appellant] moved quickly, [”faster than a normal paced walk, but it
         wasn’t . . . a run,”] to the door of a house there on the corner,
         attempted to go inside. I told him to stop, but he refused. He
         continued to try to enter the door. I attempted to physically stop him
         from entering the house there.[3] We became involved in a struggle,
         him trying to go in, I was trying to keep him from going in.[4] During the
         struggle, I told the [appellant] that he was under arrest.[5] He continued
         to struggle at this point, then Officer Cook came to my assistance. We
         were both able to get the party subdued and into handcuffs.

Because a crowd had gathered, the officers conducted a pat-down search for

weapons, placed the appellant in Cook’s patrol car, and transported him to jail.

After releasing the appellant to the custody of the corrections officers, Officer Cook,

per his usual practice, examined the rear seat of his patrol car in search of

contraband. His search revealed a cellophane bag which was later determined to

contain 12.3 grams of crack cocaine. The discovery of this contraband led to the

appellant’s conviction.



         Based upon this evidence, the trial court denied the appellant’s motion to

suppress. In doing so, the trial court found:

         . . .[I]n this case, you had -- when he was suspicious, when he
         suddenly left the way he did and the other person went the other
         direction, and you’ve got to remember before your client was ever
         actually arrested, Officer Cook had followed the other individual, had
         stopped the other individual, recognized him as a known drug violator,
         and when he got back up to where Mr. Vaughn was attempting to
         arrest Mr. Snowden, he had that further information when he was
         assisting, so I think that there’s an articulable suspicion there that
         allowed them to do what they did, so let your motion to suppress be
         denied.




         3
          During Officer Vaughn’s encounter with the appellant, Officer Cook proceeded to follow
the other male s ubject. Alth ough O fficer Co ok disc ontinued pursuit of th is secon d perso n to
assist Officer Vaughn, he recognized the subject as an identified drug offender whom he had
recently arrested for “crack paraphernalia . . . right there at that intersection. . . .”

         4
         Officer Cook testified that, by the time he was able to assist Officer Vaughn, “[Vaughn
and the a ppellant] we re alread y in the hous e . . . [w]e pulled h im outs ide the ho use into th e yard.”

         5
        Officer Vaughn placed the appellant under arrest for “resisting arrest.” At this time, no
contraband had been discovered on the appellant’s person or, otherwise, in his possession. The
charge of “resisting arrest” was ultimately dismissed.

                                                      3
                                                   Analysis



         In his sole issue, the appellant contends that the trial court erred by denying

his motion to suppress evidence. Specifically, he argues that the seizure of his

person was illegal because Officer Vaughn did not have reasonable suspicion or

probable cause to seize or stop him.6



         In reviewing the trial court's denial of a Motion to Suppress, we accept the

trial court's findings of fact unless the evidence preponderates otherwise. See State

v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997). However, the law as applied to

those facts is subject to de novo review. Id. The defendant bears the burden of

demonstrating that the evidence preponderates against the trial court's findings.

State v. Odom, 928 S.W.2d 18, 22-23 (Tenn.1996).



         Our review of this case is handicapped by the fact that the trial court

essentially found no facts relevant to the initial detention of the appellant as he

attempted to enter his residence. Rather, the trial court focused upon Officer Cook’s

subsequent discovery of the other individual’s identity as a “drug violator” in

justifying the seizure. The testimony of both Officer Vaughn and Officer Cook,

however, clearly indicates that the “seizure” had already occurred by the time Officer

Cook had learned the other individual’s identity. Moreover, there is no evidence that

Officer Cook had communicated his discovery to Officer Vaughn prior to or during

the seizure of the appellant. Accordingly, the proof clearly preponderates against

the trial court’s findings. Notwithstanding the trial court’s incomplete findings, we are

able to substantially supplement its findings from the record; thus, enabling this

court to conduct a meaningful de novo review of the law applicable to the pertinent

facts.

         6
           A perso n is “seized ” for purp oses o f the Fou rth Am endm ent whe never a n officer a ccosts
that individua l and restra ins the free dom to walk aw ay. See State v. Downey, 945 S.W.2d 102,
106 (Te nn. 1 997 ). In the pres ent c ase , the a ppe llant w as “s eized ” whe n Of ficer Vau ghn physic ally
attempted to prevent the appellant from entering his residence.

                                                      4
        In furtherance of the State’s interest in effective crime prevention and

detection, “a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior

even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S.

1, 22, 88 S.Ct. 1868, 1880 (1968). In other words, an investigatory stop of a person

is constitutionally permissible if the officer has a reasonable suspicion, supported by

specific and articulable facts, that a criminal offense has been or is about to be

committed. State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). In determining

whether articulable and specific facts support an officer’s reasonable suspicion, the

court must consider the totality of the circumstances, which include but are not

limited to objective observations, information obtained from other police officers or

agencies, information obtained from citizens, and the pattern of operation of certain

offenders. See State v. Lawson, 929 S.W.2d. 406, 408 (Tenn. Crim. App. 1996).

The court may also consider the rational inferences and deductions that a trained

police officer may draw from the facts and circumstances known to him. Id. The

court must then decide, whether under a standard of objective reasonableness,

these facts would give rise to a reasonable suspicion justifying a stop. . . .”7 Ornelas

v. United States, -- U.S. at --, 116 S.Ct. 1657, 1664 (Scalia, J. dissenting).



        Reasonable suspicion may in some circumstances be established by the high

speed flight of individuals made in order to avoid confrontation with the police. See

W AYNE R. LAFAVE, SEARCH AND SEIZURE § 9.4(f) (1996 & 1999 Supp.). Although the

record indicates that the appellant walked “quickly” to his house which was within

100 to 150 feet from where he was standing when initially observed, we would be

constrained to conclude that this act constituted “high speed flight” sufficient to




        7
          W e stress that the sta ndard is a n “objec tive” one, i.e., “would the facts available to the
officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the
belief’ that the action taken was appropriate.’” Ter ry v. O hio, 392 U.S. at 21, 88 S.Ct. at 1880
(citations omitted). Indeed, the “simple ‘good faith on the part of the arresting officer is not
enough.’” Id. at 22, 88 S.Ct. at 1880 (quoting Bec k v. O hio, 379 U.S. 89, 97, 85 S.Ct. 223, 229
(1964)).

                                                     5
establish a “reasonable suspicion.”8 Next, Officer Vaughn testified that he observed

what he believed to be a “casual exchange” of illegal drugs between the appellant

and another individual. He admitted, however, that he did not see the two men

exchange any substances, objects, or money. 9 Indeed, Officer Vaughn provided no

additional facts to support his belief that he had observed such a “casual exchange.”

See Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416 (1990) (officer

must be able to articulate something more than inchoate and unparticularized

suspicion or hunch). Finally, while an area identified by the police as a “high crime

area” may support reasonable suspicion when coupled with other circumstances,

the individual’s presence alone is not sufficient. See generally Brown v. Texas, 443

U.S. 47, 52, 99 S.Ct. 2637, 2641 (1979); see also Lawson, 929 S.W.2d at 408.

The mere fact that the appellant was standing with another individual in a high crime

area does not elevate the circumstances into a reasonable suspicion of criminality.

See Lawson, 929 S.W.2d at 409 (quoting Bower, 156 Cal.Rptr. at 860, 597 P.2d at

119). Many individuals, such as the appellant in the present case, are forced to live

in areas that have high crime rates; thus, his mere presence in these areas is




         8
            Num erou s juris dictio ns ha ve ad dres sed the d ifficu lt que stion of wh ethe r an in dividu al’s
“flight” from police offic ers, in and of itself, justifies a stopping for investiga tion with varying results.
See, e.g., People v. Bower, 156 Ca l. Rptr. 856, 5 97 P.2d 115 (19 79), superseded on other
grou nds by co nstitu tiona l ame ndm ent a s rec ogn ized in , Peo ple v. L loyd, 6 Ca l. Rptr .2d 1 05 (C al.
App. 4 Dist. 1992) (walking away from police officer at fast pace considered with other suspicious
circumstances not sufficient for stop, as defendant was simp ly exercising his right to privacy);
People v. Padge tt, 932 P.2d 810 (Colo. 1997) (where defendant ignored officer’s request to come
to him, such “attempt to avoid coming into contact with a police officer does not, without more,
justify an inves tigative deten tion); Cauthen v. United States, 592 A.2d 1021 (D.C.App. 1991)
(walking away fas t not sufficie nt, as it is nec essary tha t “the m anner o f flight sugg ests
consc iousnes s of guilt rathe r than a m ere des ire not to intera ct with the po lice”); Sam s v. State ,
265 Ga. 534, 459 S.E.2d 551 (1995) (various factors, including that defendant purportedly “sought
to avoid an encounter with the police” not sufficient where defendant “walked away from the
officer in a w ay that the of ficer des cribed as norm al”); Gurro la v. State , 877 S.W.2d 300 (Tex.
Crim. App. 1994) (fact that persons engaged in argument walked off when police officer
approa ched n o groun ds for sto p, but m erely exerc ise of “the r ight of Am erican c itizens to refu se to
answe r question s by police o fficers w ho have no reas onable s uspicion ”). Comp are United States
v. Sh olola , 124 F.3d 803 (7th Cir. 1997) (reasonable suspicion based in part on fact of defendant
“walking briskly in opp osite direc tion”); United States v. Quinn, 83 F.3d 917 (7th Cir. 1996) (group
“continue d to beha ve susp iciously by sca ttering and then attem pting to hea d off in opp osite
directions ”); State v. Roach, 677 A.2d 157 (N.H. 1996) (grounds to stop person peeking out of
alley in area known for drug activity when he “quickly reversed direction” on approach of squad
car).

         9
           On cro ss-exa mina tion, Office r Vaugh n adm itted that, he “d idn’t see an ything exc hange d,”
rather, “[the appellant] ju st appe ared to b e involved in an exc hange .”

                                                       6
insufficient to transform the circumstances into that justifying a seizure of the

individual. Id.



       Our review of the facts relied upon by Officer Vaughn to justify his initial

seizure of the appellant support only the conclusion of “innocent activity.” Because

Officer Cook had not yet identified the appellant’s companion as a known drug

offender at the time of Officer Vaughn’s seizure of the appellant, we conclude that

the observance of “innocent activity,” accompanied only by an officer’s

unsubstantiated “belief or hunch,” fails to provide a rational basis that “criminal

activity is afoot.”



       For the reasons stated above, we conclude that the officer’s detention of the

appellant constituted an unlawful seizure. Accordingly, we reverse and dismiss the

appellant’s conviction.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



_____________________________________
JOHN H. PEAY, Judge



_____________________________________
JOHN EVERETT W ILLIAMS, Judge




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