        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 25, 2013 Session

         STATE OF TENNESSEE v. IZZ-ALDIN AHMED MUSTAFA

                    Appeal from the Circuit Court for Sevier County
                       No. 14779-III Rex Henry Ogle, Judge


                   No. E2013-00960-CCA-R3-CD - Filed April 7, 2014


JEFFREY S. BIVINS, J., concurring.

        I am constrained to agree with the majority that the trial court’s decision in this case
must be affirmed. I write separately for two reasons. First, I would point out that the facts
of this case dramatically illustrate the results dictated by the Tennessee Supreme Court’s
continuing restriction, if not effective evisceration, of the community caretaking doctrine in
Tennessee. As the majority points out, this restrictive interpretation recently was reaffirmed,
and arguably expanded, by the majority opinion of the our supreme court in State v. Moats,
403 S.W.3d 170 (Tenn. 2013).

         Second, I disagree with the majority opinion to the extent that it can be interpreted as
concluding that even the use of a yellow directional arrow light facing backwards on the
police car may be a legitimate factor weighing in favor of a conclusion that a reasonable
person would not feel free to leave under these circumstances. Regardless of whether the
light would or would not have reflected off nearby storefronts, I would not weigh this factor
in that manner in consideration of the totality of the circumstances. Indeed, if considered at
all, this factor would weigh in the opposite direction when considered in conjunction with
the officer’s obvious choice not to activate his blue lights.

       In summary, even with my disagreement with the majority on the factor above, I agree
with the result reached by the majority after consideration of the totality of the circumstances
under the restraints imposed by Moats and its prior line of cases.



                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE
