         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 16, 2005

                 STATE OF TENNESSEE v. ANTONIO D. JONES

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2002-A-290    Mark Fishburn, Judge



                    No. M2004-01349-CCA-R3-CD - Filed August 12, 2005


THOMAS T. WOODA LL, J., dissenting.

         I respectfully dissent. Based upon my review of the record, the encounter leading up to
Defendant’s consent to submit to a search was a brief police-citizen encounter requiring no objective
justification. State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). Accordingly, I would affirm the
judgment of the trial court.

         In State v. Randolph, 74 S.W.3d 330, 336 (Tenn. 2002), the Court held that under Article I,
section 7 of the Tennessee Constitution, in determining whether there is a “seizure” of a person (and
not a brief police-citizen encounter) the proper standard is that set forth by the United States
Supreme Court in United States v. Mendenhall, 446 U.S. 544 (1980) whether “in view of all of the
circumstances surrounding the incident, a reasonable person would have believed he or she was not
free to leave.” Randolph, 74 S.W.3d at 336 (quoting Mendenhall, 446 U.S. at 554).

        The Tennessee Supreme Court has identified numerous factors that are relevant to the totality
of the circumstances test:

       the time, place and purpose of the encounter; the words used by the officer; the
       officer’s tone of voice and general demeanor; the officer’s statements to others who
       were present during the encounter; the threatening presence of several officers; the
       display of a weapon by an officer; and the physical touching of the person of the
       citizen.

Randolph, 74 S.W.3d at 337 (quoting Daniel, 12 S.W.3d at 427). Furthermore, in Daniel, the Court
stated that while this analysis is “necessarily imprecise,” there are several police encounters
generally held to constitute “seizures”:

       [where the officer] (1) pursues an individual who has attempted to terminate the
       contact by departing; (2) continues to interrogate a person who has clearly expressed
       a desire not to cooperate; (3) renews interrogation of a person who has earlier
        responded fully to police inquiries; (4) verbally orders a citizen to stop and answer
        questions; (5) retains a citizen’s identification or other property; (6) physically
        restrains a citizen or blocks the citizen’s path; (7) displays a weapon during the
        encounter.

Randolph, 74 S.W.3d at 337 (quoting Daniel, 12 S.W.3d at 426). The Court’s analysis in both
Daniel and Randolph indicate that “the line of demarcation is drawn at the officer’s communication
of mandatory compliance with his or her request, as opposed to voluntary compliance by the citizen.”
State v. James D. Nicholson, No. M2004-00111-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 78,
*10 (Tenn. Crim. App., at Nashville, Jan. 25, 2005) (no Tenn. R. App. P. 11 application filed).
Specifically, in Daniel, the court held,

        . . . courts have consistently held that the Fourth Amendment is not implicated and
        no seizure occurs when police approach an individual, in a public place, or in a
        parked car, ask questions, and request to search, so long as police do not convey a
        message that compliance with their requests is required.

Daniel, 12 S.W.3d at 426. (emphasis in original).

         In State v. Randolph, an officer observed the defendant riding a bicycle a few blocks from
the site of a possible burglary. Randolph, 74 S.W.3d at 332. The only description available of the
burglary suspect was that the suspect was a “white male”. Id. Acting on a “hunch,” the officer
activated the blue lights in his patrol car with the intent to stop and identify the defendant. Id. at 333.
As the defendant neared the patrol car, the officer rolled down his window and told him to stop. Id.
The defendant, who was within three feet of the vehicle, looked at the officer but kept riding. Id.
When the defendant was eventually apprehended, he had several items in his possession which
linked him to the burglary. Id. The Supreme Court ruled that the evidence should be suppressed,
holding that “the defendant was seized when the officer activated the blue lights on his patrol car,
ordered the defendant to stop, and pursued him for several blocks.” Id. at 338.

        The Court in Daniel, on the other hand, held that an officer’s initial approach of the
defendant did not constitute a seizure where the officer merely approached the defendant and his
friends, who were standing around outside a vehicle in a parking lot, inquired what was going on,
and asked to see identification. The Court held that at that point, there was no evidence that the
officer physically restrained the defendant, instructed him not to walk away, or blocked his path.
Therefore, no seizure occurred. However, when the officer retained the defendant’s identification
to run a computer warrants check, the consensual police-citizen encounter matured into a seizure of
the person.

       A panel of this Court recently followed Randolph and Daniel and held that the defendant
was seized when, in the presence of multiple officers, a detective instructed the defendant to “hold
up,” pursued him on foot, and eventually apprehended him. State v. James D. Nicholson, No.
M2004-00111-CCA-R3-CD, 2005 Ten. Crim. App. LEXIS 78, at *14-15 (Tenn. Crim. App., at


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Nashville, Jan. 25, 2005) (no Tenn. R. App. P. 11 application filed). In State v. James D. Nicholson,
several officers had arrived at the John Henry Hale Housing Projects for the purpose of conducting
gang investigations, when they observed a large group of individuals, some of whom were engaging
in “hand-to-hand drug transactions.” Id. at *2. As the officers approached, several individuals ran.
Later, one detective noticed the defendant walking toward Henry Place and told him to “hold up.”
Id. at *3. The defendant ran, but was chased and apprehended by officers. Id. The defendant
refused to identify himself to detectives and insisted he was visiting someone, though he refused to
reveal the name of the person he was visiting or where the person lived. The defendant was then
placed under arrest for trespassing and a search incident to arrest revealed crack cocaine and cash
in his possession. Id. at *3-4. The Court held that at the time the defendant was told to “hold up”
and pursued by an officer, the officer did not have sufficient grounds to warrant the seizure. Id. at
*22. As a result, the Court suppressed all evidence collected as a result of the seizure, vacated the
conviction, and dismissed the charges. Id.

        In the case sub judice, the first step of analysis is to determine whether the initial encounter
between Officer Martin and Defendant amounted to a “seizure” under the standard adopted by our
Supreme Court in Randolph. The facts are not in dispute. Officer Martin, in full uniform,
approached Defendant in order to ascertain whether or not he was trespassing on MDHA property.
Defendant saw the officer approaching, the two men looked at each other, and Defendant
immediately walked quickly to a vehicle parked on the public street outside of MDHA property and
then got into the back seat. The officer followed him to the car, and with the door open, the officer
“asked him if [he] could talk to him . . . asked him to take his hands out of his pockets . . . and asked
him to step from the vehicle.” While cross-examination of Officer Martin resulted in some variance
in the sequence and specifics of the conversation, the trial judge made the following findings of fact
following the suppression hearing: “Officer Martin approached the vehicle, asked the defendant if
he would mind exiting and speaking to the officer. The defendant agreed, exited the vehicle, and
removed his hands from his pockets as requested.”

        I agree with the trial court that Officer Martin did not need reasonable suspicion or probable
cause to approach Defendant and conduct investigatory questioning in order to ascertain whether or
not Defendant was a resident of the MDHA housing complex. Nothing that happened after the
officer began to approach Defendant indicates that it was more than a consensual police-citizen
encounter. Nothing indicates that a reasonable person in Defendant's position would have believed
he was not free to leave. The encounter between Defendant and Officer Martin does not fall within
any of the police-citizen encounters which our Supreme Court listed in Daniel as being “seizures.”
See Daniel, 12 S.W.3d at 426. According to Daniel, a police-citizen encounter is a seizure where
an officer (1) pursues an individual who has attempted to terminate the contact by departing; (2)
continues to interrogate a person who has clearly expressed a desire not to cooperate; (3) renews
interrogation of a person who has earlier responded fully to police inquiries; (4) verbally orders a
citizen to stop and answer questions; (5) retains a citizen’s identification or other property; (6)
physically restrains a citizen or blocks the citizen’s path; (7) displays a weapon during the encounter.
Daniel, 12 S.W.3d at 426. Defendant argues that the encounter in the case sub judice fits into
several of these categories.


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         Defendant argues that because Officer Martin continued to pursue Defendant after he, in the
words of the trial court,"attempted to evade Officer Martin,” the officer's actions fall within the first
two police-citizen encounter categorized in Daniel as a "seizure" where an officer "pursues an
individual who has attempted to terminate the contact by departing” or, where an officer “continues
to interrogate a person who has clearly expressed a desire not to cooperate.” Indeed, by noticing the
approaching officer and immediately walking the other direction, Defendant clearly expressed his
desire to avoid Officer Martin. However, his mere walking away a short distance from Officer
Martin cannot be said to be an attempt to terminate contact with the officer, since no contact had
been made at that time. Unlike the officers in Randolph and Nicholson, Officer Martin did not tell
Defendant to stop. In fact, he said nothing to Defendant nor made any contact whatsoever with
Defendant until after Defendant was seated in the back seat of the vehicle and the officer walked up
to him and asked if he could talk to Defendant. There is nothing in the record to indicate that
Defendant made any attempt to terminate the contact with Officer Martin once their conversation
began. On the contrary, the record demonstrates that Defendant was “fully cooperative.”

         Next, Defendant argues that Officer Martin gave Defendant a verbal order to stop and answer
questions when he asked Defendant to “step from the vehicle.” Likewise, he also argues that when
the officer walked up to the open car door where Defendant was seated, he physically blocked his
path, and thus seized him. I disagree. First, because Defendant was already seated in a vehicle when
the officer walked up to him, the officer’s asking him to step out of the vehicle could not possibly
be considered an “order to stop.” Defendant had already “stopped” on his own volition when he sat
down in the back seat of a parked vehicle. Second, although the record reflects that the officer
walked up to the open door of the back seat of the vehicle where Defendant was seated, with his feet
still outside the vehicle, it does not indicate that Defendant was attempting to exit the vehicle or that
the officer in any way blocked him from doing so. Regardless, courts have consistently held that the
Fourth Amendment is not implicated and no seizure occurs when an officer approaches a vehicle
parked in a public place and asks the occupant questions. Daniel, 12 S.W.3d at 426; see State v.
Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).

       Officer Martin asked Defendant if he would talk with the officer. Defendant consented to
do so. Defendant was also asked if he would remove his hands from his pockets, and step outside
the vehicle he was sitting in, in the back seat, with the door open.

        If Officer Martin had ordered Defendant to get out of the vehicle, and/or had ordered
Defendant to remove his hands from his pockets, and/or had ordered Defendant to answer questions,
there would definitely had been a “seizure.” However, there was no evidence that these things
happened in this described manner. The trial judge observed the testimony of Officer Martin during
both direct and cross-examination, and concluded, at least implicitly, that Officer Martin “did not
convey a message [to Defendant] that compliance with [Officer Martin’s] requests [was] required.”
Daniel, 12 S.W.3d at 426. Thus there was no seizure, and the judgment should be affirmed.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE


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