         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 16, 2004 Session

           STATE OF TENNESSEE v. ORSON WENDELL HUDSON

                      Appeal from the Criminal Court for Sumner County
                          No. 331-2003    Jane Wheatcraft, Judge



                     No. M2004-00077-CCA-R3-CD - Filed March 15, 2005


The defendant, Orson Wendell Hudson, pled guilty in Sumner County Criminal Court to possession
with the intent to sell more than twenty-six grams of cocaine, a Class B felony, and the trial court
sentenced him as a Range I, standard offender to eight years in the Department of Correction. The
defendant appeals upon certified questions of law from the trial court’s denial of his motion to
suppress evidence seized pursuant to a traffic stop. He claims the trial court should have granted his
motion because (1) the arresting officer’s stated justification for stopping his car was pretextual, (2)
the officer did not have probable cause to stop his car for following too closely, (3) the officer’s
questioning transformed his detention into an unreasonable seizure, (4) the officer’s questioning of
his six-year-old daughter outside his presence was illegal, and (5) the officer coerced his consent to
search. We affirm the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ALAN
E. GLENN , JJ., joined.

Michael T. Pickering, Gallatin, Tennessee, for the appellant, Orson Wendell Hudson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Dee David Gay, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

       This case relates to a roadside search of the defendant’s car which revealed the presence of
approximately one-half pound of cocaine. The defendant moved the trial court to suppress the
evidence seized. One person testified at the suppression hearing, Eighteenth Judicial District Drug
Task Force Investigator Jody Starks. Investigator Starks testified that he “was working interdiction”
on I-65 when he stopped the defendant’s car for following a recreational vehicle (RV) too closely.
He said that when he saw the defendant’s car, it was less than one car length behind the RV. He said
he believed the following so closely would potentially lead to a rear-end collision “based upon any
maneuver that the RV might have to make, whether it be stopping, engine trouble, [or] a flat tire.”
He said that after the defendant pulled to the side of the road, he asked the defendant to step to the
rear of his car and bring his driver’s license with him. He said that he asked the defendant where he
was going and that the defendant replied he was going to Michigan City, Indiana. Investigator Starks
said he also talked to the defendant about the status of his driver’s license, his address, and his
driving history. He said he also explained to the defendant the “rule of thumb for following other
vehicles on the interstate.” He said that the defendant’s license was valid but that the defendant did
not have insurance. He also said that during his investigation, he noticed that the defendant’s rear
brake light was not working.

         Investigator Starks acknowledged he had a conversation with the defendant’s six-year-old
daughter, who was seated in the passenger seat of the defendant’s car. He said he asked her whether
she was wearing a seatbelt and where she and her father were going. He said she replied that she was
wearing her seatbelt and that they were headed to Ohio to visit some of her father’s friends.
Investigator Starks testified that based upon the conflicting stories concerning destination, he became
suspicious of criminal activity. He said he then asked the defendant about the presence of marijuana
and cocaine in the car. He said the defendant told him there were no drugs in the car. Investigator
Starks said that he asked the defendant about his arrest history and that the defendant replied that he
had been arrested for domestic battery and possession of a handgun. He said that based upon the
defendant’s criminal history, he asked the defendant for permission to search his car for weapons to
which the defendant consented. Investigator Starks said he allowed the defendant and his daughter
to wait by the side of the road while he searched the car. He said the search revealed two marijuana
“blunts” in the ashtray, burned marijuana seeds on the passenger seat, and one-half pound of cocaine
in the trunk.

        After considering the evidence, including a videotape made of the entire sequence of events
by Investigator Starks’ patrol car, the trial court found that Investigator Starks’ actions constituted
“just good police work.” The court further found that

               the officer made the stop . . . followed that up with the warning ticket
               and then asked the Defendant, as they do in many cases, about his
               criminal history. He found out that there was a weapons charge, and
               then asked to search the vehicle for weapons.
                       The Court doesn’t find anything that is constitutionally
               impermissible in this; and, therefore, I’m going to deny the motion to
               suppress.

        Following the trial court’s denial of the motion to suppress, the defendant pled guilty
reserving the following certified questions of law: (1) whether Investigator Starks stopping the
defendant’s car violated the Fourth Amendment, (2) whether the investigation exceeded the scope
of the detention creating an unreasonable seizure under the Fourth Amendment, and (3) whether the
defendant’s consent was coerced.


                                                 -2-
        On appeal the defendant contends the trial court erred in denying his motion to suppress
because (1) there was no basis for stopping his car, (2) the reasons for detaining him were merely
pretextual, (3) the length of his detention was unreasonable, (4) the questioning of his daughter
outside his presence was illegal, and (5) his consent to search was coerced. The state argues that (1)
a constitutionally valid basis existed for stopping the defendant’s vehicle, (2) Investigator Starks’
subjective intentions are irrelevant, (3) the defendant’s detention was reasonable, (4) the defendant’s
argument concerning the illegality of the questioning of his daughter is not properly before this court,
and (5) the defendant’s consent was valid. We agree with the state.

                                             ANALYSIS

        Initially we note that the certified questions of law do not address an issue of whether the
questioning of the defendant’s daughter outside his presence was illegal. Therefore, that issue is not
properly before this court. See State v. Jenkins, 15 S.W.3d 914, 917-18 (Tenn. Crim. App. 1999).
However, we will consider the questioning of the defendant’s daughter relative to the scope of the
investigation and the length of the detention.

         A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are
matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The application
of the law to the facts as determined by the trial court is a question of law which is reviewed de novo
on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

             I. JUSTIFICATION FOR STOPPING THE DEFENDANT’S CAR

        The defendant claims that his car was stopped in violation of the Fourth Amendment and
article 1, section 7 of the Tennessee Constitution. The Fourth Amendment to the United States
Constitution protects against unreasonable searches and seizures, and “‘article 1, section 7 [of the
Tennessee Constitution] is identical in intent and purpose with the Fourth Amendment.’” State v.
Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 13, 423 S.W.2d
857, 860 (1968)). An automobile stop constitutes a seizure within the meaning of both the Fourth
Amendment of the United States Constitution and article I, section 7 of the Tennessee Constitution.
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 2485 (1990); State v.
Pulley, 863 S.W.2d 29, 30 (Tenn. 1993); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App.
1994). The police may stop a vehicle if they have either probable cause or an “articulable and
reasonable suspicion” that the vehicle or its occupants are subject to seizure for violation of the law.
See Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391 (1979); State v. Watkins, 827 S.W.2d
293, 294 (Tenn. 1992); State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989). Probable
cause to arrest exists if the facts and circumstances within an officer’s knowledge are sufficient to
warrant a prudent person in believing that the arrestee has committed an offense. Beck v. Ohio, 379
U.S. 89, 91, 85 S. Ct. 223, 225 (1964); State v. Melson, 638 S.W.2d 342, 350-51 (Tenn. 1982). An


                                                  -3-
officer’s subjective intention for stopping a vehicle is irrelevant, as long as independent grounds
exist for the detention. See Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996); State v.
Vineyard, 958 S.W.2d 730 (Tenn. 1997).

        Tennessee’s following too closely statute provides that a “driver of a motor vehicle shall not
follow another vehicle more closely than is reasonable and prudent, having due regard for the speed
of such vehicles and the traffic upon and the condition of the highway” and that any “violation of
this section is a Class C misdemeanor.” T.C.A. § 55-8-124(a), (e). The record reflects that
Investigator Starks stopped the defendant’s car based upon his observation that the defendant was
following an RV at less than one car’s length. This constituted probable cause that the defendant
was in violation of the law. Id. Because Investigator Starks’ subjective intention when stopping the
defendant’s car is irrelevant, this issue is without merit.

                    II. LENGTH OF THE DEFENDANT’S DETENTION

         The defendant next claims that the entire seizure was unreasonable because Investigator
Starks’ investigation exceeded the scope of the initial detention. Whether a traffic stop is initiated
based on probable cause or reasonable suspicion, a resulting investigation is reviewed under the
framework established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). See United States v.
Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574 (1975). Such investigations require that an officer’s
actions must be “reasonably related in scope to the circumstances which justified the interference
in the first place.” Terry, 392 U.S. at 20, 88 S. Ct. at 1879. The detention “must be temporary and
last no longer than necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491,
500, 103 S. Ct. 1319, 1325 (1983); State v. England, 19 S.W.3d 762, 767-68 (Tenn. 2000).
Moreover, the officer should employ the least intrusive means reasonably available to investigate
his or her suspicions in a short period of time. Royer, 460 U.S. at 500, 103 S. Ct. at 1326. “The
proper inquiry is whether during the detention, the police diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions quickly.” State v. Simpson, 968 S.W.2d 776, 783
(Tenn. 1998) (citation omitted). “If the time, manner or scope of the investigation exceeds the
proper parameters,” a constitutionally permissible stop may be transformed into one which violates
the Fourth Amendment and article 1, section 7. United States v. Childs, 256 F.3d 559, 564 (7th Cir.
2001); see also State v. Morelock, 851 S.W.2d 838, 840 (Tenn. Crim. App. 1992). In the context
of determining whether investigative methods run afoul of the Fourth Amendment and article 1,
section 7, this court has stated “that requests for driver’s licenses and vehicle registration documents,
inquiries concerning travel plans and vehicle ownership, computer checks, and the issuance of
citations are investigative methods or activities consistent with the lawful scope of any traffic stop.”
State v. Gonzalo Garcia, No. M2000-01760-CCA-R3-CD, Davidson County, slip op. at 22 (Tenn.
Crim. App. Feb. 20, 2002) (citing United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000);
United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999); United States v. Lyton, 161 F.3d 1168, 1170
(8th Cir. 1998)), overruled on other grounds by State v. Garcia, 123 S.W.3d 335 (Tenn. 2003).

       In this case, we hold that the questioning of the defendant, which the record reflects lasted
approximately six and one-half minutes, did not create an unreasonable detention. Investigator


                                                  -4-
Starks initially asked the defendant questions concerning his license, registration, insurance, and
travel plans and explained to him the general rule of following too closely. He then noticed that the
defendant’s tail light was not working properly. Investigator Starks next informed the defendant he
was going to check his driver’s license for outstanding warrants and criminal history and asked the
defendant if he had been arrested before. In response, the defendant acknowledged that he had been
arrested for domestic battery and unlawful possession of a handgun. After questioning the
defendant, Investigator Starks determined whether the defendant’s daughter was wearing her seatbelt
in compliance with state law and asked her about their travel plans. We believe that given the
evidence elicited during this investigation, which we conclude was conducted within the scope of
the original detention, Investigator Starks had reasonable suspicion to ask the defendant for
permission to search his car for weapons.

               III. VOLUNTARINESS OF THE DEFENDANT’S CONSENT

       Finally, the defendant contends that the consent he gave Investigator Starks to search his car
was the result of coercion. The state argues that the defendant’s consent was given voluntarily, free
from coercion.

        The analysis of any warrantless search must begin with the proposition that such searches are
per se unreasonable under the Fourth Amendment to the United States Constitution and article I,
section 7 of the Tennessee Constitution. This principle against warrantless searches is subject only
to a few specifically established and well-delineated exceptions. See Katz v. United States, 389 U.S.
347, 357, 88 S. Ct. 507, 514 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980).
Before the fruits of a warrantless search are admissible as evidence, the state must establish by a
preponderance of the evidence that the search falls into one of the narrowly drawn exceptions to the
warrant requirement. See State v. Shaw, 603 S.W.2d 741, 742 (Tenn. Crim. App. 1980). A warrant
is not needed when there is a consent that is “unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion.” State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). Thus,
the question becomes whether the consent to the search was given voluntarily. See State v. Jackson,
889 S.W.2d 219, 221 (Tenn. Crim. App. 1993).

         Investigator Starks testified that as a result of the defendant’s admission that he had a prior
arrest for illegal possession of a handgun, he asked him for permission to search the car. The record
reflects that Investigator Starks was the only law enforcement officer present at the time of this
request. Investigator Starks also testified that he did not arrest the defendant until after discovery
of the cocaine. Further, he said he allowed the defendant to stand by the side of the road while he
was searching the car. Based upon the testimony of Investigator Starks and the videotape of the stop,
we conclude the defendant’s consent to search was freely given.




                                                  -5-
Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                              ___________________________________
                                              JOSEPH M. TIPTON, JUDGE




                                        -6-
