         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 9, 2002 Session

             STATE OF TENNESSEE v. LILLIE FRAN FERGUSON

                  Direct Appeal from the Circuit Court for Madison County
                            No. 99-938    Roger A. Page, Judge



                 No. W2002-00638-CCA-R3-CD - Filed November 19, 2002


After entering a guilty plea, the defendant reserved certified questions for review: (1) whether the
Terry search was justified, and (2) whether the incriminating nature of the contraband was
immediately apparent. We hold that the officer lacked reasonable suspicion to justify a Terry frisk
and that the object felt was not immediately apparent as contraband. We reverse and dismiss the
defendant’s conviction.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Dismissed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN, JJ., joined.

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Lillie Fran Ferguson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        The defendant, Lillie Fran Ferguson, was indicted for possession of cocaine with intent to
sell and/or deliver, possession of drug paraphernalia, and failure to obey a stop sign. After the
defendant’s motion to suppress the evidence was denied, she entered a guilty plea to possession of
less than .5 grams of cocaine with intent to deliver, Tenn. Code Ann. § 39-17-417, a Class C felony.
The plea bargain was for a four-year suspended sentence, with other conditions. Two certified
questions of law were properly reserved, pursuant to Tennessee Rules of Criminal Procedure
37(b)(2). The certified questions are: (1) whether a Terry search was justified under the
circumstances, and (2) whether the incriminating nature of the contraband was immediately apparent.
The defendant also pled guilty to failure to obey a stop sign, which was not appealed.
                                             Background

         On August 5, 1999, about 8:00 or 9:00 p.m., Officer Jeff Sheppard of the Jackson Police
Department was performing surveillance on a residence anonymously reported to be a “crack house.”
The officer had within the last two days made an arrest of two men for possession of crack cocaine
after they left the same residence. The officer observed the defendant, Lillie Fran Ferguson, a sixty-
one-year-old woman, and another female companion park their vehicle and enter the residence.
After five to ten minutes, the women returned and left in the vehicle. Officer Sheppard followed
and, shortly thereafter, observed the defendant fail to obey a stop sign. He then initiated a stop and
requested the defendant’s driver’s license. When the defendant did not immediately produce the
license, the officer asked her to step out of the car and performed a pat down or Terry frisk. During
this time, the defendant produced her license. The officer testified that it was his policy during
traffic stops to pat down everyone he thought might have a weapon.

       Pursuant to the pat down, the officer felt what he was “99% sure” was a crack pipe in the
defendant’s right front pants pocket. He described it as an aluminum pipe, broken from a car
antenna, with little edges that were sharp and bent out. Contemporaneously with the frisk, he
questioned the defendant as to whether she had a crack pipe and if she had crack on her. She replied
affirmatively to both questions and produced the respective contraband items. A search of the
vehicle produced another crack pipe with one or two crack cocaine rocks from under the passenger
seat.

                                               Analysis

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this Court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from
that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound
by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The
application of the law to the facts found by the trial court are questions of law that this Court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of
establishing that the evidence contained in the record preponderates against the findings of fact made
by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

        A warrantless search is presumed unreasonable under both the federal and Tennessee state
constitutions, and evidence seized from the warrantless search is subject to suppression unless the
State demonstrates by a preponderance of the evidence that the search was “conducted pursuant to
one of the narrowly defined exceptions to the warrant requirement.” State v. Simpson, 968 S.W.2d



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776, 780 (Tenn. 1998); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022,
2032, 29 L. Ed. 2d 564 (1971).

        Under Tennessee Code Annotated section 40-7-118, an officer who witnesses certain
misdemeanors is required to cite and release the offender as opposed to effecting a custodial arrest.
State v. Walker, 12 S.W.3d 460 (Tenn. 2000). There are eight exceptions to the “cite and release”
requirement contained in the statute, none of which are applicable to this case. Therefore, a citizen
has a presumptive right to be cited and released for failure to obey a stop sign, rather than being
placed under custodial arrest.

       However, the Fourth Amendment permits a protective frisk prior to release where a law
enforcement officer has reasonable suspicion that the suspect is armed. Terry v. Ohio, 392 U.S. 1,
21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); State v. Watkins, 827 S.W.2d 293, 294
(Tenn. 1992); State v. Winn, 974 S.W.2d 700, 703 (Tenn. Crim. App. 1998).
               In determining whether a police officer’s reasonable suspicion is
               supported by specific and articulable facts, a court must consider the
               totality of the circumstances. United States v. Cortez, 449 U.S. 411,
               417, 101 S.Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981). This includes,
               but is 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. Id., 449
               U.S. at 418, 101 S.Ct. at 695, 66 L. Ed. 2d at 629. A court must also
               consider the rational inferences and deductions that a trained police
               officer may draw from the facts and circumstances known to him.
               Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906.
Watkins, 827 S.W.2d at 294.

         The officer had approximately five to six months experience on the Jackson Metro Narcotics
Unit and eight years total experience in police work and arrests involving drug offenders. Based on
his experience, he testified that, “My experiences with people that are involved in the narcotics trade
or use tend to have some type of weapon on them.” According to the officer, less than two minutes
had elapsed since the defendant had emerged from an alleged crack house when he performed the
frisk. On cross-examination, when asked if he frisked everybody he stopped, the officer answered:
“Everybody that I have reason to think might have a weapon, yes, sir.” Officer Sheppard further
testified that on routine traffic stops such as speeding or running a stop sign, he may not perform a
frisk.

        Frisks have been deemed reasonable when the suspected crime typically involves the use of
a weapon; for example, a suspicion of robbery, burglary, rape, assault with a weapon, homicide, and
large scale narcotics trafficking. Winn, 974 S.W.2d at 703. If the suspected crime, as here, does
not typically involve the use of a weapon, then “other circumstances” must be present. Sibron v.
New York, 392 U.S. 40, 74, 88 S. Ct. 1889, 1907, 20 L. Ed. 2d 917 (1968); Winn, 974 S.W.2d at
703-704.


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       This Court has previously considered a plethora of “other circumstances” as follows:
               [A] characteristic bulge in the suspect’s clothing; observation of an
               object in the pocket which might be a weapon; an otherwise
               inexplicable sudden movement toward a pocket or other place where
               a weapon could be concealed; an otherwise inexplicable failure to
               remove a hand from a pocket; backing away by the suspect under
               circumstances suggesting he was moving back to give himself time
               and space to draw a weapon; awareness that the suspect had
               previously been engaged in serious criminal conduct; awareness that
               the suspect had previously been armed; [and] discovery of a weapon
               in the suspect’s possession . . . .
Winn, 974 S.W.2d at 704. LaFave, Search and Seizure, § 9.5(a) (3d ed. 1996 & Supp. 1997)
(footnotes and citations omitted).

        The record is devoid of any “other circumstances” such as furtive movements, suspicious
bulges, or prior knowledge of the defendant at the time of the stop and seizure. The State posits that
the officer believed he was subjected to a “heightened level of danger” when stopping the defendant,
based on defendant’s just leaving an alleged crack house and that the officer had, two days prior,
arrested two other men for cocaine possession after they left the same residence. While mindful of
law enforcement officers’ need to ensure their safety when confronting suspects, under these facts,
we cannot discern a reasonable and articulable suspicion to justify a Terry frisk.

        The defendant further complains that the crack pipe’s incriminating nature was not
immediately apparent as contraband. The defendant relies upon Minnesota v. Dickerson, 508 U.S.
366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), and State v. Bridges, 963 S.W.2d 487 (Tenn. 1997).
Under this authority, the “plain feel” doctrine allows a warrantless search and seizure if:
                (1) a prior valid reason exists for the intrusion, i.e., the pat down
                    must be permissible under Terry;
                (2) the contraband is detected while the Terry search for weapons
                    legitimately is still in progress; and
                (3) the incriminating nature of the object perceived by the officer’s
                    sense of touch is immediately apparent giving the officer probable
                    cause to believe the object is contraband prior to its seizure.
Having held that the frisk in this case was not justified by articulable and reasonable suspicion, the
intrusive frisk would fail on that basis. However, for completeness of review we will analyze the
defendant’s second issue on the assumption of a valid Terry frisk.

       State v. Bridges contains a succinct summary as to when an officer’s tactile perceptions give
probable cause to believe the item is contraband prior to seizure:
               Probable cause exists when the facts and circumstances within the
               officer’s knowledge are sufficient to warrant a person of reasonable
               caution in the belief that the item may be contraband. Brown, 460
               U.S. at 742, 103 S.Ct. at 1543. Probable cause “does not demand any


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              showing that such a belief be correct or more likely true than false.”
              Id. In determining whether probable cause exists, courts must
              consider the totality of the circumstances including the officer’s
              testimony and factual knowledge based upon prior law enforcement
              experience. See State v. Rushing, 935 S.W.2d 30, 33 (Mo.banc.
              1996); see also State v. Trine, 236 Conn. 216, 673 A.2d 1098, 1100
              (1996). Courts should not surrender their common sense assessment
              of the sensory capacities of human touch to an officer’s assertion that
              he or she “immediately knew” the nature of the object touched. See
              e.g., Jones v. State, 343 Md. 448, 682 A.2d 248, 252 (1996) (“it’s not
              just a question of being an expert and coming in and saying the magic
              words”). The officer’s subjective belief that the object is contraband
              is not sufficient unless it is objectively reasonable in light of all the
              circumstances known at the time of the search. Trine, 673 A.2d at
              1109. An officer’s testimony is a factor in determining the legality of
              a seizure under the plain feel doctrine, but it is not dispositive and
              does not end a court’s inquiry. Wonders, 929 P.2d at 799.
963 S.W.2d at 494-95 (Tenn. 1997).

        Officer Sheppard described the object as a pipe made of aluminum, broken from a car
antenna, with little edges, sharp and bent out. The officer, in his words, felt “99% sure” it was a
crack pipe upon feeling it. Based upon this testimony, as well as the experience of Officer Sheppard,
we conclude that, under the “plain feel” doctrine, he was justified in his belief that this object was
a crack pipe. However, since we have concluded that his pat down of the defendant was not
justified, this belief cannot justify the unlawful search.

       Having concluded that the officer lacked reasonable suspicion to justify a Terry frisk, it is
necessary to suppress the evidence seized.

                                             Conclusion

         After a review of the record, we reverse and dismiss the defendant’s conviction of possession
of less than .5 grams of cocaine with intent to deliver and remand to the trial court.




                                               __________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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