        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                        JUNE SESSION, 1999           FILED
                                                   August 10, 1999
STATE OF TENNESSEE,        )   C.C.A. NO. 02C01-9809-CC-00266
                           )                      Cecil Crowson, Jr.
      Appellee,            )                     Appellate Court Clerk
                           )
                           )   CARROLL COUNTY
VS.                        )
                           )   HON. C. CREED McGINLEY
KEVIN BIRTRAN HALTER,      )   JUDGE
                           )
      Appe llant.          )   (Certified Question-Search)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF CARROLL COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

RAYMOND L. IVEY                PAUL G. SUMMERS
P.O. Box 667                   Attorney General and Reporter
Huntingdon, TN 38344
                               J. ROSS DYER
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               ROBERT RADFORD
                               District Attorney General

                               ELEANOR CA HILL
                               Assistant District Attorney General
                               P.O. Box 686
                               Huntingdon, TN 38344



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                OPINION
      On May 4, 1998, the Carroll County Grand Jury indicted the Defendant,

Kevin Birtran Halter, for possession of a Schedule II controlled substance with the

intent to manufacture, deliver or sell; possession of a Schedule VI controlled

substance with the intent to manufacture, deliver or sell; possession of unlawful

drug paraphernalia; and possession of burglary tools. The Defendant filed a

motion to suppr ess all evid ence s eized du ring the search of his vehicle, and

following a hearin g, the trial cou rt denied the motion. On July 21, 1998, the

Defendant pleaded guilty to all charges, reserving three certified questions of law.

The trial court sentenced him as a Range I standard offender to eight years for

the posse ssion of a Sched ule II controlled substance, to two years for the

possession of a Schedule IV controlled substance, and to eleven months and

twenty-nine days for the possession of drug paraphernalia and the possession

of burglary tools. The Defendant presents two issues for our r eview on ap peal:

(1) whether the arresting officer had sufficient reasonable suspicion based on

spec ific and articulable facts to detain the Defendant for investigation; and (2)

whether the warrantless search of the Defendant’s vehicle was pursu ant to va lid

conse nt.



      At the hearing on the motion to suppress, Officer Clint Hilliard, an officer

with both the Tre zevant Police D epartmen t and the Ca rroll County She riff’s

Department at the time of the Defendant’s arrest, testified abo ut the eve nts

surrounding the arrest. He r eporte d that o n Mar ch 3, 1 998 a t appro ximate ly

midnig ht, he was patrolling downtown Trezevant and noticed the Defendant’s car

parked in front of a va cant store located n ext to a laun droma t.      All of the

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businesses were closed, with the exception of the laundromat. The engine of the

Defe ndan t’s vehicle was turned off, and the windows of the vehicle were fogged,

which ind icated to H illiard that som eone w as inside .



       Hilliard reported that he de cided to che ck the vehicle “for the safety of the

comm unity and the safety of the peop le in the vehicle.” He stated, “I didn’t know

if somebody had been shot, killed, sta bbed, th ey was m aking ou t or what . . . . I

was just doing my job.” Don Newbill, Chief of Police in Trezevant, testified that

there had recently been numerous break-ins, some vandalism, three arson fires,

and one attempted arson fire in the immediate area where the Defendant’s car

was parked on the night of his arrest. Newbill emphasized that for these reasons

and because of the incidence of drunk drivers after the nearby bars closed, the

area was carefully patrolled. He state d that his o fficers were instructed to “patrol

the corpora te city limits o f Trez evant , paying particu lar atten tion to a ny and all

businesses, to anybody that comes in the area, to watch them and, at [the

officer’s] discretion, check on their welfare, their safety, whe re they’re going and

what the y’re doing .”



       Hilliard pulled his patrol car behind the Defendant’s vehicle, turned on his

“take-down lights,” which he des cribed as a haloge n light, and approached the

vehicle. He stated that he knocked on the driver’s window three times be fore the

Defen dant, who wa s sitting in the driver’s sea t, acknow ledged him. On the third

knock, the Defendant cracked his window, and a strong odor of cologne

emanated from the car. Shortly thereafter, a female, later identified as Cheryl

McKinlay, cam e up from the floorboard of the car. Both the Defendant and the




                                           -3-
fema le pass enge r had a ppare ntly bee n asle ep when Hilliard approached the

vehicle.



       Hilliard reques ted to see the Defendant’s driver’s license and registration.

He then asked the Defend ant where he an d his companion had come from and

where they we re hea ded. T he De fenda nt first told him that they had come from

Mem phis and we re head ed to Mem phis and then cor rected h imself, stating that

they were going to Indiana. According to Hilliard, the Defendant reported that he

and his passenger had become tired while driving and had pulled over to take a

nap. While conversing with the Defe ndan t and h is pass enge r, Hilliard shon e his

flashlight into the car and saw a box of aluminum foil with half a sheet torn off, an

open box of baking powder, a mug containing some type of liquid between the

Defe ndan t’s feet on the floorboard, a map on the floorboard, an open cosmetics

bag containing personal hygiene items, a number of bags from fast food

restaura nts, and c lothes stre wn abo ut the bac k seat of th e car.



       Hilliard testified that he asked the Defendant if the car belonged to him,

and th e Def enda nt resp onde d that it did. He next asked the Defendant if there

were any weapons or drugs in th e car, an d the De fendan t answe red no to both

questions. Hilliard stated that he then asked the Defendant whether he co uld

look inside the vehicle, and the Defendant replied, “What are you looking for?”

Hilliard stated tha t he answ ered, “T he abo ve items that I just asked you about.”

According to Hilliard, the Defendant responded, “No, go ahead. There’s nothing

in here.” 1


       1
          At the hearing on the motion to suppress, Officer Hilliard stated that he could not
remember his conversation with the Defendant verbatim but maintained that he was given
permission to search the vehicle. Although he could not remember the Defendant’s exact

                                            -4-
       Hilliard asked the Defendant and his companion to step out of the car, and

they exited the vehicle and stood to the rear of the car while Hilliard conducted

a search of the vehicle. Hilliard testified that he discovered a “glass beacon that

had    what ap peared         to be . . . the            residue     of   either    cocaine     or

methamphetamines” between the front two seats. He also d iscove red a p lastic

bag containing forty-six grams of cocaine beneath the front seat along with a

“wad of money.”          After discovering the cocaine, Hilliard placed both the

Defendant and McKinlay under arrest and called for backup. While waiting for

other officers to arrive, Hilliard discovered an aluminum foil package containing

5.4 grams of co caine in the leg of M cKinlay’s pants. A second police officer

arrived at the scene with a drug dog and conducted a thorough search of the

Defe ndan t’s vehicle. In ad dition to the drugs that had already been found, the

drug dog led officers to the discovery of 27.8 pounds of marijuana in the trunk of

the vehicle.



       The Defendant testified that he and his companion had been traveling on

the night of his arrest and had stopped to take a nap and do laundry at the

Trezevant laundro mat. 2 He claimed that when Officer Hilliard asked whether he

could search his vehicle, he responded, “No, I don’t think so.” He reported that

imm ediate ly after he replied to the question, Hilliard opened the door to his car,

grabbed his arm, and demanded that he and his companion step out of the

vehicle. Accord ing to the Defe ndant, H illiard told him and his c ompa nion to put




words, he presented several possible versions of the Defendant’s response, including “No, go
ahead. There’s nothing in here.”; “Yes, sir. . . . There’s nothing in the car. You can look.”; “No,
that’s fine. There’s nothing in there.”; and “Yes, you can search the vehicle.”
       2
           Hilliard testified that on the night of his arrest, the Defendant made no mention of
stopping to wash laundry.

                                               -5-
their hands on the trunk of the vehicle while he searched the car, and after

discovering the glass vial between the front seats, Hilliard handcuffed him before

completing his search of the vehicle.



      Cheryl McKinlay, the Defendant’s traveling companion, also testified at the

hearing. Through her testimony, she presented essentially the same version of

events on the night of the arrest as did the D efenda nt. Like the Defen dant, she

claimed that when Officer Hilliard requested to search the car, the Defendant

responde d, “I don’t think so.”



                         I. REASONABLE SUSPICION

      The Defendant first argues that Officer Hilliard did not have “sufficient

reaso nable suspicion based on specific and articulable facts in order to seize and

detain [the Defendant] for investigation.” We are thus called upon to determine

whether the Defendant’s detention amounted to a Fourth Amendment seizure.

If his detention was a seizure under the Fourth Amendment, we must then

determine whether the officer possessed an artic ulable reasonable suspicion for

an investigatory stop un der Terry v. Ohio, 392 U.S. 1 (1968). If the stop was a

seizure and if there was not sufficient cause to stop the Defendant, then the

evidence shou ld have be en sup presse d. Interactions between the police and the

public that are seizures but not arrests, are judged by their reasonableness,

rather tha n by a sh owing o f probab le cause . Terry, 392 U.S. at 20.



      In Terry v. Ohio , the Sup reme C ourt stated that not eve ry encou nter

between a policeman and a citizen is a seizure. Terry, 392 S.W.2d at 19 n.16.

“Only when the o fficer, by means of phys ical forc e or sh ow of a uthority , has in

                                         -6-
some way restrained the liberty of a citizen may we conclud e that a ‘seizure’ has

occurre d.” Id. In Unite d State s v. Me nden hall, the Sup reme C ourt set forth the

test to be applied in determining whether “a person has been ‘seized’ within the

meaning of the Fo urth Am endm ent”: An o fficer may be said to have seized an

individual “only if, in view of all of the circumstances surroun ding the in cident, a

reaso nable person would have believed that he was not free to leave.” United

States v. Men denh all, 446 U.S . 544, 554 (1980); State v. Moore , 776 S.W.2d

933, 937 (T enn. 1989 ).



      Under Tennessee law, “a police officer may approach a car parked in a

public place and ask for driver identification and proof of vehicle registration,

without any reason able suspicion of illegal activity.” State v. Pulley, 863 S.W.2d

29, 30 (T enn. 19 93). Mor eover,

      [n]umerous cases h old that officers do not seize an individual by
      simp ly talking to him or her in a public place or while the individual
      being questioned is sitting inside an already s topped vehicle. Other
      courts have held that a request to search, standing alone, is not
      conclusive evidence that a “seizure” has occurred.
              A statement by an officer that the accused has become the
      spec ific focus of an investigation is one circumstance which may be
      considered in determining whether a seizure has occurred, but all of
      the circumstances of the case must be examined. In most of the
      cases holding that a seizure has occurred, something more than a
      mere in quiry or req uest by p olice officers has be en sho wn.

Moore, 776 S.W .2d at 938 (citations om itted).



      The Defendant points out that the officer used his “tak e-dow n lights ” while

approaching the car an d conte nds tha t the use o f a haloge n light is ana logous to

the use of blue lights, which gene rally indic ates th at the o fficer ha s clear ly

initiated a stop. See State v. Yeargan, 958 S.W .2d 626 , 630 (T enn. 19 97). W e

disagree. The use of a halogen light for the officer’s personal safety at night

                                         -7-
when approaching a vehicle is not the same as the use of blue lights to indicate

to a driver that he or she must comply with the officer’s request to stop his or her

vehicle. In a situation like the one at hand, where an officer approaches a parked

vehicle at midnight on a dese rted stre et, it is certainly reasonable for the officer

to use a light while assessing the situation during his or her initial confrontation

with the driver of the vehicle.



      In the present ca se, we conc lude that no “seizu re” within the meaning of

the Fourth Amendment occurred. Officer Hilliard approached the Defenda nt’s

already stopp ed veh icle in a p ublic parking area, aske d to view the De fenda nt’s

driver’s license and registration, and asked the Defendant and his companion

why they we re park ed at th at location at that time of night. This interaction,

without further evidence of some show of force, doe s not am ount to a seizure .

During his conversation with the Defendant, Hilliard noticed items in plain view

inside the vehicle which, to a trained police officer, indicated that the Defendant

might be involved in some type of illegal drug activity. This prom pted Hilliard to

ask for permission to search the vehicle, which brings us to the second issue

presen ted for ou r review, the validity of the D efenda nt’s cons ent.



                                   II. CONSENT

      The Defendant next argues that Officer Hilliard’s warrantless search of the

Defe ndan t’s vehicle was not pursuant to valid consent. Officer Hilliard testified

that when asked whether he would allow his car to be searched, the Defendant

responded, “No, go ahead.         There’s nothing in here.”      However, both the

Defendant and Mc Kinlay tes tified that the Defendant res ponde d, “I don’t think so.”




                                          -8-
       A trial judge’s factual findings on a motion to suppress have the weight of

a jury verdict and are conclusive on app eal unles s the e videnc e clea rly

preponderates against th em. State v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim.

App. 1990); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990).

Testimony by the Defendant and McKinlay indicating that the Defendant did not

consent to the s earch of his ca r prese nts a c lassic question of fact for resolution

by the trial judge . Having h eard all tes timony a t the hear ing on the motion to

suppre ss, the trial jud ge con cluded ,

       [The Defendant’s] testimony is somewhat supportive of [McK inlay’s
       testimon y]. But the Court finds it rather incredible when you stop to
       think that his purpose of stopping at this laundromat at these very
       late hours when he was in transit from either Texas or Mem phis to
       Indiana was for the purpose of washing his c lothes at this late hour.
               The Court finds [that the D efendant’s] testim ony is pretty
       incredible. And, ob viously, both parties have an interest in the
       outcome of this case. In judging the credibility of the witnesses, the
       Court feels that consent was given. The Court might observe that
       it would have been a better practice had some type of written
       document been prepared so that questions like this don’t come up
       subse quent, where it involves the Court making a determination of
       credibility of the witnesses , that if there had been a signed consent
       form there would be no question here.
               Also, the Court observes that for consent to be valid that one
       must be aware that they’ve got a constitutional right not to conse nt,
       and they must freely and voluntarily give that right up. The
       testimony in this ca se ind icates tha t the co nsen t was c onse nsua l,
       that it was freely and voluntarily given.

The evidence clearly does not prepon derate against the findings of the trial judge.

W e there fore de cline to disturb the trial ju dge’s conc lusion on ap peal.



       The jud gmen t of the trial cou rt is accord ingly affirme d.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                           -9-
CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




                             -10-
