         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    April 17, 2007 Session

         STATE OF TENNESSEE v. ANTONIO DEWAYNE WATERS

                 Direct Appeal from the Criminal Court for Sumner County
                          No. 661-2004    Jane Wheatcraft, Judge



                  No. M2006-01468-CCA-R3-CD - Filed September 21, 2007


The defendant, after denial of his motion to suppress evidence, entered a plea of guilty to possession
with intent to sell more than one-half gram of cocaine, a Class B felony. The negotiated sentence
was eight years as a standard offender. The defendant appeals pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2)(I). After review, we conclude that denial of the motion to suppress was
error. Accordingly, we reverse the conviction and dismiss the charges.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Joseph E. Clifton, Nashville, Tennessee, for the appellant, Antonio Dewayne Waters.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Lawrence Ray Whitley, Jr., District Attorney General; and Dee David Gay, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                          Factual History

        Testimony by the arresting officers at the suppression hearing provided the following account
of the defendant’s arrest.

        Deputy Theodore Loftis, Sr., of the Sumner County Sheriff’s Department, was patrolling with
a reserve trainee deputy, Kevin Brewer, on April 6, 2004. The deputies were on the Hendersonville
Bypass when they observed a pedestrian, the defendant, near the Sandersville Road exit at
approximately 4:12 p.m. The defendant was talking on a cell phone when Deputy Loftis activated
his blue lights and stopped to question the defendant. The defendant told Deputy Loftis that he was
speaking with his attorney and asked if Deputy Loftis wanted to talk with the attorney. Deputy Loftis
replied that he “didn’t need to talk to Johnny Cochran” and ordered the defendant to terminate his
phone conversation. In response to Deputy Loftis’ questions, the defendant stated he had no
identification and gave varying answers as to how he had arrived at the scene. When asked if he had
a weapon, the defendant said he did not and pulled money and a cigar from his pocket. Deputy
Loftis decided to pat the defendant down for weapons and placed a hand on the defendant’s shoulder.
The defendant then broke away and ran. The deputies pursued and saw the defendant discard two
packages that were later found to contain cocaine. Deputy Brewer was able to catch the defendant,
administered pepper spray to overcome the defendant’s resistance, and then handcuffed him.
Deputies Loftis and Brewer were the only witnesses at the suppression hearing, and the facts related
were undisputed.

       The trial judge found that the officers had acted properly and overruled the defendant’s
motion to suppress.

                                         Standard of Review

        In reviewing a trial court’s ruling on a pretrial suppression motion, all issues of credibility,
weight and value of the evidence, and resolution of evidentiary conflicts are entrusted to the trial
judge, and findings of fact must be upheld unless the evidence preponderates otherwise. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The reviewing court is not bound by the trial judge’s
conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). Our review is de novo
if applying law to undisputed facts. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

                                      Certified Question of Law

        The State, in its reply brief, contends that the defendant failed to state with sufficient
specificity the certified question of law, thus depriving this court of jurisdiction. We respectfully
disagree.

        The requirements for reserving a certified question of law are presented in State v. Preston,
759 S.W.2d 647, 650 (Tenn. 1988), and State v. Pendergrass, 937 S.W.2d 834, 835 (Tenn. 1996),
and are incorporated in Tennessee Rule of Criminal Procedure 37(b). The State argues that the
defendant failed to specifically “identify clearly the scope and limits of the legal issue reserved,” as
required in Tennessee Rule of Criminal Procedure 37(b)(2)(A)(ii). The requirement was illustrated
in Preston.
        [T]he final order or judgment from which the time begins to run to pursue a T.R.A.P.
        3 appeal must contain a statement of the dispositive certified question of law reserved
        by defendant for appellate review and the question of law must be stated so as to
        clearly identify the scope and the limits of the legal issue reserved. For example,
        where questions of law involve the validity of searches and the admissibility of
        statements and confessions, etc., the reasons relied upon by defendant in the trial
        court at the suppression hearing must be identified in the statement of the certified


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      question, absent a constitutional requirement otherwise. Without an explicit
      statement of the certified question, neither the defendant, the State nor the trial judge
      can make a meaningful determination of whether the issue sought to be reviewed is
      dispositive of the case.
759 S.W.2d at 650.

        The Judgment contained the following language intended to preserve the certified question:
        Plea entered pursuant to Rule 37 where this issue is dispositive and preserved as a
        certified question of law for appeal. The question of law preserved for appeal is
        whether the evidence siezed [sic] from the defendant should have been suppressed
        because of the warrantless arrest of the defendant not supported by probable cause.
        See attached order included by reference as part of this judgment.

      An Agreed Order was attached to the judgment and signed by the parties and the trial judge.
The Order contained language as follows:
      The question of law preserved for appeal is whether the evidence seized from the
      defendant in this case should have been suppressed because it was seized pursuant
      to the warrantless arrest of the defendant for which the police had no probable cause
      in violation of the 4th Amendment to the United States Constitution and Article One,
      Section Seven of the Tennessee Constitution as well as the Tennessee Supreme
      Court’s decision in State of Tennessee v. Perry Thomas Randolph, 74 S.W.3d 330
      (Tenn. 2002).

        In addition to all parties consenting to the preservation of this issue for appeal, all
        parties, including the Trial Judge and the State, are of the opinion that this question
        is dispositive of the case, . . .

        Appellate courts are not bound to accept as dispositive certified questions stipulated as such
by the parties and the trial court. Preston, 759 S.W.2d at 651. In this case, we agree that the lack
of admissibility of this evidence would be dispositive in all respects. We conclude that the defendant
has articulated and identified the issues in clear enough language to satisfy the mandatory
requirements of Tennessee Rule of Criminal Procedure 37(b) and Preston.

                                               Analysis

        Both the Fourth Amendment to the United States Constitution and Article I, section 7 of the
Tennessee Constitution protect our citizens from unreasonable searches and seizures. The essence
of this protection under the Fourth Amendment is to “safeguard the privacy and security of
individuals against arbitrary invasions of government officials.” Camara v. Municipal Court, 387
U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967). “Article I, § 7 is identical in intent and purpose with
the Fourth Amendment.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968). Our Supreme Court
has extended greater privacy protections to citizens by its interpretation of Article I, section 7 of the
Tennessee Constitution. See State v. Randolph, 74 S.W.3d 330 (Tenn. 2002). In determining


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whether a seizure has occurred, Tennessee adheres to a totality of the circumstances standard, that
is, if in the view of all the circumstances, a reasonable person would have believed that he or she was
not free to leave. Id. at 336.

        Several factors have been identified as relevant to the totality of 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.
State v. Daniel, 12 S.W.3d 420, 425-26 (Tenn. 2000).

        Also in Daniel, several police encounters were listed which are generally held to constitute
“seizure”:
        if 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.
Id. at 426 (citing 4 Wayne R. LaFave, Search and Seizure, § 9.3(a), at 104 (3d ed. 1996 & Supp.
1999)).

        When a police officer activates the blue lights of a vehicle, he has clearly initiated a stop and
has seized the subject of the stop. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

        Under both the Fourth Amendment and Article I, section 7 of the Tennessee Constitution,
“a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result
thereof is subject to suppression unless the State demonstrates that the search or seizure was
conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). One exception is “when a police officer makes an
investigatory stop based upon reasonable suspicion, supported by specific and articulable facts, that
a criminal offense has been or is about to be committed.” State v. Binette, 33 S.W.3d at 218.

         The defendant in this cause was near a public road, engaged in nothing more suspicious than
a cell phone conversation. The officers conducting the stop were not investigating any criminal
activity in which the defendant might have been a suspect. Past Supreme Court decisions have made
it clear that “a seizure does not occur simply because a police officer approaches an individual and
asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382 (1991). A more
expansive statement of this rule stated:
         [L]aw enforcement officers do not violate the Fourth Amendment by merely
         approaching an individual on the street or in another public place, by asking him if
         he is willing to answer some questions, by putting questions to him if the person is


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        willing to listen, or by offering in evidence in a criminal prosecution his voluntary
        answers to such questions. Nor would the fact that the officer identifies himself as
        a police officer, without more, convert the encounter into a seizure requiring some
        level of objective justification. The person approached, however, need not answer
        any question put to him; indeed, he may decline to listen to the questions at all and
        may go on his way. He may not be detained even momentarily without reasonable,
        objective grounds for doing so; and his refusal to listen or answer does not, without
        more, furnish those grounds.
Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (citations omitted).

        The State suggests that the officers were acting in their capacity as a “community caretaker”
to render assistance to the defendant. Such actions are justifiable and laudable so long as the aid is
actually needed or sought by the citizen. Otherwise, it is merely a guise for unwanted official
intrusion into the privacy of the affected citizen. It is instructive to note that the second count of the
indictment charged the defendant with flight “while knowing that said officer was attempting to
arrest him.”

        State v. Randolph involved the investigation of a possible burglary in progress. The officer
drove to the neighborhood of the suspected burglary and saw the defendant riding a bicycle. The
officer activated his blue lights and told the defendant to stop. The defendant kept riding in spite of
a repeated demand by the officer to stop. After a pursuit, the officer found the defendant and
observed him discard a shotgun and two boxes of ammunition. These items and a phone in the
defendant’s possession were later identified as having been stolen in the burglary. The Supreme
Court held that the defendant was seized when the officer activated the blue lights, ordered the
defendant to stop, and pursued the defendant. Because the officer lacked probable cause to effect
a seizure, the evidence was properly suppressed. 74 S.W.3d at 330.

         The case of State v. Nicholson, 188 S.W.3d 649 (Tenn. 2006), involved a defendant who
happened upon a scene where officers were investigating for possible gang activity. Prior to the
defendant’s appearance, the officers had unsuccessfully attempted to chase and apprehend suspects
in that area. The defendant, when told to “hold up,” turned and ran away. The officer pursued the
defendant and ordered, “stop, police.” The Supreme Court held that this constituted a seizure
without specific and articulable facts to provide a reasonable suspicion to seize the defendant. The
Court recognized that flight does not always amount to a reasonable suspicion. Id. at 261.

        Returning to the case at hand, we conclude that the defendant was seized by the activation
of the blue lights and the command to the defendant to terminate his phone conversation. Neither
officer testified that the activation of the blue lights on the marked patrol car was done for public
safety purposes or that it was necessary. Instead, the officers’ course of action, both in activating the
blue lights and in subsequent actions, suggested conduct intended to exert control over the defendant.
The fact that the defendant gave conflicting accounts of how he arrived at a public location was
irrelevant in that he had no obligation to answer or submit to these questions. The officers had not
observed the commission of a crime and had no reasonable suspicion that a crime was about to be


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committed. The improper seizure mandates the suppression of the subsequently found evidence.
The State contends that the evidence is admissible as either “abandoned property” or by the “plain
view” doctrine. Neither doctrine is applicable when the evidence is abandoned or in plain view due
to prior police misconduct. State v. Brenda Hill, No. 274 (Tenn. Crim. App. at Knoxville, Aug. 7,
1990), 1990 Tenn. Crim. App. LEXIS 526, at *4, appeal denied (Tenn. Oct. 22, 1990). The evidence
in this case was tainted by the illegal police action, and its subsequent discovery was the fruit of a
poisonous tree. Wong Sun v. U. S., 371 U.S. 471, 484-86, 83 S. Ct. 407, 415-16 (1963).

                                             Conclusion

       After review, we conclude, based on the totality of the circumstances, that the seizure of the
defendant was violative of the defendant’s rights under Article I, section 7 of the Tennessee
Constitution. Denial of the motion to suppress was in error. Therefore, we reverse the conviction
and dismiss the charges against the defendant.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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