          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
             March 23, 2016 Session at Lincoln Memorial University1


                 STATE OF TENNESSEE v. ARDELL ALLEN

                Appeal from the Criminal Court for Sullivan County
                        No. S62065   R. Jerry Beck, Judge




                 No. E2015-00825-CCA-R3-CD – Filed July 25, 2016
                       _____________________________

Based on a tip from a confidential informant, police stopped the Defendant and ultimately
discovered cocaine in his pocket. He was charged with possession of more than 0.5
grams of cocaine within 1,000 feet of a daycare, a Class B felony. The Defendant filed a
motion to suppress the evidence, which the trial court granted. The State appeals,
arguing that the confidential informant‟s credibility and basis of knowledge were
sufficiently established, giving officers reasonable suspicion to seize the Defendant.
Following our review, we reverse the judgment of the trial court and remand the case for
proceedings consistent with this opinion.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Barry Staubus, District Attorney General; and Josh D. Parsons,
Assistant District Attorney General, for the Appellant, State of Tennessee.

Gene G. Scott, Jr., Jonesborough, Tennessee, for the Appellee, Ardell Allen.




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         Oral argument was heard in this case before law students at Lincoln Memorial
University‟s Duncan School of Law.
                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       At the motion to suppress hearing, Corporal Micah Johnson testified that around
5:30 or 6:00 p.m. on the date that the Defendant was arrested, he received a call from a
confidential informant regarding the Defendant. Corporal Johnson testified that he had
previously dealt with the confidential informant and that the confidential informant had
provided the Kingsport Police Department with accurate information on five or six prior
occasions over a period of three to four months. The confidential informant told
Corporal Johnson that the Defendant “would be delivering a quantity of crack cocaine to
the apartments at the corner of Charlemont and Broad Street.” Corporal Johnson testified
that he had known the Defendant for several years, and he knew that the Defendant drove
a black, mid-sized Ford SUV with University of Tennessee tags. After speaking with the
confidential informant, Corporal Johnson and Detective Daniel Lane proceeded to the
apartment complex. Corporal Johnson testified that other marked patrol units were in the
area and looking for the Defendant‟s vehicle, awaiting word from Corporal Johnson
about how they should proceed.

       The confidential informant called Corporal Johnson a second time and informed
him that the Defendant “had just pulled up in front of the apartments” on the Charlemont
side of the complex. While on the phone with the confidential informant, Corporal
Johnson apprised Officer Rob Coffey that the Defendant had arrived and instructed him
to stop the Defendant. At the time, Corporal Johnson was in the back alley of the
apartment complex, several hundred yards away from the front of the complex. Officer
Coffey got into his car and proceeded to the front of the building. Corporal Johnson and
Detective Lane did not immediately accompany Officer Coffey because they were
speaking with another individual. Corporal Johnson estimated that he arrived at the front
of the complex one minute later. Corporal Johnson saw the Defendant at the front of the
building, and police arrested the Defendant. Corporal Johnson testified that he did not
participate in the search of the Defendant.

       Officer Coffey testified that he had known the Defendant “for a long time” at the
time of the stop. Officer Coffey had known the Defendant to drive a black Ford Escape
with University of Tennessee tags for “[a]t least a year or two” and had seen the
Defendant driving the vehicle multiple times. Officer Coffey testified that he went to the
apartment complex “to assist Vice officers.” Officer Coffey pulled into the back alley of
the apartment complex and spoke with Corporal Johnson. Corporal Johnson was on the
phone when he walked over to Officer Coffey and told him that the Defendant was
“around front right now making a — supposed to be making a drug deal.” Officer Coffey
asked Corporal Johnson if the Defendant was still driving the black Ford Escape with
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Tennessee tags, and Corporal Johnson responded affirmatively. Officer Coffey
“immediately” got into his car and went to the front of the complex. He estimated that
twenty or thirty seconds elapsed between his conversation with Corporal Johnson and his
arrival at the front of the complex.

       When Officer Coffey arrived at the front of the building, he saw the Defendant‟s
car parked against the curb. Officer Coffey could see the back of the driver‟s head and
that a woman was in the front passenger‟s seat. He also saw a second woman leaning in
the passenger‟s side window. Officer Coffey started to exit his cruiser, and the woman
leaning in the passenger‟s window saw the cruiser. Officer Coffey testified that the
woman got “this wide-eyed look,” and she began backing up as if to flee. Officer Coffey
instructed her to stop, but she took several more steps backwards. As a result, Officer
Coffey activated his blue lights and exited his cruiser. He estimated that he instructed the
woman “four or five times not to run.” The woman returned to the Defendant‟s car, and
Officer Coffey approached the Defendant. He asked the Defendant what he was doing,
and the woman in the passenger‟s seat started shouting, “What‟s this all about,”
continually interrupting Officer Coffey as he attempted to speak with the Defendant.
Officer Coffey explained that he asked the Defendant to exit the car so that the two could
speak because he could not effectively communicate due to the shouting of the female
passenger. The Defendant willingly exited the vehicle, and Officer Coffey asked the
Defendant if Officer Coffey could frisk him. The Defendant agreed, and after the frisk,
Officer Coffey asked the Defendant if he would go to the rear of the police cruiser.

       Officer Coffey continued to question the Defendant at his police car. He asked the
Defendant what he was doing, and the Defendant “really couldn‟t provide an explanation.
He mumbled around, wouldn‟t give why he was there.” Officer Coffey asked the
Defendant if he was in possession of any illegal narcotics. The Defendant replied that he
was not while simultaneously placing “his left pocket up against the trunk” of Officer
Coffey‟s cruiser. This behavior seemed suspicious to Officer Coffey, and he asked the
Defendant if he could search him. Officer Coffey testified that the Defendant consented
to the search. Officer Coffey discovered “a Kleenex that was neatly folded” in the
Defendant‟s left pocket. He shook the Kleenex, and rocks of crack cocaine fell to the
ground. After the cocaine fell to the ground, Officer Coffey informed the Defendant that
he was under arrest.

       Officer Coffey testified that he had received numerous drug complaints about the
apartment complex in the past. He stated that he knew that the Defendant did not live in
the apartment complex and that the woman leaning into the passenger‟s side window
acted as though she was going to flee when Officer Coffey arrived. He explained that his
observations and knowledge led him to believe that a drug transaction was taking place.
He testified that even without the information from Corporal Johnson, he would have
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stopped and investigated the scene. He said that he asked for consent to search the
Defendant based on Corporal Johnson‟s information and his own observations of the
scene. Officer Coffey testified that had the Defendant refused his consent to search,
Officer Coffey would not have conducted the search. He testified that he was not aware
of the possibility that cocaine was involved in the case.

       On February 19, 2015, the trial court issued a written order granting the motion to
suppress. The court found that the confidential informant was credible based on the fact
that he had provided accurate information in earlier cases. The court found that the
confidential informant did not describe a basis of knowledge concerning the impending
drug transaction or a basis of knowledge that the Defendant possessed drugs. The court
found that the State had not established specific reasonable suspicion that a criminal act
was being or about to be committed. The court found that the Defendant was seized
when Officer Coffey activated his blue lights and that this seizure was not supported by
reasonable suspicion, invalidating the Defendant‟s subsequent consent to the search. On
February 29, 2015, the trial court issued an order dismissing the Defendant‟s indictment.
The State filed a timely notice of appeal.

                                       ANALYSIS

       On appeal, the State argues that the trial court erred when it granted the
Defendant‟s motion to suppress. The State contends that the confidential informant‟s
credibility and basis of knowledge was established prior to the Defendant‟s seizure,
providing Officer Coffey reasonable suspicion to seize the Defendant. The Defendant
responds that the trial court properly granted the motion to suppress.

        A trial court‟s factual determinations in a suppression hearing will be upheld on
appeal unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). Questions regarding the credibility of witnesses, the weight or value of the
evidence, and determinations regarding conflicts in the evidence are matters entrusted to
the trial judge as the trier of fact. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010).
“The party prevailing in the trial court is entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” State v. Williamson, 368 S.W.3d 468,
473 (Tenn. 2012) (quoting Odom, 928 S.W.2d at 23). The trial court‟s application of the
law to the facts is reviewed de novo. State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000).

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for individuals against unreasonable
searches and seizures. State v. Day, 263 S.W.3d 891, 900-01 (Tenn. 2008). “[A]
warrantless search or seizure is presumed unreasonable, and evidence discovered as a
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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).

       An exception to the warrant requirement is a brief investigatory stop of an
automobile that is supported by reasonable suspicion. State v. Keith, 978 S.W.2d 861,
866 (Tenn. 1998); State v. Simpson, 968 S.W.2d 776, 781 (Tenn. 1998). “However,
when law enforcement officials initiate an investigative stop as a result of information
provided by an anonymous informant, Tennessee law requires some showing of both the
informant‟s veracity or credibility and his or her basis of knowledge.” Keith, 978 S.W.2d
at 866 (citing Simpson, 968 S.W.2d at 781); cf. State v. Jacumin, 778 S.W.2d 430, 436
(Tenn. 1989) (discussing the showing required when an anonymous informant‟s tip is
relied upon to establish probable cause for the issuance of a warrant). Our supreme court
has held that “„while independent police corroboration could make up in deficiencies in
either prong [of the test for reliability], each prong represents an independently important
consideration that „must be separately considered and satisfied in some way.‟” State v.
Pulley, 863 S.W.2d 29, 31 (Tenn. 1993) (quoting Jacumin, 778 S.W.2d at 436).

        When a confidential informant‟s tip is being used to establish reasonable
suspicion, rather than probable cause, for an investigatory stop, “the two[-]pronged test of
reliability is not as strictly applied.” Keith, 978 S.W.2d at 866. Circumstances
surrounding the tip, such as reporting an incident at or near the time of its occurrence or
having contemporaneous police corroboration of the tip, may enhance the reliability of
the tip. Simpson, 968 S.W.2d at 782. In evaluating whether a police officer has a
reasonable suspicion, supported by specific and articulable facts, a court must consider
the totality of the circumstances. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
“Those circumstances include the objective observations of the police officer,
information obtained from other officers or agencies, information obtained from citizens,
and the pattern of operation of certain offenders.” Day, 263 S.W.3d at 903.
Additionally, the court “must also consider the rational inferences and deductions that a
trained police officer may draw from the facts and circumstances known to him.” State v.
Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citing Terry v. Ohio, 392 U.S. 1, 21
(1968)).

       On numerous occasions, both this court and our supreme court have addressed the
the use of an informant‟s tip as the basis of reasonable suspicion for a stop, and an
examination of several of these cases is instructive in our analysis. In State v. Coleman,
791 S.W.2d 504 (Tenn. Crim. App. 1989), an informant told an officer “that between
2:00 and 2:30 p.m. on August 10, a white female, between 25 and 35 years of age and
whose first name was Carla, would be en route to Robertson County from Davidson
County on Highway 431 South.” Id. at 504. The informant further told the officer that
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the woman would be driving an older model black Monte Carlo, would be in possession
of seven pounds of marijuana, and would ultimately drive to a location on Washington
Road. Id. Officers had not used the informant in any previous investigations, and she
provided no basis of her knowledge of the drug transaction. Id. Officers later spotted an
older model black Monte Carlo traveling along the route predicted by the informant
around 2:30 p.m., and a license plate check revealed that the driver‟s name was Carla
Coleman. Id. at 505. After learning the driver‟s name, an officer turned on his blue
lights and seized the defendant. Id. This court concluded that the stop was not supported
by reasonable suspicion because neither the credibility of the informant nor the basis of
her knowledge was established. Id. at 506-07. The court noted “[t]hat the car was in fact
registered in the name of Carla Coleman, innocent in and of itself, was the only
independently acquired fact supporting the tip‟s veracity.” Id. at 506. The court
observed that officers did not investigate the defendant‟s reputation regarding the use or
sale of illegal drugs and that the stop occurred before she reached her predicted final
destination. Id. The court also concluded that “[t]he tip was neither „immediately
verifiable at the scene‟ nor did it possess, even by way of inference, the basis for the
informer‟s knowledge.” Id. at 507.

        Our supreme court addressed a similar set of facts in State v. Simpson, 968 S.W.2d
776 (Tenn. 1998). In Simpson, a confidential informant contacted a member of the
sheriff‟s department and informed him that the defendant and a second individual were
transporting 100 dilaudid pills from Memphis to McNairy County. Id. at 777. The
informant told the officer that the defendant was traveling from Memphis on Highway 64
in a two-door, cream or beige colored Oldsmobile and would arrive in Selmer “any
minute.” Id. The officer indicated that he knew the informant “through previous contacts
as a confidential informant” and that he considered the information reliable. Id. at 777-
78. Officers proceeded to Highway 64, where they spotted the vehicle and stopped it
based upon the information from the informant. Id. at 778. Our supreme court noted that
the officer had previous contacts with the person as a confidential informant; that officers
corroborated several facts provided by the informant, such as the location and direction of
travel, the time of arrival, and the description of the car, before initiating the stop; and
that the informant predicted the defendant‟s future behavior. Id. at 782. The court
concluded that “[t]he preexisting relationship between [the officer] and the confidential
informant, as well as the independent police corroboration of the facts predicting the
defendant‟s future behavior given by the informant, sufficiently satisfy the credibility
prong of the Jacumin test.” Id. at 782. The court acknowledged that the informant did
not make an explicit statement conveying a basis of knowledge, but the court concluded
that “the circumstances under which the tip was given indicate that the informant was an
eye witness.” The court concluded that “[t]he circumstances surrounding the tip,
including the police corroboration of facts supporting an eye-witness basis of knowledge,
are sufficient to establish the informant‟s basis of knowledge under Jacumin.” Id. at 782-
                                             6
83. Additionally, the court distinguished Coleman, noting that the informant in Coleman
had never been utilized as a confidential informant in any prior police investigations,
officers received the information two days before the alleged transaction was to occur,
and the informant provided no explicit statement relating his basis of knowledge. Id. at
783 n.11.

        In State v. Gonzalez, 52 S.W.3d 90 (Tenn. Crim. App. 2000), a confidential
informant contacted a police officer and told him that the defendant was “en route to
purchase cocaine on Cadet Lane.” Id. at 93. The informant indicated that the defendant
would be a passenger in a blue Ford Taurus with damage to the driver‟s side and that the
defendant would purchase the cocaine. Id. The officer was familiar with both the
defendant and the blue Taurus, and a second officer testified that he had received
information from the informant on prior occasions that led to arrests. Id. at 93, 94. The
second officer also testified that the informant was not someone who would be at the
drug sale. Id. at 94. One hour after receiving the tip, the officer had not received any
additional information from the informant and did not know whether the defendant had
purchased cocaine, but he saw the blue Taurus in a residential area where he was
patrolling. Id. at 93. This court concluded that “there was limited evidence as to the
informant‟s credibility, but absolutely no evidence as to the informant‟s basis of
knowledge.” Id. at 100. The court noted that the only information corroborated by
officers, that the defendant was with another individual in a blue Taurus with damage to
the driver‟s side, was “completely innocent” information. Id. The court observed that
while the officer was familiar with the defendant and the blue Taurus, he did not see the
defendant in the area where the informant said he was going to purchase cocaine. Id.
The court further stated that the officer did not see the defendant until an hour after the
informant told him that the defendant was “en route” to purchase cocaine. Id. Based on
this evidence, the court concluded that the informant‟s information was not sufficiently
corroborated and held that the tip did not provide the officer with reasonable suspicion to
believe that the defendant had been involved in criminal activity. Id.

       In State v. Williamson, 368 S.W.3d 468 (Tenn. 2012), which the trial court relied
upon in denying the motion to suppress in this case, an anonymous tipster called 9-1-1
and reported “[a]n armed party and possible robbery in progress” at a motel. Id. at 470-
71. The 9-1-1 dispatcher informed police officers of the complaint, and one officer
“stated that the dispatch included „a possible description of two subjects‟” and that the
defendant matched one of the descriptions. Id. at 471. The officer also testified that he
was aware that the motel “was „a place where local prostitutes, addicts, and sellers hang
out.‟” Id. Six officers were sent to the scene, with some remaining on the first floor
while others proceeded to the second floor. Id. at 470. The defendant was on the second
floor, and an officer frisked him after prompting from an unnamed person at the scene
and discovered a small revolver. Id. at 470, 471. Our supreme court concluded that the
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anonymous tip did not provide reasonable suspicion to seize the defendant. Id. at 480.
The court noted that the tip did not describe the defendant or provide any “„predictive
information,‟ which would allow police „to test the informant‟s knowledge or
credibility.‟” Id. (quoting Florida v. J.L., 529 U.S. 266, 271 (2000)). The court also
observed that the possession of a firearm was not “per se illegal,” and “the caller did not
offer any articulable facts indicating that the Defendant unlawfully possessed a gun, and
the information at the scene did not demonstrate the unlawfulness of its possession until
after the frisk.” Id. at 480, 481. While noting that “those cases in which the Supreme
Court upheld stops and frisks occurring in high-crime areas have included significant
other factors, such as the reliability of the informant or the police officer‟s own
observations,” the court concluded that none of these factors were present. Id. at 481.

      Comparing the facts in the case sub judice with the facts in the above-cited cases,
Corporal Johnson received information from a confidential informant that the defendant
would be delivering crack cocaine to a specific apartment complex. Unlike the
informants in Coleman and Williamson, who were simply anonymous tipsters, the
confidential informant in this case was known to Corporal Johnson. He testified that he
had previously utilized the informant and that the informant had provided accurate
information regarding criminal investigations five or six times in the prior three or four
months. Additionally, the informant accurately predicted the defendant‟s future behavior
when the informant told officers that the defendant would be arriving at the apartment
complex. See Simpson, 968 S.W.2d at 782.

       The confidential informant identified the specific location at which the defendant
would arrive, implying “an eyewitness basis of knowledge.” Pulley, 863 S.W.2d at 32
(“When an informant reports an incident at or near the time of its occurrence, a court can
often assume that the report is first-hand, and hence reliable.”). Both officers testified
that they were familiar with the defendant‟s black Ford SUV. Officer Coffey recognized
the defendant‟s vehicle when he arrived at the location specified by the informant, thus
“confirming the content of the tip” and indicating a basis for the informant‟s knowledge.
Simpson, 968 S.W.2d at 782 (stating that officers confirmed the content of the
informant‟s tip that the defendant‟s vehicle was due to arrive “any minute” when they
“drove immediately to Highway 64 and found the vehicle described by the informant,
occupied by the defendant”). Further, Officer Coffey testified that he had received
“numerous drug complaints” at the apartment complex. Based on his own observations
of the scene, Officer Coffey testified that as soon as he pulled his cruiser behind the
Defendant‟s vehicle, and before he spoke to any of the people in and around the vehicle,
it appeared as though a drug transaction was taking place. We conclude that the
information from the confidential informant and Officer Coffey‟s personal observations
were sufficient to create reasonable suspicion to justify a brief investigatory stop.
Because the stop was lawful, the Defendant‟s subsequent consent to the search that
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yielded the crack cocaine is also valid. Accordingly, we reverse the judgment of the trial
court, reinstate the charge against the Defendant, and remand the case for further
proceedings consistent with this opinion.

                                    CONCLUSION

      Based on the foregoing analysis, we reverse the judgment of the trial court and
remand the case for further proceedings consistent with this opinion.


                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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