           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE               FILED
                                                                  August 10, 1999
                               MARCH 1999 SESSION
                                                                 Cecil Crowson, Jr.
                                                                Appellate C ourt
                                                                    Clerk
STATE OF TENNESSEE,                   *    No. 03C01-9804-CR-00127

      Appellee                        *    KNOX COUNTY

V.                                    *    Hon. Richard Baumgartner, Judge

JERMAIN HURST                         *    (Possession of Cocaine with Intent
                                           to Sell, Possession of Marijuana)
      Appellant.                      *


For Appellant                              For Appellee

J. Liddell Kirk                            John Knox Walkup
706 Walnut Street, Suite 902               Attorney General and Reporter
Knoxville, TN 37902                        425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           Ellen H. Pollack
                                           Assistant Attorney General
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           Paula Gentry
                                           Assistant District Attorney General
                                           Office of the District Attorney
                                           General
                                           City-County Building
                                           Knoxville, TN 37902

                                           Leon Franks
                                           Assistant District Attorney General
                                           Office of the District Attorney
                                           General
                                           City-County Building
                                           Knoxville, TN 37902



OPINION FILED:


AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                       OPINION

              The appellant, Jermain Hurst, appeals his conviction in the Knox

County Criminal Court of possession of more than .5 grams of cocaine with the

intent to sell, a class B felony, and possession of marijuana, a class A

misdemeanor. The trial court imposed, respectively, concurrent sentences of ten

years incarceration in the Tennessee Department of Correction and eleven months

and twenty-nine days incarceration in the Knox County Jail. On appeal, the

appellant presents only one issue for our consideration: W hether the trial court

erroneously denied his motion to suppress the State’s use at trial of money,

cocaine, and marijuana seized by the police. Following a thorough review of the

record and the parties’ briefs, we affirm the judgment of the trial court.



                                 Factual Background

              Preliminarily, our supreme court has held that appellate courts may

consider proof adduced both at the suppression hearing and at trial in evaluating the

correctness of a trial court’s ruling on a pre-trial motion to suppress. State v.

Henning, 975 S.W.2d 290, 299 (Tenn. 1998). Accordingly, in summarizing the

relevant facts, we draw upon the transcripts of both proceedings.



              The record reflects that, on the evening of April 7, 1996, Officer Gary

Moyers of the Knoxville Police Department was employed by the Knoxville

Community Development Corporation (“K.C.D.C.”), a private landlord, to patrol a

housing development named Western Heights. He was accompanied by Scott

Sheppard, another officer of the Knoxville Police Department. The officers were

responsible for maintaining peace and order within the development and ensuring

that individuals on the property were either residents of the development or visiting

residents. While working for K.C.D.C., both officers wore their Knoxville Police


                                            2
Department uniforms and drove a Knoxville Police Department patrol car. Officer

Moyers explained that he was acting as an officer of the Knoxville Police

Department in addition to providing security for K.C.D.C.



                On the evening in question, the officers were patrolling the area in the

development surrounding the “Boys Club/Girls Club.” Prior to this evening, they had

received complaints concerning drug activity in that area. Additionally, they had

received complaints concerning trespassers loitering on residents’ porches. At

approximately 8:00 p.m., they observed six men, including the appellant, gathered

on the porch of one of the apartments. Officer Moyers testified that the appellant

captured his attention, because, when the appellant saw the patrol car,

                he move[d] quickly to the inner rim up on the porch and
                [sat] down in a chair, and he duck[ed] down and look[ed]
                between the railing - - the porches have two rails - - two
                metal rails - - as a border on the porch, and he [looked]
                between the two rails at me as I [looked] up at the group
                and just [watched] us real intensely as we [drove] by.
                Everyone else just didn’t pay any attention to us. They
                just stood there and talked and carried on in a normal
                manner.1

When the officers again drove past the apartment, the appellant was still seated in

the chair and was still observing the officers “real intense.” Officer Moyers recalled,

“When he sees us, he ducks down and looks between the rails, and he is looking

between the people as we drive by . . . .”



                At this point, the officers decided to question the appellant in order to

ensure that he was either a resident of the development or a visitor. Accordingly,

they drove back toward the apartment building and parked the patrol car on a street

close to the rear of the building. As they walked toward the rear of the apartment



        1
        Contrary to the appellant’s argument in his brief, apparently not all residents of the Western
Heights development “instinctively feel threatened” by the police.

                                                   3
building, they observed the appellant. He had left the porch and was looking in the

direction in which the officers had last departed in their patrol car. When the

appellant noticed the officers approaching on foot, he immediately fled. Officer

Moyers and Officer Sheppard pursued the appellant, yelling, “Stop! Police!” Officer

Moyers testified that he did not intend to arrest the appellant at that time, but was

“attempting to catch him to inquire what his actions were and the reason for being

on K.C.D.C. property.”



                When the appellant fled, Officer Moyers called for assistance. Officer

Jim Quick of the Knoxville Police Department responded to Officer Moyers’ call and,

when the appellant ran in front of his patrol car, joined the chase on foot. Officer

Quick then led the other officers in pursuit of the appellant, following the appellant

through an apartment and up a nearby hill. Like Officers Moyers and Sheppard, he

was dressed in a Knoxville Police Department uniform and was yelling at the

appellant to stop.



                As they ascended the hill, Officer Quick began to overtake the

appellant. As he drew closer to the appellant, Officer Quick observed him stop,

remove a plastic bag from his pocket, and throw the bag onto the roof of a nearby

porch.2 Officer Quick testified that the appellant “just tossed [the bag] up there, and

then turned around. . . . [A]s soon as he threw the baggy, he pretty much just gave

up.”



                Immediately thereafter, Officer Quick reached the appellant, ordered

him to lie prone on the ground, and placed him in handcuffs. He was soon joined by



        2
        Officer Moyers, who was a greater distance from the appellant, testified that the appellant
slowed his pace prior to discarding the plastic bag.

                                                  4
Officers Moyers and Sheppard, who immediately retrieved the plastic bag from the

porch roof. The officers discovered that it contained thirty “quail size” or “quarter-

gram-size” bags of a white powdery substance and one hundred and twenty-three

dollars ($123), primarily in twenty dollar ($20) bill denominations. Officer Moyers

testified that, in his experience, cocaine was packaged in this manner for retail and

was sold for twenty dollars ($20) per “quail size” bag. The police later determined

that the bag, in fact, contained a total amount of 4.3 grams of cocaine.



              After retrieving the bag, the officers ascertained the appellant’s name

and ran a records check which revealed an outstanding warrant for the appellant’s

arrest. Officer Moyers testified that they arrested the appellant “due to the fact that

there was outstanding warrants on him.” The officers then searched the appellant,

discovering another bag in the appellant’s pocket containing what appeared to be

marijuana. The police later confirmed that the bag contained 4.6 grams of

marijuana.



              Following a suppression hearing and in response to the appellant’s

motion for new trial, the trial court found that Officers Moyers and Sheppard had

possessed a reasonable, articulable suspicion of criminal activity when they first

approached the appellant. The trial court concluded without further explanation that

the officers’ ensuing conduct was “appropriate law enforcement conduct.”



                                        Analysis

              The appellant argues that the trial court should have suppressed the

money, cocaine and marijuana, because the police obtained the money and drugs

as a result of the officers’ illegal seizure of the appellant. In response, the State

relies upon the decision of the United States Supreme Court in California v. Hodari


                                            5
D., 499 U.S. 621, 111 S.Ct. 1547 (1991). The State’s position is well taken.



                 The Fourth Amendment to the United States Constitution provides that

“[t]he right of the people to be secure . . . against unreasonable searches and

seizures , shall not be violated . . . .”3 However, the fact that an accused has been

unlawfully seized only becomes relevant when the State seeks to introduce

evidence tainted by the seizure. Caldwell v. State, 917 S.W.2d 662, 666 (Tenn.

1996)(citation omitted in original). In those circumstances, the exclusionary rule

bars the admissibility of the tainted evidence. Segura v. United States, 468 U.S.

796, 804-805, 104 S.Ct. 3380, 3385 (1984). See also State v. Patton, 898 S.W.2d

732, 734 (Tenn. Crim. App. 1994); State v. Taylor, No. 02C01-9501-CR-00029,

1996 WL 580997, at *13 (Tenn. Crim. App. at Jackson, October 10, 1996).



                 Thus, the legality of the appellant’s seizure in this case, i.e., whether

the police possessed a reasonable, articulable suspicion of criminal activity or

probable cause to believe that a crime had occurred, is only relevant if the disputed

evidence flowed from the seizure. In order to determine the nexus between the

disputed evidence and the appellant’s seizure, we must first determine at what point

the encounter between the appellant and the police officers ripened into a seizure

within the meaning of the Fourth Amendment.



                 Initially, police questioning by itself is unlikely to implicate Fourth

Amendment concerns. State v. Darnell, 905 S.W.2d 953, 957 (Tenn. Crim. App.



        3
          Article I, Section 7 of the Tennessee Constitution similarly provides “[t]hat the people shall be
secure . . . from unreasonable searches and seizures . . . .” The Tennessee Supreme Court has
previous ly noted that g enerally “‘article I, se ction 7 is iden tical in intent and purpos e with the F ourth
Amend ment.’” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)(citation omitted). However, the
court also noted tha t, in som e case s, the Te nness ee Co nstitution m ay afford g reater pro tection. Id.
Nevertheless, in the context of this case, we view the protections provided by both documents as
coextensive.

                                                       6
1995). See also State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999).           In other

words, a police officer does not effectuate a Fourth Amendment seizure by

approaching a citizen and casually asking questions. However, the line between a

casual, investigatory stop and a Fourth Amendment seizure is crossed whenever

“the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen . . . .” Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct.

1868, 1879 n.16 (1968). See also Downey, 945 S.W.2d at 106.



              It is undisputed in this case that, upon the appellant’s flight, Officers

Moyers and Sheppard attempted to effectuate a seizure by a “show of authority.”

Whether the officers thereby restrained the appellant’s liberty and executed a Fourth

Amendment seizure is determined, in part, by asking whether, “‘in view of all of the

circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.’” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct.

1975, 1979 (1988)(citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.

1870, 1877 (1980)(opinion of Stewart, J.)). See also State v. Wilhoit, 962 S.W.2d

482, 486 (Tenn. Crim. App. 1997). Clearly, a reasonable person would not have

believed he was free to ignore the officers’ order to stop running.



              That having been said, the Supreme Court in Hodari D., 499 U.S. at

628, 111 S.Ct. at 1551, clarified that the “Mendenhall test” enunciated above is “a

necessary, but not a sufficient, condition for a seizure.” Accordingly, the Court held

that, when a police officer attempts to effectuate by a show of authority either a

“Terry stop” or an arrest, a seizure does not occur if the subject does not yield. Id.

at 626-627, 1550-1551. The Court explained that the word seizure contained in the

Fourth Amendment “does not remotely apply . . . to the prospect of a policeman

yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee.” Id. at


                                             7
626, 1550. This court adopted the logic of Hodari D. in State v. Holbrooks, 983

S.W.2d 697, 700 (Tenn. Crim. App. 1998).



              Accordingly, the police did not seize the appellant within the meaning

of the Fourth Amendment until he submitted to the officers’ show of authority.

Moreover, pursuant to Hodari D., any evidence abandoned by the appellant before

his surrender was not subject to the exclusionary rule, even if the attempted seizure

was unsupported by a reasonable suspicion of criminal activity or probable cause to

believe that a crime had occurred. 499 U.S. at 629, 111 S.Ct. at 1552. Thus, we

must determine when the appellant submitted to the officers’ show of authority.



              The appellant argues in his brief that he submitted to the police when

he stopped running. Moreover, he contends that he stopped running before

discarding the plastic bag containing money and cocaine. We note that, following

the suppression hearing, the trial court found that the appellant stopped running

after discarding the disputed evidence. However, the testimony at the suppression

hearing and at trial was somewhat contradictory with respect to this factual issue.

See supra p. 4 and note 2. Nevertheless, this court must uphold a trial court’s

findings of fact following a suppression hearing unless the evidence preponderates

otherwise. Crutcher, 989 S.W.2d at 299. In any case, we do not agree with the

appellant that his act of stopping was necessarily simultaneous with his submission

to the officers’ show of authority. Inasmuch as discarding the plastic bag was itself

an act of defiance, it would be illogical to conclude that the appellant submitted to

the officers prior to that time. Therefore, we conclude that the appellant was seized

within the meaning of the Fourth Amendment after throwing the money and the

cocaine onto the porch roof. Because the money and cocaine were not subject to

the exclusionary rule, they were admissible at the appellant’s trial for possession of


                                           8
cocaine with intent to sell.



              We also conclude that the marijuana was not subject to the

exclusionary rule. Unquestionably, when the appellant complied with Officer Quick’s

order to lie prone on the ground and when the officer handcuffed the appellant, he

was seized within the meaning of the Fourth Amendment. However, regardless of

the legality of this initial seizure, the plastic bag containing cocaine and money

provided independent probable cause to support the appellant’s subsequent, legal

arrest and search incident to an arrest. Taylor, No. 02C01-9501-CR-00029, 1996

WL 580997, at *13 (“even if the initial contact was an unlawful seizure, evidence

discovered through a subsequent legal arrest based on independent probable cause

is admissible”). See also New York v. Harris, 495 U.S. 14, 17, 110 S.Ct. 1640, 1642

(1990)(the Court observed that it “‘had declined to adopt a “per se or ‘but for’ rule”

that would make inadmissible any evidence . . . which somehow came to light

through a chain of causation that began with an illegal arrest’”). The trial court

properly denied the appellant’s motion to suppress the marijuana.



                                      Conclusion

              For the foregoing reasons, we affirm the judgment of the trial court.




                                                        Norma McGee Ogle, Judge



Gary R. Wade, Judge




                                           9
Cornelia A. Clark, Special Judge




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