                       IN THE SUPREME COURT OF TENNESSEE
                                  AT KNOXVILLE
                             May 27, 2009 Session Heard in Cookeville1

                   STATE OF TENNESSEE v. JERRY LEE HANNING

             Appeal by Permission from the Court of Criminal Appeals, Eastern Section
                               Criminal Court for Loudon County
                                No. 10914 E. Eugene Eblen, Judge



                        No. E2006-02196-SC-R11-CD - Filed October 20, 2009


GARY R. WADE, J., concurring.

         I concur, but on a different basis. “Whether the stop of a vehicle is considered ‘reasonable’
depends on whether the officer had either probable cause or an ‘articulable and reasonable suspicion’
that the vehicle or its occupants were subject to seizure for a violation of the law . . . . The level of
reasonable suspicion required to support an investigatory stop is lower than that required for
probable cause.” State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008). Reasonable suspicion must be
supported “by specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968); Hughes v. State, 588
S.W.2d 296, 305 (Tenn. 1979). In State v. Day, this Court made the following observation: “Under
circumstances where the information forming the basis for a motor vehicle stop is derived from an
anonymous informant, Tennessee law requires some showing of both the informant’s veracity or
credibility and his or her basis of knowledge.” 263 S.W.3d at 903 (citing State v. Pulley, 863
S.W.2d 29, 31 (Tenn. 1993)). Each of the prongs we discussed in Day must be addressed separately.
State v. Keith, 978 S.W.2d 861, 866 (Tenn. 1998); State v. Simpson, 968 S.W.2d 776, 781 (Tenn.
1998). Nevertheless, “independent corroboration may generally make up any deficiencies in an
informant’s tip.” State v. Coleman, 791 S.W.2d 504, 507 (Tenn. Crim. App. 1990); see also Adams
v. Williams, 407 U.S. 143 (1972); State v. Wilhoit, 962 S.W.2d 482, 487 (Tenn. Crim. App. 1997).2


         1
           Oral argument was heard in this case on M ay 27, 2009, in Cookeville, Putnam County, Tennessee, as part of
this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

         2
           In State v. Jacumin, 778 S.W .2d 430 (Tenn. 1989), this Court rejected the totality of the circumstances test
adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1982), holding that the Aguilar-Spinelli
standard was more in keeping with the requirement of Article I, section 7 of the Tennessee Constitution limiting searches
and seizures “without evidence of the fact committed.” See Spinelli v. United States, 393 U.S. 410, 415-16 (1969);
Aguilar v. Texas, 378 U.S. 108, 114-15 (1964). In an analysis of the propriety of an investigative stop, a comparative
application of the probable cause standard is helpful:

         [I]t is still sensible after Gates, in trying to ascertain in informant cases “the degree of relaxation from
         probable cause standard by the W illiams - Terry standard of reasonable cause to stop,” to examine
         those particular factors. That is, it remains useful to ask just how differently those factors weigh in the
                                                                                                             (continued...)
        In Florida v. J.L., 529 U.S. 266 (2000), the U.S. Supreme Court clarified the degree of
corroboration necessary to establish reasonable suspicion. In a unanimous decision by the Court,
Justice Ginsburg wrote as follows:

         An accurate description of a subject’s readily observable location and appearance is
         of course reliable in this limited sense: It will help the police correctly identify the
         person whom the tipster means to accuse. Such a tip, however, does not show that
         the tipster has knowledge of concealed criminal activity. The reasonable suspicion
         here at issue requires that a tip be reliable in its assertion of illegality, not just in its
         tendency to identify a determinate person.

Id. at 272 (emphasis added). Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed.1996)
(distinguishing reliability as to identification, which is often important in other criminal law
contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip
cases).

        In this instance, Sergeant Kent Russell, after receiving the report of reckless driving, was able
to identify the subject vehicle from the information provided by the anonymous caller: a black
eighteen wheeler with “Smith” on the back being driven north on I-75 and having traveled onto the
Exit 72 ramp. I am in accord with the majority’s assessment that Sergeant Russell adequately
corroborated the fact that the Defendant’s vehicle was indeed the vehicle mentioned in the tip. I also
agree that it was reasonable to deduce that, because the tip accurately identified the truck’s location,
it had been based on firsthand observation. None of these factors, however, corroborated that the
tip was “reliable in its assertion of illegality,” as required by Florida v. J.L., 529 U.S. at 272.

        Nevertheless, I believe that the majority’s conclusion is correct under these facts. Before
Sergeant Russell stopped to investigate, he observed the truck had been parked in the emergency lane
of the exit ramp. That the truck had been parked in an unusual location, while of little consequence
in and of itself, was corroborative of the allegation that the driver, for whatever reason, was unable
to safely operate his vehicle. Articulable and reasonable suspicion is the standard, of course, not
probable cause. Delaware v. Prouse, 440 U.S. 648, 663 (1979). In my view, the content of the tip,
the identification of the vehicle from the description provided, and the single observation by the
officer as to the location of the truck met the test – even if by a bare margin.

        At the time of the defendant’s arrest, Tennessee Code Annotated section 55-8-158 (1998)
provided that “no person shall stop, park, or leave standing any vehicle whether attended or
unattended, upon the paved or main travel part of the highway.” Whether the vehicle was parked
illegally or not, however, “even conduct which is wholly lawful . . . may form the basis for a
reasonable suspicion that criminal activity is afoot,” especially when combined with an informant’s
tip. State v. Welch, 873 P.2d 601, 604 (Wyo.1994). Even when the actions predicted by the tipster


         2
             (...continued)
         determination when the issue concerns grounds to stop rather than grounds to arrest or search (citations
         omitted).

3 W . LaFave, Search and Seizure, § 9.3(e), at 477 (2d ed. 1987).

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and observed by the arresting officer, standing alone, appear to be compliant with law, their marked
consistency with an anonymous tip may provide sufficient corroboration to form reasonable
suspicion. Alabama v. White, 496 U.S. 325, 332 (1990). That Jerry Lee Hanning had stopped his
truck in the emergency lane of the interstate exit was markedly consistent with a tip of reckless
driving. That is, there was some independent evidence that he was either unable or unwilling to
drive safely.

        In State v. Pulley, this Court considered the propriety of an investigatory stop made by an
officer who had just received two anonymous reports that a man driving a yellow Ford was armed
with a shotgun with the intention of doing violence. This Court upheld the search, recognizing “the
need for immediate police action in response to serious threats of harm” and determining that the
potential “level of danger” was a “crucial factor.” 863 S.W.2d at 32. The U.S. Supreme Court’s
opinion in the more recent Florida v. J.L., however, suggests that we should exercise caution before
expanding Pulley beyond its narrow facts. In Florida v. J.L., our nation’s highest court declined to
find a “firearm exception” to the usual requirements for a Terry stop, see Terry, 392 U.S. at 30,
concluding that “[s]uch an exception would enable any person seeking to harass another to set in
motion an intrusive, embarrassing police search of the targeted person simply by placing an
anonymous call falsely reporting the target’s unlawful carriage of a gun.” 529 U.S. at 272.

         Similarly, I do not think the tip in this case was sufficient to warrant a departure from the
usual requirements under our state and federal constitutions. Sergeant Russell knew only that the
truck’s driver had been accused of driving recklessly. The officer had no knowledge as to how or
why, nor did he have any information indicating the level of danger posed by the alleged
recklessness. Cf. State v. Miller, 510 N.W.2d 638, 644-45 (N.D. 1994) (discussing the relationship
between the precision and detail of a tip and the amount of additional corroboration required).
Florida v. J.L. left open the possibility that a lower threshold of corroboration might apply depending
on the circumstances, such as an anonymous tip of a “person carrying a bomb.” 529 U.S. at 273-74.
An allegation of unspecified reckless driving, however, does not rise to the level of a tip that an
individual is carrying a bomb or, as in Pulley, of an individual armed with a shotgun and actively
threatening to do violence. Because the U.S. Supreme Court rejected a generalized “firearm
exception,” I am hesitant to join the majority to the extent that its opinion could be read as adopting
a generalized “reckless driving” exception. Cf. Miller, 510 N.W.2d at 645 (holding that anonymous
report of possible driving while intoxicated was insufficient to justify investigatory stop); Hall v.
State, 74 S.W.3d 521 (Tex. App. 2002) (holding that anonymous report that driver had been driving
the wrong way on the highway was insufficient to justify investigatory stop); McChesney v. State,
988 P.2d 1071, 1078 (Wyo. 1999) (holding that anonymous report of erratic driving was insufficient
to justify investigatory stop).

       Nevertheless, I agree with the majority that the investigatory stop in this case was compliant
with constitutional safeguards. For that reason, I concur.




                                                       ___________________________________
                                                       GARY R. WADE, JUSTICE

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