           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE

                              MAY 1996 SESSION



STATE OF TENNESSEE,                   )    C.C.A. NO. 03C01-9502-CR-00052
                                      )    & NO. 03C01-9502-CR-00053
      Appellee                        )
                                      )    BRADLEY COUNTY
v.                                    )
                                      )    HON. MAYO L. MASHBURN,
DAVEY JOE VINEYARD,                   )    JUDGE
                                      )
      Appellant                       )    Possession of marijuana for resale
                                      )    in an amount over ten pounds and
and                                   )    less than 70 pounds
                                      )
JIMMY LEE COCKBURN,                   )    Possession of marijuana for resale
                                      )    in an amount over ten pounds and
      Appellant                       )    less than 70 pounds; possession of
                                      )    drug paraphernalia

FOR THE APPELLANTS                         FOR THE APPELLEE

Kenneth L. Miller                          Charles W. Burson
Logan, Thompson, Miller, Bilbo,            Attorney General & Reporter
      Thompson & Fisher, P.C.
P.O. Box 191                               Hunt S. Brown
Cleveland, TN 37364-0191                   Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           Jerry N. Estes
                                           District Attorney General

                                           Joseph A. Rehyansky
                                           Assistant District Attorney General
                                           93 Ocoee St. N., Ste. 200
                                           P.O. Box 1351
                                           Cleveland, TN 37364




OPINION FILED


AFFIRMED


JOHN K. BYERS
SENIOR JUDGE

                                   OPINION
       The Defendants entered pleas of guilty and reserved the right to appeal the

following issue only:

       DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S
       MOTION TO SUPPRESS BECAUSE THE STOP OF
       DEFENDANT’S VEHICLE WAS MADE WITHOUT PROBABLE
       CAUSE AND WAS A PRETEXTUAL STOP MADE FOR ILLEGAL
       REASONS?


       The trial judge found the stop to be lawful.

       The judgment of the trial court is affirmed.

       The state’s evidence in this case came from Detective Gates, a narcotics

officer with the city of Cleveland.

       Detective Gates had received an anonymous tip that the Defendants would

be traveling north on I-75, would pass through Bradley County, would go to an

undisclosed location, obtain marijuana and return through Bradley County en route

to Georgia.

       At approximately 7:00 a.m. on June 6, 1994, Detective Gates and Detective

Queen set up surveillance on I-75. They saw the vehicle in which the Defendants

were traveling go north on I-75 at approximately 8:00 a.m. The detectives

continued the surveillance and saw the vehicle returning at 9:30 a.m. The

Defendants were traveling in the left lane of the highway which, according to Gates,

led him to believe the vehicle was speeding. Gates and Queen, each driving police

vehicles, pulled out onto the highway and commenced to follow the Defendants.

Gates testified the vehicle was traveling at 75 m.p.h. at the time he got behind it.

Further, he testified the vehicle pulled into the right lane without giving a signal.

       The detectives did not stop the vehicle at this time. Rather, they continued

to follow the Defendants for another six to eight miles, where they were stopped by

another police vehicle.




                                            -2-
       Detective Gates testified that he pursued the Defendants’ vehicle “with the

expectation and hope that there would be a traffic violation to give . . . a reason to

pull the vehicle over.” Further, Gates testified the vehicle was pulled over for

speeding and illegal lane change, “. . . plus the information we had received, . . . .”

Gates testified that it was customary for narcotics officers to do highway

interdiction, which consists of surveillance of the highway and the stop of certain

vehicles in the hope of obtaining a consent to search the vehicles which are

stopped. He further testified the majority of traffic control officers do not attempt to

obtain consent to search when they make stops for traffic violations.

       The Defendants’ briefs rely on State of Tennessee v. Sidney Williams, Ivory

D. Jones and Roy Kittles, C.C.A. No. 173 (Tenn. Crim. App. at Knoxville, April 30,

1991) for the argument that in Tennessee, as stated in Williams,

       “We conclude that in determining whether an investigative stop is
      invalid as pretextual, the proper inquiry is whether a reasonable
      officer would have made the seizure in the absence of illegitimate
      motivation.”

       However, the parties have submitted supplemental authority in the case

pursuant to T.R.A.P. 27(d), as a result of a U. S. Supreme Court opinion recently

released, United States v. Whren, 16 S.Ct. 1769 (1996) filed June 10, 1996.

       In Whren, plainclothes vice-squad officers of the District of Columbia

Metropolitan Police Department were patrolling a “high drug area” of the city in an

unmarked car. Their suspicions were aroused when they passed a truck with

temporary license plates and youthful occupants waiting at a stop sign, the driver

looking down into the lap of the passenger at his right. The truck remained stopped

at the intersection for what seemed an unusually long time - - more than twenty

seconds. When the police car executed a U-turn in order to head back toward the

truck, it turned suddenly to its right, without signalling, and sped off at an

“unreasonable” speed. The policemen followed, and in a short while overtook the

truck when it stopped behind other traffic at a red light. They pulled up alongside

and an officer stepped out and approached the driver’s door, identifying himself as

a police officer and directing the driver to put the vehicle in park. When the officer

drew up to the driver’s window, he immediately observed two large plastic bags of

                                            -3-
what appeared to be crack cocaine in the passenger’s hands. Driver and

passenger were arrested, and quantities of several types of illegal drugs were

retrieved from the vehicle.

       Defendants argued that the stop had not been justified by probable cause to

believe, or even reasonable suspicion, that they were engaged in illegal drug-

dealing activity; and that the police officers’ asserted ground for approaching the

vehicle - - to give the driver a warning concerning traffic violations - - was

pretextual. The District Court denied the suppression motion, concluding that “the

facts of the stop were not controverted, and “[t]here was nothing to really

demonstrate that the actions of the officers were contrary to a normal traffic stop.”

The Defendants were convicted of four counts of violation of various federal drug

laws. The Court of Appeals affirmed, holding with respect to the suppression issue

that, “regardless of whether a police officer subjectively believes that the occupants

of an automobile may be engaging in some other illegal behavior, a traffic stop is

permissible as long as a reasonable officer in the same circumstances could have

stopped the car for the suspected traffic violation.”

       The U. S. Supreme Court affirmed, holding that a traffic stop is reasonable

where police have probable cause to believe that a traffic violation has occured,

regardless of the actual motivations of the individual officers involved, unless the

stop is shown to be constitutionally impermissible selective enforcement of the law

based on considerations such as race. Whren, supra.

       Defendants contend that the State of Tennessee has authority to protect the

privacy of its citizens more stringently than does the U. S. Constitution. We agree.

However, we note that all case law on the issue of suppression of evidence

because of a selective stop cited in the Smith opinion, upon which Defendants rely,

is federal case law, indicating that Tennessee has chosen to base its level of

protection upon the rights afforded all citizens under the U. S. Constitution.

Therefore, we find the Whren decision should be followed in this case.

       Whren holds that inquiry into the motivations of the police is not

constitutionally mandated unless the stop is alleged to have been motivated by



                                           -4-
racial or other constitutionally impermissible selectivity. There is no such allegation

of racial or other impermissible selectivity in this case, therefore, the stop was

proper.

       Since the traffic stop in question was lawful based upon probable cause to

believe that a traffic violation had occurred, we find that the sole issue the

Defendants have reserved for our consideration is without merit.

          We affirm the judgment of the trial court.




                                            John K. Byers, Senior Judge


CONCUR:




John H. Peay, Judge




Jerry L. Smith, Judge




                                            -5-
                  IN THE SUPREME COURT OF TENNESSEE

                                AT KNOXVILLE                FILED
                                                            February 17, 1998
STATE OF TENNESSEE,                      (
                                                           Cecil Crowson, Jr.
                                         (                  Appellate C ourt Clerk
      Plaintiff-Appellee,                (    Filed: February 17, 1998
                                         (
                                         (
v.                                       (
                                         (    S. Ct. No.
                                         (    03S01-9612-CR-00120
DAVEY JOE VINEYARD AND                   (
JIMMY LEE COCKBURN,                      (
                                         (
      Defendants-Appellants.             (




                        Order on Petition To Rehear

      Upon consideration of the petition to rehear filed by the appellants Davey Joe

Vineyard and Jimmy Lee Cockburn, this Court is of the opinion that the petition

should be and the same is hereby denied.




                                              PER CURIAM
