                      IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                           May 28, 2003 Session Heard at Cookeville

            STATE OF TENNESSEE v. GONZALO MORAN GARCIA
                    Appeal by permission from the Court of Criminal Appeals,
                              Criminal Court for Davidson County
                              No. 99-C-01760 Steve Dozier, Judge


                       No. M2000-01760-SC-R11-CD - Filed October 1, 2003


The defendant, Gonzalo M. Garcia, was convicted in the Criminal Court for Davidson County of
possession of one thousand grams or more of methamphetamine with intent to deliver. We granted
this appeal to determine whether the evidence obtained as a result of the stop should have been
suppressed. After examining the facts and law relevant to the issues, we hold that the defendant's
traffic stop was not based upon reasonable suspicion, in violation of the Fourth Amendment to the
Federal Constitution and Article I, section 7 of the Tennessee Constitution. We also hold that the
evidence in this case must be suppressed because the defendant's consent to search his vehicle was
not sufficiently attenuated from his unlawful detention.1

                       Tenn. R. App. P. 11 Appeal by Permission;
     Judgment of the Court of Criminal Appeals Affirmed in Part and Reversed in Part.

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
E. RILEY ANDERSON, and ADOLPHO A. BIRCH , JR ., JJ. joined. JANICE M. HOLDER, J. filed a
dissenting opinion.

Richard M. McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Gonzalo
Moran Garcia.

Wesley MacNeil Oliver, New Haven, Connecticut, for the amicus curiae, Tennessee Association of
Criminal Defense Lawyers.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Daryl J.
Brand, Associate Solicitor General; Victor S. Johnson, III, District Attorney General; and John
Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                  OPINION



        1
            Oral argument was heard in this case on May 28, 2003, in Cookeville, Putnam County, Tennessee, as part
of this Co urt's S.C.A .L.E.S . (Supreme Court Ad vancing Legal Education for Students) project.
                                   FACTUAL BACKGROUND

       At approximately 10:50 p.m. on May 9, 1999, the defendant, Gonzalo M. Garcia, was
stopped in his vehicle by Officer Deborah Kohl of the Metropolitan Nashville ("Metro") Police
Department while driving on Interstate Highway 24 in Nashville, Davidson County, Tennessee.
During the traffic stop, Metro police officers seized 40.1 pounds, or approximately 18,200 grams,
of methamphetamine. On September 24, 1999, a Davidson County Grand Jury issued an indictment
charging the defendant with one count of possession of one thousand grams or more of
methamphetamine with intent to deliver. Prior to trial, the defendant filed a motion to suppress any
evidence obtained as a result of the traffic stop. The trial court denied the motion, and the Court of
Criminal Appeals upheld that ruling. We granted review in this case to determine whether the lower
courts erred by refusing to suppress the evidence. Accordingly, our factual background will be
limited to the relevant portions of the suppression hearing and the trial.

        At the suppression hearing, Officer Kohl testified that she had been with the Nashville Police
Department for eleven years and was currently assigned to the Twentieth Judicial District Drug Task
Force and had been so assigned for approximately eight months before the traffic stop in this case.
She also testified that she had received specialized training in the field of highway drug interdiction
at conferences organized by the United States Custom Service and the Drug Enforcement
Administration. Additionally, Officer Kohl stated that she had trained for a week in El Paso, Texas
with the United States Custom Service and that she had attended other conferences on highway drug
interdiction in Nashville and Memphis.

        Officer Kohl testified that on the evening of the traffic stop in this case, she had just
completed an unrelated traffic stop and began traveling east on Interstate Highways 40 and 24 in a
marked police cruiser. While driving in the center eastbound lane, Kohl testified that as she began
to overtake the defendant's car, which was in the far right lane, she noticed that the defendant's car
"was swerving in its lane of traffic." She then pulled in behind the defendant's vehicle in order to
observe its actions. Officer Kohl stated that vehicle's erratic behavior continued:
                The vehicle would drive in its lane -- it stayed in its lane of traffic;
                but, as the vehicle was going in its lane of traffic, it would swerve
                over to the right-hand marker, then it would swerve over to the left-
                lane marker.

              And I became concerned for his safety, as well as the safety of other
              motorists, and decided to stop the vehicle, at that point in time.
Among other possibilities, Officer Kohl stated that she suspected that the driver of the vehicle may
have been intoxicated.

        Upon stopping the defendant's vehicle, a white Pontiac Bonneville, Officer Kohl exited her
vehicle and approached the defendant's vehicle on the passenger side. Upon reaching the passenger
door, she motioned for the defendant to roll down the window, which he did. Because the defendant
appeared puzzled when she identified herself as a Nashville Metro Police Officer, Officer Kohl


                                                 -2-
stated that she asked the defendant if he spoke Spanish, to which he replied, "Yes." Kohl then
requested the defendant to exit the car and follow her to the rear of the vehicle. Officer Kohl told
the defendant in Spanish: "I'm a police officer in Nashville, Tennessee. The reason I stopped you
was for a moving violation. The moving violation was weaving." At that point, Kohl testified that
the defendant replied, in English, "I was weaving." Because the defendant was responsive to
English, the remainder of the conversation between Kohl and the defendant was in English.

         After explaining to the defendant the reason he had been pulled over, Officer Kohl asked him
if he had been drinking alcohol. The defendant answered no, and Kohl testified that the defendant's
actions were not consistent with his being intoxicated. In fact, Kohl testified that two minutes into
the traffic stop, she was satisfied that the defendant was not intoxicated. Moreover, she admitted that
she did not witness the defendant speed, drive too slowly, cross any lanes of traffic, illegally pass
another vehicle, follow too closely, commit a violation regarding use of the turning signal, or drive
on the shoulder. After the defendant denied drinking alcohol, Kohl asked him if he was tired. The
defendant explained to Kohl that he was tired because he had left Los Angeles, California, the day
before and only briefly stopped at rest areas to sleep. Kohl asked the defendant about his destination,
and he explained that he was traveling to Georgia. Kohl testified that the defendant gave
inconsistent answers concerning who owned the vehicle and where he was going. However, the car
was not stolen and the registration matched the vehicle. At the suppression hearing, Kohl could not
recall whether the name on the vehicle registration was the same name that the defendant claimed
was the owner. After obtaining the vehicle registration and the defendant's driver's license, Kohl
asked the defendant about his driving record and arrest record. The defendant claimed that his
driving record was "good," although he admitted that he had one arrest for driving under the
influence.

        After examining the defendant's license and vehicle registration, Kohl informed him that she
was going to issue him a warning citation. Kohl advised the defendant that the warning citation
would not carry a monetary fine, nor require him to come to court, nor affect his driving record.
Kohl also gave the defendant directions to a location where he could park his vehicle and rest. She
instructed the defendant to wait in his vehicle until she finished writing the citation. While retaining
the defendant's license and registration, Kohl proceeded to her patrol car, where she radioed for a
fellow officer to transport a drug-detection dog to the scene. Afterwards, Kohl prepared a warning
citation for a violation of "lane restrictions," and also wrote out a "Consent to Search" form in
Spanish before returning to the defendant's vehicle.

        When Officer Kohl approached the defendant, she beckoned him to get back out of the
vehicle. When he complied, Kohl returned to the defendant his driver's license, the vehicle
registration, and the warning citation. After explaining to the defendant that when he was tired, he
needed to take a coffee or sleep break, Officer Kohl thanked the defendant and told him, "The stop's
complete." When the defendant began to walk towards his car, Officer Kohl turned as though to
return to her vehicle. However, she promptly turned around and asked the defendant if she could
ask him a few questions. When the defendant returned to Kohl's location at her direction, Kohl



                                                  -3-
asked him if he had any weapons or long-bladed knives in his vehicle. The defendant replied, "No."
Kohl then asked the defendant if he had any illegal drugs in the vehicle. Officer Kohl testified:
                At this point in time, his demeanor changed. He gave me a -- a
               nervous, laughing, "No." And he -- he became fidgety. You could
               see him scratching on his back. He was nervous and you could
               literally see his Adam['s] apple, a nervous sign, bobbing up and down,
               when I was talking to him, which, to me, is an indicator of some type
               of deception.

         Officer Kohl then asked the defendant for permission to search his vehicle. Kohl claimed
that the defendant promptly invited Kohl to inspect the trunk. Kohl declined and asked the defendant
if he could read in Spanish. When the defendant responded that he could read in Spanish, Kohl
asked him to read the "Consent to Search" form that she had prepared. She testified that "[a]s he
read, you could follow his finger going along each sentence, which, to -- to me, demonstrated that
he was actually reading the statement." The consent form indicated that the defendant had the right
to refuse consent, the right to limit consent to certain portions of the vehicle, as well as the right to
revoke his consent at any time. The defendant printed his name on the consent form and then signed
it.

         Subsequently, Officer Dean Hunter, who had arrived shortly beforehand, permitted his drug-
detection dog, Lou, to smell around the vehicle. The dog indicated that it detected the presence of
illegal drugs on both the driver and passenger side of the vehicle. Because the drug-detection dog
indicated a positive response, Officers Kohl and Hunter began to search the vehicle while the
defendant remained a short distance away with another police officer who had also arrived on the
scene. Kohl recalled that while examining the interior of the vehicle, Officer Hunter noticed that the
vehicle's rocker panels2 had a fresh coat of paint that looked different than the paint on the rest of
the vehicle. Officer Hunter removed the molding that covered the rocker panel and inserted a probe
into the pre-existing screw holes. Around one-half inch into the holes, he met some moderate
resistence. Hunter then inserted a drill into the holes, and the drill caused some "white-terry-cloth
material" to exit the holes. Realizing that the cloth material should not be in the rocker panel, Kohl
retrieved a "buster" or a density meter and measured the density of the rocker panels. Kohl recalled:
"I got a real high [density] rating, a reading of a sixty-eight which told me that there was something
inside of [the rocker panel]. A normal reading should be, I would say probably, a twenty, twenty-
five, something like that."

        Following the high density reading, the officers drilled holes into the rocker panels, resulting
in "a pinkish-brown-type material" exiting the drill bit. Kohl testified that the officers tested the
material for the presence of cocaine but received negative results. Despite the negative result from
the cocaine test, Kohl claimed that "we knew something was there that didn't belong there."
Thereafter, officers used a hammer to break the rocker panels open, where they found "duct-taped


         2
             A "rocker panel" is defined as "the portion of the body pane ling of a v ehicle that is situated below the
doorsills of the passenger compartment." W EBSTER 'S T H IR D N E W I NT ERN ATIO NA L D ICTIONARY 1965 (19 93).

                                                         -4-
bundles" inside the rocker panels. Officer Kohl then placed the defendant under arrest. Laboratory
testing revealed that the bundles contained 40.1 pounds, or approximately eighteen thousand grams,
of methamphetamine.

         At the conclusion of Officer Kohl's direct examination, the State introduced a video tape of
Kohl's traffic stop of the defendant. The audio portion of the video tape is indiscernible. Kohl stated
that after the traffic stop, she discovered the battery which powered the audio equipment was dead.
Additionally, the State introduced into evidence, without objection, a certified copy of Metropolitan
Nashville Code section 12.68.170, entitled "Careless driving." Section 12.68.170 provides:
                 A. Every person operating a vehicle upon the streets within the
                 metropolitan government, or any private road or driveway or parking
                 area, shall drive the same in a careful and prudent manner, having
                 regard for the width, grade, curves, corners, traffic and use of these
                 streets and private areas, and all other attendant circumstances, so as
                 not to endanger the life, limb or property of any person. Failure to
                 drive in such manner shall constitute careless driving and a violation
                 of this chapter.
         At the close of the State's evidence, the defendant testified through an interpreter. The
defendant's testimony at the suppression hearing was limited to establish his standing to contest the
search of the vehicle which he was driving on May 9, 1999. Garcia claimed that the owner of the
vehicle, Efrain Orosco, had given him permission to drive it while Orosco was away on vacation to
Mexico. Moreover, the defendant claimed that Orosco knew that the defendant was planning a
vacation to Georgia and had given him permission to drive the vehicle on his trip. Lastly, the
defendant acknowledged that no one else had driven the vehicle within three days immediately prior
to the traffic stop.

        Following the hearing on the motion to suppress, the trial court denied the defendant's
motion, concluding that the initial stop was based upon reasonable suspicion. The trial court further
held that the initial search of the defendant's vehicle was based upon consent, and the more invasive
search of the vehicle's rocker panels was based upon consent and also probable cause.

        At trial, the State again presented the testimony of Officer Kohl. Though Officer Kohl's
testimony was virtually identical to her testimony at the suppression hearing, she did relay some
information that was not presented at the earlier hearing. For example, Kohl claimed that although
she had conducted "several hundred" traffic stops while working with the Drug Task Force, only
approximately ten resulted in seizures of some kind of narcotics. Kohl also testified that when she
witnessed the defendant's vehicle swerving within its own lane, in addition to being concerned that
the driver was potentially intoxicated, she was also concerned that perhaps the driver "was getting
tired and maybe he's going to fall asleep at the wheel." Officer Kohl also testified that because the
windows of the vehicle being driven by the defendant were tinted, she did not actually view the
defendant until she had stopped the vehicle and spoke to the defendant from the passenger side of
the vehicle.



                                                 -5-
        Kohl testified that the interior of the vehicle was littered with various items including a
gallon jug of water, soda cans, empty juice containers, and half-eaten sandwiches. In contrast to the
defendant's claim that he was occasionally stopping at rest areas, Officer Kohl said she saw no
blankets or pillows in the vehicle's interior. Kohl stated that the condition of the interior of the
vehicle, combined with the defendant's inconsistent responses to her questions concerning his
destination, indicated to her that perhaps the defendant was transporting narcotics. Based upon this
suspicion, she radioed for a drug-detection dog handler and prepared a "Consent to Search" form.

        Kohl testified that when she asked the defendant if he was carrying weapons or illegal drugs,
the defendant became nervous and offered to let her examine the vehicle's trunk. Kohl claimed that
the defendant's invitation to look into the trunk only increased her suspicion, "[I]n the past when I
found drugs that weren't in the trunk, people always want you to look in the trunk. And, to me,
they're trying to divert my attention away from where [the drugs] are [located]."

        Conversely, at trial, the defendant testified, through an interpreter, that he did not state to
Officer Kohl during the traffic stop that he did not know where he was going in Georgia. He also
claimed that he did not tell Kohl that a cousin owned the vehicle that he was driving. Moreover, the
defendant denied offering to let Kohl search the trunk. However, the defendant did testify that he
consented in writing to the search with the full understanding that he could revoke his consent at any
time.
        At the conclusion of the trial, the jury found the defendant guilty of possession of one
thousand grams or more of methamphetamine. The trial court sentenced the defendant to twenty
years incarceration in the Tennessee Department of Correction.

        On appeal, the Court of Criminal Appeals held that the initial traffic stop and Officer Kohl's
continued detention of the defendant were not based upon reasonable suspicion and were in violation
of the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee
Constitution. However, the Court of Criminal Appeals held that the defendant freely and voluntarily
consented to the search and, because the consent was sufficiently attenuated from the unlawful traffic
stop, the exclusionary rule did not bar introduction of the seized methamphetamine. Ultimately, the
Court of Criminal Appeals reversed the defendant's conviction and remanded the case for a new trial
based upon the improper testimony of a Houston, Texas, police officer during trial. Thereafter, we
granted the defendant permission to appeal on the following issue: whether the Court of Criminal
Appeals erred by refusing to suppress evidence obtained as a result of the defendant's traffic stop.

         For the reasons stated herein, we reverse that portion of the decision of the Court of Criminal
Appeals finding the consent sufficiently attenuated from the illegal stop to render the search legal.
Having thoroughly reviewed the record in this case and the applicable authorities, we hold that the
initial stop and continued detention of the defendant in this case were not based upon reasonable
suspicion of criminal activity and thus violated both the United States and Tennessee Constitutions.
We also hold that the defendant's consent was not sufficiently attenuated from the unlawful stop;
thus, the evidence seized in the defendant's traffic stop was fruit of the poisonous tree and should



                                                  -6-
have been excluded. Accordingly, the defendant's conviction is reversed, and this case is remanded
to the Criminal Court for Davidson County for proceedings consistent with this opinion.

                                     STANDARD OF REVIEW

         The instant case involves appellate review of a trial court's findings of fact and conclusions
of law in denying a motion to suppress. The issue of whether reasonable suspicion existed to
validate a traffic stop is a mixed question of fact and law. We review the factual determinations of
a trial court under the standard articulated in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). In Odom,
we held that "a trial court's findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise." Id. at 23. Additionally, "[q]uestions regarding witness
credibility and 'resolution of conflicts in the evidence are matters entrusted to the trial judge.'" State
v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (quoting Odom, 928 S.W.3d at 23).

        In arguing that there was reasonable suspicion to validate the defendant's traffic stop in this
case, the State argues that the Court of Criminal Appeals failed to give proper weight to the trial
court's findings of fact by applying an erroneous standard of review. The State maintains that the
Court of Criminal Appeals wrongly applied the standard of review to the findings of facts that we
articulated in State v. Binette, 33S.W.3d 215, 217 (Tenn. 2000), rather than the proper Odom
"preponderance" standard. In Binette, we applied a de novo standard of review with no presumption
of correctness to the trial court's findings of fact because the only evidence presented on behalf of
the State at the suppression hearing was a videotape of the defendant's alleged driving errors. Id.
Our rationale for so holding was that "when a trial court's findings of fact on a motion to suppress
are based solely on evidence that does not involve issues of credibility, appellate courts are just as
capable to review the evidence and draw their own conclusions." Id. (emphasis added).

        In contrast to Binette, in the instant case the State presented the testimony of Officer Kohl
in addition to the videotape of the circumstances that led to his traffic stop. Moreover, in its order
denying the defendant's motion to suppress, the trial court specifically accredited Officer Kohl's
testimony. Nevertheless, the Court of Criminal Appeals reviewed the trial court's findings of fact
de novo claiming that "in [the trial court's] order denying the [defend]ant's motion to suppress, the
trial court ultimately cites its own observations of the videotape recording in support of its
determination of reasonable suspicion." Because the testimony of Officer Kohl involves issues of
credibility, we will review the trial court's findings of fact under the Odom standard. In reviewing
these findings of fact, we note that the testimony presented at trial may also "be considered by an
appellate court in deciding the propriety of the trial court's ruling on the motion to suppress."
Walton, 41 S.W.3d at 81 (quoting State v. Perry, 13 S.W.3d 724, 737 (Tenn. Crim. App. 1997));
State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

         However, while we afford some deference to the trial court's findings of fact, the application
of the law to those facts is a question of law which this Court reviews de novo with no presumption
of correctness. State v. Yeargen, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Beare Co. v. Tennessee
Dep't of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)).


                                                   -7-
                                                ANALYSIS

                                     REASONABLE SUSPICION

        The Fourth Amendment to the United States Constitution guarantees that "the right of the
people to be secure . . . against unreasonable searches and seizures shall not be violated and no
warrants shall issue, but upon probable cause."3 Likewise, Article I, section 7 of the Tennessee
Constitution guarantees "that the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures . . . ." We have often noted that Article I,
section 7 of our state constitution "is identical in intent and purpose with the Fourth Amendment."
Binette, 33 S.W.3d at 218 (citing Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)). Thus, the
language of both the federal and state constitutions mandate that "a warrantless search or seizure is
presumed unreasonable, and the 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." Yeargan, 958 S.W.2d at 629; see also
Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

        Though a warrant is normally required when a police officer intrudes upon the privacy of a
citizen, see INS v. Del Gado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762 (1984), there are exceptions
to the warrant requirement. One exception exists "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." Binette, 33 S.W.3d at 218 (citing Terry v. Ohio, 392 U.S. 1,
20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We have noted that "[u]pon turning on the blue lights
of a vehicle, a police officer has clearly initiated a stop and has seized the subject of the stop within
the meaning of the Fourth Amendment of the Federal Constitution and Article I, section 7 of the
Tennessee Constitution." Id. (citing State v. Pulley, 863 S.w.2d 29, 30 (Tenn. 1993)). Accordingly,
in the instant case, when Officer Kohl stopped Garcia's vehicle by turning on her blue lights, she
must have had reasonable suspicion, supported by specific and articulable facts, that the defendant
had committed, or was about to commit, a criminal offense in order for the stop to be constitutionally
valid.

        Determining whether reasonable suspicion existed in a particular traffic stop is a fact-
intensive and objective analysis. The United State Supreme Court has stated that "[i]n determining
whether a police officer's reasonable suspicion is supported by specific and articulable facts, a court
must consider the totality of the circumstances." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct.
2412, 110 L.Ed.2d 301 (1990) (citing United State v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66
L.Ed.2d 621 (1981)); see also State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997).

       In the instant case, the defendant, citing this Court's decision in Binette, argues that there was
no reasonable suspicion to validate the initial traffic stop. In Binette, the defendant was convicted


        3
        The Fourth Amendme nt to the United States Constitution is applicable to the states via the Fo urteenth
Amendment. Mapp v. Ohio, 367 U.S. 643 , 81 S .Ct. 16 84, 6 L.Ed .2d 1 081 (1961).

                                                     -8-
for DUI after being stopped by a Chattanooga, Tennessee, police officer. The officer had followed
Binette for several minutes and videotaped the defendant's driving before stopping him. During the
videotape, the officer made several comments about driving errors he claimed were being made by
Binette, including speeding, crossing the yellow line, and swerving within his own lane all the way
to the center line. Upon a de novo review, this Court reversed the defendant's conviction holding
that "[w]hile Binette did move laterally at times within his lane while operating his vehicle, we find
that his movement was not pronounced, and therefore did not give rise to reasonable suspicion."
Binette, 33 S.W.2d at 220.

         Conversely, the State argues in this case that the following specific and articulable facts gave
rise to a reasonable suspicion that the defendant was either intoxicated while operating his vehicle
or falling asleep shortly before being stopped by Officer Kohl: 1) the defendant was weaving back
and forth within his own lane in a continual manner in Davidson County; and 2) there was
considerable high-speed traffic, some of which can be seen braking when approaching Garcia's
vehicle and trying to pass.

         We have viewed the videotape and reviewed the testimony of Officer Kohl pertaining to the
defendant's driving shortly before the traffic stop. Much like Binette, we find no evidence "of
pronounced weaving or hard swerving" by Garcia. Binette, 33 S.W.3d at 219. In fact, despite the
testimony of Officer Kohl, we are unable to detect any weaving upon viewing the videotape.4 We
also note that both the majority and dissenting opinions of the Court of Criminal Appeals in this case
concluded that the defendant remained within his lane at all times and did not exhibit any weaving
that was either exaggerated or pronounced. However, "[t]he number of times that a vehicle touches
a center line or drifts within a lane is not dispositive" of whether reasonable suspicion existed to
validate a traffic stop. Id. "Rather, as we have previously noted, a court must consider the totality
of the circumstances in determining whether reasonable suspicion was present at the time a stop was
initiated." Id.

        Prior to Officer Kohl's stop of the defendant, the videotape reveals that Garcia was traveling
at what appears to be a safe rate of speed in the far right lane of an interstate highway. The videotape
also reveals that Garcia slowly moved his vehicle slightly within his lane of travel approximately
twice over a period of approximately two minutes. At no point does the vehicle exhibit any sharp
or jerking movements. While there is a short period of time when the vehicle is not visible on the
videotape, we find no testimony in the record suggesting that the defendant exhibited any
pronounced or exaggerated swerving during that brief time period. Moreover, we place little weight
on the fact that there was considerable traffic on the interstate on the night of the defendant's traffic
stop. The videotape reveals that several cars approached the defendant from the rear and easily
passed his vehicle by moving to the next lane. Additionally, the State does not contest that the



         4
           With due respect to the author of the dissenting o pinion, we did not find the vide otape to be "dark, indistinct,
and mainly consist[ing] of diffused light." Conversely, we were able to see clearly what wa s dep icted with respe ct to
the defendant's driving, o ther traffic, an d the condition of the road way.

                                                            -9-
defendant was driving in compliance with Tennessee Code Annotated section 55-8-123(1) (1998),
which states:
                Whenever any roadway has been divided into two (2) or more clearly
                marked lanes for traffic . . . [a] vehicle shall be driven as nearly as
                practicable entirely within a single lane and shall not be moved from
                such lane until the driver has first ascertained that such movement can
                be made safely . . . .
At the suppression hearing, the State introduced section 12.68.170 of the Metropolitan Nashville
Code which proscribes driving carelessly "so as . . . to endanger the life, limb, or property of any
person." Given that Officer Kohl testified that she did not witness the defendant speed, drive too
slowly, cross any lanes of traffic, illegally pass another vehicle, follow too closely, commit a
violation regarding use of the turning signal, or drive on the shoulder, we agree with the lower court
that neither the videotape nor Officer Kohl's testimony reflect that, at the time he was pulled over,
the defendant was currently endangering "the life, limb, or property of any person."

        In short, in accordance with the Odom standard, we conclude that the trial court's findings
of fact at the suppression hearing are not supported by the preponderance of the evidence.
Accordingly, we hold that as a matter of law there was no reasonable suspicion to stop Garcia.
While the defendant's driving may not have been perfect, we saw no evidence of weaving on the
videotape, and we reiterate that "it is the rare motorist indeed who can travel for several miles
without occasionally varying speed unnecessarily, moving laterally from time to time in the
motorist's own lane, nearing the center line or shoulder, or exhibiting some small imperfection in his
or her driving." Binette, 33 S.W.3d at 219 (quoting State v. Binette, 1999 WL 427606 at *2 (Tenn.
Crim. App. 1999) (Smith, J., dissenting)).

                                         ATTENUATION

        Having determined that there was no reasonable suspicion to stop the defendant, the next
inquiry is whether the evidence discovered during the illegal stop must be suppressed. Although the
Court of Criminal Appeals held that the evidence was obtained during an unlawful stop of the
defendant, it nevertheless held that the exclusionary rule would not bar introduction of the
discovered methamphetamine because Garcia's consent to search the vehicle was sufficiently
attenuated from the unlawful seizure. We disagree.

        The history and purpose of the exclusionary rule have been well chronicled. In Wong Sun
v. United States, 371 U.S. 471, 484, 83 S.Ct. 407 (1963), the Supreme Court acknowledged that it
acts as a prophylactic guard to bar the admissibility of evidence obtained in violation of an
individual's Fourth Amendment rights. However, the Court refused to hold that all evidence
obtained as a result of police misconduct would be considered "'fruit of the poisonous tree' simply
because [the evidence] would not have come to light but for the illegal actions of the police." Id. at
487-88.




                                                -10-
         We note at the outset that "a consent to search that is preceded by an illegal seizure is not
'fruit of the poisonous tree' if the consent is both: 1) voluntary, and 2) not an exploitation of the prior
illegality." See Wayne LaFave, 3 Search and Seizure § 8.2(d) at 656 (3d ed. 1996). In this case, the
defendant does not argue that his consent was involuntary. He clearly acknowledged at trial that he
voluntarily signed the consent to search form prepared by Officer Kohl, fully understanding that he
could revoke his consent at any time. Thus, the issue before us is whether the defendant's consent
was an exploitation of the prior unlawful seizure.5

        We have previously noted that attenuation issues are highly factual. See State v. Huddleston,
924 S.W.2d 666, 674 (Tenn. 1996). In making our evaluation, we look to the factors articulated by
the Supreme Court in Brown v. Illinois, 442 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416
(1975). Though the Brown factors were designed to aid courts in determining whether a confession
was obtained by exploitation of an illegal arrest, these factors may also be used by courts to evaluate
whether the causal connection between an unlawful seizure and a subsequent consent has been
broken, i.e. whether the primary taint of an unlawful seizure has been sufficiently attenuated from
the voluntary consent. The Brown factors are as follows: 1) the temporal proximity of the illegal
seizure and consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy
of the official misconduct. Id.6 Additionally, we note that the burden of showing attenuation lies
with the State. See Brown, 422 U.S. at 604.

         The first Brown factor for our consideration is the temporal proximity of the illegal seizure
and consent. Various courts addressing this factor have noted that "[a] brief time lapse between a
Fourth Amendment violation and consent often indicates exploitation [of the prior illegal police
action] because the effects of the misconduct have not had time to dissipate." State v. Hansen, 63
P.2d 650, 666 (Utah 2002) (citing State v. Shoulderblade, 905 P.2d 289, 293 (Utah 1995)); see also
United States v. Melendez-Garcia, 28 F.3d 1046, 1055 (10th Cir. 1994); State v. Williams, 571
S.E.2d 703, 711 (S.C. Ct. App. 2002) (finding no attenuation where only a minimal time passed
between illegality and consent). Here, the lapse of time between the illegal detention and consent
was negligible. The illegal detention began when Officer Kohl turned on the blue lights during the
traffic stop and did not end until she told Garcia that the stop was complete. Immediately thereafter,
Kohl began asking the defendant more questions and had obtained his voluntary written consent
within a scant few minutes. Hence, no appreciable time passed between the defendant's unlawful
detention and the consent that would have allowed the taint of the misconduct to dissipate. Thus,
this factor weighs against a finding of attenuation.




         5
            Both sides have argued that the other party has waived the attenuation issue by failing to raise it at the trial
level. However, because the issue of attenuation did not arise until the Court of Criminal Appeals determined the traffic
stop to be unlawful, we will address the issue on the merits.

         6
           Though the application of the attenuation doctrine to a consent following an illegal seizure is an issue of first
impression for this Court, we have previously adopted the Brown attenuation factors to evaluate whether a confession
was ad missible following a Fo urth Amendme nt violatio n. Huddleston, 924 S.W.2d at 674.

                                                           -11-
         Next, we consider whether the presence of intervening circumstances support a finding of
attenuation. The State argues that Officer Kohl's unequivocal statement to the defendant that he was
free to go was an intervening circumstance which purged the taint of the prior illegality. Several
courts have held that communication to a driver that he or she is free to go prior to requesting
consent serves to attenuate the consent from the illegal traffic stop. See, e.g., State v. Ramos, 42
F.3d 1160, 1163 (8th Cir. 1994); United States v. Fernandez, 18 F.3d 874, 882 (10th Cir. 1994);
United States v. Ramstad, 120 F.Supp.2d 973, 980 (D. Kan. 2000). While we agree with those
courts that such an action by a police officer does act as an intervening circumstance weighing in
favor of attenuation, we are also mindful that a citizen who has been subjected to a traffic stop is not
likely to walk away from continued police questioning, despite being told that he or she is free to
leave. See Commonwealth v. Strickler, 757 A.2d 884, 898 (Pa. 2000) (noting that the "element of
coercion is obviously enhanced when police actually detain a citizen . . . by means of a traffic stop").
In this case, the defendant's willingness to answer more of Officer Kohl's questions could have been
influenced by the fact that another police car with flashing blue lights had arrived on the scene during
the traffic stop.

        Several commentators, including Harvard Law Professor William J. Stuntz have opined that
"ordinary people never feel free to terminate a conversation with a police officer." William J. Stuntz,
Terry's Impossibility, 72 St. John's L. Rev. 1213, 1215 (1998). The Supreme Court of Virginia
recently echoed this concern in a case similar to the instant case when it held that a motorist who was
told by an officer that he was "free to leave" but immediately was asked questions concerning
whether he had any weapons or drugs was re-seized upon continued questioning. Reittinger v.
Commonwealth, 532 S.E.2d 25, 28 (Va. 2000). Thus, while we acknowledge the fact that Garcia
was told he was free to go, we give this factor little weight given the immediacy with which Officer
Kohl began questioning the defendant after telling him he was free to leave and the presence of the
other police cruiser.

         Finally, we consider the purpose and flagrancy of the official misconduct. The final Brown
factor we consider particularly important because it is most closely tied to the rationale of the
exclusionary rule -- to discourage police misconduct. See Brown, 422 U.S. at 604; Huddleston, 924
S.W.2d at 676; State v. Richter, 612 N.W.2d 29, 41 (Wis. 2000). In this case, there was no
reasonable suspicion to stop the defendant. However, assuming arguendo that Officer Kohl had
reasonable suspicion to suspect that the defendant was intoxicated, by her own account, Kohl knew
two minutes into the stop that the defendant was not intoxicated. Yet, she retained his driver's
license and vehicle registration, wrote out a warning ticket even though no crime had been
committed by the defendant, prepared a consent to search form in Spanish, and radioed for a drug-
detection dog. All these actions were taken despite there being no reasonable suspicion that the
defendant was engaged in criminal activity. Kohl's status as a member of the drug task force adds
to the likelihood that her prolonged and unreasonable detention of the defendant was for the sole
purpose of obtaining consent to search his vehicle. Under such circumstances, we conclude that the
defendant's consent was gained in exploitation of the unlawful detention.




                                                 -12-
        In his dissenting opinion in the court below, Judge John Everett Williams emphasized that
the extended detention of the defendant revealed that the defendant's consent was obtained by
exploitation of the prior illegality:
                [T]he issuance of the warning ticket resulted in the continuation of an
                unlawful detention, and appears to have been pre-text to allow the
                officer the opportunity to prepare a consent form in Spanish. The
                warning ticket took some ten to twelve minutes to issue. . . .

                My review of the record and video tape (sic) revealed a perfectly
                choreographed performance by the officer subjectively calculated to
                and objectively resulting in exploitation of the illegal stop and
                detention of the defendant in order to obtain his consent to search.
                Assuming arguendo that the purpose of the illegal stop was not to
                obtain consent to search the vehicle, the continued detention of the
                defendant under the guise of issuing a warning ticket was clearly in
                pursuance of a conscious objective to obtain consent to search.
State v. Garcia, No. M2000-01760-CCA-R3-CD, at 2-3 (Tenn. Crim. App. May 15, 2001) (filed at
Nashville) (Williams, J., dissenting).

        After a thorough review of the record, we agree with Judge Williams that Officer Kohl's
attempt to gain the defendant's consent to search the vehicle was done through exploitation of the
illegal detention of the defendant. Officer Kohl's (unreasonable) suspicion that the defendant was
intoxicated was quelled two minutes into the traffic stop. As a result, she had no reasonable basis
to detain the defendant. Likewise, because the defendant had broken no traffic law, we question
under what authority she issued the warning ticket. Thus, we conclude that this factor weighs against
a finding of attenuation.

        Accordingly, after due consideration of the Brown attenuation factors, we conclude that the
State has failed to carry its burden of demonstrating that the consent was sufficiently attenuated from
the unlawful detention. Thus, we are constrained to hold that the methamphetamine, obtained during
an unlawful detention of the defendant, should have been suppressed.

                                          CONCLUSION

         In sum, we hold that the traffic stop of the defendant in this case was not based upon
reasonable suspicion in violation of the Fourth Amendment and Article I, section 7. We also hold
that although the defendant's consent to search his vehicle was given voluntarily, the evidence seized
must be suppressed because the consent was not sufficiently attenuated from the unlawful detention.
Accordingly, the defendant's conviction is reversed, and the cause is remanded to the Criminal Court
for Davidson County for proceedings consistent with this opinion.

       Costs of this appeal are taxed to the State of Tennessee, for which execution may issue if
necessary.


                                                 -13-
       _____________________________
       WILLIAM M. BARKER, JUSTICE




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