         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    October 12, 2004 Session

                STATE OF TENNESSEE v. JAMES D. NICHOLSON

                 Direct Appeal from the Criminal Court for Davidson County
                       No. 2003-C-2381    J. Randall Wyatt, Jr., Judge



                    No. M2004-00111-CCA-R3-CD - Filed January 25, 2005




GARY R. WADE, P.J., dissenting.


        I would affirm the judgment of the trial court. In my view, the defendant was not seized
when the officer directed him to "hold up." Further, the defendant's flight, coupled with his presence
in an area known for drug trafficking, provided the officers with reasonable suspicion to pursue and
detain him for further inquiry. That he was not a resident of the housing project, refused to provide
his name or identification, and refused to provide the name of the individual he claimed to be visiting
established probable cause to arrest him for trespassing.

         It is well established that both the state and federal constitutions protect against unreasonable
searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; Coolidge v. New Hampshire,
403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). Neither,
however, is intended to limit all contact between citizens and law enforcement and are designed,
instead, "'to prevent arbitrary and oppressive interference with the privacy and personal security of
individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Martinez-Fuerte,
428 U.S. 543, 554 (1976)). As pointed out by the majority, our courts have recognized three types
of encounters between citizens and law enforcement: (1) a full-scale arrest, which must be supported
by probable cause; (2) an investigatory stop, which must be supported by reasonable suspicion; and
(3) a brief police-citizen encounter, which requires no objective justification. See Florida v. Bostick,
501 U.S. 429, 434 (1991); Brown v. Illinois, 422 U.S. 590 (1975); State v. Daniel, 12 S.W.3d 420
(Tenn. 2000).

        In United States v. Drayton, 536 U.S. 194, 201-02 (2002), the Supreme Court determined
that, as to the third type of encounter, there is no Fourth Amendment violation when an officer
simply approaches a person in a public place and poses a question. Even when there is no basis to
suspect a crime, officers may ask questions, ask for identification, and ask for consent to conduct a
search, so long as the means used to induce the cooperation are not coercive. Id.; see Daniel, 12
S.W.3d at 425. A reviewing court must examine "all the circumstances surrounding the encounter"
to determine whether the law enforcement conduct indicated a lack of freedom "to decline the
officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 439.

        Our supreme court has held that the relevant question when distinguishing between a brief
police-citizen encounter and a seizure is whether "in view of all the circumstances surrounding the
conduct, a reasonable person would have believed he or she was not free to leave." State v.
Randolph, 74 S.W.3d 330, 335 (Tenn. 2002). The subjective intent of the officer is not controlling.
State v. Johnson, 980 S.W.2d 414 (Tenn. Crim. App. 1998). In Randolph, our high court
enumerated several factors to be considered when determining whether an individual has been
seized:
        1. The time, place, and purpose of the encounter;
        2. the words used by the officer;
        3. the officer's tone of voice and general demeanor;
        4. the officer's statements to others who were present during the encounter;
        5. the threatening presence of several officers;
        6. the display of a weapon by an officer; and
        7. the physical touching of the person of the citizen.
Randolph, 74 S.W.3d at 336-37.

        In this case, the encounter occurred late at night in an area known for drug trafficking. Only
moments earlier, Detective Lockwood, who was wearing a "raid vest" with Metro Police Department
insignia on it, had witnessed a number of hand-to-hand drug transactions. When he saw the
defendant, Detective Lockwood "squared more to him and told him to hold up." The officer's tone
of voice and general demeanor are not apparent from the record. During the encounter, no
statements were made to the other officers present. Detective Lockwood testified that while he was
in closest proximity to the defendant, "there were several uniformed officers just up the hill from
where [he] was, with their cars parked at the top of Henry Place." The officers did not touch the
defendant during the initial encounter and no weapon was displayed.

        In my view, these factors support the trial court's ruling that the defendant was not seized
when Detective Lockwood told him to "hold up." It is further my view that the defendant's flight
upon being told to "hold up," coupled with the other circumstances of the encounter, provided the
officers with reasonable suspicion to pursue and apprehend him.

        In State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993), our supreme court ruled that "the
reasonableness of seizures less intrusive than a full-scale arrest is judged by weighing the gravity of
the public concern, the degree to which the seizure advances that concern, and the severity of the
intrusion into individual privacy." While probable cause is not necessary for an investigative stop,
the officer must have "reasonable, articulable suspicion that criminal activity is afoot" and that
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);
see also Pulley, 863 S.W.2d at 30.


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         The facts of this case are very similar to those in Illinois v. Wardlow, 528 U.S. 119 (2000).
In Wardlow, which provides guidance on the propriety of the stop, a four-car caravan of police
officers converged on an area known for drug trafficking. As they approached, one of the officers
noticed Wardlow standing next to the building holding an opaque bag. Wardlow looked in the
direction of the officers and then fled on foot. The officers eventually cornered him and discovered
a firearm in the bag he was carrying. The Supreme Court held that Wardlow's presence in a high
crime area and his flight upon seeing the officers established reasonable suspicion for the officers
to pursue. The Court determined that while "[a]n individual's presence in an area of expected
criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that
the person is committing a crime," police officers need not "ignore the relevant characteristics of a
location in determining whether the circumstances are sufficiently suspicious to warrant further
investigation." Id. at 124 (citation omitted). The Court specifically observed that the defendant's
presence in a "high crime area" is among the relevant considerations when assessing reasonable
suspicion. See id. (citing Adams v. Williams, 407 U.S. 143, 144 (1972)). The Court also observed
that "it was not merely [Wardlow's] presence in an area of heavy narcotics trafficking that aroused
the officers' suspicion but his unprovoked flight upon noticing the police." Id. It concluded that
"nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Id. (citing
United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); Florida v. Rodriguez, 469 U.S. 1, 6
(1984) (per curiam); United States v. Sokolow, 490 U.S. 1, 8-9 (1989)). The Court ruled that
"[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion: it is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such." Id. While noting that a citizen may
lawfully refuse to cooperate with the police and is free to terminate the encounter at any time, the
Court ruled that "unprovoked flight is simply not a mere refusal to cooperate." Id. at 125.

        Here, Detective Lockwood and several other officers had gone to Henry Place to investigate
gang activity. When they arrived, they observed a number of hand-to-hand drug transactions taking
place in an area known for such crimes. They chased those involved but were unable to apprehend
anyone. When Detective Lockwood returned to the area, he saw the defendant and directed him to
"hold up." It is my opinion that when the defendant ran, the Detective had reasonable suspicion to
pursue and further investigate. Because the defendant refused to provide his name, identification,
or the name of the person he claimed to be visiting at the housing project, the officers had probable
cause to arrest him for criminal trespass. The subsequent search incident to that arrest, wherein the
officers discovered cocaine in the defendant's possession, was thus lawful. Accordingly, I would
affirm the judgment of the trial court.


                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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