                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                    October 6, 2005 Session

               STATE OF TENNESSEE v. JAMES D. NICHOLSON

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



                      No. M2004-00111-SC-R11-CD - Filed April 17, 2006



Janice M. Holder, dissenting

         I write separately to express my disagreement with the majority’s holding that the law
enforcement officers’ seizure of the defendant, James D. Nicholson (“Nicholson”), was invalid due
to the lack of reasonable suspicion.

         An investigatory stop is permissible under the United States and Tennessee Constitutions if
it is based upon reasonable suspicion, supported by specific and articulable facts, that a criminal
offense has been or is about to be committed. See Terry v. Ohio, 392 U.S. 1, 20-21 (1968); State
v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002). The level of suspicion required for a valid
investigatory stop is considerably less than either probable cause or proof of wrongdoing by a
preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7-8 (1989); State v. Yeargan,
958 S.W.2d 626, 632 (Tenn. 1997).

         Reasonable suspicion is determined by considering the totality of the circumstances
surrounding the seizure. See Randolph, 74 S.W.3d at 336. Circumstances relevant in determining
the existence of reasonable suspicion include, but are not limited to, the officer’s personal objective
observations, information received from other law enforcement officers or agencies or from citizens,
and the pattern of operation of certain offenders. Yeargan, 958 S.W.2d at 632. The rational
inferences and deductions that a trained officer may draw from the facts and circumstances known
to that officer also may be considered. State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998); Yeargan,
958 S.W.2d at 632.

       I agree with the majority’s conclusion that Detective Ryan Lockwood’s instruction to
Nicholson to “hold up” prior to Nicholson’s flight did not constitute a seizure. The majority further
recognizes that the State does not dispute that Nicholson was seized pursuant to Tennessee


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constitutional standards when the officers pursued him yelling, “Stop, police.” Accordingly, the
totality of the events and circumstances leading up to the officers’ pursuit of Nicholson and the
directive, “Stop, police,” may be considered in determining whether reasonable suspicion existed.

        Detective Lockwood saw Nicholson in an area in which Detective Lockwood and other
detectives in the intelligence division were conducting a previously planned investigation of gang
activity. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (holding that the area’s propensity
toward criminal activity is one factor to be considered in determining the existence of reasonable
suspicion); State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996). Nicholson was in the
area at approximately 11:30 p.m. Lawson, 929 S.W.2d at 408 (concluding that the lateness of the
hour is one factor in determining the existence of reasonable suspicion).

        Prior to the seizure, Detective Lockwood observed a large group of people around the Henry
Place area on property belonging to the Metropolitan Development and Housing Agency (“MDHA”)
where “No Trespassing” signs were posted. Detective Lockwood saw some members of the group
conducting “hand-to-hand transactions.” When Detective Lockwood and other officers approached
the group, the members of the group fled. Detective Lockwood began to chase one of the suspects.
Upon arriving at the corner on Henry Place, Detective Lockwood lost sight of the suspect.

        Detective Lockwood stopped, looked toward the general vicinity where the group had been
gathered, and saw Nicholson walking. Detective Lockwood testified he did not observe Nicholson
committing an illegal act but “had cause to believe” that Nicholson was trespassing. The trial court
found that Detective Lockwood had a valid basis to approach Nicholson and inquire as to his
presence. Detective Lockwood instructed Nicholson to “hold up.” Detective Lockwood testified that
his police badge and insignia were clearly visible. Nicholson, however, ran from the scene.

        The majority concludes that Nicholson’s flight from the scene was not a valid basis upon
which to find reasonable suspicion. I agree that a defendant’s flight, standing alone, is insufficient
to establish reasonable suspicion. I believe, however, that a defendant’s flight is one factor that may
be properly considered in examining the issue of reasonable suspicion. See Wardlow, 528 U.S. at
124 (holding that “nervous, evasive behavior,” such as flight, is a relevant factor in an examination
of reasonable suspicion).

        The majority also identifies innocent reasons justifying flight from law enforcement officers.
The record does not indicate that Nicholson had innocent reasons for fleeing from the officer or that
Nicholson “simply happened on the scene after Detective Lockwood had unsuccessfully chased other
persons.” Furthermore, we are not required to find a constitutional violation simply because
innocent reasons for such conduct may exist. See id. at 125. The test in a reasonable suspicion
inquiry is not whether the activity may be consistent with innocent conduct but whether the facts or
circumstances “make the conduct reasonably suspicious of past or future criminal conduct.” State
v. Scarlett, 880 S.W.2d 707, 709 (Tenn. Crim. App. 1993).




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        Finally, the majority takes each fact and circumstance and views it in isolation to examine
whether reasonable suspicion existed. I agree that each fact and circumstance, standing alone, does
not rise to the level of reasonable suspicion. In examining the issue of reasonable suspicion,
however, we are required to consider the facts and circumstances in their totality. See Randolph, 74
S.W.3d at 336. Under the totality of the facts and circumstances of the present case, Detective
Lockwood could have reasonably suspected at the least that Nicholson had been trespassing on
MDHA property and, therefore, was justified in conducting an investigatory stop.

       Because I believe that the seizure was valid, I respectfully dissent.



                                                      ___________________________________
                                                      JANICE M. HOLDER, JUSTICE




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