         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs March 14, 2001

          STATE OF TENNESSEE v. PERRY THOMAS RANDOLPH

                 Direct Appeal from the Criminal Court for Putnam County
                            No. 99-0493    Leon Burns, Judge



                      No. M2000-2293-CCA-R3-CD - Filed April 4, 2001


The State appeals from the Putnam County Criminal Court’s order granting the Defendant’s motion
to suppress. The Defendant, Perry Thomas Randolph, was charged by indictment with one count
of theft, one count of aggravated assault, one count of burglary, and one count of resisting arrest.
The Defendant filed a motion to suppress, challenging his initial stop and seizure by the police. The
trial court found the Defendant’s seizure illegal because it failed to meet the minimal requirements
of Terry v. Ohio. After review, we find it unnecessary to examine the issue of whether the officer
had sufficient articulable facts to justify stopping the Defendant because we find no such stop
occurred. The judgment of the trial court is reversed and the case remanded for further proceedings
in accordance with this opinion.

       Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Charles L. Hardin, Cookeville, Tennessee, for the Appellee, Perry Thomas Randolph.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.
Findley, Assistant Attorney General; William Edward Gibson, District Attorney General; and David
Patterson, Assistant District Attorney General, for the Appellant, State of Tennessee.


                                            OPINION


         The State appeals as of right the trial court’s order granting the Defendant’s motion to
suppress all evidence seized resulting from his arrest. See generally Tenn. R. App. P. 3(c)(1). The
Defendant was charged by a Putnam County Grand Jury with one count of theft, one count of
aggravated assault, one count of burglary, and one count of resisting arrest. The State contends that
the trial court erred by suppressing the evidence because the proof established that the officer had
reasonable suspicion to believe that the Defendant had committed, was committing, or was planning
on committing a criminal offense. After review of the record, we conclude that, because the
Defendant failed to yield to the officer’s show of authority, no seizure occurred. Furthermore, the
Defendant’s ultimate stop was the result of his own acts. When no “seizure” occurs, there is no
necessity to analyze the case under a probable cause or reasonable suspicion standard. Therefore,
the judgment of the trial court is reversed and the case remanded for further proceedings in
accordance with this opinion.


                                                    Background

         Following the suppression hearing, the trial court entered the following findings:

         Officer Harrington testified that he was dispatched to Doc’s Auto Repair Shop on 1st
         Street [near Hickory Avenue] in response to a report that a man has been seen
         crouched by the cars on the lot. The officer was approaching the auto lot from the
         north on Hickory Street when he noticed the defendant coming toward him on a
         bicycle at the intersection of 4th Street and Hickory.[1] The officer then asked the
         dispatcher for a description of the suspect and was told a [Caucasian] male was the
         only description available. As the defendant, a [Caucasian] male, got to 5th and
         Hickory the officer activated his blue lights and asked the defendant to stop since he
         was coming from the direction of the suspected crime scene. The officer stated the
         purpose of activating the blue lights was to make the defendant aware that the officer
         was there but it was also his intention to stop the suspect and identify who he was.
         The defendant did not stop as commanded even with a second command to stop but
         sped away on his bicycle.[2] The officer turned [his patrol car around] and pursued
         and found the bicycle in the road on 6th Street and the defendant in a ditch. The
         defendant was pulling what turned out to be a shotgun from his pants which was
         pointed over the head of the officer. Officer Harrington drew his weapon and
         ordered the defendant to drop his weapon. The defendant dropped the weapon and
         some ammunition and then turned and ran. He was subsequently subdued by the
         officer’s canine partner.




         1
          The proof at the suppression he aring established that the police officer’s first observation of the bicycling
Defendant occurred four blocks from the crime scene and the pursuit by the police involved a distance of one and one-
half blocks.

         2
           The officer testified that the Defendant was “about three feet away” from his patrol car when he passed by and
after asking him to stop, “he sp ed away ev en faster.”

                                                          -2-
                                              Standard of Review

       A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v.
Daniel, 12 S.W.3d 420, 423-424 (Tenn. 2000) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Indeed,

         [q]uestions of credibility of the witnesses, the weight and value of the evidence, and
         resolution of conflicts in the evidence are matters entrusted to the trial judge as the
         trier of fact. The party prevailing in the trial court is entitled to the strongest
         legitimate view of the evidence adduced at the suppression hearing as well as all
         reasonable and legitimate inferences that may be drawn from that evidence.

Binette, 33 S.W.3d at 217 (quoting Odom, 928 S.W.2d at 23). If the evidence does not involve
questions of credibility, the reviewing court must examine the record de novo without a presumption
of correctness. See Binette, 33 S.W.3d at 217. Notwithstanding the nature of the proof, the
application of the law to the facts remains a question of law that requires de novo review. Daniel,
12 S.W.3d at 423.

         In granting the Defendant’s motion to suppress, the trial court concluded:
         It is clear from the facts in this case that the encounter between Officer Harrington
         and the defendant was more than a brief police-citizen encounter which would
         require no objective justification. It is obvious that the officer was making, at least
         initially, a brief investigatory detention which would require reasonable suspicion
         based on articulable facts. . . . In this court’s opinion the defendant had been seized
         without sufficient grounds and therefore the physical evidence seized during the
         encounter and any statement made by the defendant at the scene must be suppressed
         ...3

                                                      Analysis

       “[A] police officer may in appropriate circumstances and in an appropriate manner approach
a person for purposes of investigating possible criminal behavior even though there is no probable
cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968). In other
words, an investigatory stop of a person is constitutionally permissible if the officer has a reasonable
suspicion, supported by specific and articulable facts, that a criminal offense has been or is about to
be committed. State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).

        However, not all personal intercourse between police officers and citizens involve a “seizure”
of a person. See Terry v. Ohio, 392 U.S. at 19 n.16, 88 S. Ct. 1868, 1879 n.16; State v. Moore, 776


         3
          Statements of counsel a t the suppres sion hearing in dicate that the shotgun and ammunition possessed by the
Defenda nt were taken in the burglary o f Doc’s Au to Repair Shop.

                                                         -3-
S.W.2d 933, 937 (Tenn. 1989) (no “stop” of suspect’s vehicle occurred by police where suspect had
stopped vehicle on side of public highway). A seizure does not occur simply because a police officer
approaches an individual and asks a few questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.
Ct. 2382, 2386 (1991). So long as a person would feel free to disregard the police and go about his
business, the encounter is consensual and no reasonable suspicion is required. Id. at 434, 111 S. Ct.
at 2386 (emphasis added) (citation and internal quotation marks omitted); see also United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). A person has been seized within the
meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave. Mendenhall, 446
U.S. at 554, 199 S. Ct. at 1877; see also Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 1326-
1327 (1983).

        The State, relying on a 1997 opinion of this court, argues, on appeal, that the police officer’s
actions did not constitute a stop since the Defendant failed to stop when the police officer activated
his blue lights and began pursuit. See State v. George Weley Harville, Jr., No. 01C01-9607-CC-
00300 (Tenn. Crim. App. at Nashville, Oct. 24, 1997). The Defendant responds that Officer
Harrington’s activation of his blue lights effectively constituted a seizure for Fourth Amendment
purposes. Specifically, he cites as authority State v. Pulley, 863 S.W.2d 29 (Tenn. 1993), for the
proposition that “when an officer turns on his blue lights, a stop has been clearly initiated,” and State
v. Daniel, 12 S.W.3d at 426, for the proposition that an encounter becomes a Fourth Amendment
seizure if an officer (1) pursues an individual who has attempted to terminate the contact by
departing or (2) verbally orders a citizen to stop and answer questions.4 Notwithstanding this court’s
determination of whether a “seizure” of the Defendant was effected by Officer Harrington, the State
contends that any such “stop” was based upon reasonable suspicion.

        When a police officer attempts to effect either a Terry stop or an arrest by a show of
authority, a seizure does not occur unless the subject yields to the show of authority. Terry, 392 U.S.
at 19, 88 S. Ct. at 1879 n. 16. In Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975 (1976), the
Supreme Court held that the “pursuit” of a suspect on foot by an officer in a patrol car did not
constitute a “seizure” implicating Fourth Amendment protections. Importantly, in a separate


         4
            In Daniel, our supreme court outlined various tests employed in determining when a police encounter
constitutes a “seiz ure.” Included in the court’s analysis were seven scenarios establishing “seizures” adopted from 4
Wayne R. LaFav e, Search & Seizure, § 9.3(a) (3d ed. 1996 & Supp . 1999). See Daniel, 12 S.W.3d at 426. Two of these
tests, (1) pursuit o f an individua l who has attem pted to term inate contac t and (4) ve rbal orde r for citizen to stop, are
relied upon by the Defendant in the present case to support the finding of an unlawful seizu re. We a re constraine d to
note that the cases relied upon by LaFave for the proposition that “a stop occurs upon the police officer’s display of
authority,” (tests (1) and ( 4)), see, e.g., In re D.J., 532 A.2 d 138, 1 40 (D.C . 1987), holding modified by, Allison v. United
States, 623 A.2 d 590 (D .C. 1993 ); Johnson v. United States, 468 A.2 d 1325 (D.C. 19 83), opinion vacated by, 496 A.2d
592 (D.C. 1985), are no longer persuasive based upon the Supreme Court’s pronouncement in California v. Hodari D.,
499 U.S. 621, 624-26, 111 S. Ct. 1547, 1550 (1991) (seizure does not occur in the absence of an application of physical
force unless the subject actually yields). Of equal importance, we note that the facts in State v. Pulley and in those cases
cited as authority by L aFave reflec t that, in each case, the suspect’s stop was effected as a result of police authority. As
such, these cases do not address the situation where, as in this case, the suspect refuses to yield to the pursuit of the
police.

                                                              -4-
concurring opinion, Justices Kennedy and Scalia observed that the court’s opinion permits the
holding that “whether or not the officer’s conduct communicates to a person a reasonable belief that
they intend to apprehend him, such conduct does not implicate Fourth Amendment protections until
it achieves a restraining effect.” Id. at 577, 108 S. Ct. at 1981 (emphasis added). Again, in
California v. Hodari D., 499 U.S. 621, 626-627, 111 S. Ct. 1547, 1550-1551 (1991),5 the Supreme
Court rationalized that there is no seizure where the suspect continues to flee in light of a police
officer yelling, “Stop in the name of the law.” Hodari D., 499 U.S. at 626, 111 S. Ct. at 1550.

         In the present case, the Defendant refused to yield to the police officer’s request to stop.
Thus, we find it unnecessary to resolve the case under a probable cause or reasonable suspicion
standard because the Defendant was neither seized nor arrested.6 Moreover, we are not required to
determine the possibility of whether a seizure could have occurred as a result of Officer Harrington’s
pursuit. See Hodari D., 499 U.S. at 628, 111 S. Ct. at 1547. From the facts introduced at the
suppression hearing, Defendant Robinson’s ultimate “stop” was not the result of the “restraining
effects” of the police or from the officer’s “show of authority,” but rather was the result of the
Defendant’s poor bicycling skills.7 See generally Hodari D., 499 U.S. at 629, 111 S. Ct. at 1552
(citing Hester v. United States, 265 U.S. 57, 58, 44 S. Ct. 445, 446 (1924)) (defendant’s own acts,
not “show of authority,” produced stop). Upon approaching the Defendant, Officer Harrington
observed the Defendant standing near his overturned bicycle, holding his shirt with one hand and,
with the other, removing a shotgun from his pants. Clearly, at this point, Officer Harrington had
sufficient probable cause to detain the Defendant. State v. Henning, 975 S.W.2d 290, 300 (Tenn.
1998) (probable cause exists if facts and circumstances within officer's knowledge at the time of
arrest, and of which officer had reasonably trustworthy information sufficient to warrant prudent
man in believing that defendant had committed or was committing an offense).




         5
           In Hodari D., 499 U.S. at 621, 111 S. Ct. at 1547, police officers were patrolling a high crime area when they
noticed several people gathered around a car. When the police officers approached, the individuals, including Hodari
D., scattered and began to run. As Hodari D. was running, the officer shouted for him to stop. The officer noticed that
while running, Hoda ri D. had removed something like a small rock from his pocket and had thrown it on the ground.
Eventually, the police officer tackled Hodari D. and searched and handcuffed him. The officer then located the discarded
rock and determ ined that it was co caine. Befo re trial, Hod ari D. filed a m otion to sup press all evide nce. T he United
States Suprem e Court d etermined that the pursuit o f Hodar i D. did no t constitute a seizu re as defined by the Fourth
Amendment and thus the evidence was not the fruit of an un lawful seizure. See State v. Holbrooks, 983 S.W.2d 697,
700 (Tenn. Crim. App. 1998 ).

         6
           Although we need not reach the issue of whether the officer’s stop was based on reasonable suspicion, we do
note, in this regard, the United States Supreme Co urt’s recent op inion, Illinois v. Wardlow, – U.S. –, 120 S. Ct. 673
(2000 ), holding that a person’s unprovoked flight from officers in a high crime area supp orted a findin g of reasona ble
suspicion that the person was involved in criminal activity which justified the stop.

         7
          W e would ack nowledge that the Defen dant’s cycling skills may have been compromised by his carrying of a
shotgun inside his pants. Additionally, Officer Harrington testified, “[t]he only thing unusual I noticed was that he was
standing up riding the bicyc le.”

                                                            -5-
       In consideration of the foregoing and the record as a whole, we reverse the trial court's order
granting the motion to suppress and remand this case for further proceedings.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -6-
