State of Tennessee v. James David Moats

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 5, 2012 Session Heard at Athens1

STATE OF TENNESSEE v. JAMES DAVID MOATS

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for McMinn County

No. 09048 Carroll L. Ross, Judge

No. E2010-02013-SC-R11-CD - Filed March 22, 2013

While on routine patrol in the early hours of the morning, a police officer observed a pick-up

truck parked in a shopping center lot. Because the truck’s headlights were turned on, the

officer drove into the lot, stopped her patrol car directly behind the truck, and activated her

blue lights. Although the officer had seen no indication of criminal activity or distress, she

approached the truck, observed a beer can in a cup holder inside, and found the defendant

in the driver’s seat with the keys in the ignition. When she determined that the defendant had

been drinking, he was arrested and later convicted for his fourth offense of driving under the

influence. The Court of Criminal Appeals reversed the conviction, holding that the

defendant was seized without either probable cause or reasonable suspicion. While we

acknowledge that the activation of blue lights will not always qualify as a seizure, the totality

of the circumstances in this instance establishes that the officer seized the defendant absent

probable cause or reasonable suspicion and was not otherwise acting in a community

caretaking role. The judgment of the Court of Criminal Appeals is affirmed, the conviction

is reversed, and the cause dismissed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER and

S HARON G. L EE, JJ., joined. C ORNELIA A. C LARK and W ILLIAM C. K OCH, JR., JJ., filed a

dissenting opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Cameron L. Hyder, Assistant Attorney General; Robert Steven Bebb, District Attorney

1

Oral argument was heard in this case on October 5, 2012, in Athens, McMinn County, Tennessee,

as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

General; and James H. Stutts, Assistant District Attorney General, for the appellant, State of

Tennessee.

Matthew C. Rogers (at trial and on appeal), and Randy Rogers (at trial), Athens, Tennessee,

for the appellee, James David Moats.

OPINION

I. Facts and Procedural History

A. Suppression Hearing

At approximately 2:00 a.m. on Sunday, December 7, 2008, Officer Phyllis Bige of the

Etowah Police Department observed an individual, later identified as James David Moats (the

“Defendant”), sitting in the driver’s seat of a pick-up truck in the parking lot of a BI-LO

Grocery. Citizens National Bank, located next door to the grocery, was closed at the time,

but a BP gas station across the parking lot was open. “No loitering” signs had been posted

at the location, and, previously, a business owner had asked the police to patrol the area more

frequently after business hours because of suspected illegal drug activity. As Officer Bige

drove by in her patrol car, she noticed that the headlights of the truck were turned on but the

engine was not engaged. Officer Bige, who described what she had seen as “out of the

ordinary,” continued on patrol; however, when she returned to the parking lot some five

minutes later and the truck was in the same position, she parked her patrol car behind the

truck, activated her blue lights, and called in the license plate number.

As Officer Bige walked toward the truck, she noticed that the window on the driver’s

side was rolled down. She asked the Defendant “if he was okay,” and he replied, “I’m fine.”

At that point, Officer Bige saw an open beer can in a cup holder on the dash of the truck and

keys in the ignition. When she asked why he was parked there, the Defendant replied that

he was “just there” and admitted that he had been drinking “a few beers.” According to the

officer, the Defendant appeared to be “disoriented, very slow to speak, very sleepy acting,”

and he was unable to produce either identification or registration for the truck. When Officer

Bige’s sergeant arrived at the scene, the Defendant struggled to get out of his vehicle and

then performed poorly on three field sobriety tests. After being arrested for driving under

the influence, the Defendant consented to a test for blood alcohol content, which registered

0.19%.

During cross-examination at the suppression hearing, Officer Bige stated that the

Defendant was the only person in the parking lot at the time of his arrest. She conceded that

she did not see him drive the truck or otherwise do anything illegal before she approached

the vehicle. The officer agreed that the Defendant did not appear to be in need of medical

assistance and explained that she stopped to investigate only because it appeared “strange

that a car would be . . . in a parking lot at almost . . . 2 a.m. with the lights on.” She

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acknowledged that when she turned on the blue lights, it was “fair to say that [the Defendant]

was not free to leave.”

At the conclusion of Officer Bige’s testimony, the trial court denied the Defendant’s

motion to suppress, holding that under these circumstances a police officer, in the role of a

community caretaker, is permitted to approach a parked vehicle and to ask for the driver’s

identification and proof of vehicle registration, and, upon observing possible criminal

activity, to detain, further investigate, and ultimately make an arrest.

B. Trial

Only Officer Bige and the Defendant testified at trial. The officer repeated the

testimony that she had provided at the hearing on the motion to suppress. She stated that she

observed while her sergeant first administered the nystagmus test2 and then asked the

Defendant to do a finger count and recite the alphabet. In her opinion, the Defendant was

unable to perform the finger count or to accurately recite the alphabet. As indicated, a blood

sample taken from the Defendant established that his blood alcohol content was well over

the legal limit.

The Defendant presented a convoluted explanation designed to show that even though

he had been drinking excessively, he had not driven his truck to the parking lot. He testified

that several hours before his arrest, Bill Hyatt, with whom he had worked years earlier, and

a second man, whom he could not identify, stopped by his residence for a visit. He claimed

that the unidentified man left after a brief period of time. The Defendant related that he then

drove Hyatt to the Log Cabin Bar for drinks and that, later, the unidentified man met them

at the bar but did not drink. According to the Defendant, when the three men left the bar,

Hyatt drove the pick-up truck, the Defendant rode in the passenger seat, and the unidentified

man followed in his separate vehicle. The Defendant stated that when they arrived at the BI-

LO parking lot, the other two men left in the unidentified man’s vehicle. He explained that

he moved into the driver’s seat because it was a cold night, cool temperatures exacerbated

his pain from a prior back injury, and the truck only had heat on the driver’s side. The

Defendant contended that when Officer Bige drove by the first time, his truck’s engine was

running (presumably to heat the interior), but that he had turned the engine off by the time

of her return. While asserting that he was not aware of the presence of the beer in his truck,

the Defendant admitted that he was intoxicated. He also acknowledged that when questioned

at the scene, he did not inform Officer Bige about Hyatt or the unidentified man.

2

“Nystagmus is an involuntary jerking movement of the eye either as it attempts to focus on a fixed

point or as it moves to one side.” State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997). The Horizontal Gaze

Nystagmus test is a type of standardized field sobriety test that tracks the movements of the eyes in order to

gauge whether a suspect might be driving under the influence. See id. at 201-02.

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At the conclusion of the proof, the jury found the Defendant guilty of driving under

the influence, his fourth offense, and thus a Class E felony. The trial court imposed a Range

I sentence of two years.

C. Appeal

On the appeal as of right, the Court of Criminal Appeals ruled that the Defendant had

been seized by Officer Bige at the time the blue lights were activated, reversed the

conviction, and dismissed the charge, concluding that at the time of the seizure, the officer

lacked a reasonable suspicion based upon specific and articulable facts that the Defendant

had either committed a criminal offense or was about to do so. Citing State v. Williams, 185

S.W.3d 311 (Tenn. 2006), the Court of Criminal Appeals held that these circumstances did

not fall within the officer’s community caretaking function because “‘the [D]efendant’s

encounter with the officer was not voluntary, but rather occurred under a show of

authority—the activation of the blue emergency lights—from which a reasonable person

would not have felt free to leave.’” State v. Moats, No. E2010-02013-CCA-R3-CD, 2011

WL 5374129, at *4 (Tenn. Crim. App. Nov. 8, 2011) (quoting Williams, 185 S.W.3d at 317).

This Court granted the State’s application for permission to appeal to consider

whether the actions of the arresting officer qualified as within her community caretaking role

and, therefore, required neither the probable cause necessary to support an arrest nor the level

of reasonable suspicion, supported by specific and articulable facts, necessary to support an

investigatory stop.

II. Standard of Review

The standard of review applicable to suppression issues is well established. When the

trial court makes findings of fact after a suppression hearing, its conclusions are binding

upon this Court unless the evidence in the record preponderates otherwise. State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996). As a general rule, “[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.” Id. When the findings of fact are

based entirely on evidence that does not involve issues of witness credibility, an appellate

court conducts a de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).

Review of a trial court’s application of law to the facts is de novo with no presumption of

correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing State v. Crutcher, 989

S.W.2d 295, 299 (Tenn. 1999)).

III. Analysis

Both the federal and state constitutions provide protections from unreasonable

searches and seizures; the general rule is that a warrantless search or seizure is presumed

unreasonable and any evidence discovered by virtue thereof is subject to suppression. See

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U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated . . . .”); Tenn.

Const. art. I, § 7 (“[T]he people shall be secure in their persons, houses, papers and

possessions, from unreasonable searches and seizures . . . .”). “[T]he most basic

constitutional rule . . . is that ‘searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated exceptions.’”

Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v. United States,

389 U.S. 347, 357 (1967)); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).3

These constitutional protections are designed to “‘safeguard the privacy and security

of individuals against arbitrary invasions of government officials.’” State v. Randolph, 74

S.W.3d 330, 334 (Tenn. 2002) (quoting Camara v. Mun. Ct., 387 U.S. 523, 528 (1967)); see

also State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). “The touchstone of the Fourth

Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz,

389 U.S. at 360); see also Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989);

State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006). “While arrests and investigatory

stops are seizures implicating constitutional protections, consensual encounters are not.”

State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006). The United States Supreme Court

has held that a seizure does not necessarily occur when “a police officer approaches an

individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991).

Consistent with these principles, this Court has long recognized three categories of

police interactions with private citizens: (1) a full-scale arrest, which requires probable cause,

see Dunaway v. New York, 442 U.S. 200, 209-10 (1979); State v. Echols, 382 S.W.3d 266,

277 (Tenn. 2012); (2) a brief investigatory detention, requiring reasonable suspicion of

wrongdoing, see Terry v. Ohio, 392 U.S. 1, 25-26 (1968); State v. Williamson, 368 S.W.3d

468, 474 (Tenn. 2012); and (3) a brief police-citizen encounter, requiring no objective

justification, see United States v. Mendenhall, 446 U.S. 544, 553 (1980); State v. Ingram,

331 S.W.3d 746, 756 (Tenn. 2011). See United States v. Berry, 670 F.2d 583, 591 (5th Cir.

1982) (recognizing a three-tier analysis for warrantless encounters with police); Nicholson,

188 S.W.3d at 656; State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). “Of the three

categories, only the first two rise to the level of a ‘seizure’ for constitutional analysis

purposes.” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008).

3

Exceptions to the warrant requirement include searches incident to arrest, plain view, hot pursuit,

exigent circumstances, and others, such as consent to search. See State v. Cox, 171 S.W.3d 174, 179 (Tenn.

2005). As explained below, while the dissent would have us apply the community caretaking doctrine as yet

another exception to the warrant requirements of the Fourth Amendment and article I, section 7, we find no

basis to further erode the constitutional protections against unreasonable searches and seizures.

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A. Investigatory Stop

A full-scale arrest supported by probable cause does not, of course, require a warrant.

See State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citing Brown v. Illinois, 422 U.S.

590, 598 (1975)).

Probable cause for an arrest without a warrant exists if, at the time of the

arrest, the facts and circumstances within the knowledge of the officers, and

of which they had reasonably trustworthy information, are “sufficient to

warrant a prudent [person] in believing that the [defendant] had committed or

was committing an offense.”

Bridges, 963 S.W.2d at 491 (second alteration in original) (quoting Beck v. Ohio, 379 U.S.

89, 91 (1964)); see also State v. Richards, 286 S.W.3d 873, 879 (Tenn. 2009). In this

instance, the State makes no claim that Officer Bige had probable cause to arrest the

Defendant; rather, the State asserts that the circumstances justified an investigatory stop,

which does not require a warrant. See Terry, 392 U.S. at 20, 27.

When an officer has reasonable suspicion, supported by specific and articulable facts,

to believe that a criminal offense has been or is about to be committed, a brief investigatory

detention is permitted. Id. at 21; State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).

Reasonable suspicion must be supported by more than the officer’s “inchoate and

unparticularized suspicion or ‘hunch,’” Terry, 392 U.S. at 27; however, “‘reasonable

suspicion can be established with information that is different in quantity or content than that

required to establish probable cause . . . [and] can arise from information that is less reliable

than that required to show probable cause.’” State v. Pulley, 863 S.W.2d 29, 32 (Tenn. 1993)

(quoting Alabama v. White, 496 U.S. 325, 330 (1990)); see also Day, 263 S.W.3d at 903.

Trial courts must examine the totality of the circumstances when evaluating whether

an officer has established the requisite level of suspicion to justify a Terry stop. Binette, 33

S.W.3d at 218. These circumstances include an officer’s observations, information from

other law enforcement personnel or agencies, information from citizens, known patterns of

criminal offenders, or deductions based upon experience. State v. Watkins, 827 S.W.2d 293,

294 (Tenn. 1992). When evaluating the reasonableness of the police officer’s suspicion, the

nature of the crime suspected may be a factor. See State v. Winn, 974 S.W.2d 700, 703

(Tenn. Crim. App. 1998) (“A frisk has been upheld as reasonable when the suspected crime

might typically involve the use of a weapon . . . [such that] an officer [may] reasonably infer

that a weapon might be in the possession of the suspect.”).

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Seventeen years ago, our Court of Criminal Appeals, relying on a ruling of the United

States Supreme Court, addressed whether a vehicle in a high crime area after midnight served

as a basis for an investigatory stop, and concluded that more was required to meet

constitutional standards:

In the instant case, the police officer’s sole justification for stopping the

appellant was the appellant’s presence in a “high crime area” at 2:00 a.m. At

least one court has observed that “an area’s propensity toward criminal activity

is something that an officer may consider . . . . The lateness of the hour is

another fact that may raise the level of suspicion.” United States v. Lender,

985 F.2d 151, 154 (4th Cir. 1993). However, the same court acknowledged

and the Supreme Court has held that an individual’s presence in a high crime

area, standing alone, is not a basis for concluding that the individual himself

is engaged in criminal conduct. Id.[; see also Brown v. Texas, 443 U.S. 47, 52

(1979)]. We conclude, moreover, that the lateness of the hour, without more,

does not elevate the facts of this case to the level of reasonable suspicion.

State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996).

More recently, our Sixth Circuit Court of Appeals considered similar circumstances

and found no basis for an investigatory stop:

The first two facts—presence in a high-crime location and the lateness of the

hour—may not, without more, give rise to reasonable suspicion, but they may

be considered in the totality of the circumstances. Nonetheless, these are

context-based factors that would have pertained to anyone in the [area] at that

time and should not be given undue weight. This caveat is especially

appropriate in this case, because while [the officer] testified that the area was

known for drug trafficking specifically, he observed no conduct from [the

defendant] consistent with drug activity.

United States v. Johnson, 620 F.3d 685, 692-93 (6th Cir. 2010) (first alteration in original)

(emphasis added) (citations and internal quotation marks omitted).

Finally, in United States v. See, 574 F.3d 309 (6th Cir. 2009), the Sixth Circuit Court

of Appeals considered facts almost identical to those in the case before us. In See, a patrol

officer observed three men sitting in a parked car at a public housing complex at 4:30 a.m.

Id. at 311. The officer parked his police car so as to prevent the driver, See, from driving

away. Upon investigation, the officer found a firearm under the driver’s seat and made an

arrest. Id. The district court upheld the investigatory stop and subsequent arrest, observing

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that the area had a reputation for illegal activities, that the officer had been instructed to give

special attention to loiterers, and that See was in a dimly lit area of the parking lot away from

the building at an odd hour of the morning. Id. at 312-13.

The conviction was reversed on appeal. The Sixth Circuit first held that when the

officer blocked See’s vehicle with a marked patrol car, a seizure had taken place because “a

reasonable person in See’s position would not have felt free to leave.” Id. at 313; see also

United States v. Foster, 376 F.3d 577, 584 (6th Cir. 2004) (“A consensual encounter can

ripen into a seizure if ‘in light of all of the circumstances, [ ] a reasonable person [would]

have believed that he or she was not free to walk away.’” (quoting United States v. Grant,

920 F.2d 376, 382 (6th Cir. 1990) (internal quotation marks omitted))). Moreover, the court

held that the early hour of the morning, the high crime area, and the request that the officer

be on the lookout for loiterers, among the other factors present, did not qualify as reasonable

suspicion, explaining that the officer was not responding to a complaint, did not suspect the

men of a specific crime, did not observe the men acting suspiciously, and did not cause them

to flee upon seeing his police car. See, 574 F.3d at 314. In a concurring opinion, a circuit

judge explained how what had begun as a consensual encounter transformed into an illegal

investigatory stop by virtue of a premature seizure:

[B]ecause Officer Williams observed the men only for a moment before

blocking their exit and had not seen them do anything other than sitting in

See’s vehicle, I cannot say that there were articulable facts that criminal

activity may be afoot, or that the officer had anything more than an ill-defined

hunch[ ]. Officer Williams had every right to investigate further, but he should

have simply parked his patrol car alongside See’s vehicle to carry out the

investigation in a consensual manner. Instead, he parked his patrol car in such

a way so as to block in See’s vehicle, thus transforming the encounter into a

Terry stop.

Id. at 315 (Gilman, J., concurring) (second alteration in original) (emphasis added) (citations

and internal quotation marks omitted).

In this case, the Court of Criminal Appeals considered the totality of the

circumstances, reviewed Officer Bige’s testimony and observations, and concluded that there

existed no reasonable suspicion of illegal activity at the time of the stop. While the State

argues otherwise, we fully concur that Officer Bige was unable to offer specific and

articulable facts sufficient to qualify as reasonable suspicion that the Defendant had

committed or was about to commit a criminal offense. She conceded that she did not see the

Defendant drive the truck, engage in a drug transaction, or otherwise do anything illegal

before activating her blue lights and approaching the truck. The early morning hour and a

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general request for officers to be on the lookout for suspected illegal drug activity do not,

without more, rise to the level of reasonable suspicion. As acknowledged by the Court of

Criminal Appeals, an “inchoate and unparticularized suspicion or hunch” does not meet the

standard required for an investigatory stop. Moats, 2011 WL 5374129, at *4 (quoting Terry,

392 U.S. at 27).

B. Community Caretaking

Our primary concern in this instance is whether the actions of Officer Bige qualified

as a valid exercise of the community caretaking function, which is defined within the third

tier of police-citizen encounters. Unlike full-scale arrests and investigatory detentions, third-

tier encounters are consensual and do not require probable cause or reasonable suspicion.

State v. Hawkins, 969 S.W.2d 936, 939 (Tenn. Crim. App. 1997). These consensual

encounters include “community caretaking or public safety functions that involve no

coercion or detention.” Id. (emphasis added). In Cady v. Dombrowski, 413 U.S. 433, 441

(1973), the United States Supreme Court made its first reference to community caretaking

functions, describing the role of the officer in these situations as “totally divorced from the

detection, investigation, or acquisition of evidence relating to the violation of a criminal

statute.”

Ten years later, the Supreme Court confirmed that some police-citizen encounters

were consensual and, in consequence, did not fall within the protections of the Fourth

Amendment:

[L]aw enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking

him if he is willing to answer some questions, by putting questions to him if

the person is willing to listen, or by offering in evidence in a criminal

prosecution his voluntary answers to such questions. Nor would the fact that

the officer identifies himself as a police officer, without more, convert the

encounter into a seizure requiring some level of objective justification. The

person approached, however, need not answer any question put to him; indeed,

he may decline to listen to the questions at all and may go on his way. He may

not be detained even momentarily without reasonable, objective grounds for

doing so; and his refusal to listen or answer does not, without more, furnish

those grounds. If there is no detention—no seizure within the meaning of the

Fourth Amendment—then no constitutional rights have been infringed.

Florida v. Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion) (emphasis added) (citations

omitted); see also United States v. Drayton, 536 U.S. 194, 201-02 (2002) (“Even when law

enforcement officers have no basis for suspecting a particular individual, they may pose

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questions, ask for identification, and request consent to search . . . [,] provided they do not

induce cooperation by coercive means.”).

Based in great measure upon these rulings, our courts have consistently recognized

that police officers may approach an individual in a public place, whether walking or in a

parked car, and ask questions without implicating constitutional protections. See Daniel, 12

S.W.3d at 426; Pulley, 863 S.W.2d at 30; State v. Gonzalez, 52 S.W.3d 90, 95 (Tenn. Crim.

App. 2000); State v. Butler, 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990); see also 4

Wayne R. LaFave, Search and Seizure § 9.4(a), at 433 (4th ed. 2004). As the Court of

Criminal Appeals observed in Hawkins, “[w]ith regard to the community caretaking function,

it is now generally held that the police may engage a citizen and ask questions as long as the

citizen is willing to carry on the conversation.” 969 S.W.2d at 939. In Hawkins, the police

officer pulled his patrol car behind an awkwardly parked vehicle on a public street and

walked toward a person who was standing outside of the vehicle drinking a beer. Id. at 937-

38. As the officer got closer, he saw in plain view a white powdery substance, a plastic bag,

and an open beer can between the legs of the defendant, who was sitting inside the parked

vehicle. Id. at 938. The defendant admitted that the plastic bag belonged to him, and he was

arrested after the officer searched the vehicle and discovered cocaine. Id. Upholding the

propriety of the arrest, the Court of Criminal Appeals ruled that the officer was acting within

his community caretaking role when he approached the awkwardly parked vehicle. Id. at

938-39; see also Dombrowski, 413 U.S. at 442 (“[E]xtensive, and often noncriminal contact

with automobiles will bring local officials in ‘plain view’ of evidence, fruits, or

instrumentalities of a crime, or contraband.”).

While the facts in Hawkins are similar to those in the case before us, the opinion in

Hawkins indicates that although the officer pulled his patrol car behind the awkwardly

parked vehicle, he did not activate his blue lights or otherwise exhibit any show of authority.

The more difficult question with which we are now faced is whether Officer Bige acted

within her role as a community caretaker, like the officer in Hawkins, or if she exceeded the

scope of the community caretaking function by activating her blue lights under the

circumstances.

As stated, the community caretaking function exists within the third tier of consensual

police-citizen encounters that do not require probable cause or reasonable suspicion, whereas

the requisite level of probable cause or reasonable suspicion must be satisfied when a seizure

has taken place. See, e.g., Randolph, 74 S.W.3d at 338. The definition of a seizure in this

state, as developed by a series of decisions by this Court, varies slightly from the federal

definition. In California v. Hodari D., 499 U.S. 621, 626 (1991), the United States Supreme

Court determined that a seizure occurs only when an officer uses physical force to detain or

when an individual submits to the officer’s show of authority. In contrast, this Court has

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traditionally interpreted article I, section 7 of the Tennessee Constitution as imposing

stronger protections than those of the federal constitution, and, therefore, as requiring a

departure from federal precedent when “(1) adopting federal Fourth Amendment standards

would require overruling a settled development of state constitutional law; and (2) when

linguistic differences justify distinct interpretations of state and federal constitutional

provisions.” Randolph, 74 S.W.3d at 334 (quoting State v. Vineyard, 958 S.W.2d 730, 733-

34 (Tenn. 1997)) (internal quotation marks omitted). Applying the first prong, this Court has

explicitly rejected the definition of “seizure” established in Hodari D., opting instead to

maintain the definition originally set forth in Mendenhall, 446 U.S. at 554, that is, “whether,

‘in view of all of the circumstances surrounding the incident, a reasonable person would have

believed he or she was not free to leave.’” Randolph, 74 S.W.3d at 336 (quoting Daniel, 12

S.W.3d at 425).

Consistent with Mendenhall and the constitutional standards developed in our state,

this Court has adopted a totality of the circumstances test for determining whether a seizure

has occurred. Daniel, 12 S.W.3d at 425.

Some of the factors which are relevant and should be considered by courts

when applying this totality of the circumstances test include the time, place and

purpose of the encounter; the words used by the officer; the officer’s tone of

voice and general demeanor; the officer’s statements to others who were

present during the encounter; the threatening presence of several officers; the

display of a weapon by an officer; and the physical touching of the person of

the citizen.

Id. at 425-26. Recognizing that “[t]he test is necessarily imprecise,” Michigan v. Chesternut,

486 U.S. 567, 573 (1988), we further identified several examples of when a police-citizen

encounter has been found to involve a seizure:

[A]n officer: (1) pursues an individual who has attempted to terminate the

contact by departing; (2) continues to interrogate a person who has clearly

expressed a desire not to cooperate; (3) renews interrogation of a person who

has earlier responded fully to police inquiries; (4) verbally orders a citizen to

stop and answer questions; (5) retains a citizen’s identification or other

property; (6) physically restrains a citizen or blocks the citizen’s path;

(7) displays a weapon during the encounter.

Daniel, 12 S.W.3d at 426 (citing 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 104 (3d

ed. 1996 & Supp. 1999)).

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In the same year this Court decided Daniel, the Court of Criminal Appeals, in

Gonzalez, considered whether a seizure had occurred, thereby implicating constitutional

protections, when an officer activated the blue lights on his patrol car after coming upon a

stopped vehicle. 52 S.W.3d at 97. The police learned that Gonzalez, who was believed to

be a passenger in a blue Ford Taurus, may have been involved in a cocaine transaction. Id.

at 93. During a routine patrol, an officer observed the Taurus driving in the opposite

direction, made a U-turn, and followed the Taurus onto a dead-end street. Id. When the

Taurus stopped at the end of the street, the driver of the Taurus exited the vehicle and walked

toward the officer’s patrol car. Id. As the driver approached, the officer ordered him back

into the Taurus and activated his blue lights. Id. The officer then approached the Taurus,

smelled marijuana, and found a small amount of cocaine and some drug paraphernalia inside

the vehicle. Id. He also discovered that Gonzalez was in fact a passenger in the vehicle and

that there was a bag of cocaine underneath his seat. Id. The Court of Criminal Appeals held

that a seizure had occurred when the officer activated his blue lights and ordered the driver

back into his vehicle, indicating “a show of authority such that a reasonable person in the

position of either [Gonzalez] or [the driver] would not have felt free to leave.” Id. at 97.

The court further observed as follows:

In the context of stopping a moving vehicle, as opposed to a seizure of a

parked vehicle, our supreme court has maintained that “[w]hen an officer turns

on his blue lights, he or she has clearly initiated a stop.” We see little

difference, from the perspective of the occupants in the vehicle, in turning on

the blue lights behind a moving vehicle and turning on the blue lights behind

a parked vehicle. The lights still convey the message that the occupants are

not free to leave.

Id. (emphasis added) (citation omitted). The Court of Criminal Appeals, while holding that

Gonzalez had been the subject of a seizure, thereby implicating constitutional protections,

specifically addressed the burden placed upon police officers under the same or similar

circumstances:

[W]e are cognizant of the difficult decisions police officers face daily in the

exercise of their duties. We realize that when officers desire to question

citizens without reasonable suspicion to do so, they may also want to activate

their emergency equipment for their own safety so that they will be visible to

others. . . . Under our decision, police officers who wish to question

individuals may be faced with the unsettling choice of whether to activate their

emergency equipment for their safety and run the risk of later suppression of

any evidence obtained as a result of their questioning or whether to forego

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questioning the individuals altogether. Such a dilemma does not, however,

alter our result. . . . [T]he test for determining whether a seizure occurs

examines the circumstances from the standpoint of the citizen, not the police

officer. If a reasonable person would not feel free to leave due to an officer’s

show of authority, that constitutes a seizure, regardless of why the officer

made a show of authority.

Id. at 97-98 (emphasis added) (citation omitted).

Six years after the Court of Criminal Appeals decided Gonzalez, this Court addressed

“whether [the single act of] activating blue lights constitutes a seizure when a vehicle is

already stopped.” Williams, 185 S.W.3d at 316. Citing Gonzalez and considering cases in

other states with similar facts but with conflicting results, this Court concluded “that

[Williams’] encounter with the officer was not voluntary, but rather occurred under a show

of authority—the activation of the blue emergency lights—from which a reasonable person

would not have felt free to leave.” Id. at 317. While recognizing that “the officer may have

subjectively intended to activate his blue lights solely for his safety and the safety of others

on the road,” this Court described “the objective belief of a reasonable person in the position

of the defendant, not that of the officer,” as the litmus test for a seizure. Id. at 318.

After confirming the holding in Gonzalez that “a police officer initiates a seizure by

turning on his blue lights behind a parked vehicle because the lights convey the message that

the occupants are not free to leave,” Williams, 185 S.W.3d at 316 (citing Gonzalez, 52

S.W.3d at 97-98), this Court nevertheless made the following observation:

Not all use of the emergency blue lights on a patrol car will constitute

a show of authority resulting in the seizure of a person. . . . [W]hen officers

act in their community caretaking function, they may want to activate their

emergency equipment for their own safety and the safety of other motorists.

Id. at 318 (emphasis added). Despite these qualifying statements, this Court applied the

“litmus test” of “the objective belief of a reasonable person in the position of the defendant,

not that of the officer,” to find that Williams had been seized by the officer’s use of the blue

lights. Id. Specifically, this Court pointed to the fact that “[t]here was no evidence of an

accident or other peril. In fact, [Williams’] vehicle was the only vehicle in the area, so the

use of the blue lights was directed solely at [him].” Id. (emphasis added). Moreover, there

was nothing in that case “to indicate that the officer was concerned that [Williams] was in

need of assistance.” Id. In consequence, the Court rejected the possibility that the officer

was acting within his community caretaking role. Id.

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Although this Court acknowledged the community caretaking function, the ruling in

Williams, especially in light of the language used by the Court of Criminal Appeals in

Gonzalez, has been largely interpreted to mean that the activation of blue lights constitutes

a seizure and, as a practical matter, negates the community caretaking function. See, e.g.,

Williamson, 368 S.W.3d at 476; Hanning, 296 S.W.3d at 49; State v. Ownby, No. E2011-

00543-CCA-R3-CD, 2012 WL 1570987, at *6 (Tenn. Crim. App. May 3, 2012). While

today we question our application of the law to the facts in Williams, we reaffirm the legal

principles stated therein. In consequence, our objective in this instance is to provide some

guidance as to when officers may activate their emergency equipment for “their own safety

and the safety of other motorists,” Williams, 185 S.W.3d at 318, without implicating

constitutional protections. As indicated, the Mendenhall standard, as adopted in Daniel, is

by definition fact intensive. While the establishment of a bright-line rule may not be

possible, the Court of Criminal Appeals has provided examples, in several unreported cases,

of when the activation of blue lights has not resulted in a seizure.

In State v. Jensen, No. E2002-00712-CCR-R3-CD, 2002 WL 31528549 (Tenn. Crim.

App. Nov. 15, 2002), the Court of Criminal Appeals discussed the permissible use of

emergency equipment in the exercise of a community caretaking function. An officer and

an ambulance driver met at a road intersection and parked their respective vehicles on

opposite sides of the road to have a conversation. Id. at *1. The red lights of the ambulance

were flashing at the time but the blue lights of the police car were not. Id. Jensen drove into

the intersection behind the police car and the ambulance, where his car stalled. Id. When

Jensen could not restart his vehicle, the officer activated his blue lights, stepped out of his

patrol car, approached Jensen, and asked if he was having car trouble. Id. He answered,

“Yeah, I cannot get my vehicle started.” Id. When the officer smelled alcohol and saw that

Jensen’s face was flushed, he asked him to step out of the vehicle and subsequently made an

arrest. Id. While acknowledging that the “activation of blue lights ordinarily triggers a ‘stop’

or ‘seizure,’” the Court of Criminal Appeals observed that “it is not unusual for a police

officer to activate the blue lights on his or her patrol car for safety purposes when on the side

of a road or at an accident site.” Id. at *2.4

4

Notably, the Court of Criminal Appeals focused upon the perspective of Jensen, who testified at

trial that “he stopped because he thought an accident had occurred, not because he thought [the officer] had

indicated he was required to stop.” Id. at *3. Further, even if a police officer initially activates his or her

blue lights within a community caretaking function, there is a point at which the encounter may no longer

be consensual, and, therefore, becomes a seizure. The court in Jensen noted that “the initial contact between

[Jensen] and [the officer] did not constitute a seizure, but rather was a consensual encounter”;

however, “once [the officer] requested [Jensen] to step out of the vehicle, the consensual encounter was

converted into a seizure requiring constitutional protections.” Id. at *4.

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The Court of Criminal Appeals also approved the use of an officer’s blue lights in the

exercise of a community caretaking function in State v. Vandergriff, No. E2010-02560-CCA-

R3-CD, 2012 WL 2445049, at *4 (Tenn. Crim. App. June 28, 2012). At approximately 9:00

p.m., a police officer “was forced to ‘slam on his brakes’ to avoid hitting [an occupied] truck,

which was parked in a ‘no pass’ zone on [a] two-lane highway.” Id. at *1. Observing

moderate traffic on the highway, the officer activated his blue lights so that other motorists

would be aware of the presence of his patrol car and of the truck. Id. When the driver

stepped out of his truck, without being ordered to do so by the officer, he was unsteady on

his feet. Id. The officer administered field sobriety tests, and the driver was arrested and

later convicted for driving under the influence. Id. at *1-2. Although the driver argued that

he had been seized without reasonable suspicion, id. at *1, the Court of Criminal Appeals

distinguished Williams and held that the officer had acted within his community caretaking

role because

he activated his blue lights to alert other motorists to prevent them for

slamming into his vehicle, as he had almost slammed into the defendant’s

parked truck. The activation was safety based and done out of concern for the

defendant, himself, and other motorists on the roadway. . . . It was not done as

a show of authority directed at the defendant.

Id. at *4 (emphasis added); see also Dombrowski, 413 U.S. at 441 (defining the community

caretaking function in the context of “the extensive regulation of motor vehicles and traffic”

and “the frequency with which a vehicle can become disabled or involved in an accident on

public highways”).5

In this instance, the Court of Criminal Appeals rejected the State’s argument that

Officer Bige was acting within her community caretaking role because “there was no

indication that the [D]efendant needed assistance nor was there any other evidence that she

needed to activate the lights for safety reasons.” Moats, 2011 WL 5374129, at *4. Unlike

Vandergriff, where the officer nearly slammed into the back of a truck that was stopped in

the middle of a highway, Officer Bige, who had been made aware of possible illegal drug

activity in the area, parked her patrol car immediately behind the Defendant’s truck, which

5

In Vandergriff, the defendant and the officer exited their vehicles simultaneously, so the encounter

did not become a seizure until the officer “observed certain behavior by the defendant which led to a

reasonable suspicion that he was under the influence.” 2012 WL 2445049, at *4. We note that if an officer

proceeds to check on a stalled car that is blocking a roadway and appears to need assistance, the community

caretaking function ends when the circumstances cease to indicate that the motorist is in need of assistance.

See State v. Anderson, No. M2006-00138-CCA-R3-CD, 2006 WL 2716873, at *1, *3 (Tenn. Crim. App.

Sept. 25, 2006) (reversing conviction based on unreasonable search and seizure because officer activated blue

lights after he had already observed defendant’s vehicle move into roadway and continue driving properly).

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was the only vehicle in the otherwise empty parking lot. There was no objective indication

that Officer Bige needed to activate the blue lights to protect either the Defendant or other

motorists from possible harm.6 Finally, without any likelihood of an accident or peril, the

activation of Officer Bige’s blue lights was directed solely at the Defendant. Because no

other cars were in the parking lot and the officer parked directly behind the Defendant, the

blue lights could hardly be interpreted as for any purpose other than a notice to the

Defendant. Under the totality of these circumstances, a reasonable person would not have

felt free to leave. See Williams, 185 S.W.3d at 318. In consequence, the use of blue lights

qualified as a seizure of the Defendant.

Our extensive research suggests that community caretaking can generally be classified

into several categories, all of which are separate and distinct from traditional criminal

investigation or detection.7 The primary form of community caretaking, which is illustrated

by Hawkins, Jensen, and Vandergriff, is also known as the public safety function and is the

type of community caretaking originally identified by the United States Supreme Court. See

Naumann, 26 Am. J. Crim. L. at 338 (citing Dombrowski, 413 U.S. at 441). In Dombrowski,

the Court observed that

[b]ecause of the extensive regulation of motor vehicles and traffic, and also

because of the frequency with which a vehicle can become disabled or

involved in an accident on public highways, the extent of police-citizen contact

involving automobiles will be substantially greater than police-citizen contact

in a home or office.

6

As we stated in Williams, the “litmus test” for whether the activation of blue lights qualifies as a

seizure is “the objective belief of a reasonable person in the position of the defendant, not that of the officer.”

185 S.W.3d at 318. The fact that an officer may subjectively intend the use of blue lights as a safety measure

is irrelevant.

7

Since the United States Supreme Court decided Dombrowski, the community caretaking function

has been extended to include “sobriety checkpoints, border searches, drug testing, inventory searches, and

searches in public schools.” Michael R. Dimino, Sr., Police Paternalism: Community Caretaking, Assistance

Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L. Rev. 1485, 1490 (2009) [hereinafter

Dimino, 66 Wash. & Lee L. Rev.]. The community caretaking role has also been used to justify the

“emergency aid doctrine” and the “automobile impoundment/inventory doctrine.” Mary Elisabeth Naumann,

The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim. L. 325,

330 (1999) [hereinafter Naumann, 26 Am. J. Crim. L.]. We decline to address the myriad circumstances

under which the community caretaking function might apply in our state. It is sufficient at this time to

conclude that the activation of blue lights on a police vehicle will not always qualify as a seizure, and that

the blue lights may be used for community caretaking purposes unrelated to the investigation or detection

of criminal activity, when not used as a show of authority directed at a particular person.

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413 U.S. at 441. Like the community caretaking standards that have developed in our state,

this type of community caretaking described by the Supreme Court “supports relatively minor

or regular interactions with the police: approaching parked cars when the driver appears

incapacitated or sick or the car is functioning improperly and approaching pedestrians who

appear lost, in danger, or ill.” Naumann, 26 Am. J. Crim. L. at 339 (footnote omitted). The

core of any community caretaking function is when the police act to protect or assist the

public in some manner outside of “the crime-control paradigm.” 8 Dimino, 66 Wash. & Lee

L. Rev. at 1490.

8

We are aware that the doctrine of community caretaking, as interpreted and applied in our

state—i.e., as a type of third-tier consensual police-citizen encounter—represents a minority rule among

other jurisdictions. Indeed, as the dissent points out, the vast majority of courts have applied the community

caretaking doctrine as “an exception” to the warrant requirement of the Fourth Amendment to the United

States Constitution. E.g., United States v. Coccia, 446 F.3d 233, 237-38 (1st Cir. 2006); United States v.

Pichany, 687 F.2d 204, 205 (7th Cir. 1982); People v. Luedemann, 857 N.E.2d 187, 198-99 (Ill. 2006); State

v. Graham, 175 P.3d 885, 890 (Mont. 2007); Ullom v. Miller, 705 S.E.2d 111, 120 (W. Va. 2010). As noted

in this opinion, however, this Court has for decades interpreted article I, section 7 of the Tennessee

Constitution as imposing stronger protections than those of the federal constitution, which, under stare

decisis, we are not prepared to dismissively brush aside. Particularly in the area of search and seizure law,

we have often rejected the standards adopted by the United States Supreme Court in favor of more protective

doctrines, tests, and rules. See, e.g., State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000) (noting that

Tennessee has never recognized the “good faith” exception to the exclusionary rule that was adopted by the

Supreme Court in United States v. Leon, 468 U.S. 897 (1984)); State v. Jacumin, 778 S.W.2d 430, 435-36

(Tenn. 1989) (refusing to adopt the test for probable cause as established by the Supreme Court in Illinois

v. Gates, 462 U.S. 213 (1983), because it is “inadequate”); State v. Lakin, 588 S.W.2d 544, 549 n.2 (Tenn.

1979) (“Where, . . . as in the particular phase of search and seizure law under consideration, there has been

a settled development of state constitutional law which does not contravene the federal, we are not inclined

to overrule earlier decisions unless they are demonstrably erroneous.”).

While we recognize the rationale underlying the majority rule, we see no reason to depart from the

standards of community caretaking that have developed in our state, particularly because neither party has

articulated a persuasive basis for recognizing this as yet another exception to the constitutional protections

against unreasonable searches and seizures. See Lakin, 588 S.W.2d at 549 (recognizing that, in the context

of the “open fields” doctrine, “[a]lthough the decisions in this state may be somewhat more restrictive than

those in other states or than federal decisions, no compelling reason has been demonstrated in this case for

modifying or overruling them”). The Defendant has argued strongly against treating community caretaking

as an exception to the warrant requirement, and the State has simply asserted that “the touchstone of this fact-

intensive analysis is reasonableness.” Unlike the dissent, we decline to adopt an approach to community

caretaking that would diminish “the most basic constitutional rule” that warrantless searches and seizures

are per se unreasonable, simply because it has been adopted by a majority of other courts. In any event, the

core basis for applying any form of the community caretaking doctrine requires that the officer’s actions be

“totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a

criminal statute.” Dombrowski, 413 U.S. at 441. In consequence, even under the test employed by the

dissent, Officer Bige’s actions would not qualify as community caretaking.

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IV. Conclusion

Although the activation of blue lights on a police vehicle ordinarily triggers a stop or

seizure, thereby implicating constitutional protections, the totality of the circumstances must

be considered to determine whether the police officer was acting within a community

caretaking role, which is a concept separate and distinct from the investigation of possible

criminal activity. As a general rule, if the activation of blue lights is not used as a show of

authority directed at a particular person, the officer is acting within the community caretaking

function and need not support his or her actions with reasonable suspicion or probable cause.

Because the circumstances here demonstrate that the officer was not acting within a

community caretaking role and did not have reasonable suspicion or probable cause to seize

the Defendant, the judgment of the Court of Criminal Appeals is affirmed. The conviction

is reversed and the cause dismissed. Costs are adjudged against the State.

_____________________________

GARY R. WADE, CHIEF JUSTICE

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