State of Tennessee v. Antonio D. Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 15, 2005 Session

STATE OF TENNESSEE v. ANTONIO D. JONES

Direct Appeal from the Criminal Court for Davidson County

No. 2002-A-290 Mark Fishburn, Judge

No. M2004-01349-CCA-R3-CD - Filed August 12, 2005

Following a bench trial, the Appellant, Antonio D. Jones, was convicted of one count of Class B

felony possession of cocaine, one count of simple possession of marijuana, and one count of criminal

trespass. The Appellant was sentenced to twelve years for felony possession of cocaine, eleven

months and twenty-nine days for possession of marijuana, and thirty days for trespassing. All

sentences were ordered to run concurrently for an effective sentence of twelve years. On appeal, the

Appellant argues that the evidence presented at trial was insufficient to establish his guilt of

possession of over .5 grams of cocaine with intent to sell. He also argues that the trial court erred

by denying his motion to suppress evidence seized during a warrantless search. After review, we

conclude that the trial court erred in denying Jones’ motion to suppress. Accordingly, the judgments

of conviction for possession of marijuana and felony possession of cocaine are reversed and

remanded for a new trial. Jones’ conviction for criminal trespass is affirmed.

Tenn. R. App. P. 3, Appeal as of Right; Affirmed in Part; Reversed in Part and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., filed a

separate concurring opinion, and THOMAS T. WOODA LL, dissented.

Richard McGee, Nashville, Tennessee; and James O. Martin, Nashville, Tennessee, for the

Appellant, Antonio D. Jones.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;

Victor S. (Torry) Johnson III, District Attorney General; Pamela Sue Anderson, Assistant District

Attorney General; and Tammy Meade, Assistant District Attorney General, for the Appellee, the

State of Tennessee.

OPINION

Factual Background

During the afternoon of August 5, 2001, Officer Richard Martin of the Metro Davidson

County Police Department was patrolling the area near 156 Charles E. Davis Boulevard in Nashville.

While in the area, Martin noticed the Appellant loitering on Metropolitan Development and Housing

Agency (“MDHA”) property, which was posted “no trespassing.” Officer Martin admitted that when

he initially approached the Appellant, he was unaware of the Appellant’s identity or if the Appellant

lived at the MDHA facility. However, Martin recognized the Appellant as the individual with whom

he had attempted to speak the prior week in the same area. On that occasion, the Appellant had run

away when Martin approached. Not wanting to “spook” the Appellant this time, Officer Martin

parked his patrol car down the street and out of view and “tried to walk back without letting [the

Appellant] know I was coming to talk to him.”

Martin’s plan, however, was thwarted when the Appellant observed the officer approaching

him. As soon as they made eye contact, the Appellant began to walk “briskly” in the other direction

and proceeded “some distance” to a car parked on the public street.1 Officer Martin followed the

Appellant, and upon his approach to the vehicle, he observed the rear door open and the Appellant

seated in the back seat with one foot on the ground and his hands in his pockets. The officer asked

the Appellant to remove his hands from his pockets, and the Appellant complied. Officer Martin

then asked the Appellant to “step from the vehicle” and asked if he could talk to the Appellant. The

Appellant stepped from the vehicle as requested. At this point Officer John Melzoni, who was also

in the area, joined Officer Martin. With Melzoni present, Martin asked the Appellant for permission

to search his person, and the Appellant consented. Martin turned the Appellant around to face

Melzoni, patted him down, and searched his pockets. In one pocket, Martin found eighteen dollars

in cash and a plastic bag containing 1.7 grams of rock cocaine. In the other pocket, he found two

thousand dollars in cash. Wrapped inside the cash was a plastic bag containing approximately two

grams of marijuana. Inside that bag was another bag containing powdered cocaine. The Appellant

was placed under arrest. The officers later discovered that the Appellant did not live on MDHA

property and charged him with criminal trespass, in addition to the drug-related charges.

On February 15, 2002, a Davidson County grand jury returned a three-count indictment

charging the Appellant with possession of over .5 grams of cocaine with the intent to sell or deliver,

possession of marijuana, and criminal trespass. The Appellant filed a motion to suppress the

evidence upon grounds that he was unlawfully seized at the time the search was conducted. The trial

court denied the motion, finding that Officer Martin’s initial approach and questioning of the

Appellant was constitutionally permissible and that the Appellant voluntarily consented to a search

of his person. On January 26, 2004, a bench trial was held, and the Appellant was convicted of the

drug offenses as charged in the indictment based upon his possession of the controlled substances.

At trial, Officer Martin testified that no trespassing signs were posted on the MDHA property and

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Officer Melzoni, who was also at the scene, testified that the Appellant “ran” to the parked vehicle.

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that the Appellant stated he did not live “on MDHA property.” The Appellant was subsequently

sentenced to twelve years for the cocaine conviction, eleven months and twenty-nine days for the

marijuana conviction, and thirty days for the trespass conviction. After his motion for new trial was

denied on May 5, 2004, the Appellant filed the instant appeal.

Analysis

A. Motion to Suppress

On appeal, the Appellant argues that he was illegally seized by Officer Martin when the

officer initially pursued him from MDHA property to the parked car. Following an evidentiary

hearing, the trial court denied the Appellant’s motion to suppress concluding that the Appellant’s

consent to search arose from a consensual encounter with the police, who at the time were acting

within the community caretaking or public safety function. Alternatively, the trial court found that

Officer Martin had reasonable suspicion to conduct an investigatory stop of the Appellant because

the Appellant had tried to evade the officer on this occasion, run from the officer on a previous

occasion, and because the Appellant engaged in furtive movements such as placing his hands in his

pockets.

The findings of fact by the trial court at the hearing on a motion to suppress are binding upon

this court unless the evidence contained in the record preponderates against them. State v. Ross, 49

S.W.3d 833, 839 (Tenn. 2001). The prevailing party is entitled to the strongest legitimate view of

the evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515,

521 (Tenn. 2001). The application of the law to the facts found by the trial court are questions of

law that this court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

Neither the Fourth Amendment of the United States Constitution nor Article I, Section 7 of

the Tennessee Constitution limits all contact between police and citizens. Instead, the purpose and

intent of Article I, Section 7, identical with that of the Fourth Amendment, is to “safeguard the

privacy and security of individuals against arbitrary invasions of government officials.” State v.

Simpson, 968 S.W.2d 776, 779 (Tenn. 1998) (quoting Camara v. Municipal Court, 387 U.S. 523,

528, 87 S. Ct. 1727, 1730 (1967)). Thus, these constitutional protections are implicated only when

a police officer’s interaction with a citizen impermissibly intrudes upon the privacy or personal

security of the citizen. Daniel, 12 S.W.3d at 424.

Courts have recognized three types of police-citizen interactions when construing the

demands of the Fourth Amendment: (1) a full scale arrest which must be supported by probable

cause, Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254 (1975); (2) a brief investigatory detention

which must be supported by reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 11 S. Ct. 1000 (1968);

and (3) brief police-citizen encounters which require no objective justification, Florida v. Bostick,

501 U.S. 429, 111 S. Ct. 2382 (1991). United States v. Berry, 670 F.2d 583 (5th Cir. 1982)

(discussing the three types of police-citizen interactions); Daniel, 12 S.W.3d at 424. While arrests

and investigatory detentions implicate varying degrees of constitutional protection, “not all personal

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intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer,

by means of physical force or show of authority, has in some way restrained the liberty of a citizen

may we conclude that a ‘seizure’ has occurred.” Daniel, 12 S.W.3d at 424 (quoting Terry, 392 U.S.

at 19 n.16, 88 S. Ct. at 1868).

“[C]ourts have repeatedly held that even when police have no basis for suspecting that an

individual has committed or is about to commit a crime, the officer may approach an individual in

a public place and ask questions without implicating constitutional protections.” Daniel, 12 S.W.3d

at 425. The United States Supreme Court further explained the rule:

[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.

Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983) (citations omitted). Accordingly,

a “seizure” implicating constitutional protections occurs when, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he or she was not free to

leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). A majority

of the United States Supreme Court limited this standard in 1991 by holding that a seizure occurs

for purposes of the Fourth Amendment only where an officer uses physical force to detain a person

or where a person submits or yields to a show of authority by the officer. California v. Hodari D.,

499 U.S. 621, 626, 11 S. Ct. 1547, 1550 (1991). However, because Article I, Section 7 of the

Tennessee Constitution may extend greater privacy protections to the citizens of this State when

appropriate, our supreme court rejected the Hodari D. majority’s analysis on state constitutional

grounds in State v. Randolph, 74 S.W.3d 330, 336 (Tenn. 2002). The court held that under Article

I, Section 7 of the Tennessee Constitution, in determining whether a person has been seized, the

proper standard is that set forth by the United States Supreme Court in Mendenhall, i.e. 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 Mendenhall, 446

U.S. at 554, 111 S. Ct. at 1557-58).

The Tennessee Supreme Court has identified factors that are relevant to the totality of the

circumstances test in determining whether an unlawful detention has occurred:

“[T]he 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

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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.”

Randolph, 74 S.W.3d at 337 (quoting Daniel, 12 S.W.3d at 425). Furthermore, in Daniel, the Court

stated that while this analysis is “necessarily imprecise,” there are several police encounters generally

held to constitute “seizures”:

“[where the 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.”

Id. (quoting Daniel, 12 S.W.3d at 426). When considering whether an encounter between an officer

and a citizen amounts to an investigatory stop requiring reasonable suspicion or if it was merely an

officer requesting information, insufficient to establish a belief that the individual would not be free

to leave, courts must employ the objective standard of the reasonable person in like circumstances,

so as to ensure that “the scope of these constitutional protections does not vary depending upon the

subjective state of mind of the particular citizen being approached.” Daniel, 12 S.W.3d at 425.

Indeed, as observed in Bostick, 501 U. S. at 438, 111 S. Ct. at 2388, “the ‘reasonable person’ test

presupposes an innocent person.”

The State’s argument on appeal is twofold. First, the State argues that the search resulted

from a brief “police-citizen encounter;” thus, Fourth Amendment concerns are not implicated.

Second, it contends that in the event a seizure occurred, reasonable suspicion existed to support an

investigatory stop. In support of the later argument, the State relies upon the trial court’s findings

that upon the officer’s approach, the Appellant walked “briskly” away, the Appellant’s “furtive

movements such as placing his hands in his pockets and jumping hurriedly into a parked vehicle,”

and the Appellant’s flight from the officer the previous week. The State’s argument that the

Appellant’s “briskly” walking away, jumping hurriedly into a car, and previously attempting to avoid

the police constitute a basis for reasonable suspicion is clearly contrary to our supreme court’s

holding in Randolph, which expressly rejected the Hodari D., holding. The “use of flight or refusal

to submit to authority as reason to execute an arrest or search” is subject to potential abuse by

officers who pursue a subject without reasonable suspicion. Randolph, 745 S.W.3d at 336. With

regard to the trial court’s finding of “furtive movements,” we leave the definition of this elusive term

for another day but conclude that the placing of one’s hands into a pocket is not per se suspicious

conduct. At the bench trial, Officer Martin testified that the Appellant was standing alone on MDHA

property during daylight hours and that he saw nothing to believe that the Appellant was “engaging

in any criminal activity at that point.” We conclude that the facts in this case do not support a

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reasonable, articulable suspicion of criminal activity to justify an investigative stop as authorized by

Terry.

Next, the State argues that the search resulted from a consensual police-citizen encounter.

As previously recited, the facts establish that the Appellant, upon observing the officer’s approach,

walked “briskly” away from the officer to avoid contact. The officer followed the Appellant “some

distance” to his vehicle. After entering the vehicle, the Appellant was asked to take his hands out

of his pockets. Next, the Appellant was asked to step out of the car.

Implicit in the determination of whether the encounter was consensual is the question of

whether the officer’s conduct represents a show of authority which an innocent person encountered

would feel obligated to stop and respond to. Thus, “[i]f in the totality of the circumstances, a

reasonable person believes he or she would be required to comply with the officer’s request, the

individual is seized, constitutional protections are triggered, and reasonable suspicion is required.”

Daniel, 12 S.W.3d at 425. Police conduct requires scrutiny under the totality of the circumstances

of the encounter rather than compartmental review of the events.

We conclude from these facts that an innocent citizen after “attempt[ing] to terminate

[police] contact by departing,”2 after being asked to remove his/her hands from his/her pockets, and

after being asked to get out of their car, would not have felt free to disregard the immediate presence

of the two uniformed officers and simply walk away. A totality review of the officer’s actions under

these facts would demonstrate to a reasonable person a show of authority which converted the

encounter into an investigatory stop without reasonable suspicion. Thus, we conclude that the

“officer’s interaction with the [Appellant] impermissibly intrude[d] upon the privacy or personal

security of the [Appellant]” resulting in his seizure. Id. at 424. To sustain the State’s position in this

case would mean that the police could order citizens out of their automobiles under almost any

circumstances.

Notwithstanding our holding under the greater protections of Article 1, Section 7 of the

Tennessee Constitution, other jurisdictions applying federal constitutional analysis have concluded

similarly. The following caselaw decisions are noted in which a police request or order to step from

a vehicle was held to constitute a seizure of the person. Mitchell v. U. S., 746 A.2d 877, 889 (D. C.

Cir. 2000) (citing Berkemer v. McCarthy, 468 U. S. 420, 439, 104 S. Ct. 3138 (1984)); Frette v. City

of Springdale, 959 S.W.2d 734, 735-37 (Ark. 1998); Popple v. State, 626 So. 2d 185, 188 (Fla.

1993).

Additionally, appellate decisions in Florida have consistently held that orders or even

requests to remove a hand from a pocket cause a consensual encounter to become a seizure. See Lee

v. State, 868 So. 2d 577, 579-90 (Fla. 2004); see also Baker v. Commonwealth, 5 S.W.3d 142, 145

(Ky. 1999). As previously established by the facts in this case, the Appellant was asked both to

remove his hands from his pockets and to step out of the vehicle.

2

Factor 1, Randolph, 74 S.W.3d at 337.

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Notwithstanding the unlawful seizure, we must next determine whether the Appellant’s

consent, obtained during the illegal detention, was obtained by exploitation of the Fourth

Amendment illegality. State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996) (citing Wong Sun

v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)). Applying the considerations of

Huddleston, the record does not reflect that Miranda warnings were provided to the Appellant.

Moreover, the proof establishes that the Appellant’s consent immediately followed the illegal seizure

and that no intervening event occurred between the consent and the search. These facts weigh against

a finding of attenuation of the taint. Accordingly, we conclude that the search and resulting seizure

of the cocaine and marijuana was unreasonable under Fourth Amendment protections.

CONCLUSION

For the above reasons, we conclude that the trial court erred in denying the Appellant’s

motion to suppress based upon his unlawful seizure. Accordingly, the Appellant’s conviction for

felony possession of cocaine with the intent to sell in excess of .5 grams and his conviction for

simple possession of marijuana are reversed and remanded for a new trial. The Appellant’s

conviction for criminal trespass is affirmed based upon the proof introduced at trial.

____________________________________

DAVID G. HAYES, JUDGE

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