Opinion

State of Tennessee v. James D. Nicholson - Dissenting

Court: Court of Criminal Appeals of Tennessee
Filed: Jan 25, 2005
Status: Published
On the bench: Presiding Judge Gary R. Wade
Cited by: 0 cases
Authority: More cited than 29.5%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 12, 2004 Session

STATE OF TENNESSEE v. JAMES D. NICHOLSON

Direct Appeal from the Criminal Court for Davidson County

No. 2003-C-2381 J. Randall Wyatt, Jr., Judge

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

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

I would affirm the judgment of the trial court. In my view, the defendant was not seized

when the officer directed him to "hold up." Further, the defendant's flight, coupled with his presence

in an area known for drug trafficking, provided the officers with reasonable suspicion to pursue and

detain him for further inquiry. That he was not a resident of the housing project, refused to provide

his name or identification, and refused to provide the name of the individual he claimed to be visiting

established probable cause to arrest him for trespassing.

It is well established that both the state and federal constitutions protect against unreasonable

searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; Coolidge v. New Hampshire,

403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). Neither,

however, is intended to limit all contact between citizens and law enforcement and are designed,

instead, "'to prevent arbitrary and oppressive interference with the privacy and personal security of

individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Martinez-Fuerte,

428 U.S. 543, 554 (1976)). As pointed out by the majority, our courts have recognized three types

of encounters between citizens and law enforcement: (1) a full-scale arrest, which must be supported

by probable cause; (2) an investigatory stop, which must be supported by reasonable suspicion; and

(3) a brief police-citizen encounter, which requires no objective justification. See Florida v. Bostick,

501 U.S. 429, 434 (1991); Brown v. Illinois, 422 U.S. 590 (1975); State v. Daniel, 12 S.W.3d 420

(Tenn. 2000).

In United States v. Drayton, 536 U.S. 194, 201-02 (2002), the Supreme Court determined

that, as to the third type of encounter, there is no Fourth Amendment violation when an officer

simply approaches a person in a public place and poses a question. Even when there is no basis to

suspect a crime, officers may ask questions, ask for identification, and ask for consent to conduct a

search, so long as the means used to induce the cooperation are not coercive. Id.; see Daniel, 12

S.W.3d at 425. A reviewing court must examine "all the circumstances surrounding the encounter"

to determine whether the law enforcement conduct indicated a lack of freedom "to decline the

officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 439.

Our supreme court has held that the relevant question when distinguishing between a brief

police-citizen encounter and a seizure is whether "in view of all the circumstances surrounding the

conduct, a reasonable person would have believed he or she was not free to leave." State v.

Randolph, 74 S.W.3d 330, 335 (Tenn. 2002). The subjective intent of the officer is not controlling.

State v. Johnson, 980 S.W.2d 414 (Tenn. Crim. App. 1998). In Randolph, our high court

enumerated several factors to be considered when determining whether an individual has been

seized:

1. The time, place, and purpose of the encounter;

2. the words used by the officer;

3. the officer's tone of voice and general demeanor;

4. the officer's statements to others who were present during the encounter;

5. the threatening presence of several officers;

6. the display of a weapon by an officer; and

7. the physical touching of the person of the citizen.

Randolph, 74 S.W.3d at 336-37.

In this case, the encounter occurred late at night in an area known for drug trafficking. Only

moments earlier, Detective Lockwood, who was wearing a "raid vest" with Metro Police Department

insignia on it, had witnessed a number of hand-to-hand drug transactions. When he saw the

defendant, Detective Lockwood "squared more to him and told him to hold up." The officer's tone

of voice and general demeanor are not apparent from the record. During the encounter, no

statements were made to the other officers present. Detective Lockwood testified that while he was

in closest proximity to the defendant, "there were several uniformed officers just up the hill from

where [he] was, with their cars parked at the top of Henry Place." The officers did not touch the

defendant during the initial encounter and no weapon was displayed.

In my view, these factors support the trial court's ruling that the defendant was not seized

when Detective Lockwood told him to "hold up." It is further my view that the defendant's flight

upon being told to "hold up," coupled with the other circumstances of the encounter, provided the

officers with reasonable suspicion to pursue and apprehend him.

In State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993), our supreme court ruled that "the

reasonableness of seizures less intrusive than a full-scale arrest is judged by weighing the gravity of

the public concern, the degree to which the seizure advances that concern, and the severity of the

intrusion into individual privacy." While probable cause is not necessary for an investigative stop,

the officer must have "reasonable, articulable suspicion that criminal activity is afoot" and that

suspicion must be supported by "specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968);