State v. Randolph

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 5, 2002 Session

STATE OF TENNESSEE v. PERRY THOMAS RANDOLPH

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Putnam County

No. 99-0493 Leon Burns, Judge

No. M2000-02293-SC-R11-CD - Filed May 3, 2002

We granted review to determine whether a “seizure” within the meaning of the Fourth

Amendment to the United States Constitution and article I, § 7 of the Tennessee Constitution occurs

when a police officer activates the blue lights on his patrol car and orders a person to stop, but the

person flees and does not submit to authority. The trial court suppressed evidence obtained from the

defendant after determining that the officer lacked reasonable suspicion, supported by specific and

articulable facts, that the defendant had committed a crime before seizing the defendant by activating

his blue lights and ordering him to stop. The Court of Criminal Appeals concluded that there was

no seizure because the defendant fled and did not yield to the officer’s show of authority and

reversed the judgment.

After a thorough review of the record and the relevant authority, we hold that under the

circumstances of this case, the defendant was seized when the officer activated the blue lights on his

patrol car, ordered the defendant to stop, and pursued him for several blocks. Because the officer

lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from the

defendant was properly suppressed by the trial court. Accordingly, we reverse the judgment of the

Court of Criminal Appeals and reinstate the judgment of the trial court.

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

Reversed; Judgment of the Trial Court Reinstated

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER , and WILLIAM M. BARKER , JJ., joined.

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

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; David H.

Findley, Assistant Attorney General; William Edward Gibson, District Attorney General; and David

Patterson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

BACKGROUND

The defendant, Perry Thomas Randolph, was indicted on one count of theft, one count of

burglary, one count of aggravated assault, and one count of resisting arrest. The defendant filed a

motion to suppress the items seized from him at the time of his arrest. The evidence presented at

the suppression hearing before the trial court is summarized below.

On April 27, 1998, at approximately 8:30 p.m., Officer Mitch Harrington of the Cookeville

City Police Department, responded to a possible burglary in progress at Doc’s Auto and Tire Store

(“Doc’s”) located at the corner of First Street and Hickory Avenue in Cookeville, Tennessee.1

Officer Harrington, who was positioned nine blocks away at 10th Street and Washington, drove to

7th Street and turned south onto Hickory Avenue. As Officer Harrington drove down Hickory past

6th Street, he noticed the defendant, Perry Thomas Randolph, about one and a half blocks away near

4th Street, riding a small, chrome-silver BMX-style bicycle north on Hickory toward him. The time

was approximately 8:45 p.m. Officer Harrington stopped his car and radioed for a description of the

suspect at Doc’s, but he was told that a “white male” was the only description available.

Randolph reached 5th Street and rode through the intersection toward Officer Harrington,

who activated the blue lights on his patrol car with the intent to stop and identify the defendant. As

Randolph neared the patrol car, the officer rolled down the window and ordered him to stop. Officer

Harrington testified that Randolph, who was within three feet of the officer’s car, looked at him but

kept riding. When Officer Harrington again asked Randolph to stop, he rode away faster.

Officer Harrington turned his car around, heading north on Hickory Avenue in pursuit of the

defendant, who turned west onto 6th Street. As Officer Harrington turned onto 6th Street, he saw

the defendant’s bicycle in the middle of the road approximately 50 feet from the intersection and the

defendant was standing in a ditch on the left side of the road. As Officer Harrington approached in

his patrol car, Randolph began to pull up his shirt and eventually withdrew a shotgun from inside

of his pants. Officer Harrington, who was approximately five feet away, stopped his car, withdrew

his weapon, exited the car, and ordered Randolph to drop his weapon, which was pointed in an

upward direction. Randolph tossed the shotgun and two boxes of ammunition into the grass and

fled. Officer Harrington then went to his car to release the drug detection dog and when he turned

around, Randolph was on the ground. After Randolph was arrested, it was discovered that the

shotgun, the ammunition, and a phone found in his possession had been stolen from Doc’s.

1

Officer Harrington, who w as assigned to the K-9 u nit, testified that h e was no t specifically dispatched

to Doc’ s, but was to ld to respo nd due to shift policy that K-9 u nits respon d to “in pro gress” calls.

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Officer Harrington testified at the suppression hearing that he was not looking for anyone

while driving towards Doc’s and that there was nothing to alert him that the defendant was involved

in a crime. Officer Harrington testified that he stopped the defendant based on a hunch because the

defendant was riding a bicycle around 8:45 p.m. away from the location where a possible burglary

was reported, and because he also thought it was unusual for the defendant to ride a bicycle standing

up. Officer Harrington stated that he activated his blue lights to identify himself as an officer and

that he asked the defendant to stop so that he could identify him.

Following the suppression hearing, the trial court suppressed the evidence because Officer

Harrington did not have reasonable suspicion, supported by specific and articulable facts, that a

crime had been committed by Randolph when he activated the blue lights on his patrol car and

ordered Randolph to stop. The Court of Criminal Appeals reversed the trial court’s decision, finding

that there was no seizure because the defendant did not stop or submit to the officer’s show of

authority.

We granted the defendant’s application for permission to appeal.

STANDARD OF REVIEW

When evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, an

appellate court must uphold the trial court’s findings of fact unless the evidence preponderates

otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also State v. Munn, 56 S.W.3d 486,

493 (Tenn. 2001). Issues of credibility of witnesses, the weight and value of the evidence, and the

resolution of conflicts in the evidence are matters entrusted to the trial judge. State v. Odom, 928

S.W.2d at 23. The prevailing party “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.” Id.; see also State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000). This

Court, however, is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d

776, 779 (Tenn. 1998). Where the issue before this Court is the application of law to undisputed

facts, then review is de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

ANALYSIS

The Fourth Amendment to the United States Constitution provides for “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures . . . .” Similarly, article I, § 7 of the Tennessee Constitution states, “That the people shall

be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures

. . . .” The essence of the prohibition against unreasonable searches and seizures under the Fourth

Amendment is to “safeguard the privacy and security of individuals against arbitrary invasions of

government officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967);

see also State v. Daniel, 12 S.W.3d at 424. Article I, § 7 is “identical in intent and purpose with the

Fourth Amendment.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968); see also State v. Downey,

945 S.W.2d 102 (Tenn. 1997).

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According to both the Fourth Amendment and article I, § 7 of the Tennessee Constitution,

“a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result

thereof is subject to suppression unless the State demonstrates that the search or seizure was

conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.

Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citation omitted); see also State v. Binette, 33 S.W.3d

at 218. One exception to the warrant requirement arises “when a police officer makes an

investigatory stop based upon reasonable suspicion, supported by specific and articulable facts, that

a criminal offense has been or is about to be committed.” State v. Binette, 33 S.W.3d at 218; see

also Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879 (1968).

In the present case, the defendant argues that he was illegally seized because Officer

Harrington did not have reasonable suspicion, supported by specific and articulable facts, that he had

committed a crime when the officer activated the blue lights on his patrol car and ordered him to

stop. The State responds that the defendant was not “seized” upon the officer’s activation of the

patrol car’s blue lights and order to stop, because the defendant did not stop or yield to the officer’s

show of authority as the United States Supreme Court has required in California v. Hodari D., 499

U.S. 621, 111 S. Ct. 1547 (1991). In reply, the defendant argues that this Court has never adopted

and should reject the requirement of actual physical restraint or submission to a show of authority

as a condition for a “seizure.”

We initially note in this regard that when interpreting article I, § 7 of the Tennessee

Constitution, this Court will generally depart from federal precedent only 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.” State v. Vineyard, 958 S.W.2d 730, 733-34 (Tenn. 1997) (citations

omitted). However, we have stated:

[A]s to Tennessee’s Constitution, we sit as a court of last resort,

subject solely to the qualification that we may not impinge upon the

minimum level of protection established by Supreme Court

interpretations of the federal constitutional guarantees. But state

supreme courts, interpreting state constitutional provisions, may

impose higher standards and stronger protections than those set by the

federal constitution. It is settled law that the Supreme Court of a state

has full and final power to determine the constitutionality of a state

statute, procedure, or course of conduct with regard to the state

constitution, and this is true even where the state and federal

constitutions contain similar or identical provisions.

Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979) (citations omitted). As a result, this Court has

not hesitated to extend greater privacy protections to the citizens of this State when appropriate under

article I, § 7 of the Tennessee Constitution. See Planned Parenthood of Middle Tennessee v.

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Sundquist, 38 S.W.3d 1, 15 (Tenn. 2000); State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989).

We now turn to the issues presented in this case with these principles in mind.

As the State correctly asserts, in 1991, a majority of the United States Supreme Court limited

its earlier decision in United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980), which had

held that a seizure occurs when a person reasonably believes he or she is not free to leave the scene,

by holding that a person is “seized” 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. at 626, 111 S. Ct. at 1550. Under the Court’s latest

analysis, a seizure “does not remotely apply . . . to the prospect of a policeman yelling ‘Stop, in the

name of the law!’ at a fleeing form that continues to flee.” Id. at 626, 111 S. Ct. at 1550.

While some state courts have followed Hodari D.,2 the majority’s analysis has been rejected

by numerous other state courts on state constitutional grounds.3 The extensive criticisms of Hodari

D. cited by these courts may be summarized as follows. First, the majority’s analysis in Hodari D.

represents a marked departure from the standard the Supreme Court adopted in United States v.

Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980), i.e., that a seizure occurs when “in

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

2

California, Colorad o, Florida, G eorgia, Id aho, Lo uisiana, M aryland , Mississipp i, Nebrask a, North

Carolina and Texas have all expressly adopted Hodari D., though not all have don e so on state constitutional g rounds.

See People v. Cartwright, 72 Cal. App. 4th 1362, 1364, 85 Cal. Rptr. 788, 789 (Cal. Ct. Ap p. 1999 ); People v . Archu leta,

980 P.2d 509, 514-15 (Colo. 1999); Perez v. S tate, 620 So.2d 1256, 1258 (Fla. 1993); Hunt v . State, 423 S.E.2d 24, 25

(Ga. Ct. App . 1992); State v. Ag undis , 903 P.2 d 752, 7 58 (Idah o Ct. App. 1995); State v. Tucker, 626 So.2d 707, 712

(La. 1993); Brum mel v. Sta te, 685 A.2d 835, 836 (Md. Ct. Spec. A pp. 199 6); Harper v. State, 655 So.2d 8 64, 867 (M iss.

1994); State v. Cronin , 509 N.W.2d 673, 676 (Neb. Ct. App. 1993); State v. West , 459 S.E.2d 55 (N.C. Ct. App. 1995);

Johnso n v. State , 912 S.W.2d 227, 23 3-34 (Tex. Crim. App . 1995).

3

Conn ecticut, Delaware, Hawaii, Kentucky, Massachusetts, Minnesota, N ew Jersey, New York,

Pennsy lvania and Washington have rejected Hodari D. on state constitutional ground s. State v. Oquendo, 613 A.2d

1300, 1310 (Conn. 1992) (holding that state constitutional protections were broader than Fou rth Amendment and that

there was no distinction b etween a seizure an d/or an atte mpted seizure); Jones v. S tate, 745 A .2d 856 , 869 (D el.

1999) (holding that police order to suspect to stop and take his hands out of his p ockets w as a seizure u nder the s tate

constitution); State v. Quino, 840 P.2d 358, 36 4 (Haw . 1992), cert denied 507 U.S. 1031 (extending greater protection

under state constitution and refusing to allow officers to place individuals in a coercive environment in order to develop

reasona ble suspicion to justify their detention ); Baker v . Comm onwe alth, 5 S.W.3d 142, 145 (Ky. 1999) (holding that

an order to a suspect to re move his hands from his pockets constituted a seizure); Com monw ealth v. Sto ute, 665 N.E.2d

93, 94-98 (M ass. 1996) (ho lding on state constitution al grounds that a p ursuit intended to stop and detain is a seizure

and adhering to Mend enhall analysis); Welfare of E .D.J., 502 N.W.2d 77 9, 781-83 (Minn. 199 3) (cited with approval

in State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997) (Althou gh the lan guage of the state co nstitution w as identical to

the Fourth Amendment, court declined to adopt the Hodari D. analysis, pre ferring to follow the standard annou nced in

Mend enhall .); State v. Tucker, 642 A.2d 401, 405 (N.J. 1994) (holding that the definition of seiz ure ann ounce d in

Hodari D. would be a radical departure from the definition espoused by Mend enhall ); People v. Bora, 634 N.E.2d 168,

167-70 (N.Y. 1994) (Although the language of the state constitution was similar to the Fourth Ame ndment, the court

rejected the analysis used in Hodari D.); Com monw ealth v. Matos, 672 A.2d 769, 776 (Pa. 1996) (Although the

language of the state constitution was essen tially the sam e as the Fo urth Am endm ent, the Court rejected the definition

of seizure espoused in Hodari D. and adhered to Mendenhall .); State v. Young, 957 P.2d 681, 686-87 (Wash.

1998) (greater protection under state constitution; declining to depart from precedent by applying Hodari D.).

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he was not free to leave.” Second, the majority’s analysis fails to apply common law principles

under which an arrest would not be distinguished from an attempted arrest in determining whether

a person has been seized. Third, the majority’s analysis is flawed for practical reasons and is subject

to potential abuse by officers who pursue a subject without reasonable suspicion and use a flight or

refusal to submit to authority as reason to execute an arrest or search. See California v. Hodari D.,

499 U.S. at 638-41, 646-47, 111 S. Ct. at 1557-58, 1561-62 (Stevens, J., dissenting).

Although Hodari D. was decided in 1991, this Court has never adopted its narrow, literal

standard under article I, § 7 of the Tennessee Constitution. To the contrary, in determining whether

a person has been seized, we have adhered to a totality of the circumstances standard. See State v.

Binette, 33 S.W.3d at 218; State v. Daniel, 12 S.W.3d at 425; State v. Pulley, 863 S.W.2d 29, 30

(Tenn. 1993); see also State v. Gonzalez, 52 S.W.3d 90, 95 (Tenn. Crim. App. 2000). Moreover,

we have consistently applied the standard set forth by the United States Supreme Court in

Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877, 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.”

State v. Daniel, 12 S.W.3d at 425 (citations omitted); see also State v. Pulley, 863 S.W.2d at 30.

Just two years ago in State v. Daniel, for example, we held that an officer’s conduct in

approaching a defendant and asking to see identification did not constitute a seizure until after the

officer retained the identification for the purpose of running a computer warrants check. State v.

Daniel, 12 S.W.3d at 427. We stated that “a ‘seizure’ implicating constitutional concerns occurs

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

believed that he or she was not free to leave.” Id. at 425 (citing Florida v. Bostick, 501 U.S. 429,

437, 111 S. Ct. 2382, 2386 (1991)); Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975,

1979 (1988); INS v. Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 1762 (1984); and Mendenhall,

446 U.S. at 556, 100 S. Ct. at 1877).

In reaching our holding in Daniel, we identified numerous factors that are relevant to the

totality of the circumstances test:

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. Moreover, while we said that this analysis is “necessarily imprecise,” we listed 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

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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. at 426 (emphasis added) (citing 4 Wayne R. LaFave, Search and Seizure, § 9.3, at 104 (3d ed.

1996 & Supp. 1999)); see also State v. Binette, 33 S.W.3d at 218 (“Upon turning on the blue lights

of a vehicle, a police officer has clearly initiated a stop and has seized the subject of the stop . . . .”)

(citation omitted); State v. Pulley, 863 S.W.2d at 30 (“When an officer turns on his blue lights, he

or she has clearly initiated a stop.”) (citations omitted).

In our view, the principles stated recently by this Court in Daniel, as well as our decisions

in Binette and Pulley, clearly require that we reject the narrow, oft-criticized standard in Hodari D.

under article I, § 7 of the Tennessee Constitution. Whether a person has been physically restrained

or has stopped or yielded to the show of authority is not dispositive of whether there has been a

seizure. Instead, we adhere to the well-established analysis and standard enunciated in our recent

cases, i.e., a totality of the circumstances analysis and the standard of whether a reasonable person

would have believed he or she was not free to leave.

Accordingly, we join those jurisdictions that have rejected the Hodari D. standard on state

constitutional grounds in favor of existing state precedent. As the Supreme Court of Washington

has said:

Washington search and seizure law stemming from Terry and

proceeding through Mendenhall is well-established. Were we to

adopt Hodari D. and its new definition of seizure . . . , we would be

departing from our precedents and the greater protection of privacy

afforded Washington citizens under [the state constitution]. Given

the erosion of privacy the Hodari D. decision entails, we adhere to

our established jurisprudence and reject application of the test for a

seizure articulated in Hodari D. . . . under [the state constitution].

State v. Young, 957 P.2d 681, 687 (Wash. 1998) (en banc); see also State v. Tucker, 642 A.2d 401,

405 (N.J. 1994) (“To conform our doctrine now to Hodari D. would require too radical a change in

our search-and-seizure law.”); State v. Oquendo, 613 A.2d 1300, 1310 (Conn. 1992) (“[W]e decline

to adopt the restricted definition of a seizure employed by the United States Supreme Court in

Hodari D. and adhere to our precedents in determining what constitutes a seizure under the state

constitution.”).

Turning to the facts of this case, it is undisputed that 15 minutes after Officer Harrington

received notification of a possible burglary in progress at Doc’s, he saw the defendant riding a small,

chrome-silver BMX-style bicycle in his direction approximately four blocks away from Doc’s.

Officer Harrington requested a description and was told only that the suspect was a white male.

Based merely on a hunch, Officer Harrington decided to stop the defendant, activated his blue lights

to identify himself as an officer, and ordered the defendant to stop. When the defendant ignored the

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order and kept going, Officer Harrington turned his police car around and pursued the defendant for

approximately one and one-half blocks.

As we have discussed, not every encounter between police officers and citizens involve

“seizures.” See Terry v. Ohio, 392 U.S. at 19, 88 S. Ct. at 1879 n.16 (“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.”); see also State v. Daniel, 12 S.W.3d at 424; State v.

Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). In this case, however, even though Officer Harrington

did not initially draw a weapon or make physical contact, we conclude that Randolph was “seized”

when the officer made a show of authority by activating the blue lights on his patrol car and

instructing him to stop. See State v. Daniel, 12 S.W.3d at 426 (“verbally orders a citizen to stop and

answer questions”); State v. Binette, 33 S.W.3d at 218 (“Upon turning on the blue lights of a vehicle,

a police officer has clearly initiated a stop and has seized the subject of the stop . . . .”); State v.

Pulley, 863 S.W.2d at 30 (“When an officer turns on his blue lights, he or she has clearly initiated

a stop.”).4 In sum, in view of all of the circumstances, a reasonable person would have believed he

was not free to leave the scene or walk away from the officer. Accordingly, we hold that the

defendant was “seized” for the purpose of article I, § 7 of the Tennessee Constitution and that the

trial court was correct in suppressing the evidence.

CONCLUSION

After a thorough review of the record and the relevant authority, we hold that under the

circumstances of this case the defendant was seized when the officer activated the blue lights on his

patrol car, ordered the defendant to stop, and pursued him for several blocks. Because the officer

lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from the

defendant was properly suppressed by the trial court. Accordingly, we reverse the judgment of the

Court of Criminal Appeals and reinstate the judgment of the trial court.

Costs of this appeal are taxed to the State.

_________________________________

E. RILEY ANDERSON, JUSTICE

4

See also Jones v. S tate, 745 A.2d 856, 869 (Del. 1999) (holding that police ord er to suspec t to stop

and take his hand s out of his pockets was a seizure und er the state con stitution); Baker v. C ommon wealth, 5 S.W.3d 142,

145 (Ky. 1999) (holding that an order to a suspect to remov e his hands from his pockets constituted a seizure);

Comm onwealth v. Stoute , 665 N.E.2d 93, 94-98 (M ass. 1996 ) (holding o n state constitution al grounds that a pursuit

intended to stop and detain is a seizure).

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