State of Tennessee v. Melvin Chism, III

11/19/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 25, 2024 Session

STATE OF TENNESSEE v. MELVIN CHISM, III

Appeal from the Circuit Court for Jefferson County

No. 2019-CR-14341 Duane Slone, Judge1

No. E2023-00620-CCA-R3-CD

A Jefferson County jury convicted the Defendant, Melvin Chism, III, of possession of a

firearm by a convicted felon and possession of drug paraphernalia. The Defendant appeals,

arguing that (1) the evidence at trial was insufficient to establish that he constructively

possessed the firearm; and (2) evidence in this case was obtained in violation of his Fourth

Amendment rights when an officer took and retained his identification card without

reasonable suspicion that he had committed a crime. Upon our review, we respectfully

affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Circuit Court Affirmed

TOM GREENHOLTZ, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., J., joined. JAMES CURWOOD WITT, JR., J., not participating.2

Nathaniel Evans, Knoxville, Tennessee (on appeal), and Randall F. Crossing, Jefferson

City, Tennessee (at trial), for the appellant, Melvin Chism, III.

Jonathan Skrmetti, Attorney General and Reporter; Garrett D. Ward, Senior Assistant

Attorney General; Jimmy Dunn, District Attorney General; and Kelsi Pratt and Brett Bell,

Assistant District Attorneys General, for the appellee, State of Tennessee.

1

While this appeal has been pending, the trial judge in this case, the Honorable O. Duane

Slone of the Fourth Judicial District, passed away on August 25, 2024. We acknowledge his faithful service

to the Tennessee judiciary and to our recovery courts in particular.

2

The Honorable James Curwood Witt, Jr., passed away on August 17, 2024, and did not

participate in the filing of this opinion. For twenty-seven years, Judge Witt dedicated himself to the rule of

law and to the work of this court, both as a former presiding judge and as its longest-serving member.

OPINION

FACTUAL BACKGROUND

A. B ACKGROUND AND I NITIAL E NCOUNTER

In February 2018, Officer Arnold with the White Pine Police Department (WPPD)

encountered the Defendant and another individual, Rae Ann Kelley, at a Pilot gas station

and convenience store. The officer observed Ms. Kelley behaving erratically, exhibiting

loud and restless behavior, which led him to suspect that she was under the influence of

narcotics. While the Defendant and Ms. Kelley stood at the cash registers together, they

spoke with each other, even hugging at one point. During this time, Defendant said

something to Ms. Kelley, to which she responded, “I don’t want to. I just want to keep

flying. I don’t like driving.”

Officer Arnold walked outside the store to wait for the Defendant and Ms. Kelley to

exit. Once Ms. Kelley completed her purchase, she left the store and approached Officer

Arnold, shouting questions about the weather. Ms. Kelley disclosed that she was visiting

the area to check on her sister, who had been in an accident. She denied that she was under

the influence.

In the meantime, the Defendant also came out of the store. When another officer,

Officer Guinn, arrived on the scene, Officer Arnold went to speak with the Defendant. The

officer asked the Defendant if Ms. Kelley “was alright,” and the Defendant responded,

“Yeah. She’s alright. She’s just always hyper. That’s just how she is.” When the officer

asked him why they were in the area, the Defendant explained that they were returning to

Johnson City after visiting his brother’s restaurant in Knoxville.

The officer then asked the Defendant for identification, and the Defendant removed

a collection of papers from his pocket and began to sift through them. At first, he handed

Officer Arnold his parole identification card, but he continued to look for his driver’s

license. While the Defendant continued to look for a driver’s license, Officer Arnold said,

“I hope you’re driving,” to which the Defendant smiled and laughed.

When the Defendant could not find his driver’s license, Officer Arnold again

indicated that the parole identification card was acceptable. As they were exiting the

convenience store, the Defendant asked Officer Arnold what “the issue” was, and Officer

Arnold indicated that he was trying to make sure there was “an okay driver” given Ms.

Kelley’s state and that he was checking the Defendant’s driver’s license status. The

2

Defendant again smiled, laughed, and said that Ms. Kelley was not driving him anywhere

because she was “too hyper.”

Officer Arnold retained the identification card to conduct a warrant check. The

check revealed that the Defendant’s driver’s license was suspended but that no warrants

were outstanding. Following a warrant check, the officer told the Defendant that he was

“free to go,” though the officer did not return the card at that time.

Meanwhile, Officer Guinn obtained Ms. Kelley’s consent to search her purse. He

found an oxycodone bottle containing multiple alprazolam pills and a single oxycodone

pill. Ms. Kelley was placed under arrest for possessing these medications without a

prescription and detained in a patrol vehicle.

Officer Arnold then conducted an inventory search of Ms. Kelley’s vehicle before it

was towed. Inside the sunglasses compartment between the front seats, he discovered a

.22 caliber handgun and two bags containing a white powdery substance, later confirmed

to be cocaine. The officer called the Defendant over and arrested him on suspicion of

possessing the drugs and firearm found in the vehicle. In their search of the Defendant’s

person, officers found digital scales with white residue in his pants pocket. The Defendant

denied ownership of the drugs and firearm, claiming that they belonged to Ms. Kelley.

B. I NDICTMENT AND P RETRIAL P ROCEEDINGS

In April 2019, a Jefferson County grand jury charged the Defendant with, among

other offenses, possession of a firearm by a convicted felon and possession of drug

paraphernalia. See Tenn. Code Ann. §§ 39-14-103; 39-17-417; 39-17-425; 39-17-1307;

39-17-1324.3

Before trial, the Defendant filed a motion to suppress statements made during the

encounter and the digital scales discovered on his person. During the October 17, 2022

hearing, defense counsel argued that the officers lacked reasonable suspicion or probable

cause to initially approach the Defendant, who was merely “eating a hot dog” and not

violating any laws. Defense counsel contended that the Defendant’s arrest and search were

unlawful because the officers told him he was free to go yet continued to detain him without

probable cause.

3

The grand jury also charged the Defendant with possession of a firearm with the intent to

commit a dangerous felony; possession of one-half gram or more of a Schedule II controlled substance with

intent to sell or deliver; and theft of property valued at $1,000 or less. The jury acquitted the Defendant of

the theft offense, and it was unable to reach a verdict on the remaining charges, resulting in a mistrial as to

those alleged offenses. None of these charges is at issue in this appeal.

3

The State argued that the encounter evolved gradually. Officers observed the

Defendant and Ms. Kelley’s behavior, leading them to develop reasonable suspicion that

justified their investigation and subsequent actions. Officers Arnold and Guinn testified to

the events of the encounter, including Ms. Kelley’s erratic behavior, the conflicting stories

about the pair’s travel plans, and the eventual discovery of contraband in her vehicle.

The trial court denied the motion, finding that officers had reasonable suspicion to

question the Defendant after observing his co-defendant’s erratic behavior. It further found

that the officers could reasonably believe he drove to the location and did so with a

suspended license. The court also found that following Ms. Kelley’s arrest, a lawful vehicle

search uncovered narcotics and a firearm, providing probable cause for a search of the

Defendant. However, the court also suppressed statements made after the Defendant’s

arrest due to the lack of Miranda warnings.

C. T RIAL P ROCEEDINGS

The Defendant’s trial began on January 25, 2023. The State presented body camera

footage and testimony from Officers Arnold and Guinn, which corroborated the details of

the convenience store encounter. Photographs of the cocaine, firearm, and digital scales

were also admitted as evidence.

On cross-examination, Officer Arnold acknowledged that he did not see the

Defendant and Ms. Kelley arrive at the convenience store and had not reviewed any

surveillance footage to determine if the Defendant had driven the vehicle. He also

confirmed that officers did not find fingerprints or any other forensic evidence linking the

Defendant to the firearm or drugs.

Following a Momon hearing,4 the Defendant chose not to testify in his own defense.

The jury found the Defendant guilty of possession of a firearm by a convicted felon and

possession of drug paraphernalia. At a later sentencing hearing, the trial court sentenced

the Defendant to a term of twenty-seven years as a Range III, persistent offender for the

firearm conviction and eleven months and twenty-nine days for possession of drug

paraphernalia. The court ordered that the sentences be served concurrently.

4

In Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), our supreme court “adopted a

prophylactic procedure designed to ensure that a defendant’s waiver of the fundamental right to testify is

voluntary, knowing, and intelligent.” Mobley v. State, 397 S.W.3d 70, 90 (Tenn. 2013). In this procedure,

trial counsel may make inquiry of the defendant in open court outside the presence of the jury, or the

defendant may execute a written waiver of the right to testify. Momon, 18 S.W.3d at 162, 175. In this case,

the trial court and trial counsel conducted the Momon hearing with the Defendant in open court shortly

before the defense rested its case.

4

The Defendant filed a timely motion for a new trial, arguing, among other things,

that the evidence was insufficient to support his firearm conviction and that his Fourth

Amendment rights were violated in an illegal search and seizure. The trial court denied

this motion on April 24, 2023, and the Defendant filed a timely notice of appeal four days

later.

ANALYSIS

In this appeal, the Defendant raises two issues. First, he submits that the evidence

was legally insufficient to support his conviction for possession of a firearm by a convicted

felon. Second, he argues that the evidence in this case was obtained in violation of his

Fourth Amendment rights when Officer Arnold took and retained his parole identification

card without reasonable suspicion that he had committed a crime. We address each of these

issues in turn.

A. L EGAL S UFFICIENCY OF THE E VIDENCE

The Defendant first argues that the evidence was insufficient to support his

conviction for possession of a firearm by a convicted felon. He contends there was no

proof of his actual or constructive possession of the firearm. He emphasizes that Ms.

Kelley owned the vehicle and retained the key fob, that the firearm was concealed in a

compartment likely used by the vehicle owner, and that Ms. Kelley exhibited behavior

consistent with cocaine use. Additionally, no forensic evidence linked him to the gun or

cocaine. In response, the State argues that the proof is legally sufficient to allow a rational

juror to find that the Defendant constructively possessed the firearm and drug

paraphernalia. We agree with the State.

1. Standard of Appellate Review

“The standard for appellate review of a claim challenging the sufficiency of the

State’s evidence is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” State v. Miller, 638 S.W.3d 136, 157 (Tenn. 2021) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review is “highly

deferential” in favor of the jury’s verdict. See State v. Lyons, 669 S.W.3d 775, 791 (Tenn.

2023). Indeed, “[w]hen making that determination, the prosecution is afforded the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

which may be drawn therefrom.” State v. Thomas, 687 S.W.3d 223, 249 (Tenn. 2024)

(citation and internal quotation marks omitted). To that end, “[w]e do not reweigh the

evidence, because questions regarding witness credibility, the weight to be given the

evidence, and factual issues raised by the evidence are resolved by the jury, as the trier of

5

fact.” State v. Shackleford, 673 S.W.3d 243, 250 (Tenn. 2023) (citations omitted). “The

standard of review is the same whether the conviction is based upon direct or circumstantial

evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citation and internal

quotation marks omitted).

2. Possession Offenses Generally

Count one of the Defendant’s indictment charged him with knowingly possessing a

firearm while “having a previous conviction for a felony involving the use or attempted

use of force, violence, or a deadly weapon[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A).

The Defendant stipulated that he had been convicted of a prior felony involving the use or

attempted use of force or a deadly weapon as charged in count one. Thus, the only issue

for the jury was whether the Defendant knowingly possessed the firearm.

This court has long recognized that the element of “possession” is really a question

about one’s control over an item or property. See Peters v. State, 521 S.W.2d 233, 235

(Tenn. Crim. App. 1974) (“We think that possession means control.”). This control can be

actual, such as a defendant’s physical control over an item. See State v. Hart, 676 S.W.3d

103, 108 (Tenn. Crim. App. 2023). However, control can also be constructive, meaning

that the defendant has the ability to reduce an object to his or her physical control. State v.

Ross, 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted); State v. Copeland, 677

S.W.2d 471, 476 (Tenn. Crim. App. 1984) (“In essence, constructive possession is the

ability to reduce an object to actual possession.”). Constructive possession rests on the

totality of the circumstances of each case and may be proven by circumstantial evidence.

See State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013).

Importantly, because possession is about control, a defendant may be subject to

criminal liability even if his or her control over an object is not exclusive. State v.

Waggoner, No. M2013-00731-CCA-R3-CD, 2014 WL 1354938, at *4 (Tenn. Crim. App.

Apr. 4, 2014) (“Criminal liability may result from sole possession or joint possession with

another person.”), perm. app. denied (Tenn. Sept. 2, 2014). Instead, criminal liability can

exist even if the possession is joint, meaning that more than one person can be considered

in possession of an object. See State v. Young, No. W2005-01180-CCA-R3-CD, 2006 WL

1132089, at *3 (Tenn. Crim. App. Apr. 26, 2006), no perm. app. filed. Thus, with respect

to a firearm, joint possession may occur “‘only where the personally unarmed participant

has the power and ability to exercise control over the firearm.’” State v. Anderson, No.

M2022-00262-CCA-R3-CD, 2023 WL 2620672, at *5 (Tenn. Crim. App. Mar. 24, 2023)

(quoting Key v. State, 563 S.W.2d 184, 188 (Tenn. 1978)), perm. app. denied (Tenn. June

28, 2023). However, joint possession “may never exist absent knowledge that the other

participant is in the possession of a firearm.” Key, 563 S.W.2d at 188.

6

Because possession is about control over an object, a defendant’s mere presence in

an area where the object is discovered, or association with a person who possesses the

object is insufficient, without more, to support a finding of constructive possession. See

Robinson, 400 S.W.3d at 534. Issues as to whether a defendant is in constructive and joint

possession of an item are questions of fact for the jury. See Copeland, 677 S.W.2d at 476;

State v. Peters, No. W2018-01328-CCA-R3-CD, 2019 WL 3775872, at *4 (Tenn. Crim.

App. Aug. 9, 2019), no perm. app. filed.

3. The Defendant’s Constructive Possession of the Firearm

Viewing the evidence in the light most favorable to the State, a rational juror could

find that the Defendant was in constructive possession of the handgun. Drawing all

reasonable inferences in favor of the State as we are required to do, the evidence established

that the Defendant was aware of the weapon’s presence and had the power and ability to

exercise control over the firearm. Key, 563 S.W.2d at 188.

For example, with respect to the Defendant’s knowledge, a rational juror reasonably

could have found that the Defendant drove and was in control of the car from his statement

that Ms. Kelley was not driving him anywhere because she was “too hyper.”5 From his

control of the car, a rational juror could then have inferred the Defendant’s knowledge of

the weapon in the vehicle. As this court has recognized, “[w]hen the defendant is charged

with possession of contraband located in a vehicle, ‘[k]nowledge may be inferred from

control over the vehicle in which the contraband is secreted.’” State v. Siner, No. W2020-

01719-CCA-R3-CD, 2022 WL 252354, *5 (Tenn. Crim. App. Jan. 27, 2022) (quoting State

v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995)), no perm. app. filed. Indeed, we have

affirmed convictions for possession where an important fact was that the defendant was the

driver or in control of the vehicle at issue. Id.; State v. Gill, No. W2018-00331-CCA-R3-

CD, 2019 WL 549651, at *10-11 (Tenn. Crim. App. Feb. 11, 2019) (concluding that the

driver of a rental vehicle containing over $1,000 worth of drugs constructively possessed

the drugs when he was apprehended after letting a passenger out, parking, and entering a

mall), perm. app. denied (Tenn. May 16, 2018); State v. Triplett, No. W2015-00163-CCA-

R3-CD, 2015 WL 9489506 (Tenn. Crim. App. Dec. 29, 2015) (holding that the State

5

The Defendant challenges the admission of these statements, as well as the digital scales,

as having been obtained as the result of an illegal detention. As we discuss below, the Defendant’s detention

was lawful, and these statements were therefore admissible. However, in reviewing the legal sufficiency

of the convicting evidence, the question must be examined in light of all the evidence presented to the jury,

even evidence that would otherwise be subject to suppression. See State v. McLawhorn, 636 S.W.3d 210,

237 (Tenn. Crim. App. 2020) (“At the outset, we acknowledge our conclusion in Section II below that the

trial court erred in denying the motion to suppress the evidence obtained from the search of the Defendant’s

cell phone. Thus, this evidence was erroneously admitted at the trial. However, we evaluate the sufficiency

of the evidence in light of all of the evidence presented to the jury, including the improperly admitted

evidence.” (citation omitted)).

7

presented sufficient proof to support a conviction of unlawful possession of a weapon by a

convicted felon when a handgun was found in the glove box of the car the defendant was

driving), perm. app. denied (Tenn. Mar. 23, 2016); State v. Davis, No. W2008-00226-CCA-

R3-CD, 2009 WL 160927, at *6 (Tenn. Crim. App. Jan. 23, 2009) (holding that the

evidence was sufficient despite the defendant’s testimony that the contraband belonged to

the passenger because the defendant owned and was driving the vehicle and the contraband

was within his reach), perm. app. denied (Tenn. June 15, 2009)). Consistent with these

principles, we have also recognized that “[a] defendant can constructively possess

contraband found in a vehicle the defendant is driving, even if the vehicle belongs to

another person.” State v. Martinez, 372 S.W.3d 598, 606 (Tenn. Crim. App. 2011).

Even apart from his being in control of the car, a rational juror could have found

that the Defendant was aware of the drugs in the car and was, therefore, aware of the

handgun stored with them. For example, when officers located the cocaine and firearm in

the car, they also found a straw with powder residue, and Officer Guinn associated this

straw with cocaine use. When Ms. Kelley was at the convenience store with the Defendant,

she appeared visibly intoxicated to Officer Arnold, and a rational juror could infer that she

had recently used and was under the influence of a controlled substance. During a search

of the Defendant’s person following his arrest, officers found digital scales with cocaine

residue in his pocket, from which a rational juror could have inferred that the Defendant

had recently weighed a controlled substance. From these facts, a rational juror could have

concluded that Ms. Kelley had recently used cocaine, that the Defendant knew of this drug

use, and that both she and the Defendant knew of the cocaine in the car—and therefore also

knew of the weapon stored with the cocaine.

In addition to the Defendant’s knowledge of the firearm in the car, a rational juror

could have found that the Defendant had the power and ability to exercise control over the

firearm. In their search of the car, officers located the weapon in the sunglasses case

between the Defendant and Ms. Kelley, well within the Defendant’s reach. A rational juror

could have inferred that the Defendant had the ability to easily and immediately reduce the

weapon to his actual physical possession.

Important to this analysis is the standard of appellate review, which seeks to preserve

“the factfinder’s role as weigher of the evidence[.]” Jackson, 443 U.S. at 319. In this role,

the jury can consider the evidence introduced at trial “in light of their own experience and

knowledge.” State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013). Indeed, “jurors are free

to use their common knowledge and judgment derived from experience, observation, and

reflection to decide whether a fact is logically deducible or reasonably inferred from the

evidence.” State v. Nesbit, 978 S.W.2d 872, 886 (Tenn. 1998).

Our role is different. This court does not “make its own subjective determination of

guilt or innocence[.]” Jackson, 443 U.S. at 319 n.13; State v. Hamrick, 688 S.W.2d 477,

8

481 (Tenn. Crim. App. 1985). We do not weigh evidence or draw independent inferences

from the facts. Dorantes, 331 S.W.3d at 379. Instead, we ask whether any rational trier of

fact could reach the jury’s conclusion when all the evidence is viewed in the light most

favorable to the State and all reasonable inferences are drawn in its favor. Jackson, 443

U.S. at 319; Schlup v. Delo, 513 U.S. 298, 330 (1995) (“Under Jackson, the use of the word

‘could’ focuses the inquiry on the power of the trier of fact to reach its conclusion.”). “A

reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only

if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1,

2 (2011) (also recognizing that “it is the responsibility of the jury—not the court—to decide

what conclusions should be drawn from evidence admitted at trial.”).

In this case, a rational juror could have drawn several reasonable conclusions from

the evidence using his or her own experience, observation, and reflection. Indeed, multiple

plausible theories point to the conclusion that the Defendant knowingly had the power and

ability to exercise control over the firearm. Thus, even if we disagreed with the jury’s

weighing of the evidence—and we do not—“the only question under Jackson is whether

that finding was so insupportable as to fall below the threshold of bare rationality.”

Coleman v. Johnson, 566 U.S. 650, 656 (2012). We conclude that the evidence presented

by the State and the reasonable inferences drawn by the jury certainly clear the threshold

of “bare rationality.” See also State v. Lyons, 669 S.W.3d 775, 791 (Tenn. 2023) (“Although

the evidence is not overwhelming, our standard of review does not require it to be.”).

In arguing that the evidence is insufficient to prove he possessed the firearm, the

Defendant principally relies on two opinions from this court: State v. Jones, No. W2018-

01421-CCA-R3-CD, 2020 WL 974197 (Tenn. Crim. App. Feb. 27, 2020), no perm. app.

filed and State v. Siner, No. W2020-01719-CCA-R3-CD, 2022 WL 252354 (Tenn. Crim.

App. Jan. 27, 2022), no perm. app. filed. In Jones, this court held that insufficient evidence

existed to support a conviction for possessing drugs and a firearm found in a motel room

due to a lack of proof linking him to the room, such as rental information, a key, or personal

belongings. Jones, 2020 WL 974197, at *1. In Siner, this court also deemed evidence

insufficient when drugs and a firearm were found in a car where the defendant was a

passenger, noting that he was neither the owner nor operator and that there was no

indication he accessed or was aware of the items. Siner, 2022 WL 252354, at *7. In both

cases, we emphasized that the defendant’s mere presence in a location with contraband,

without more, was insufficient evidence of possession or control.

This case is unlike Jones or Siner. Importantly, Siner noted that a jury may infer

possession of items in a car by the person controlling the vehicle. Siner, 2022 WL 252354,

at *5. Siner also recognized that “when another person is committing visibly criminal acts

in the presence of the accused, then the chances are substantially greater that a companion

of the offender is something more than a mere bystander.” Siner, 2022 WL 252354, at *6

(citation and internal quotation marks omitted). Unlike Jones or Siner, the facts and

9

reasonable inferences drawn from those facts in the present case allow a rational juror to

find that the Defendant knew of the firearm in the car and could easily and immediately

reduce that weapon to his actual possession.

Accordingly, we conclude that the evidence is legally sufficient to support the

Defendant’s conviction for unlawful possession of a firearm. The Defendant is not entitled

to relief.

B. S UPPRESSION OF E VIDENCE

The Defendant next argues the trial court should have suppressed his post-seizure

statements and the digital scales found on him, contending they were obtained in violation

of the Fourth Amendment. He asserts that he was seized when Officer Arnold retained his

parole identification card, and because the officer lacked reasonable suspicion to detain

him, no evidence derived from that detention should have been used at trial. He also argues

that because officers lacked probable cause to arrest him later, the seizure of the scales from

his pocket cannot be sustained on the basis of a search incident to an arrest.

In response, the State argues that the investigatory stop was proper and based upon

reasonable suspicion that the Defendant had committed a crime. It also asserts that the

Defendant has waived any issue regarding the search incident to his arrest. We agree with

the State on both issues.

1. Standard of Appellate Review

Our supreme court has recognized that “the first question for a reviewing court on

any issue is ‘what is the appropriate standard of review?’” State v. Enix, 653 S.W.3d 692,

698 (Tenn. 2022). In reviewing a trial court’s ruling on a motion to suppress evidence, “we

will uphold the trial court’s findings of fact unless the evidence preponderates against those

findings.” State v. Stanfield, 554 S.W.3d 1, 8 (Tenn. 2018). The party prevailing in the

trial court “is entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing[,] as well as all reasonable and legitimate inferences that may be drawn

from that evidence.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “[I]n evaluating the

correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts may

consider the proof adduced both at the suppression hearing and at trial.” State v. Henning,

975 S.W.2d 290, 299 (Tenn. 1998). Nevertheless, “[d]espite the deference given to [the]

trial court’s findings of fact, this court reviews the trial court’s application of the law to the

facts de novo with no presumption of correctness.” State v. Henry, 539 S.W.3d 223, 232

(Tenn. Crim. App. 2017) (citing State v. Montgomery, 462 S.W.3d 482, 486 (Tenn. 2015)).

10

2. Protections Against Unreasonable Searches and Seizures

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

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

searches and seizures[.]” Likewise, Article I, section 7 of the Tennessee Constitution

ensures that “the people shall be secure in their persons, houses, papers and possessions,

from unreasonable searches and seizures[.]” Our supreme court has held that Article I,

section 7 is “identical in intent and purpose to the Fourth Amendment.” State v. Tuttle, 515

S.W.3d 282, 307 (Tenn. 2017).

These constitutional provisions are designed “to safeguard the privacy and security

of individuals against arbitrary invasions by governmental officials.” Carpenter v. United

States, 585 U.S. 296, 303 (2018) (citation omitted); Stanfield, 554 S.W.3d at 8. Because

“a warrant is normally required when a police officer intrudes upon the privacy of a

citizen,” warrantless searches and seizures, as here, are presumptively unreasonable, and

any evidence obtained as a result of a warrantless action is subject to suppression. State v.

Garcia, 123 S.W.3d 335, 343 (Tenn. 2003). However, if the State “demonstrates that the

search or seizure was conducted pursuant to one of the narrowly defined exceptions to the

warrant requirement,” then the evidence will not be suppressed. State v. Williamson, 368

S.W.3d 468, 474 (Tenn. 2012).

3. Investigative Detention

The Defendant first argues that the trial court erred in not suppressing statements he

made to officers after Officer Arnold unlawfully seized him. To address this issue, we must

first determine whether, and at what point, the Defendant was seized. Then, we must

determine whether that seizure was supported by a recognized exception to the warrant

requirement. We address each of these issues in turn.

a. When was the Defendant Seized?

Not every interaction between a person and a police officer amounts to a “seizure”

under the Fourth Amendment. As the United States Supreme Court has made clear, “[o]nly

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.” Terry v.

Ohio, 392 U.S. 1, 20 (1968). Thus, when an officer approaches an individual in a public

place, they do not violate the Fourth Amendment “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.” Florida v.

Royer, 460 U.S. 491, 497 (1983) (citation omitted). These types of “voluntary encounters”

11

are not considered a seizure under the Fourth Amendment because the citizen is free to

engage or disregard the officer. See State v. Daniel, 12 S.W.3d 420, 425-26 (Tenn. 2000);

see also State v. Mendenhall, 446 U.S. 544, 552-53 (1980) (noting that no justification is

required for voluntary police-citizen encounters).

Of course, “what begins as a consensual police-citizen encounter may mature into a

seizure of the person.” Daniel, 12 S.W.3d at 427. For example, when an officer asks for

and then retains a person’s identification, this conduct effectively immobilizes the person

and accomplishes a Fourth Amendment seizure. Id. at 427-28 (collecting cases). After all,

“[a]bandoning one’s identification is simply not a practical or realistic option for a

reasonable person in modern society,” and “no reasonable person would believe that he or

she could simply terminate the encounter by asking the officer to return the identification.”

Id. at 427 (citations omitted).

In this case, Officer Arnold initially approached Ms. Kelley outside the store before

questioning the Defendant. The officer then requested the Defendant’s identification, and

the Defendant provided him with a parole identification card. The officer retained the card

to run a warrant check without returning it to the Defendant, even as the Defendant briefly

moved around the store. In this circumstance, Officer Arnold was free to approach the

Defendant, engage in conversation, and even ask for identification. However, when the

officer retained the Defendant’s identification card to conduct a warrant check, the

Defendant was effectively seized, as his freedom to leave without it was restricted.

Pressing against this conclusion, the State asserts that any seizure ended when

Officer Arnold told the Defendant that he was free to leave, and the Defendant then walked

through the convenience store. We respectfully disagree. There is no indication in the

record that the Defendant was willing to “give up” his identification card to the officer and

simply leave the scene of the encounter. See Commonwealth v. Lyles, 905 N.E.2d 1106,

1110 (Mass. 2009) (“A reasonable person simply would not relinquish his identification to

the police and continue on with his business. Moreover, it is unlikely that a reasonable

person, who will not be versed in the intricacies of the law of search and seizure, would

feel free to ask for the immediate return of his identification from a police officer,

regardless of whether the officer is standing next to him or is several feet away in a patrol

car.”). Indeed, the Daniel Court similarly found a seizure does not end simply because the

officer allows the seized person to go inside the market to use the restroom and buy a soft

drink. See Daniel, 12 S.W.3d at 423. Similar to Daniel, the Defendant was effectively

immobilized and not free to leave without his identification. A review of the totality of the

circumstances demonstrates that what began as a consensual encounter developed into a

seizure when Officer Arnold retained the Defendant’s parole identification card to ascertain

the Defendant’s driver’s license status and whether he had any active warrants.

12

b. Was the Defendant’s Seizure Supported by Reasonable

Suspicion?

Having concluded that the Defendant was seized, we must now determine whether

Officer Arnold’s actions were supported by reasonable suspicion when he took and retained

the Defendant’s identification to conduct a status check. The Defendant argues that the

limited information Officer Arnold had at the time—Ms. Kelley’s apparent intoxication

and the inconsistent statements regarding their travel—did not provide reasonable

suspicion of criminal activity. We respectfully disagree.

One well-recognized exception to the warrant requirement exists “when a law

enforcement 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. Davis, 354 S.W.3d 718, 727 (Tenn. 2011) (citation and internal

quotation marks omitted). The evaluation of whether a police officer has reasonable

suspicion must be based on the totality of the circumstances, State v. Day, 263 S.W.3d 891

(Tenn. 2008), and the “content, quality, and quantity of information possessed by police

must be assessed in determining whether it is sufficiently reliable to support a finding of

reasonable suspicion,” State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998). As our supreme

court has recognized, reasonable suspicion

is a less demanding standard than probable cause not only in the sense that

reasonable suspicion can be established with information that is different in

quantity or content than that required to establish probable cause, but also in

the sense that reasonable suspicion can arise from information that is less

reliable than that required to show probable cause.

Davis, 354 S.W.3d at 727 (citation and internal quotation marks omitted).

These specific and articulable facts must be judged by an objective standard, not the

subjective beliefs of the officer making the investigative seizure. State v. Norword, 938

S.W.2d 23 (Tenn. Crim. App. 1996). Indeed, under all circumstances, the officer must be

able “to articulate something more than an inchoate and unparticularized suspicion or

hunch. The Fourth Amendment requires some minimal level of objective justification” to

justify the seizure. State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997).

The objective facts on which an officer may rely can include information personally

known to him or her or obtained from his or her own observations. It may also include

information obtained from other officers or agencies, offenders’ patterns of operation, and

information from informants. State v. Davis, 354 S.W.3d 718, 727 (Tenn. 2011). A court

reviewing whether reasonable suspicion existed at the time of the seizure “must also

13

consider the rational inferences and deductions that a trained police officer may draw from

the facts and circumstances known to him.” Id. at 728 (citation and internal quotation

marks omitted).

In this case, Officer Arnold observed Ms. Kelley’s erratic behavior in the store,

including her loud and fast speech. He also saw her interactions with customers and

employees, who appeared annoyed and looked to Officer Arnold for assistance. Based on

his training and experience, Officer Arnold believed that Ms. Kelley was under the

influence of drugs. He continued to watch as she and the Defendant interacted in the check-

out line, even hugging at one point. After Ms. Kelley told the Defendant, “I don’t want to.

I just want to keep flying. I don’t like driving,” Officer Arnold decided to wait for them

outside.

Once outside, Ms. Kelley approached Officer Arnold, shouting questions about the

weather. Moments later, the Defendant exited the store and stood nearby, eating a hot dog.

Officer Arnold then questioned the Defendant, who explained that they were returning to

Johnson City after visiting a restaurant in Knoxville. This account contradicted Ms.

Kelley’s statement that she was visiting her sister, who had been in an accident. Cf. State

v. Green, 697 S.W.3d 634, 645 (Tenn. 2024) (“Responses to questioning by police officers

are a common source of probable cause determinations.” (citation, alterations, and internal

quotation marks omitted)). At this point, Officer Arnold then requested the Defendant’s

identification.

As we recognized above, Officer Arnold’s initial questioning and request for

identification did not constitute a seizure. However, when the Defendant could not produce

a driver’s license, Officer Arnold retained his parole ID to check his driver’s license status

and for any active warrants. At the time Officer Arnold retained the identification card, he

knew of Ms. Kelley’s behavior indicating intoxication and her statement about wanting to

“keep flying” rather than drive. He also knew that the parties had made inconsistent

statements about the purpose of their trip and that the Defendant could not produce a

driver’s license when asked for identification.

Based on the totality of the circumstances, Officer Arnold reasonably suspected that

the Defendant had committed, or was about to commit, a crime. See Tenn. Code Ann.⁠⁠ § 55-

50-351 (requiring licensed drivers to carry their license when operating a vehicle).

Importantly, the level of suspicion required “is considerably less than proof of wrongdoing

by a preponderance of the evidence, and obviously less than is necessary for probable

cause.” Kansas v. Glover, 589 U.S. 376, 380 (2020) (citation and internal quotation marks

omitted). This is plainly not a case in which the officer had only an inchoate and

unparticularized suspicion or hunch. As such, we conclude that the officer had the authority

to temporarily detain the Defendant to conduct further investigation to confirm or dispel

14

that suspicion. We respectfully affirm the trial court’s denial of the Defendant’s motion to

suppress evidence.

c. Waiver of Claim for Search Incident to Arrest

The Defendant next challenges whether the seizure of the scales from his pocket

was justified pursuant to a search incident to an arrest. More specifically, he argues in his

reply brief that the officers did not possess probable cause to believe he had committed a

crime at the point they searched his person. We conclude that this issue has been waived

because the Defendant did not support the issue with any argument or citation to authorities

in his principal brief.

In his broad issue statement, the Defendant appears to raise an issue with the seizure

of the scales.6 However, this court has made clear that “[s]imply raising an issue is not

sufficient to preserve it for appellate review.” State v. Enoch, No. W2023-01032-CCA-R3-

CD, 2024 WL 3261421, at *9 (Tenn. Crim. App. July 1, 2024), no perm. app. filed. Instead,

Tennessee Rule of Appellate Procedure 27(a)(7) also requires that the appellant set forth

an argument for each issue, setting forth the “reasons why the contentions require appellate

relief” and containing “citations to the authorities and appropriate references to the

record[.]” Reinforcing this requirement, Rule 10(b) of the rules of this court cautions that

“[i]ssues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.” See also State v. Molthan,

No. M2021-01108-CCA-R3-CD, 2022 WL 17245128, at *2 (Tenn. Crim. App. Nov. 28,

2022) (finding waiver when the defendant did not “make any argument in support of this

issue in his brief” and did not “cite to any authorities or appropriate references in the

record”), no perm. app. filed.

In his principal brief, the Defendant does not present an argument with respect to

his arrest or the search of his person incident to that arrest. For example, he cites no cases

and does not analyze whether his arrest was supported by probable cause. In fact, the term

“probable cause” does not appear at all in his brief except when quoting the language of

the Fourth Amendment itself.

6

The broad issue raised by the Defendant is identified as follows: “Evidence including

statements made by [the Defendant], scales, and statements of co-conspirator should have been suppressed

as they were obtained in violation of [the Defendant’s] rights against unlawful searches and seizures

pursuant to the Tennessee Constitution and the United States Constitution.” We caution against the use of

such broadly worded issue statements and urge that “issues should be framed as specifically as the nature

of the error will permit in order to avoid any potential risk of waiver.” Trezevant v. Trezevant, 696 S.W.3d

527, 530 (Tenn. 2024) (citation and internal quotation marks omitted).

15

Instead, the Defendant includes a two-page argument about the seizure of the scales

in his reply brief, apparently in response to the State’s observation that he conceded the

issue of probable cause supporting his arrest. However, our supreme court has made clear

that where an appellant “only fully asserts and briefs [a] claim in [the] reply brief,” the

issue is waived. Hughes v. Tennessee Bd. of Prob. & Parole, 514 S.W.3d 707, 724 (Tenn.

2017); Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct. App. 2007) (“A reply brief is a

response to the arguments of the appellee. It is not a vehicle for raising new issues.”).

After all, permitting an appellant to advance new arguments in a reply brief, as here, is

“fundamentally unfair[,] as the appellee may not respond to a reply brief.” Caruthers v.

State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991).

Because of the inadequacy of the Defendant’s brief, we must respectfully conclude

that the Defendant has waived appellate consideration of whether the scales were properly

seized as part of a search incident to arrest. See Molthan, 2022 WL 17245128, at *2. The

Defendant is not entitled to relief on this issue.

CONCLUSION

In summary, we also hold that the evidence was legally sufficient to support the

Defendant’s convictions for possession of a firearm by a convicted felon and possession of

drug paraphernalia. We also hold that the trial court properly denied the Defendant’s

motion to suppress evidence. Accordingly, we respectfully affirm the judgments of the

trial court.

____________________________________

TOM GREENHOLTZ, JUDGE

16