Opinion
No. M2004-01349-CCA-R3-CD.
February 15, 2005 Session.
Filed August 12, 2005.
Direct Appeal from the Criminal Court for Davidson County; No. 2002-A-290; Mark Fishburn, Judge.
Affirmed in Part; Reversed in Part and Remanded.
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.
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. Woodall, dissented.
OPINION
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.
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. 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.
Officer Melzoni, who was also at the scene, testified that the Appellant "ran" to the parked vehicle.
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 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 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 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 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," 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.
Factor 1, Randolph, 74 S.W.3d at 337.
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.
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.
I fully concur with Judge Hayes' notable and well-written opinion. Like Judge Hayes, I believe that the defendant was seized when the officer asked him to step out of his vehicle and that the seizure was not supported by reasonable suspicion or probable cause. I also agree that the defendant's consent to search his person was not sufficiently attenuated from the illegal seizure so as to be free from any taint. In consequence, the convictions for possession of cocaine and marijuana should be reversed and remanded for a new trial.
I write separately only to explain the factual distinction between this case and State v. James D. Nicholson, No. M2004-00111-CCA-R3-CD (Tenn.Crim.App., at Nashville, Jan. 25, 2005), wherein I filed a dissenting opinion with a view that would have upheld the propriety of an investigatory stop under comparable circumstances. In Nicholson, the defendant ran when the officer said, "Hold up." It was the defendant's "headlong flight" coupled with significant other circumstances that, in my opinion, provided the officers with reasonable suspicion to pursue and stop. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (holding that "[h]eadlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such" and that "unprovoked flight is simply not a mere refusal to cooperate"). In Nicholson, the officers had just observed several individuals involved in hand-to-hand drug transactions in the same location. All ran at the sight of the police. The incident occurred late at night in a high crime area well know to the officers for illegal drug transactions. Nicholson, who had not been a part of the earlier crowd, fled when an officer said, "Hold up."
In contrast, the defendant in this case was standing alone on a street corner in the middle of the day. When the officer approached the defendant, he turned and walked a short distance before entering a parked car. There was no "headlong flight" or other circumstance warranting a stop. The officer's statement, "[Y]ou need to step from the vehicle," was an unqualified directive. See United States v. Drayton, 536 U.S. 194, 201-02 (2002) (holding that 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. Cf. State v. Daniel, 12 S.W.3d 420, 426 (Tenn. 2000) (holding that no seizure occurs when an officer approaches a vehicle in a public place and asks questions of the occupant). The defendant was no longer free, in my view, to refuse to comply. See Florida v. Bostick, 501 U.S. 429, 439 (1991) (holding that the critical question is whether the law enforcement conduct indicated a lack of freedom "to decline the officers' requests or otherwise terminate the encounter"); State v. Randolph, 74 S.W.3d 330, 335 (Tenn. 2002) (holding 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"). It is my view that the circumstances that might support a finding of reasonable suspicion in this case did not quite reach the level of those in Nicholson.
I respectfully dissent. Based upon my review of the record, the encounter leading up to Defendant's consent to submit to a search was a brief police-citizen encounter requiring no objective justification. State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). Accordingly, I would affirm the judgment of the trial court.
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 there is a "seizure" of a person (and not a brief police-citizen encounter) the proper standard is that set forth by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544 (1980) 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).
The Tennessee Supreme Court has 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.
Randolph, 74 S.W.3d at 337 (quoting Daniel, 12 S.W.3d at 427). 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.
Randolph, 74 S.W.3d at 337 (quoting Daniel, 12 S.W.3d at 426). The Court's analysis in both Daniel and Randolph indicate that "the line of demarcation is drawn at the officer's communication of mandatory compliance with his or her request, as opposed to voluntary compliance by the citizen." State v. James D. Nicholson, No. M2004-00111-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 78, *10 (Tenn.Crim.App., at Nashville, Jan. 25, 2005) (no Tenn. R. App. P. 11 application filed). Specifically, in Daniel, the court held,
. . . courts have consistently held that the Fourth Amendment is not implicated and no seizure occurs when police approach an individual, in a public place, or in a parked car, ask questions, and request to search, so long as police do not convey a message that compliance with their requests is required.
Daniel, 12 S.W.3d at 426. (emphasis in original).
In State v. Randolph, an officer observed the defendant riding a bicycle a few blocks from the site of a possible burglary. Randolph, 74 S.W.3d at 332. The only description available of the burglary suspect was that the suspect was a "white male". Id. Acting on a "hunch," the officer activated the blue lights in his patrol car with the intent to stop and identify the defendant. Id. at 333. As the defendant neared the patrol car, the officer rolled down his window and told him to stop. Id. The defendant, who was within three feet of the vehicle, looked at the officer but kept riding. Id. When the defendant was eventually apprehended, he had several items in his possession which linked him to the burglary. Id. The Supreme Court ruled that the evidence should be suppressed, holding that "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." Id. at 338.
The Court in Daniel, on the other hand, held that an officer's initial approach of the defendant did not constitute a seizure where the officer merely approached the defendant and his friends, who were standing around outside a vehicle in a parking lot, inquired what was going on, and asked to see identification. The Court held that at that point, there was no evidence that the officer physically restrained the defendant, instructed him not to walk away, or blocked his path. Therefore, no seizure occurred. However, when the officer retained the defendant's identification to run a computer warrants check, the consensual police-citizen encounter matured into a seizure of the person.
A panel of this Court recently followed Randolph and Daniel and held that the defendant was seized when, in the presence of multiple officers, a detective instructed the defendant to "hold up," pursued him on foot, and eventually apprehended him. State v. James D. Nicholson, No. M2004-00111-CCA-R3-CD, 2005 Ten. Crim. App. LEXIS 78, at *14-15 (Tenn.Crim.App., at Nashville, Jan. 25, 2005) (no Tenn. R. App. P. 11 application filed). In State v. James D. Nicholson, several officers had arrived at the John Henry Hale Housing Projects for the purpose of conducting gang investigations, when they observed a large group of individuals, some of whom were engaging in "hand-to-hand drug transactions." Id. at *2. As the officers approached, several individuals ran. Later, one detective noticed the defendant walking toward Henry Place and told him to "hold up." Id. at *3. The defendant ran, but was chased and apprehended by officers. Id. The defendant refused to identify himself to detectives and insisted he was visiting someone, though he refused to reveal the name of the person he was visiting or where the person lived. The defendant was then placed under arrest for trespassing and a search incident to arrest revealed crack cocaine and cash in his possession. Id. at *3-4. The Court held that at the time the defendant was told to "hold up" and pursued by an officer, the officer did not have sufficient grounds to warrant the seizure. Id. at *22. As a result, the Court suppressed all evidence collected as a result of the seizure, vacated the conviction, and dismissed the charges. Id.
In the case sub judice, the first step of analysis is to determine whether the initial encounter between Officer Martin and Defendant amounted to a "seizure" under the standard adopted by our Supreme Court in Randolph. The facts are not in dispute. Officer Martin, in full uniform, approached Defendant in order to ascertain whether or not he was trespassing on MDHA property. Defendant saw the officer approaching, the two men looked at each other, and Defendant immediately walked quickly to a vehicle parked on the public street outside of MDHA property and then got into the back seat. The officer followed him to the car, and with the door open, the officer "asked him if [he] could talk to him . . . asked him to take his hands out of his pockets . . . and asked him to step from the vehicle." While cross-examination of Officer Martin resulted in some variance in the sequence and specifics of the conversation, the trial judge made the following findings of fact following the suppression hearing: "Officer Martin approached the vehicle, asked the defendant if he would mind exiting and speaking to the officer. The defendant agreed, exited the vehicle, and removed his hands from his pockets as requested."
I agree with the trial court that Officer Martin did not need reasonable suspicion or probable cause to approach Defendant and conduct investigatory questioning in order to ascertain whether or not Defendant was a resident of the MDHA housing complex. Nothing that happened after the officer began to approach Defendant indicates that it was more than a consensual police-citizen encounter. Nothing indicates that a reasonable person in Defendant's position would have believed he was not free to leave. The encounter between Defendant and Officer Martin does not fall within any of the police-citizen encounters which our Supreme Court listed in Daniel as being "seizures." See Daniel, 12 S.W.3d at 426. According to Daniel, a police-citizen encounter is a seizure where an officer (1) pursues an individual who has attempted to terminate the contact by departing; (2) continues to interrogate a person who has clearly expressed a desire not to cooperate; (3) renews interrogation of a person who has earlier responded fully to police inquiries; (4) verbally orders a citizen to stop and answer questions; (5) retains a citizen's identification or other property; (6) physically restrains a citizen or blocks the citizen's path; (7) displays a weapon during the encounter. Daniel, 12 S.W.3d at 426. Defendant argues that the encounter in the case sub judice fits into several of these categories.
Defendant argues that because Officer Martin continued to pursue Defendant after he, in the words of the trial court, "attempted to evade Officer Martin," the officer's actions fall within the first two police-citizen encounter categorized in Daniel as a "seizure" where an officer "pursues an individual who has attempted to terminate the contact by departing" or, where an officer "continues to interrogate a person who has clearly expressed a desire not to cooperate." Indeed, by noticing the approaching officer and immediately walking the other direction, Defendant clearly expressed his desire to avoid Officer Martin. However, his mere walking away a short distance from Officer Martin cannot be said to be an attempt to terminate contact with the officer, since no contact had been made at that time. Unlike the officers in Randolph and Nicholson, Officer Martin did not tell Defendant to stop. In fact, he said nothing to Defendant nor made any contact whatsoever with Defendant until after Defendant was seated in the back seat of the vehicle and the officer walked up to him and asked if he could talk to Defendant. There is nothing in the record to indicate that Defendant made any attempt to terminate the contact with Officer Martin once their conversation began. On the contrary, the record demonstrates that Defendant was "fully cooperative."
Next, Defendant argues that Officer Martin gave Defendant a verbal order to stop and answer questions when he asked Defendant to "step from the vehicle." Likewise, he also argues that when the officer walked up to the open car door where Defendant was seated, he physically blocked his path, and thus seized him. I disagree. First, because Defendant was already seated in a vehicle when the officer walked up to him, the officer's asking him to step out of the vehicle could not possibly be considered an "order to stop." Defendant had already "stopped" on his own volition when he sat down in the back seat of a parked vehicle. Second, although the record reflects that the officer walked up to the open door of the back seat of the vehicle where Defendant was seated, with his feet still outside the vehicle, it does not indicate that Defendant was attempting to exit the vehicle or that the officer in any way blocked him from doing so. Regardless, courts have consistently held that the Fourth Amendment is not implicated and no seizure occurs when an officer approaches a vehicle parked in a public place and asks the occupant questions. Daniel, 12 S.W.3d at 426; see State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).
Officer Martin asked Defendant if he would talk with the officer. Defendant consented to do so. Defendant was also asked if he would remove his hands from his pockets, and step outside the vehicle he was sitting in, in the back seat, with the door open.
If Officer Martin had ordered Defendant to get out of the vehicle, and/or had ordered Defendant to remove his hands from his pockets, and/or had ordered Defendant to answer questions, there would definitely had been a "seizure." However, there was no evidence that these things happened in this described manner. The trial judge observed the testimony of Officer Martin during both direct and cross-examination, and concluded, at least implicitly, that Officer Martin "did not convey a message [to Defendant] that compliance with [Officer Martin's] requests [was] required." Daniel, 12 S.W.3d at 426. Thus there was no seizure, and the judgment should be affirmed.