*1 allege appellees petition, In their improperly allowed discov-
that the Court
ery principal’s competence as to power attorney.
sign consideration, con- due the Court
Upon appellees’ petition to rehear
cludes to this issue and should
well-taken as to re- granted. petition be
therefore as to the remainder
hear is denied
issues. appel- from appearing
It to the Court appellant’s Petition to Rehear and
lees’ filed
response Opinion that footnote of its modified, 8, 2007,
November should THEREFORE, IS, AD-
IT ORDERED the at- AND DECREED
JUDGED hereby Opinion be and the same is
tached filed in this Opinion
substituted for that 8, 2007, without
cause on November judgment this entered
change to Court’s filing with the
contemporaneously 8, 2007, and
original Opinion on November taxing
without the further of costs. of Tennessee
STATE
Tyson Lee DAY.
No. Tennessee,
Supreme Court
at Nashville. Heard at Jacksboro.1
May 2008 Session
Sept. Legal Advancing Supreme part Court argument May was heard 1. Oral (S.C.A.L.E.S.) Tennessee, project. Jacksboro, County, Education for Students Campbell *4 Jr., Cooper, Attorney Robert E. General Moore, and Reporter; Michael E. Solicitor (on General; brief), Elizabeth B. Marney General; Attorney Assistant A. Mark (on argument), Fulks brief and oral Counsel; Ray Senior Whitley, Lawrence General; Dean, Attorney District Thomas General, Attorney Assistant District for appellant, State of Tennessee. Doyle, by specific De- and articulable supported David Allen District Public Anderson, fender; District had been Mike Assistant that a criminal offense Defender, conclude that Tyson to be committed. We appellee, Public about finding rea- Day. support Lee the facts do we affirm suspicion. Accordingly, sonable OPINION judgment of of Criminal the Court J., Appeals. CLARK, A. delivered CORNELIA court, opinion which Background Factual Procedural C.J., BARKER, M.
WILLIAM M. HOLDER R. May JANICE and GARY Hendersonville Police On WADE, JJ., joined. WILLIAM C. was headed north- Officer Jeff JR., J., KOCH, a dissenting opinion. along filed New patrol bound routine he noticed a Island Road when Shackle unsuccessfully suppress moving After lights. its flashing southbound vehicle resulting from the traffic evidence driver, determined The vehicle’s later arrest, defendant, Tyson that led to his Ferrell, her arms at Officer be Ms. waved *5 Day, third offense pleaded guilty Lee pointed sport Tarkington and at the white driving the driving under influence and (SUV) her. Offi- utility vehicle in front of license. plea agreement revoked The Tarkington pulled cer made a U-turn provided for of a certified reservation between the two vehicles. He activated question of law the regarding whether a traffic lights stop his blue initiated stop suspi- traffic was based on reasonable pulled Ms. of the SUV. Ferrell also over cion, supported by specific articulable to the side of the road behind Officer facts, that a criminal or offense had been Tarkington’s patrol Tarking- car. Officer to be appeal, was about committed. On stopped admitted that at the time he ton the Appeals Court of Criminal concluded he had the defendant the SUV not seen that at the time the initiated the officer “any driving engaged anything bad stop, suspi- traffic he lacked reasonable speaking of that nature.” After first with Accordingly, cion. the the court reversed Ferrell, Tarkington ap- Ms. Officer and, the trial judgment of court because SUV, which was driven proached dispositive, question dismissed the to the spoke the defendant.2 As he de- granted application case. We State’s fendant, Tarkington Officer detected the appeal permission to consider the of alcohol. After the defendant smell question community care- whether the tests, sobriety failed several field Officer justified rationale for taking stops traffic A Tarkington sample arrested him. blood carefully in this case. ex- After indicated a taken from defendant however, certified amining question, percent. blood-alcohol content of .25 we that the community conclude caretak- trial, ing scope filed a issue was included within the Prior to the defendant mo- Ac- obtained suppress any reserved for review. tion to evidence solely He cordingly, stop. alleged our review extends a result of traffic i.e., of the Fourth preserved, issue the traffic that the was in violation whether suspicion, based on States Constitu- stop was reasonable Amendment United Although Tarkington pened,” Officer testified at he never testified as to substance hearing suppression "talked to the that he We his conversation with Ms. Ferrell. still complainant going first to find out what was complaint. her do not know nature of hap- had had "[s]he on” and told me what I, tion and article section 7 of taking Indeed, the Tennes- argued, role. the State Constitution, see it because was not based would have been dere- suspicion, supported on reasonable by spe- lict in duty his if he had failed to stop the cific and articulable that a criminal defendant. been, be, offense had or was about Although acknowledging that it was a that, argued committed. He under the issue, close the trial agreed court with the case, facts of signals by this hand another implicitly State. The court upon relied driver, unaccompanied by an explanation, community caretaking function of law en- do not rise to the level of suspi- forcement denying sup- motion to justify cion sufficient to investigatory an press: stop. If an somebody officer sees flicking their In response, argued the State that “rea- attention, lights, trying get his sonable suspicion” imprecise is an term pointing, then it seems to me that it is that should be interpreted in a common- certainly reasonable within the circum- sense, manner, non-technical considering pull stances to the car over and at least totality of the circumstances. The mean, investigatory stop. do an I there police contended that a officer should could have been a medical issue. It not have to precise articulate a crime that could have might been—the car have suspected, only that there are facts and fleeing been from some kind of an acci- circumstances indicative that a crime of know, right, dent. You’re we don’t Ibut some sort either has been committed or is think it warrants an investigatory stop. in progress. requirement of reason- *6 I preferred Would have that he wit- suspicion able is intended to curtail arbi- ness erratic driving some himself? Yes. trary police Accordingly, action. where a hand, But on the I other think that the citizen informant in an automobile flashes officer, know, you got he’s to consider her headlights at the officer and makes public safety. He was alerted to the hand signals reasonably that can be inter- obviously fact that something was the preted indicating problem, as a that matter. And Iso feel that it was rea- support sufficient to finding a of reason- totality sonable under the of the circum- suspicion.3 able Alternatively, the State stop stances to the car.
argued
a
policy
as matter of
that under
these
police
facts
officers
per-
ruling,
should be
Based on the trial court’s
the
mitted to make brief traffic stops to inves- defendant
negotiated
plea
and the State
a
tigate the
part
circumstances as
of
agreement
their
under which the defendant
community caretaking
pleaded guilty
function.
The
to third-offense DUI and
flashing lights
signals
and hand
driving
could be
on a revoked license in return for
distress,
(11) months,
indicative of
an emergency,
twenty-
or a
sentences of eleven
(29)
(6)
crime. Given the
days,
months,
mobile nature of auto-
nine
and six
respec-
mobiles, there is a certain inherent exigen-
tively, to be served concurrently and sus-
cy
gives
when one motorist
to a police pended after service of one hundred twen-
(120)
signals
officer
calling
ty
jail.
attention to another
days
plea
in
Part of the
motorist. Accordingly,
argued
agreement
the State
was that the defendant would
stop
justified
that the
permitted
certify
appeal
this case was
as be
to
part
police
of
community
question
validity
officer’s
care-
challenging
of law
of
response
stop
In its
signals
written
to the defendant’s
Ms. Ferrell’s actions as "clear
suppress,
motion to
the State characterized
another driver."
a
officer
stop
signaling
driver
law enforcement
pursuant
the traffic
Tennessee
37(b)(2)(A).
vehicle,
to another
without
pointing
Rule of Criminal Procedure
more,
finding
a
support
insufficient
review
as
was
The
certified for
reads
that a crime had
suspicion
of reasonable
follows:
being
or
The court
been
was
committed.
stop
Defendant’s
that
vehicle
a com-
expressly
did not
discuss whether
person
and seizure
the Defendant’s
apply
munity caretaking exception would
(by which law enforcement obtained evi-
stop
case.4
justify
traffic
in this
dence that the Defendant motioned to be
suppressed)
upon
was not based
reason-
per-
The
to this
applied
State
Court
suspicion,
by specific
supported
able
raising the
specifically
mission
appeal,
criminal
articulable
that a
offense
caretaking
community
a
issue
whether
to be
had been
was about
commit-
re-
exception
suspicion
to the reasonable
....
ted
The
quirement exists
Tennessee.
State
pointed
the Court of
out
Criminal
stated,
question,
specifically
as
The
did
Jenkins,
Appeals opinion
WL
inquiry
stop
include an
to whether
21523247, seemingly
contrary
reaches
re-
justified
community
was
under
care-
sult to
intermediate
that reached
taking function.
appellate court in this case.5
appeal,
Ap-
On
the Court of Criminal
peals
judgment
argued
reversed
trial
that the Court of
State also
wrong
Appeals
applied
court and dismissed the indictments. The Criminal
had
unknown
Ms.
analyzing
court concluded that the act of an
standard in
the nature of
Day,
4. State v.
It concluded that under
No. M2006-00989-CCA-R3-
Constitution.
CD,
circumstances,
(Tenn.Crim.App.
WL
totality
considering
Mar.7, 2007).
briefly
The court
discussed a
performing
lieutenant
sheriff's
was
factually
upholding
similar
case
traffic
community
legitimate
caretaking function in
flashing
that resulted from a vehicle
head-
its
welfare,
checking
on Jenkins’
case,
Jenkins,
lights.
In that
No.
constitutionally justified, even in the absence
M2002-01702-CCA-R3-CD,
2003 WL
activity.
*7
of
of criminal
30, 2003),
(Tenn.Crim.App.
June
a
justified
stop
that
The
the
on the basis
court
performing
law enforcement officer
routine
(1) flashing
lights in
was
the
such a manner
patrol
oncoming pickup
noticed an
truck
by
expressly prohibited
Code An
Tennessee
continually
headlights
flashing
at
its
oncom-
(2)
55-9-402(a)(1) and
the
notated section
ing
Cognizant
rigging
traffic.
the
that
of
legitimately
over the
officer was
concerned
headlights to
a
flash in such manner was a
safety
flashing
lights.
of
driver
his
Jen
the
laws,
of the
violation
motor vehicle
and un-
*
kins,
of
The Court
2003 WL
5.
signal-
certain as to whether the driver was
distinguished
Appeals in this
Criminal
case
assistance,
ing medical
a need for
distress or
stop
that it
a
Jenkins
the basis
involved
on
pulled
the officer made a
and
U-turn
in be-
a violation of traffic law
based on both
lights,
the driver
his
hind
and activated
blue
safety and
concern for the
welfare
intending to check the driver’s welfare. As it
Furthermore,
stop
driver.
the
was directed
out,
Jenkins,
driver,
flashing
the
was
turned
signals,
solely against
making
the driver
the
lights
oncoming
cars to warn
of
his
them
any
driver.
other
presence.
law
at the
the
enforcement
Once
window,
drug par-
truck
the
observed
officer
distin-
5. As
in note
Jenkins was
noted
aphernalia and asked consent to search the
Appeals
guished by
of
the Court Criminal
and the
truck.
Jenkins consented
search
stop
the
it involved
based on
basis that
significant
yielded
quantity
drugs
law,
safety
violation of traffic
concern for
drug paraphernalia.
per-
Jenkins
The
court
driver,
stop in
and welfare of the
and that the
analysis
formed an
under both
Fourth
solely against
that
directed
the driv-
case was
States
Amendment
tion,
the United
Constitu-
I,
any
making
signals, not
other driver.
article
er
section 7 of
Tennessee
complaint
Ferrell’s
lacking any
issue,
as
indicia
It was on this narrow
and this issue
credibility
knowledge
alone,
or basis of
or even
that the Court of
Appeals
Criminal
making
as
a specific complaint. The State
opinion.
issued its
contends that this informant was a citizen
right
plead guilty
The
pre
still
—and
was,
informant whose communication
question
serve a
appeal
of law for
a—is
instance,
the first
presumed
Fur-
rehable.
product of the Tennessee
Rules
Crimi
thermore, although the informant’s com-
Procedure,
nal
adopted
July
effective
munication to the officer was articulated
1978. While the initial version of Rule 37
by
signals
hand
verbally,
rather than
provided
right
appeal
a certified
State contends that such communication
question, it
no guidance
pro
contained
was sufficient to convey her concern that
raising
cedures for
appeals.6
such
In
law enforcement intervention was needed.
Preston,
(Tenn.
that the of the Defendant’s vehicle *8 course, the burden is on defendant to and seizure of person the Defendant’s see that prerequisites these are (by which law enforcement obtained evi final order and that brought the record dence that the Defendant motioned to be appellate to the courts contains all of the suppressed) upon was not based reason proceedings that upon able below bear suspicion, supported by specific and facts, question articulable that a whether the certified of law is criminal offense dispositive ques- had been or was about to be commit and the merits of the ted. ... tion certified. original provided only itly
6. The form of Rule 37 reserved with the consent of the State and appeal any judgment that right appeal "[a]n lies from ... of the court the a certified [u]pon plea guilty question of dispositive conviction ... a lawof that is of the 37(b)(2)(i) nolo contendere if ... defendant entered into case....” Tenn. R.Crim. Proc. (e) (1978). plea agreement explic- a under Rule 11 but pressly The reserved with the consent of the Id. decision Preston was intended court; by state and the trial and simple, establish uniform method questions may pursued (iv)the which certified be re- judgment or document appeal. state, defendant, that and flects opinion the trial court are of the that the prerequisites The Preston have been question dispositive certified is construed; indeed, strictly we have de case[.] requirements scribed the in Preston as 37(b)(2)(A)
“explicit unambiguous.” v. Ir (emphasis Tenn. P. R.Crim. win, added). (Tenn.1998); Pendergrass, court, concerning In the trial the issue noted, As Preston itself validity the constitutional of the traffic “question states that the of law must be initially stop was raised the defendant clearly stated so as to identify scope In suppress. response a motion to legal the limits of the issue reserved motion, that, suggested that the State
...
beyond
scope
issue
[and] [n]o
of viewed under a standard of reasonable-
question
will be considered.”
ness,
certified
“investigative”
the officer’s
Preston,
(emphasis
Rule, appeal may an pursued after a Despite the earlier references to “com- plea guilty or nolo if contendere the munity caretaking” “public safety” defendant plea agreement entered into a during concerns suppres- the course 11(a)(3) under Rule explicitly but re- hearing, parties sion when the entered the served—with the consent of the state and plea agreement and drafted the certified right of the court—the appeal a certified question they in- under Rule faded to question of law that dispositive specific question clude the of whether the case, following requirements and the are justified traffic of the defendant was met: community caretaking under the function.
(i) judgment of conviction or other The narrow issue certified was whether document to which such judgment refers of the defendant’s vehicle and that is filed before appeal, person the notice of seizure of the defendant’s upon suspicion, sup- contains statement of the based certified question ported by specific of law that the defendant re- and articulable review; that a criminal appellate served for offense had been or was Accordingly, about to be committed.7 we (ii) law is stated in the are limited to consideration of that narrow judgment identify or document so as to *9 issue. clearly scope the and legal limits the of reserved; issue again emphasize impor- Once we the (iii) judgment the or clearly identifying document re- scope tance of question preserved flects that the certified was ex- limits of an intended to issue be ing only passing 7. Both the defendant and the State focused reference the officer’s to solely the issue of in reasonable “duty protect public safety.” Appeals, giv- the Court of Criminal the State 900 outcome, of have stated we are limited to consideration
by
question.
a certified
As we
preserved,
to wit: whether
beyond
scope
question
no issue
of
repeatedly,
supported by
in this
question
will be considered.
case
the certified
Irwin,
478-79; Pendergrass,
suspicion.8
Preston,
(emphasis add
901
I,
however,
section 7 of the
Neither
limits
provision,
Tennessee Constitution
protect
individuals
from unreasonable
all contact
citizens and law en
between
searches
and seizures.
The Fourth
recognized
The courts have
forcement.
provides
right
Amendment
“[t]he
police-citizen
three levels of
interactions:
people
persons
to be secure in their
(1)
arrest,
the full-scale
which must be
... against unreasonable searches and sei-
(2)
cause;
supported by probable
the brief
zures,
violated,
shall not be
and no war-
detention,
investigatory
which must be
issue,
shall
upon probable
rants
but
supported by
suspicion
”
I,
cause.... Article
section 7 of our own
(3)
wrong-doing;
police-citi
the brief
constitution similarly provides that “the
encounter,
requires
objective
zen
no
which
people shall be secure in their
...
persons
Daniel,
justification.10
v.
12
State
S.W.3d
from unreasonable
searches
and sei-
(Tenn.2000)
420,
(citing
424
Brown v. Illi
”
zures .... The basic constitutional rule is
nois,
590,
2254,
422 U.S.
95 S.Ct.
45
that a warrantless
search or seizure is
(1975),
Ohio,
Terry
L.Ed.2d 416
v.
392
presumed
any
unreasonable and
evidence
1,
1868,
U.S.
88
20 L.Ed.2d
S.Ct.
889
subject
discovered is
to suppression.
(1968),
Bostick,
and Florida v.
501 U.S.
Coolidge
443,
Hampshire,
v. New
403 U.S.
429,
2382,
111 S.Ct.
show of
has
some
knowledge, and of
their
[the officers’]
Terry,
citizen.”
liberty
of a
strained
reasonably trustworthy in
they had
which
16,
A
at 19 n.
Whether support investigatory an required to cion depends on “reasonable” is considered proba required than that stop is lower probable had either the officer White, whether 496 U.S. cause. Alabama ble “articulable and reasonable cause or an 110 L.Ed.2d 110 S.Ct. occupants the vehicle or its suspicion” that (1990); at 31. Howev Pulley, 863 S.W.2d subject for a violation er, investigatory seizure making were an an officer Prouse, something more 440 U.S. the law. See articulate must be able to Coleman, 1391; unparticularized than an “inchoate S.Ct. U.S. at Terry “Probable (Tenn.Crim.App.1989). suspicion or ‘hunch.’” An officer’s necessary to higher standard 88 S.Ct. cause”—the by “specific supported suspicion must be more than a full-scale arrest —means make
9Q3
White,
which,
together
Pulley,
and
facts
at 32 (quoting
articulable
taken
863 S.W.2d
2412).
330, 110
with rational inferences
those
496
from
U.S. at
S.Ct.
reasonably
that
warrant
intrusion.” Ter
Supreme
The United States
1868;
21,
ry, 392
88
U.S. at
S.Ct.
see also
that a
Court has held
court must consider
Coleman,
30;
Pulley,
at
791
863 S.W.2d
totality
the circumstances when de
of
505;
Watkins,
S.W.2d at
State v.
827
termining
police
whether
officer’s rea
(Tenn.1992)
293,
(applying
S.W.2d
294
by specific
is
suspicion
supported
sonable
Terry
in
of
doctrine
context
vehicular
White,
and
facts.
496 U.S. at
articulable
stop). This
has defined reasonable
Court
330,
2412 (citing
110
States
S.Ct.
United
suspicion
particularized
objective
as “a
Cortez,
690,
v.
449 U.S.
101 S.Ct.
basis for
of a
suspecting
subject
stop of
(1981));
66
also Bridges,
L.Ed.2d 621
see
Binette,
activity.”
criminal
State v.
33 963
at 492. Those circumstances
S.W.2d
215,
Objective
218
S.W.3d
objective
of
include the
observations
apply
subjective
standards
rather than the
officer,
police
from
information obtained
making
stop.
beliefs of the officer
See
agencies,
other
or
officers
information ob
Norword, 938
at
S.W.2d
25. See also Ter
citizens,
pattern
tained from
of
(stat
ry,
21-22,
392
at
U.S.
In
Court
degree
reliability.”
this
noted
of
496 U.S. at
that
“the reasonableness of seizures less
2412.
110 S.Ct.
Under circumstances
intrusive than a
is judged
full-scale arrest
forming
where the information
the basis
by weighing
gravity
public
con
for a
motor
is derived from
vehicle
cern,
degree
informant,
which the seizure ad
an anonymous
Tennessee law
concern,
vances
severity
that
requires
showing
some
of both the infor
the intrusion into individual privacy.” 863
veracity
credibility
mant’s
and his or
at
Determining
S.W.2d
30.
whether rea
her
knowledge. Pulley,
basis of
suspicion
particular
Jacumin,
sonable
in a
31;
exists
S.W.2d at
State v.
cf.
(Tenn.1989)
traffic stop
objective
is a fact-intensive and
S.W.2d
(discussing
Williams,
analysis.
generally
See
showing required
anonymous
185 the
when an
Garcia,
(citing
318-19
tip
upon
informant’s
relied
establish
(Tenn.2003)).
warrant).
123 S.W.3d
In
probable
de
cause
issuance of
“
termining
suspicion
whether
represents
indepen
reasonable
an
prong
‘[E]aeh
exists,
important
analysis
an
factor in the
dently
that
important consideration
must
suspicion
is that reasonable
separately
considered
satisfied in
”
Keith,
way.’
some
State v.
978 S.W.2d
‘is a
demanding
prob
less
standard than
(Tenn.1998)
861, 866
(quoting
only
able cause not
sense that
(Tenn.
776, 781
Simpson, 968 S.W.2d
suspicion can
be established
1998));
Pulley,
see also
with
information
is different
quantity
required
or content than that
Constitutionality
II.
of the Defendant’s
cause,
establish
also in
probable
but
Requirement
Seizure under
sense that reasonable
can arise
Suspicion
Reasonable
from information that
is less reliable
required
specific
than
cir
probable
to show
turn now to the
We
surrounding
Tarking-
cause.’
cumstances
Officer
question in the
in this case.
constrained to answer this
ton’s
defendant
negative.
are
undisputed
facts
these:
*13
after be-
Tarkington seized the defendant
noted,
As
the reasonableness
ing
by
down
an unknown driver
flagged
of a seizure turns on the facts and circum
her
and waved at him
lights
who flashed
Pulley,
of each case.
863 S.W.2d
stances
in
and
to the defendant’s SUV
pointed
a
com
involving
at 34.
In a case
citizen
He
no
personally
front of her.
observed
any
necessarily involves an
plaint,
review
suspicious
illegal
by the defen-
or
conduct
analysis
credibility and
of
of the
basis
argues
because
dant. The defense
making
knowledge
person
the re
identity
initially
was
un-
Ms. Ferrell’s
port,
proximity
report
the
in time
the
known,
complaint
the
and
nature
her
of,
complained
any
the
corrob
and
conduct
uncertain,
Tarkington did not have
Officer
enforcement, and
oration
law
the seri
specific and
facts to believe that
articulable
(citing
of the threat.
Id. at
ousness
31-34
com-
the
had committed or was
defendant
Jacumin,
430). Although the
at
time
mitting a criminal offense
the
he
it
improper
apply
claims that
is
to
State
stop.
executed the traffic
The defendant’s
two-prong
standard of Jacumin to
Tarkington
that Officer
should
position is
informant,”
“citizen
still
complaining
we
have
to
Ferrell
to determine
talked Ms.
analysis
find such
We acknowl
useful.
her
before
specific
complaint
nature of
citi
edge that information from known
defendant,
only
and then
if
stopping
presumed
zen informant is
reliable and not
objectively
complaint
of her
content
subject
ap
scrutiny
to the same level of
suspicion that the de-
raised a reasonable
compensated
to a
informant. State
plied
en-
had
or was then
engaged,
fendant
(Tenn.
S.W.2d
417
Cauley,
v.
863
gaged, in criminal conduct.
Melson,
1993);
638
S.W.2d
(Tenn.1982). Furthermore,
informa
argues that the fact that
The State
presumed
is
tion from a citizen informant
moving
vehicle
mobile and
defendant’s
indicate the
reliable where circumstances
It
exigency.
a certain
contends
created
gained from first-hand ex
information was
a crime
committed or been
that had
been
the motivation
communi
perience, and
Tarkington
in progress,
and Officer
is
cating with law enforcement authorities
get
specific
to
stopped Ms. Ferrell
society
on
“the interest
or
based
attempting
complaint
nature of her
before
Luke,
safety.”
personal
vehicle,
defen-
the defendant’s
(Tenn.Crim.App.1998).
S.W.2d
long gone
have
from the
dant would
been
al-
Tarkington’s only other
scene. Officer
case, however,
citizen
In this
been to follow the
ternative would have
to Officer Tark
informant was unknown
hopes
that he would commit a
defendant
flash
ington.
point
At the
when she was
justify
offense that would
criminal
at
waving
pointing
ing
lights
her
stop.
her,
complete
she was
the SUV front
brief,
reliability
anonymous
“For
ly
to him.
As
forth
the defendant’s
set
about the citi
presumed,
be
information
gist
us is “whether
before
relationship to
attention
zen’s status or his or her
drawing
one
an officer’s
motorist
motorist,
involved must be
persons
the events or
standing
at
pointing
another
637;
Cauley,
sus-
see also
alone,
present.”
of reasonable
Id.
rises
the level
that, in assess
(recognizing
articula- S.W.2d at 417
supported by specific and
picion,
validity
of a
warrant based
ing
has been
search
criminal offense
ble
citizen
information from an unnamed
We are
about
be committed.”
“
him;
informant,
solely
reliability
dant before
he relied
stopping
‘the
of the source
judged
justify
stop.
information must
from
on Ms. Ferrell’s actions
from
entirety
however,
all the circumstances and
actions,
ambiguous-
Her
were
”)
Melson,
(quoting
of the affidavit’
638 they
any
in-
specific
did not communicate
356). Here,
just
have
formation and could
been
upon
no basis
to evaluate
had
which
Ms.
indicative of non-criminal behavior as crim-
relationship
Ferrell's status or her
to the
parties may
inal
have
behavior. The
been
only
defendant. The
information he had involved in a domestic or a business dis-
*14
the single
driving
was
fact that she was
pute;
suffering
Ferrell
perhaps Ms.
behind the
Under these
defendant’s SUV.11
perceived
or
road-rage
slight;
over some
circumstances, it was reasonable for Offi-
was not
to
perhaps
signaling
her
related
Tarkington
cer
to
that Ms.
infer
Ferrell
the defendant at all.
It was a
of
matter
something
had witnessed the defendant do
pure
Officer
to
speculation
Tarkington
for
is,
that aroused her concern. That
the
guess
to
of
complaint.
the nature
her
in which
Tarkington
context
Officer
wit- Although
may
he
have had a “hunch” or
gestures
nessed Ms. Ferrell’s
indicated
“guess” that
of the
had
the driver
SUV
she
that
had some
of knowledge
basis
for
offense,
of
is
committed some sort
this
reasonable,
“tip.”
however,
her
It was not
insufficient under the Fourth Amendment
for Officer
Tarkington
infer from Ms.
I,
or
to support
article
section
his sei-
tip
Ferrell’s
that
the defendant had en-
zure of
See Terry,
the defendant.
392 U.S.
in criminal
gaged
behavior. As acknowl-
As to State’s that Officer and seize the Whether caretaking Tarkington practical options, community exception had no other would First, disagree. suspicious if to have relieve officer need we of- committing stopping defendant was a vehicular before fense, an- Tarkington Officer have fol- vehicle is must await could present- him to case in it is properly lowed observe whether he showed other which impairment judgment or con- ed. The of Crimi- signs other criminal Court Or, Appeals have nal affirmed. The costs of this duct. could State, assist; against officer one are appeal called another assessed if against may could Ms. Ferrell whom execution issue nec- officer have interviewed essary. specifics complaint of her while about
the other Had followed defendant.13 KOCH, J„ JR., WILLIAM C. filed complaint
her sus- established reasonable dissenting opinion. picion that crime had been committed *15 committed, being following the officer was KOCH, JR., J., dissenting WILLIAM C. justified in con- the defendant would part. in Luke, an ducting investigatory stop. See The State of Tennessee filed its Tenn. (upholding S.W.2d at 636-37 a traffic to R.App. application P. 11 in this case an stop on the basis of information from recognizes determine whether Tennessee telephone identified citizen informant in a caretaking” to “community exception a police dispatcher call to that the defen- have requirement police that officers had “no Alterna- driving”). dant business suspicion they at least when reasonable Tarkington have tively, Officer could I stop. agree make a traffic with to pulled long enough Ms. Ferrell over that we address Court’s conclusion cannot of her concern. Under learn nature beyond it question this because involving a of this circumstances case— to this scope legal of the issue certified an city on a street rather than on driver in P. accordance with Tenn. R.Crim. Court delay any apprehen- interstate —such a 37(b)(2). ap- dismissing than Rather have been sion defendant would peal being improvidently granted, provided and could have the neces- brief whether, has decided to determine Court sary specific justify articulable facts to undisputed Of- essentially under the seizing the defendant. reasonably Tarkington ficer Jeff acted Lee automo- stopped Tyson Day’s when he Conclusion 16, has May on 2004. The Court bile question On the narrow certified act Tarkington that did not decided Officer us, to hold a law en presented we that reasonably. this con- I cannot concur with anony signaled by officer an forcement clusion. obviously in a mous citizen-driver manner intended to invite the officer’s intervention A. any a third indi party as to without —but and com- straightforward nature the citizen’s The facts are cation as May on any information —does On while pelling. concern other patrol New Island suspicion adequate have routine on Shackle reasonable fact, Tarkington stop. at rived at the scene In Officer testified after hearing backup ar- suppression that officer
9Q7 2007, Road, 7, Ap- Police Tark- March the Court Criminal Hendersonville Officer ington vehicle being observed a driven on peals Day’s reversed Mr. convictions Although Lisa Tark- C. Ferrell. Officer that ground Officer did not ington identity did not Ms. know Ferrell’s have a reasonable Mr. time, he observed that she 16, May Day Day, 2004. State v. No. signaling him by flashing her vehicle’s M2006-00989-CCA-R3-CD, 2007 WL headlights waving and by her arms. Ms. (Tenn.Ct.App. at *4-5 Mar. pointing Ferrell was also the white 2007). (SUV) utility
sport vehicle front of her. observations,
Based on these
Officer
B.
Tarkington performed a
pulled
U-turn and
stopping
is no
There
an
between the white SUV and Ms. Ferrell’s
detaining
occupants
its
automobile
vehicle. He activated his blue
lights
purpose
constitutes as “seizure” for the
signal
pull
driver of
white
SUV
protections against
un-
constitutional
complied.
Tark-
over.
driver
Officer
searches
and seizures.1 Whren
ington stopped
cruiser in
his
back
States,
806, 809-10,
v. United
517 U.S.
SUV,
white
Ferrell
pulled
and Ms.
over
(1996);
S.Ct.
135 L.Ed.2d
Tarkington.
back of Officer
After a brief
Pulley,
Ferrell,
conversation with Ms.
necessarily
These
interfere
acts
with the
Tarkington approached the white SUV
*16
occupants’ freedom of movement. In addi-
was being
by Tyson
Day.
which
driven
Lee
tion,
inconvenient, they
are
they
consume
Tarkington
Officer
could smell the odor of
time,
they can
substantial anxi-
and
create
Day’s
alcohol on Mr.
breath.
Mr.
After
Prouse,
648,
ety. Delaware v.
440 U.S.
Day
tests,
failed several field sobriety
Offi-
657,
1391,
(1979).
99
908
Nicholson,
649,
(Tenn. pulling
disagree.
v.
188
659
him over.
I
Police offi
S.W.3d
(1)
2006),
objective
upon
split-
cers are often
to make
particularly
obser
called
(2)
officer,
judgments
in circumstances that
vations of the
information
second
tense, uncertain,
rapidly evolving.
are
agencies,
from other officers or
obtained
(3)
Connor,
386,
citizens,
from
and See
v.
490 U.S.
396-
information obtained
Graham
(4)
97,
1865,
(1989);
pattern
of certain of
109 S.Ct.
tional facts. See Florida 529 C. 266, 270, 1375, 254 120 146 L.Ed.2d S.Ct. (2000). contrast, by a given that In information has Court decided Officer bystander inherently more unreasonably he or Tarkington acted because witness Thus, of cor- the same amount identity did not know Ms. Ferrell’s when reliable. required anonymous that is Day he Mr. and because he did roboration stopped not be Day’s Day required not until informant eases should follow Mr. vehicle Mr. provided involving di- justify an that cases information committed infraction would Johnson, (2006) 936, (stating Cal.App.3d § 2.04 that 93 Search and People v. 15 Seizure 534, (1971) (upholding "[wjhen being Cal.Rptr. police 536 the ar- observe a defendant individual, resting on the unverified officer’s reliance by an chased on street a the defendant had contention of woman that police have reasonable by noting "respond- kidnapped her child that defendant, though police even do ing required insist should not be officers pursuer that the until after the chase learn reporting 'prove case’ in mother her victim, witness, bystander a who or was the acting upon reliance her before street victim”). helping the Kamins, representations”); Barry New York
909 reetly See, Sanchez, by to the officer a victim or e.g., witness United States v. 519 (1) because generally (10th these circumstances 1208, Cir.2008); F.3d 1213-14 State (2) require rapid police response and Jensen, 617, 95, v. 109 Conn.App. 952 A.2d average citizens providing information to (2008); State, 127, 100 A.D.J. v. 813 So.2d law enforcement pre officers should be (Fla.Dist.Ct.App.2007); Village 129 sumed to be credible in the absence Thompson, Ill.App.3d Mundelein v. 341 suggesting they circumstances are 842, 237, 996, 276 IlLDec. 793 N.E.2d 1003 3.4(a), 225; § not. Search and Seizure (2003); Costa, Commonwealth v. 448 Mass. see also Kelly, Commonwealth v. 180 510, 371, (2007); 862 N.E.2d 376 State v. 474, (Ky.2005); S.W.3d 478 State v. Grif Gowen, 286, 297, 150 N.H. 837 A.2d 299 fey, 700, 241 S.W.3d 704-05 (Tex.App. (2003); Golotta, 205, State v. 178 N.J. 2007). (2003). A.2d 367-68 Other federal and state courts have dif- placed anonymity Ms. Ferrell her at risk ferentiated between reliability of infor- signaled when she Tarkington Officer provided by mation completely anony- being by the white SUV driven Mr. mous informant and provided information Day. light In proximity between Mr. by a citizen informant who witnessed a Day’s vehicle, vehicle and Ms. Ferrell’s criminal act and who provided the informa- reasonably Officer could have tion in a meeting face-to-face with the concluded that Ms. Ferrell had witnessed police or placed anonymity who have their the commission of a crime that she was at risk and may who identified signaling Day him that Mr. needed assis police. Kennedy Justice has observed tance. The contours of the constitutional that: protection against unreasonable searches If an places informant anonymity his shaped by and seizures are concept risk, a court can consider this factor Jimeno, reasonableness. Florida v. in weighing reliability tip. An U.S. 111 S.Ct. 114 L.Ed.2d instance tip where a might be consid- (1991); Meeks, ered anonymous but nevertheless suffi- - (Tenn.2008); Scarbor ciently to justify reliable a proportionate ough, police response may be when an un- case, Based on the facts of this I cannot person named driving a car police agree that Tarkington’s decision to officer later stops describes for a mo- *18 Day’s Mr. vehicle was unreasonable. and, face, ment face to informs po-
lice that criminal activity is occurring. J.L.,
Florida v.
risdictions now hold that the information
provided by a citizen informant who is
identifiable is sufficient to establish rea-
sonable for an investigatory stop.