State of Tennessee v. James David Moats ( 2013 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 5, 2012 Session Heard at Athens1
STATE OF TENNESSEE v. JAMES DAVID MOATS
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for McMinn County
No. 09048 Carroll L. Ross, Judge
No. E2010-02013-SC-R11-CD - Filed March 22, 2013
While on routine patrol in the early hours of the morning, a police officer observed a pick-up
truck parked in a shopping center lot. Because the truck’s headlights were turned on, the
officer drove into the lot, stopped her patrol car directly behind the truck, and activated her
blue lights. Although the officer had seen no indication of criminal activity or distress, she
approached the truck, observed a beer can in a cup holder inside, and found the defendant
in the driver’s seat with the keys in the ignition. When she determined that the defendant had
been drinking, he was arrested and later convicted for his fourth offense of driving under the
influence. The Court of Criminal Appeals reversed the conviction, holding that the
defendant was seized without either probable cause or reasonable suspicion. While we
acknowledge that the activation of blue lights will not always qualify as a seizure, the totality
of the circumstances in this instance establishes that the officer seized the defendant absent
probable cause or reasonable suspicion and was not otherwise acting in a community
caretaking role. The judgment of the Court of Criminal Appeals is affirmed, the conviction
is reversed, and the cause dismissed.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed
G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER and
S HARON G. L EE, JJ., joined. C ORNELIA A. C LARK and W ILLIAM C. K OCH, JR., JJ., filed a
dissenting opinion.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Cameron L. Hyder, Assistant Attorney General; Robert Steven Bebb, District Attorney
1
Oral argument was heard in this case on October 5, 2012, in Athens, McMinn County, Tennessee,
as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
General; and James H. Stutts, Assistant District Attorney General, for the appellant, State of
Tennessee.
Matthew C. Rogers (at trial and on appeal), and Randy Rogers (at trial), Athens, Tennessee,
for the appellee, James David Moats.
OPINION
I. Facts and Procedural History
A. Suppression Hearing
At approximately 2:00 a.m. on Sunday, December 7, 2008, Officer Phyllis Bige of the
Etowah Police Department observed an individual, later identified as James David Moats (the
“Defendant”), sitting in the driver’s seat of a pick-up truck in the parking lot of a BI-LO
Grocery. Citizens National Bank, located next door to the grocery, was closed at the time,
but a BP gas station across the parking lot was open. “No loitering” signs had been posted
at the location, and, previously, a business owner had asked the police to patrol the area more
frequently after business hours because of suspected illegal drug activity. As Officer Bige
drove by in her patrol car, she noticed that the headlights of the truck were turned on but the
engine was not engaged. Officer Bige, who described what she had seen as “out of the
ordinary,” continued on patrol; however, when she returned to the parking lot some five
minutes later and the truck was in the same position, she parked her patrol car behind the
truck, activated her blue lights, and called in the license plate number.
As Officer Bige walked toward the truck, she noticed that the window on the driver’s
side was rolled down. She asked the Defendant “if he was okay,” and he replied, “I’m fine.”
At that point, Officer Bige saw an open beer can in a cup holder on the dash of the truck and
keys in the ignition. When she asked why he was parked there, the Defendant replied that
he was “just there” and admitted that he had been drinking “a few beers.” According to the
officer, the Defendant appeared to be “disoriented, very slow to speak, very sleepy acting,”
and he was unable to produce either identification or registration for the truck. When Officer
Bige’s sergeant arrived at the scene, the Defendant struggled to get out of his vehicle and
then performed poorly on three field sobriety tests. After being arrested for driving under
the influence, the Defendant consented to a test for blood alcohol content, which registered
0.19%.
During cross-examination at the suppression hearing, Officer Bige stated that the
Defendant was the only person in the parking lot at the time of his arrest. She conceded that
she did not see him drive the truck or otherwise do anything illegal before she approached
the vehicle. The officer agreed that the Defendant did not appear to be in need of medical
assistance and explained that she stopped to investigate only because it appeared “strange
that a car would be . . . in a parking lot at almost . . . 2 a.m. with the lights on.” She
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acknowledged that when she turned on the blue lights, it was “fair to say that [the Defendant]
was not free to leave.”
At the conclusion of Officer Bige’s testimony, the trial court denied the Defendant’s
motion to suppress, holding that under these circumstances a police officer, in the role of a
community caretaker, is permitted to approach a parked vehicle and to ask for the driver’s
identification and proof of vehicle registration, and, upon observing possible criminal
activity, to detain, further investigate, and ultimately make an arrest.
B. Trial
Only Officer Bige and the Defendant testified at trial. The officer repeated the
testimony that she had provided at the hearing on the motion to suppress. She stated that she
observed while her sergeant first administered the nystagmus test2 and then asked the
Defendant to do a finger count and recite the alphabet. In her opinion, the Defendant was
unable to perform the finger count or to accurately recite the alphabet. As indicated, a blood
sample taken from the Defendant established that his blood alcohol content was well over
the legal limit.
The Defendant presented a convoluted explanation designed to show that even though
he had been drinking excessively, he had not driven his truck to the parking lot. He testified
that several hours before his arrest, Bill Hyatt, with whom he had worked years earlier, and
a second man, whom he could not identify, stopped by his residence for a visit. He claimed
that the unidentified man left after a brief period of time. The Defendant related that he then
drove Hyatt to the Log Cabin Bar for drinks and that, later, the unidentified man met them
at the bar but did not drink. According to the Defendant, when the three men left the bar,
Hyatt drove the pick-up truck, the Defendant rode in the passenger seat, and the unidentified
man followed in his separate vehicle. The Defendant stated that when they arrived at the BI-
LO parking lot, the other two men left in the unidentified man’s vehicle. He explained that
he moved into the driver’s seat because it was a cold night, cool temperatures exacerbated
his pain from a prior back injury, and the truck only had heat on the driver’s side. The
Defendant contended that when Officer Bige drove by the first time, his truck’s engine was
running (presumably to heat the interior), but that he had turned the engine off by the time
of her return. While asserting that he was not aware of the presence of the beer in his truck,
the Defendant admitted that he was intoxicated. He also acknowledged that when questioned
at the scene, he did not inform Officer Bige about Hyatt or the unidentified man.
2
“Nystagmus is an involuntary jerking movement of the eye either as it attempts to focus on a fixed
point or as it moves to one side.” State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997). The Horizontal Gaze
Nystagmus test is a type of standardized field sobriety test that tracks the movements of the eyes in order to
gauge whether a suspect might be driving under the influence. See id. at 201-02.
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At the conclusion of the proof, the jury found the Defendant guilty of driving under
the influence, his fourth offense, and thus a Class E felony. The trial court imposed a Range
I sentence of two years.
C. Appeal
On the appeal as of right, the Court of Criminal Appeals ruled that the Defendant had
been seized by Officer Bige at the time the blue lights were activated, reversed the
conviction, and dismissed the charge, concluding that at the time of the seizure, the officer
lacked a reasonable suspicion based upon specific and articulable facts that the Defendant
had either committed a criminal offense or was about to do so. Citing State v. Williams, 185
S.W.3d 311 (Tenn. 2006), the Court of Criminal Appeals held that these circumstances did
not fall within the officer’s community caretaking function because “‘the [D]efendant’s
encounter with the officer was not voluntary, but rather occurred under a show of
authority—the activation of the blue emergency lights—from which a reasonable person
would not have felt free to leave.’” State v. Moats, No. E2010-02013-CCA-R3-CD, 2011
WL 5374129, at *4 (Tenn. Crim. App. Nov. 8, 2011) (quoting Williams, 185 S.W.3d at 317).
This Court granted the State’s application for permission to appeal to consider
whether the actions of the arresting officer qualified as within her community caretaking role
and, therefore, required neither the probable cause necessary to support an arrest nor the level
of reasonable suspicion, supported by specific and articulable facts, necessary to support an
investigatory stop.
II. Standard of Review
The standard of review applicable to suppression issues is well established. When the
trial court makes findings of fact after a suppression hearing, its conclusions are binding
upon this Court unless the evidence in the record preponderates otherwise. State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996). As a general rule, “[q]uestions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence
are matters entrusted to the trial judge as the trier of fact.” Id. When the findings of fact are
based entirely on evidence that does not involve issues of witness credibility, an appellate
court conducts a de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
Review of a trial court’s application of law to the facts is de novo with no presumption of
correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing State v. Crutcher, 989
S.W.2d 295, 299 (Tenn. 1999)).
III. Analysis
Both the federal and state constitutions provide protections from unreasonable
searches and seizures; the general rule is that a warrantless search or seizure is presumed
unreasonable and any evidence discovered by virtue thereof is subject to suppression. See
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U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated . . . .”); Tenn.
Const. art. I, § 7 (“[T]he people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures . . . .”). “[T]he most basic
constitutional rule . . . is that ‘searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated exceptions.’”
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).3
These constitutional protections are designed to “‘safeguard the privacy and security
of individuals against arbitrary invasions of government officials.’” State v. Randolph, 74
S.W.3d 330, 334 (Tenn. 2002) (quoting Camara v. Mun. Ct., 387 U.S. 523, 528 (1967)); see
also State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). “The touchstone of the Fourth
Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz,
389 U.S. at 360); see also Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989);
State v. Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006). “While arrests and investigatory
stops are seizures implicating constitutional protections, consensual encounters are not.”
State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006). The United States Supreme Court
has held that a seizure does not necessarily occur when “a police officer approaches an
individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991).
Consistent with these principles, this Court has long recognized three categories of
police interactions with private citizens: (1) a full-scale arrest, which requires probable cause,
see Dunaway v. New York, 442 U.S. 200, 209-10 (1979); State v. Echols, 382 S.W.3d 266,
277 (Tenn. 2012); (2) a brief investigatory detention, requiring reasonable suspicion of
wrongdoing, see Terry v. Ohio, 392 U.S. 1, 25-26 (1968); State v. Williamson, 368 S.W.3d
468, 474 (Tenn. 2012); and (3) a brief police-citizen encounter, requiring no objective
justification, see United States v. Mendenhall, 446 U.S. 544, 553 (1980); State v. Ingram,
331 S.W.3d 746, 756 (Tenn. 2011). See United States v. Berry, 670 F.2d 583, 591 (5th Cir.
1982) (recognizing a three-tier analysis for warrantless encounters with police); Nicholson,
188 S.W.3d at 656; State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). “Of the three
categories, only the first two rise to the level of a ‘seizure’ for constitutional analysis
purposes.” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008).
3
Exceptions to the warrant requirement include searches incident to arrest, plain view, hot pursuit,
exigent circumstances, and others, such as consent to search. See State v. Cox, 171 S.W.3d 174, 179 (Tenn.
2005). As explained below, while the dissent would have us apply the community caretaking doctrine as yet
another exception to the warrant requirements of the Fourth Amendment and article I, section 7, we find no
basis to further erode the constitutional protections against unreasonable searches and seizures.
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A. Investigatory Stop
A full-scale arrest supported by probable cause does not, of course, require a warrant.
See State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citing Brown v. Illinois, 422 U.S.
590, 598 (1975)).
Probable cause for an arrest without a warrant exists if, at the time of the
arrest, the facts and circumstances within the knowledge of the officers, and
of which they had reasonably trustworthy information, are “sufficient to
warrant a prudent [person] in believing that the [defendant] had committed or
was committing an offense.”
Bridges, 963 S.W.2d at 491 (second alteration in original) (quoting Beck v. Ohio, 379 U.S.
89, 91 (1964)); see also State v. Richards, 286 S.W.3d 873, 879 (Tenn. 2009). In this
instance, the State makes no claim that Officer Bige had probable cause to arrest the
Defendant; rather, the State asserts that the circumstances justified an investigatory stop,
which does not require a warrant. See Terry, 392 U.S. at 20, 27.
When an officer has reasonable suspicion, supported by specific and articulable facts,
to believe that a criminal offense has been or is about to be committed, a brief investigatory
detention is permitted. Id. at 21; State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).
Reasonable suspicion must be supported by more than the officer’s “inchoate and
unparticularized suspicion or ‘hunch,’” Terry, 392 U.S. at 27; however, “‘reasonable
suspicion can be established with information that is different in quantity or content than that
required to establish probable cause . . . [and] can arise from information that is less reliable
than that required to show probable cause.’” State v. Pulley, 863 S.W.2d 29, 32 (Tenn. 1993)
(quoting Alabama v. White, 496 U.S. 325, 330 (1990)); see also Day, 263 S.W.3d at 903.
Trial courts must examine the totality of the circumstances when evaluating whether
an officer has established the requisite level of suspicion to justify a Terry stop. Binette, 33
S.W.3d at 218. These circumstances include an officer’s observations, information from
other law enforcement personnel or agencies, information from citizens, known patterns of
criminal offenders, or deductions based upon experience. State v. Watkins, 827 S.W.2d 293,
294 (Tenn. 1992). When evaluating the reasonableness of the police officer’s suspicion, the
nature of the crime suspected may be a factor. See State v. Winn, 974 S.W.2d 700, 703
(Tenn. Crim. App. 1998) (“A frisk has been upheld as reasonable when the suspected crime
might typically involve the use of a weapon . . . [such that] an officer [may] reasonably infer
that a weapon might be in the possession of the suspect.”).
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Seventeen years ago, our Court of Criminal Appeals, relying on a ruling of the United
States Supreme Court, addressed whether a vehicle in a high crime area after midnight served
as a basis for an investigatory stop, and concluded that more was required to meet
constitutional standards:
In the instant case, the police officer’s sole justification for stopping the
appellant was the appellant’s presence in a “high crime area” at 2:00 a.m. At
least one court has observed that “an area’s propensity toward criminal activity
is something that an officer may consider . . . . The lateness of the hour is
another fact that may raise the level of suspicion.” United States v. Lender,
985 F.2d 151, 154 (4th Cir. 1993). However, the same court acknowledged
and the Supreme Court has held that an individual’s presence in a high crime
area, standing alone, is not a basis for concluding that the individual himself
is engaged in criminal conduct. Id.[; see also Brown v. Texas, 443 U.S. 47, 52
(1979)]. We conclude, moreover, that the lateness of the hour, without more,
does not elevate the facts of this case to the level of reasonable suspicion.
State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996).
More recently, our Sixth Circuit Court of Appeals considered similar circumstances
and found no basis for an investigatory stop:
The first two facts—presence in a high-crime location and the lateness of the
hour—may not, without more, give rise to reasonable suspicion, but they may
be considered in the totality of the circumstances. Nonetheless, these are
context-based factors that would have pertained to anyone in the [area] at that
time and should not be given undue weight. This caveat is especially
appropriate in this case, because while [the officer] testified that the area was
known for drug trafficking specifically, he observed no conduct from [the
defendant] consistent with drug activity.
United States v. Johnson, 620 F.3d 685, 692-93 (6th Cir. 2010) (first alteration in original)
(emphasis added) (citations and internal quotation marks omitted).
Finally, in United States v. See, 574 F.3d 309 (6th Cir. 2009), the Sixth Circuit Court
of Appeals considered facts almost identical to those in the case before us. In See, a patrol
officer observed three men sitting in a parked car at a public housing complex at 4:30 a.m.
Id. at 311. The officer parked his police car so as to prevent the driver, See, from driving
away. Upon investigation, the officer found a firearm under the driver’s seat and made an
arrest. Id. The district court upheld the investigatory stop and subsequent arrest, observing
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that the area had a reputation for illegal activities, that the officer had been instructed to give
special attention to loiterers, and that See was in a dimly lit area of the parking lot away from
the building at an odd hour of the morning. Id. at 312-13.
The conviction was reversed on appeal. The Sixth Circuit first held that when the
officer blocked See’s vehicle with a marked patrol car, a seizure had taken place because “a
reasonable person in See’s position would not have felt free to leave.” Id. at 313; see also
United States v. Foster, 376 F.3d 577, 584 (6th Cir. 2004) (“A consensual encounter can
ripen into a seizure if ‘in light of all of the circumstances, [ ] a reasonable person [would]
have believed that he or she was not free to walk away.’” (quoting United States v. Grant,
920 F.2d 376, 382 (6th Cir. 1990) (internal quotation marks omitted))). Moreover, the court
held that the early hour of the morning, the high crime area, and the request that the officer
be on the lookout for loiterers, among the other factors present, did not qualify as reasonable
suspicion, explaining that the officer was not responding to a complaint, did not suspect the
men of a specific crime, did not observe the men acting suspiciously, and did not cause them
to flee upon seeing his police car. See, 574 F.3d at 314. In a concurring opinion, a circuit
judge explained how what had begun as a consensual encounter transformed into an illegal
investigatory stop by virtue of a premature seizure:
[B]ecause Officer Williams observed the men only for a moment before
blocking their exit and had not seen them do anything other than sitting in
See’s vehicle, I cannot say that there were articulable facts that criminal
activity may be afoot, or that the officer had anything more than an ill-defined
hunch[ ]. Officer Williams had every right to investigate further, but he should
have simply parked his patrol car alongside See’s vehicle to carry out the
investigation in a consensual manner. Instead, he parked his patrol car in such
a way so as to block in See’s vehicle, thus transforming the encounter into a
Terry stop.
Id. at 315 (Gilman, J., concurring) (second alteration in original) (emphasis added) (citations
and internal quotation marks omitted).
In this case, the Court of Criminal Appeals considered the totality of the
circumstances, reviewed Officer Bige’s testimony and observations, and concluded that there
existed no reasonable suspicion of illegal activity at the time of the stop. While the State
argues otherwise, we fully concur that Officer Bige was unable to offer specific and
articulable facts sufficient to qualify as reasonable suspicion that the Defendant had
committed or was about to commit a criminal offense. She conceded that she did not see the
Defendant drive the truck, engage in a drug transaction, or otherwise do anything illegal
before activating her blue lights and approaching the truck. The early morning hour and a
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general request for officers to be on the lookout for suspected illegal drug activity do not,
without more, rise to the level of reasonable suspicion. As acknowledged by the Court of
Criminal Appeals, an “inchoate and unparticularized suspicion or hunch” does not meet the
standard required for an investigatory stop. Moats, 2011 WL 5374129, at *4 (quoting Terry,
392 U.S. at 27).
B. Community Caretaking
Our primary concern in this instance is whether the actions of Officer Bige qualified
as a valid exercise of the community caretaking function, which is defined within the third
tier of police-citizen encounters. Unlike full-scale arrests and investigatory detentions, third-
tier encounters are consensual and do not require probable cause or reasonable suspicion.
State v. Hawkins, 969 S.W.2d 936, 939 (Tenn. Crim. App. 1997). These consensual
encounters include “community caretaking or public safety functions that involve no
coercion or detention.” Id. (emphasis added). In Cady v. Dombrowski, 413 U.S. 433, 441
(1973), the United States Supreme Court made its first reference to community caretaking
functions, describing the role of the officer in these situations as “totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.”
Ten years later, the Supreme Court confirmed that some police-citizen encounters
were consensual and, in consequence, did not fall within the protections of the Fourth
Amendment:
[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. If there is no detention—no seizure within the meaning of the
Fourth Amendment—then no constitutional rights have been infringed.
Florida v. Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion) (emphasis added) (citations
omitted); see also United States v. Drayton, 536 U.S. 194, 201-02 (2002) (“Even when law
enforcement officers have no basis for suspecting a particular individual, they may pose
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questions, ask for identification, and request consent to search . . . [,] provided they do not
induce cooperation by coercive means.”).
Based in great measure upon these rulings, our courts have consistently recognized
that police officers may approach an individual in a public place, whether walking or in a
parked car, and ask questions without implicating constitutional protections. See Daniel, 12
S.W.3d at 426; Pulley, 863 S.W.2d at 30; State v. Gonzalez, 52 S.W.3d 90, 95 (Tenn. Crim.
App. 2000); State v. Butler, 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990); see also 4
Wayne R. LaFave, Search and Seizure § 9.4(a), at 433 (4th ed. 2004). As the Court of
Criminal Appeals observed in Hawkins, “[w]ith regard to the community caretaking function,
it is now generally held that the police may engage a citizen and ask questions as long as the
citizen is willing to carry on the conversation.” 969 S.W.2d at 939. In Hawkins, the police
officer pulled his patrol car behind an awkwardly parked vehicle on a public street and
walked toward a person who was standing outside of the vehicle drinking a beer. Id. at 937-
38. As the officer got closer, he saw in plain view a white powdery substance, a plastic bag,
and an open beer can between the legs of the defendant, who was sitting inside the parked
vehicle. Id. at 938. The defendant admitted that the plastic bag belonged to him, and he was
arrested after the officer searched the vehicle and discovered cocaine. Id. Upholding the
propriety of the arrest, the Court of Criminal Appeals ruled that the officer was acting within
his community caretaking role when he approached the awkwardly parked vehicle. Id. at
938-39; see also Dombrowski, 413 U.S. at 442 (“[E]xtensive, and often noncriminal contact
with automobiles will bring local officials in ‘plain view’ of evidence, fruits, or
instrumentalities of a crime, or contraband.”).
While the facts in Hawkins are similar to those in the case before us, the opinion in
Hawkins indicates that although the officer pulled his patrol car behind the awkwardly
parked vehicle, he did not activate his blue lights or otherwise exhibit any show of authority.
The more difficult question with which we are now faced is whether Officer Bige acted
within her role as a community caretaker, like the officer in Hawkins, or if she exceeded the
scope of the community caretaking function by activating her blue lights under the
circumstances.
As stated, the community caretaking function exists within the third tier of consensual
police-citizen encounters that do not require probable cause or reasonable suspicion, whereas
the requisite level of probable cause or reasonable suspicion must be satisfied when a seizure
has taken place. See, e.g., Randolph, 74 S.W.3d at 338. The definition of a seizure in this
state, as developed by a series of decisions by this Court, varies slightly from the federal
definition. In California v. Hodari D., 499 U.S. 621, 626 (1991), the United States Supreme
Court determined that a seizure occurs only when an officer uses physical force to detain or
when an individual submits to the officer’s show of authority. In contrast, this Court has
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traditionally interpreted article I, section 7 of the Tennessee Constitution as imposing
stronger protections than those of the federal constitution, and, therefore, as requiring a
departure from federal precedent when “(1) adopting federal Fourth Amendment standards
would require overruling a settled development of state constitutional law; and (2) when
linguistic differences justify distinct interpretations of state and federal constitutional
provisions.” Randolph, 74 S.W.3d at 334 (quoting State v. Vineyard, 958 S.W.2d 730, 733-
34 (Tenn. 1997)) (internal quotation marks omitted). Applying the first prong, this Court has
explicitly rejected the definition of “seizure” established in Hodari D., opting instead to
maintain the definition originally set forth in Mendenhall, 446 U.S. at 554, that is, “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 Daniel, 12
S.W.3d at 425).
Consistent with Mendenhall and the constitutional standards developed in our state,
this Court has adopted a totality of the circumstances test for determining whether a seizure
has occurred. Daniel, 12 S.W.3d at 425.
Some of the factors which are relevant and should be considered by courts
when applying this totality of the circumstances test include the time, place and
purpose of the encounter; the words used by the officer; the officer’s tone of
voice and general demeanor; the officer’s statements to others who were
present during the encounter; the threatening presence of several officers; the
display of a weapon by an officer; and the physical touching of the person of
the citizen.
Id. at 425-26. Recognizing that “[t]he test is necessarily imprecise,” Michigan v. Chesternut,
486 U.S. 567, 573 (1988), we further identified several examples of when a police-citizen
encounter has been found to involve a seizure:
[A]n 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 (citing 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 104 (3d
ed. 1996 & Supp. 1999)).
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In the same year this Court decided Daniel, the Court of Criminal Appeals, in
Gonzalez, considered whether a seizure had occurred, thereby implicating constitutional
protections, when an officer activated the blue lights on his patrol car after coming upon a
stopped vehicle. 52 S.W.3d at 97. The police learned that Gonzalez, who was believed to
be a passenger in a blue Ford Taurus, may have been involved in a cocaine transaction. Id.
at 93. During a routine patrol, an officer observed the Taurus driving in the opposite
direction, made a U-turn, and followed the Taurus onto a dead-end street. Id. When the
Taurus stopped at the end of the street, the driver of the Taurus exited the vehicle and walked
toward the officer’s patrol car. Id. As the driver approached, the officer ordered him back
into the Taurus and activated his blue lights. Id. The officer then approached the Taurus,
smelled marijuana, and found a small amount of cocaine and some drug paraphernalia inside
the vehicle. Id. He also discovered that Gonzalez was in fact a passenger in the vehicle and
that there was a bag of cocaine underneath his seat. Id. The Court of Criminal Appeals held
that a seizure had occurred when the officer activated his blue lights and ordered the driver
back into his vehicle, indicating “a show of authority such that a reasonable person in the
position of either [Gonzalez] or [the driver] would not have felt free to leave.” Id. at 97.
The court further observed as follows:
In the context of stopping a moving vehicle, as opposed to a seizure of a
parked vehicle, our supreme court has maintained that “[w]hen an officer turns
on his blue lights, he or she has clearly initiated a stop.” We see little
difference, from the perspective of the occupants in the vehicle, in turning on
the blue lights behind a moving vehicle and turning on the blue lights behind
a parked vehicle. The lights still convey the message that the occupants are
not free to leave.
Id. (emphasis added) (citation omitted). The Court of Criminal Appeals, while holding that
Gonzalez had been the subject of a seizure, thereby implicating constitutional protections,
specifically addressed the burden placed upon police officers under the same or similar
circumstances:
[W]e are cognizant of the difficult decisions police officers face daily in the
exercise of their duties. We realize that when officers desire to question
citizens without reasonable suspicion to do so, they may also want to activate
their emergency equipment for their own safety so that they will be visible to
others. . . . Under our decision, police officers who wish to question
individuals may be faced with the unsettling choice of whether to activate their
emergency equipment for their safety and run the risk of later suppression of
any evidence obtained as a result of their questioning or whether to forego
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questioning the individuals altogether. Such a dilemma does not, however,
alter our result. . . . [T]he test for determining whether a seizure occurs
examines the circumstances from the standpoint of the citizen, not the police
officer. If a reasonable person would not feel free to leave due to an officer’s
show of authority, that constitutes a seizure, regardless of why the officer
made a show of authority.
Id. at 97-98 (emphasis added) (citation omitted).
Six years after the Court of Criminal Appeals decided Gonzalez, this Court addressed
“whether [the single act of] activating blue lights constitutes a seizure when a vehicle is
already stopped.” Williams, 185 S.W.3d at 316. Citing Gonzalez and considering cases in
other states with similar facts but with conflicting results, this Court concluded “that
[Williams’] encounter with the officer was not voluntary, but rather occurred under a show
of authority—the activation of the blue emergency lights—from which a reasonable person
would not have felt free to leave.” Id. at 317. While recognizing that “the officer may have
subjectively intended to activate his blue lights solely for his safety and the safety of others
on the road,” this Court described “the objective belief of a reasonable person in the position
of the defendant, not that of the officer,” as the litmus test for a seizure. Id. at 318.
After confirming the holding in Gonzalez that “a police officer initiates a seizure by
turning on his blue lights behind a parked vehicle because the lights convey the message that
the occupants are not free to leave,” Williams, 185 S.W.3d at 316 (citing Gonzalez, 52
S.W.3d at 97-98), this Court nevertheless made the following observation:
Not all use of the emergency blue lights on a patrol car will constitute
a show of authority resulting in the seizure of a person. . . . [W]hen officers
act in their community caretaking function, they may want to activate their
emergency equipment for their own safety and the safety of other motorists.
Id. at 318 (emphasis added). Despite these qualifying statements, this Court applied the
“litmus test” of “the objective belief of a reasonable person in the position of the defendant,
not that of the officer,” to find that Williams had been seized by the officer’s use of the blue
lights. Id. Specifically, this Court pointed to the fact that “[t]here was no evidence of an
accident or other peril. In fact, [Williams’] vehicle was the only vehicle in the area, so the
use of the blue lights was directed solely at [him].” Id. (emphasis added). Moreover, there
was nothing in that case “to indicate that the officer was concerned that [Williams] was in
need of assistance.” Id. In consequence, the Court rejected the possibility that the officer
was acting within his community caretaking role. Id.
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Although this Court acknowledged the community caretaking function, the ruling in
Williams, especially in light of the language used by the Court of Criminal Appeals in
Gonzalez, has been largely interpreted to mean that the activation of blue lights constitutes
a seizure and, as a practical matter, negates the community caretaking function. See, e.g.,
Williamson, 368 S.W.3d at 476; Hanning, 296 S.W.3d at 49; State v. Ownby, No. E2011-
00543-CCA-R3-CD, 2012 WL 1570987, at *6 (Tenn. Crim. App. May 3, 2012). While
today we question our application of the law to the facts in Williams, we reaffirm the legal
principles stated therein. In consequence, our objective in this instance is to provide some
guidance as to when officers may activate their emergency equipment for “their own safety
and the safety of other motorists,” Williams, 185 S.W.3d at 318, without implicating
constitutional protections. As indicated, the Mendenhall standard, as adopted in Daniel, is
by definition fact intensive. While the establishment of a bright-line rule may not be
possible, the Court of Criminal Appeals has provided examples, in several unreported cases,
of when the activation of blue lights has not resulted in a seizure.
In State v. Jensen, No. E2002-00712-CCR-R3-CD, 2002 WL 31528549 (Tenn. Crim.
App. Nov. 15, 2002), the Court of Criminal Appeals discussed the permissible use of
emergency equipment in the exercise of a community caretaking function. An officer and
an ambulance driver met at a road intersection and parked their respective vehicles on
opposite sides of the road to have a conversation. Id. at *1. The red lights of the ambulance
were flashing at the time but the blue lights of the police car were not. Id. Jensen drove into
the intersection behind the police car and the ambulance, where his car stalled. Id. When
Jensen could not restart his vehicle, the officer activated his blue lights, stepped out of his
patrol car, approached Jensen, and asked if he was having car trouble. Id. He answered,
“Yeah, I cannot get my vehicle started.” Id. When the officer smelled alcohol and saw that
Jensen’s face was flushed, he asked him to step out of the vehicle and subsequently made an
arrest. Id. While acknowledging that the “activation of blue lights ordinarily triggers a ‘stop’
or ‘seizure,’” the Court of Criminal Appeals observed that “it is not unusual for a police
officer to activate the blue lights on his or her patrol car for safety purposes when on the side
of a road or at an accident site.” Id. at *2.4
4
Notably, the Court of Criminal Appeals focused upon the perspective of Jensen, who testified at
trial that “he stopped because he thought an accident had occurred, not because he thought [the officer] had
indicated he was required to stop.” Id. at *3. Further, even if a police officer initially activates his or her
blue lights within a community caretaking function, there is a point at which the encounter may no longer
be consensual, and, therefore, becomes a seizure. The court in Jensen noted that “the initial contact between
[Jensen] and [the officer] did not constitute a seizure, but rather was a consensual encounter”;
however, “once [the officer] requested [Jensen] to step out of the vehicle, the consensual encounter was
converted into a seizure requiring constitutional protections.” Id. at *4.
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The Court of Criminal Appeals also approved the use of an officer’s blue lights in the
exercise of a community caretaking function in State v. Vandergriff, No. E2010-02560-CCA-
R3-CD, 2012 WL 2445049, at *4 (Tenn. Crim. App. June 28, 2012). At approximately 9:00
p.m., a police officer “was forced to ‘slam on his brakes’ to avoid hitting [an occupied] truck,
which was parked in a ‘no pass’ zone on [a] two-lane highway.” Id. at *1. Observing
moderate traffic on the highway, the officer activated his blue lights so that other motorists
would be aware of the presence of his patrol car and of the truck. Id. When the driver
stepped out of his truck, without being ordered to do so by the officer, he was unsteady on
his feet. Id. The officer administered field sobriety tests, and the driver was arrested and
later convicted for driving under the influence. Id. at *1-2. Although the driver argued that
he had been seized without reasonable suspicion, id. at *1, the Court of Criminal Appeals
distinguished Williams and held that the officer had acted within his community caretaking
role because
he activated his blue lights to alert other motorists to prevent them for
slamming into his vehicle, as he had almost slammed into the defendant’s
parked truck. The activation was safety based and done out of concern for the
defendant, himself, and other motorists on the roadway. . . . It was not done as
a show of authority directed at the defendant.
Id. at *4 (emphasis added); see also Dombrowski, 413 U.S. at 441 (defining the community
caretaking function in the context of “the extensive regulation of motor vehicles and traffic”
and “the frequency with which a vehicle can become disabled or involved in an accident on
public highways”).5
In this instance, the Court of Criminal Appeals rejected the State’s argument that
Officer Bige was acting within her community caretaking role because “there was no
indication that the [D]efendant needed assistance nor was there any other evidence that she
needed to activate the lights for safety reasons.” Moats, 2011 WL 5374129, at *4. Unlike
Vandergriff, where the officer nearly slammed into the back of a truck that was stopped in
the middle of a highway, Officer Bige, who had been made aware of possible illegal drug
activity in the area, parked her patrol car immediately behind the Defendant’s truck, which
5
In Vandergriff, the defendant and the officer exited their vehicles simultaneously, so the encounter
did not become a seizure until the officer “observed certain behavior by the defendant which led to a
reasonable suspicion that he was under the influence.” 2012 WL 2445049, at *4. We note that if an officer
proceeds to check on a stalled car that is blocking a roadway and appears to need assistance, the community
caretaking function ends when the circumstances cease to indicate that the motorist is in need of assistance.
See State v. Anderson, No. M2006-00138-CCA-R3-CD, 2006 WL 2716873, at *1, *3 (Tenn. Crim. App.
Sept. 25, 2006) (reversing conviction based on unreasonable search and seizure because officer activated blue
lights after he had already observed defendant’s vehicle move into roadway and continue driving properly).
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was the only vehicle in the otherwise empty parking lot. There was no objective indication
that Officer Bige needed to activate the blue lights to protect either the Defendant or other
motorists from possible harm.6 Finally, without any likelihood of an accident or peril, the
activation of Officer Bige’s blue lights was directed solely at the Defendant. Because no
other cars were in the parking lot and the officer parked directly behind the Defendant, the
blue lights could hardly be interpreted as for any purpose other than a notice to the
Defendant. Under the totality of these circumstances, a reasonable person would not have
felt free to leave. See Williams, 185 S.W.3d at 318. In consequence, the use of blue lights
qualified as a seizure of the Defendant.
Our extensive research suggests that community caretaking can generally be classified
into several categories, all of which are separate and distinct from traditional criminal
investigation or detection.7 The primary form of community caretaking, which is illustrated
by Hawkins, Jensen, and Vandergriff, is also known as the public safety function and is the
type of community caretaking originally identified by the United States Supreme Court. See
Naumann, 26 Am. J. Crim. L. at 338 (citing Dombrowski, 413 U.S. at 441). In Dombrowski,
the Court observed that
[b]ecause of the extensive regulation of motor vehicles and traffic, and also
because of the frequency with which a vehicle can become disabled or
involved in an accident on public highways, the extent of police-citizen contact
involving automobiles will be substantially greater than police-citizen contact
in a home or office.
6
As we stated in Williams, the “litmus test” for whether the activation of blue lights qualifies as a
seizure is “the objective belief of a reasonable person in the position of the defendant, not that of the officer.”
185 S.W.3d at 318. The fact that an officer may subjectively intend the use of blue lights as a safety measure
is irrelevant.
7
Since the United States Supreme Court decided Dombrowski, the community caretaking function
has been extended to include “sobriety checkpoints, border searches, drug testing, inventory searches, and
searches in public schools.” Michael R. Dimino, Sr., Police Paternalism: Community Caretaking, Assistance
Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L. Rev. 1485, 1490 (2009) [hereinafter
Dimino, 66 Wash. & Lee L. Rev.]. The community caretaking role has also been used to justify the
“emergency aid doctrine” and the “automobile impoundment/inventory doctrine.” Mary Elisabeth Naumann,
The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim. L. 325,
330 (1999) [hereinafter Naumann, 26 Am. J. Crim. L.]. We decline to address the myriad circumstances
under which the community caretaking function might apply in our state. It is sufficient at this time to
conclude that the activation of blue lights on a police vehicle will not always qualify as a seizure, and that
the blue lights may be used for community caretaking purposes unrelated to the investigation or detection
of criminal activity, when not used as a show of authority directed at a particular person.
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413 U.S. at 441. Like the community caretaking standards that have developed in our state,
this type of community caretaking described by the Supreme Court “supports relatively minor
or regular interactions with the police: approaching parked cars when the driver appears
incapacitated or sick or the car is functioning improperly and approaching pedestrians who
appear lost, in danger, or ill.” Naumann, 26 Am. J. Crim. L. at 339 (footnote omitted). The
core of any community caretaking function is when the police act to protect or assist the
public in some manner outside of “the crime-control paradigm.” 8 Dimino, 66 Wash. & Lee
L. Rev. at 1490.
8
We are aware that the doctrine of community caretaking, as interpreted and applied in our
state—i.e., as a type of third-tier consensual police-citizen encounter—represents a minority rule among
other jurisdictions. Indeed, as the dissent points out, the vast majority of courts have applied the community
caretaking doctrine as “an exception” to the warrant requirement of the Fourth Amendment to the United
States Constitution. E.g., United States v. Coccia, 446 F.3d 233, 237-38 (1st Cir. 2006); United States v.
Pichany, 687 F.2d 204, 205 (7th Cir. 1982); People v. Luedemann, 857 N.E.2d 187, 198-99 (Ill. 2006); State
v. Graham, 175 P.3d 885, 890 (Mont. 2007); Ullom v. Miller, 705 S.E.2d 111, 120 (W. Va. 2010). As noted
in this opinion, however, this Court has for decades interpreted article I, section 7 of the Tennessee
Constitution as imposing stronger protections than those of the federal constitution, which, under stare
decisis, we are not prepared to dismissively brush aside. Particularly in the area of search and seizure law,
we have often rejected the standards adopted by the United States Supreme Court in favor of more protective
doctrines, tests, and rules. See, e.g., State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000) (noting that
Tennessee has never recognized the “good faith” exception to the exclusionary rule that was adopted by the
Supreme Court in United States v. Leon, 468 U.S. 897 (1984)); State v. Jacumin, 778 S.W.2d 430, 435-36
(Tenn. 1989) (refusing to adopt the test for probable cause as established by the Supreme Court in Illinois
v. Gates, 462 U.S. 213 (1983), because it is “inadequate”); State v. Lakin, 588 S.W.2d 544, 549 n.2 (Tenn.
1979) (“Where, . . . as in the particular phase of search and seizure law under consideration, there has been
a settled development of state constitutional law which does not contravene the federal, we are not inclined
to overrule earlier decisions unless they are demonstrably erroneous.”).
While we recognize the rationale underlying the majority rule, we see no reason to depart from the
standards of community caretaking that have developed in our state, particularly because neither party has
articulated a persuasive basis for recognizing this as yet another exception to the constitutional protections
against unreasonable searches and seizures. See Lakin, 588 S.W.2d at 549 (recognizing that, in the context
of the “open fields” doctrine, “[a]lthough the decisions in this state may be somewhat more restrictive than
those in other states or than federal decisions, no compelling reason has been demonstrated in this case for
modifying or overruling them”). The Defendant has argued strongly against treating community caretaking
as an exception to the warrant requirement, and the State has simply asserted that “the touchstone of this fact-
intensive analysis is reasonableness.” Unlike the dissent, we decline to adopt an approach to community
caretaking that would diminish “the most basic constitutional rule” that warrantless searches and seizures
are per se unreasonable, simply because it has been adopted by a majority of other courts. In any event, the
core basis for applying any form of the community caretaking doctrine requires that the officer’s actions be
“totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.” Dombrowski, 413 U.S. at 441. In consequence, even under the test employed by the
dissent, Officer Bige’s actions would not qualify as community caretaking.
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IV. Conclusion
Although the activation of blue lights on a police vehicle ordinarily triggers a stop or
seizure, thereby implicating constitutional protections, the totality of the circumstances must
be considered to determine whether the police officer was acting within a community
caretaking role, which is a concept separate and distinct from the investigation of possible
criminal activity. As a general rule, if the activation of blue lights is not used as a show of
authority directed at a particular person, the officer is acting within the community caretaking
function and need not support his or her actions with reasonable suspicion or probable cause.
Because the circumstances here demonstrate that the officer was not acting within a
community caretaking role and did not have reasonable suspicion or probable cause to seize
the Defendant, the judgment of the Court of Criminal Appeals is affirmed. The conviction
is reversed and the cause dismissed. Costs are adjudged against the State.
_____________________________
GARY R. WADE, CHIEF JUSTICE
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