State v. Jermaine Hurst ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
August 10, 1999
MARCH 1999 SESSION
Cecil Crowson, Jr.
Appellate C ourt
Clerk
STATE OF TENNESSEE, * No. 03C01-9804-CR-00127
Appellee * KNOX COUNTY
V. * Hon. Richard Baumgartner, Judge
JERMAIN HURST * (Possession of Cocaine with Intent
to Sell, Possession of Marijuana)
Appellant. *
For Appellant For Appellee
J. Liddell Kirk John Knox Walkup
706 Walnut Street, Suite 902 Attorney General and Reporter
Knoxville, TN 37902 425 Fifth Avenue North
Nashville, TN 37243-0493
Ellen H. Pollack
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Paula Gentry
Assistant District Attorney General
Office of the District Attorney
General
City-County Building
Knoxville, TN 37902
Leon Franks
Assistant District Attorney General
Office of the District Attorney
General
City-County Building
Knoxville, TN 37902
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
The appellant, Jermain Hurst, appeals his conviction in the Knox
County Criminal Court of possession of more than .5 grams of cocaine with the
intent to sell, a class B felony, and possession of marijuana, a class A
misdemeanor. The trial court imposed, respectively, concurrent sentences of ten
years incarceration in the Tennessee Department of Correction and eleven months
and twenty-nine days incarceration in the Knox County Jail. On appeal, the
appellant presents only one issue for our consideration: W hether the trial court
erroneously denied his motion to suppress the State’s use at trial of money,
cocaine, and marijuana seized by the police. Following a thorough review of the
record and the parties’ briefs, we affirm the judgment of the trial court.
Factual Background
Preliminarily, our supreme court has held that appellate courts may
consider proof adduced both at the suppression hearing and at trial in evaluating the
correctness of a trial court’s ruling on a pre-trial motion to suppress. State v.
Henning, 975 S.W.2d 290, 299 (Tenn. 1998). Accordingly, in summarizing the
relevant facts, we draw upon the transcripts of both proceedings.
The record reflects that, on the evening of April 7, 1996, Officer Gary
Moyers of the Knoxville Police Department was employed by the Knoxville
Community Development Corporation (“K.C.D.C.”), a private landlord, to patrol a
housing development named Western Heights. He was accompanied by Scott
Sheppard, another officer of the Knoxville Police Department. The officers were
responsible for maintaining peace and order within the development and ensuring
that individuals on the property were either residents of the development or visiting
residents. While working for K.C.D.C., both officers wore their Knoxville Police
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Department uniforms and drove a Knoxville Police Department patrol car. Officer
Moyers explained that he was acting as an officer of the Knoxville Police
Department in addition to providing security for K.C.D.C.
On the evening in question, the officers were patrolling the area in the
development surrounding the “Boys Club/Girls Club.” Prior to this evening, they had
received complaints concerning drug activity in that area. Additionally, they had
received complaints concerning trespassers loitering on residents’ porches. At
approximately 8:00 p.m., they observed six men, including the appellant, gathered
on the porch of one of the apartments. Officer Moyers testified that the appellant
captured his attention, because, when the appellant saw the patrol car,
he move[d] quickly to the inner rim up on the porch and
[sat] down in a chair, and he duck[ed] down and look[ed]
between the railing - - the porches have two rails - - two
metal rails - - as a border on the porch, and he [looked]
between the two rails at me as I [looked] up at the group
and just [watched] us real intensely as we [drove] by.
Everyone else just didn’t pay any attention to us. They
just stood there and talked and carried on in a normal
manner.1
When the officers again drove past the apartment, the appellant was still seated in
the chair and was still observing the officers “real intense.” Officer Moyers recalled,
“When he sees us, he ducks down and looks between the rails, and he is looking
between the people as we drive by . . . .”
At this point, the officers decided to question the appellant in order to
ensure that he was either a resident of the development or a visitor. Accordingly,
they drove back toward the apartment building and parked the patrol car on a street
close to the rear of the building. As they walked toward the rear of the apartment
1
Contrary to the appellant’s argument in his brief, apparently not all residents of the Western
Heights development “instinctively feel threatened” by the police.
3
building, they observed the appellant. He had left the porch and was looking in the
direction in which the officers had last departed in their patrol car. When the
appellant noticed the officers approaching on foot, he immediately fled. Officer
Moyers and Officer Sheppard pursued the appellant, yelling, “Stop! Police!” Officer
Moyers testified that he did not intend to arrest the appellant at that time, but was
“attempting to catch him to inquire what his actions were and the reason for being
on K.C.D.C. property.”
When the appellant fled, Officer Moyers called for assistance. Officer
Jim Quick of the Knoxville Police Department responded to Officer Moyers’ call and,
when the appellant ran in front of his patrol car, joined the chase on foot. Officer
Quick then led the other officers in pursuit of the appellant, following the appellant
through an apartment and up a nearby hill. Like Officers Moyers and Sheppard, he
was dressed in a Knoxville Police Department uniform and was yelling at the
appellant to stop.
As they ascended the hill, Officer Quick began to overtake the
appellant. As he drew closer to the appellant, Officer Quick observed him stop,
remove a plastic bag from his pocket, and throw the bag onto the roof of a nearby
porch.2 Officer Quick testified that the appellant “just tossed [the bag] up there, and
then turned around. . . . [A]s soon as he threw the baggy, he pretty much just gave
up.”
Immediately thereafter, Officer Quick reached the appellant, ordered
him to lie prone on the ground, and placed him in handcuffs. He was soon joined by
2
Officer Moyers, who was a greater distance from the appellant, testified that the appellant
slowed his pace prior to discarding the plastic bag.
4
Officers Moyers and Sheppard, who immediately retrieved the plastic bag from the
porch roof. The officers discovered that it contained thirty “quail size” or “quarter-
gram-size” bags of a white powdery substance and one hundred and twenty-three
dollars ($123), primarily in twenty dollar ($20) bill denominations. Officer Moyers
testified that, in his experience, cocaine was packaged in this manner for retail and
was sold for twenty dollars ($20) per “quail size” bag. The police later determined
that the bag, in fact, contained a total amount of 4.3 grams of cocaine.
After retrieving the bag, the officers ascertained the appellant’s name
and ran a records check which revealed an outstanding warrant for the appellant’s
arrest. Officer Moyers testified that they arrested the appellant “due to the fact that
there was outstanding warrants on him.” The officers then searched the appellant,
discovering another bag in the appellant’s pocket containing what appeared to be
marijuana. The police later confirmed that the bag contained 4.6 grams of
marijuana.
Following a suppression hearing and in response to the appellant’s
motion for new trial, the trial court found that Officers Moyers and Sheppard had
possessed a reasonable, articulable suspicion of criminal activity when they first
approached the appellant. The trial court concluded without further explanation that
the officers’ ensuing conduct was “appropriate law enforcement conduct.”
Analysis
The appellant argues that the trial court should have suppressed the
money, cocaine and marijuana, because the police obtained the money and drugs
as a result of the officers’ illegal seizure of the appellant. In response, the State
relies upon the decision of the United States Supreme Court in California v. Hodari
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D., 499 U.S. 621, 111 S. Ct. 1547 (1991). The State’s position is well taken.
The Fourth Amendment to the United States Constitution provides that
“[t]he right of the people to be secure . . . against unreasonable searches and
seizures , shall not be violated . . . .”3 However, the fact that an accused has been
unlawfully seized only becomes relevant when the State seeks to introduce
evidence tainted by the seizure. Caldwell v. State, 917 S.W.2d 662, 666 (Tenn.
1996)(citation omitted in original). In those circumstances, the exclusionary rule
bars the admissibility of the tainted evidence. Segura v. United States, 468 U.S.
796, 804-805, 104 S. Ct. 3380, 3385 (1984). See also State v. Patton, 898 S.W.2d
732, 734 (Tenn. Crim. App. 1994); State v. Taylor, No. 02C01-9501-CR-00029,
1996 WL 580997, at *13 (Tenn. Crim. App. at Jackson, October 10, 1996).
Thus, the legality of the appellant’s seizure in this case, i.e., whether
the police possessed a reasonable, articulable suspicion of criminal activity or
probable cause to believe that a crime had occurred, is only relevant if the disputed
evidence flowed from the seizure. In order to determine the nexus between the
disputed evidence and the appellant’s seizure, we must first determine at what point
the encounter between the appellant and the police officers ripened into a seizure
within the meaning of the Fourth Amendment.
Initially, police questioning by itself is unlikely to implicate Fourth
Amendment concerns. State v. Darnell, 905 S.W.2d 953, 957 (Tenn. Crim. App.
3
Article I, Section 7 of the Tennessee Constitution similarly provides “[t]hat the people shall be
secure . . . from unreasonable searches and seizures . . . .” The Tennessee Supreme Court has
previous ly noted that g enerally “‘article I, se ction 7 is iden tical in intent and purpos e with the F ourth
Amend ment.’” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)(citation omitted). However, the
court also noted tha t, in som e case s, the Te nness ee Co nstitution m ay afford g reater pro tection. Id.
Nevertheless, in the context of this case, we view the protections provided by both documents as
coextensive.
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1995). See also State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). In other
words, a police officer does not effectuate a Fourth Amendment seizure by
approaching a citizen and casually asking questions. However, the line between a
casual, investigatory stop and a Fourth Amendment seizure is crossed whenever
“the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen . . . .” Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct.
1868, 1879 n.16 (1968). See also Downey, 945 S.W.2d at 106.
It is undisputed in this case that, upon the appellant’s flight, Officers
Moyers and Sheppard attempted to effectuate a seizure by a “show of authority.”
Whether the officers thereby restrained the appellant’s liberty and executed a Fourth
Amendment seizure is determined, in part, by asking whether, “‘in view of all of the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.’” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct.
1975, 1979 (1988)(citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct.
1870, 1877 (1980)(opinion of Stewart, J.)). See also State v. Wilhoit, 962 S.W.2d
482, 486 (Tenn. Crim. App. 1997). Clearly, a reasonable person would not have
believed he was free to ignore the officers’ order to stop running.
That having been said, the Supreme Court in Hodari D., 499 U.S. at
628, 111 S.Ct. at 1551, clarified that the “Mendenhall test” enunciated above is “a
necessary, but not a sufficient, condition for a seizure.” Accordingly, the Court held
that, when a police officer attempts to effectuate by a show of authority either a
“Terry stop” or an arrest, a seizure does not occur if the subject does not yield. Id.
at 626-627, 1550-1551. The Court explained that the word seizure contained in the
Fourth Amendment “does not remotely apply . . . to the prospect of a policeman
yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee.” Id. at
7
626, 1550. This court adopted the logic of Hodari D. in State v. Holbrooks, 983
S.W.2d 697, 700 (Tenn. Crim. App. 1998).
Accordingly, the police did not seize the appellant within the meaning
of the Fourth Amendment until he submitted to the officers’ show of authority.
Moreover, pursuant to Hodari D., any evidence abandoned by the appellant before
his surrender was not subject to the exclusionary rule, even if the attempted seizure
was unsupported by a reasonable suspicion of criminal activity or probable cause to
believe that a crime had occurred. 499 U.S. at 629, 111 S.Ct. at 1552. Thus, we
must determine when the appellant submitted to the officers’ show of authority.
The appellant argues in his brief that he submitted to the police when
he stopped running. Moreover, he contends that he stopped running before
discarding the plastic bag containing money and cocaine. We note that, following
the suppression hearing, the trial court found that the appellant stopped running
after discarding the disputed evidence. However, the testimony at the suppression
hearing and at trial was somewhat contradictory with respect to this factual issue.
See supra p. 4 and note 2. Nevertheless, this court must uphold a trial court’s
findings of fact following a suppression hearing unless the evidence preponderates
otherwise. Crutcher, 989 S.W.2d at 299. In any case, we do not agree with the
appellant that his act of stopping was necessarily simultaneous with his submission
to the officers’ show of authority. Inasmuch as discarding the plastic bag was itself
an act of defiance, it would be illogical to conclude that the appellant submitted to
the officers prior to that time. Therefore, we conclude that the appellant was seized
within the meaning of the Fourth Amendment after throwing the money and the
cocaine onto the porch roof. Because the money and cocaine were not subject to
the exclusionary rule, they were admissible at the appellant’s trial for possession of
8
cocaine with intent to sell.
We also conclude that the marijuana was not subject to the
exclusionary rule. Unquestionably, when the appellant complied with Officer Quick’s
order to lie prone on the ground and when the officer handcuffed the appellant, he
was seized within the meaning of the Fourth Amendment. However, regardless of
the legality of this initial seizure, the plastic bag containing cocaine and money
provided independent probable cause to support the appellant’s subsequent, legal
arrest and search incident to an arrest. Taylor, No. 02C01-9501-CR-00029, 1996
WL 580997, at *13 (“even if the initial contact was an unlawful seizure, evidence
discovered through a subsequent legal arrest based on independent probable cause
is admissible”). See also New York v. Harris, 495 U.S. 14, 17, 110 S. Ct. 1640, 1642
(1990)(the Court observed that it “‘had declined to adopt a “per se or ‘but for’ rule”
that would make inadmissible any evidence . . . which somehow came to light
through a chain of causation that began with an illegal arrest’”). The trial court
properly denied the appellant’s motion to suppress the marijuana.
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Norma McGee Ogle, Judge
Gary R. Wade, Judge
9
Cornelia A. Clark, Special Judge
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