State v. Daniel

12 S.W.3d 420 (2000)

STATE of Tennessee, Plaintiff-Appellee,
v.
Brian DANIEL, Defendant-Appellant.

Supreme Court of Tennessee, at Knoxville.

January 31, 2000.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Nashville, Randall E. Nichols, District Attorney General, Scott Green, Assistant District Attorney General, Knoxville, for Plaintiff-Appellee.

Mark E. Stephens, District Public Defender, Paula R. Voss, Assistant Public Defender, Jamie Niland, Assistant Public Defender (Trial Only), for Defendant-Appellant.

O P I N I O N

DROWOTA, J.

The dispositive issue in this appeal is whether a "seizure" within the meaning of the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution occurred when a police officer approached the defendant, Brian Daniel, in the parking lot of a convenience store, asked Daniel to produce some identification, and retained Daniel's identification to run a computer check for outstanding warrants.

The trial court found that no seizure took place prior to the time the officer placed Daniel under arrest on an outstanding warrant which was revealed by the computer check of Daniel's identification. Accordingly, the trial court denied Daniel's motion to suppress the marijuana which was discovered while the officer was searching Daniel's person incident to the arrest. Thereafter, Daniel pled guilty to possession of marijuana, but reserved the right to seek appellate review pursuant to Tennessee Rule Criminal Procedure 37(b)(2)(i).^[1] The Court of Criminal Appeals affirmed the trial court's denial of the motion to suppress.

For the reasons stated herein, we conclude that the defendant was seized when the police officer retained his identification to run a computer check for outstanding warrants. Because the officer lacked reasonable suspicion for the seizure,^[2] the judgment of the Court of Criminal Appeals upholding the trial court's denial of the motion to suppress is reversed; the defendant's conviction is vacated, and the charge is dismissed.

FACTUAL BACKGROUND

The facts in this appeal are not in dispute. The only witness to testify at the suppression hearing was Deputy Jim Wright of the Knox County Sheriff's Department. Deputy Wright stated that while on patrol at approximately 9:00 p.m. on August 16, 1995, he observed an automobile parked in an unlighted area beside Bengie's Market in Knox County. Four men were standing around the outside of the vehicle. The sun was setting and it was "dusky dark" outside.

Deputy Wright drove up to the men in his patrol car "to see what the individuals were doing" because he thought it was peculiar for four young men to be standing around an automobile in the dark. Deputy Wright asked the men what was going on and requested that they provide some identification. The men complied. Deputy Wright examined the identification and retained the identification to run a computer check for outstanding warrants. While waiting for the computer check, two of the young men asked for and received permission from Deputy Wright to go inside the market to use the restroom and buy a soft drink.

After the computer check revealed an outstanding warrant for Daniel's arrest, Deputy Wright handcuffed Daniel and placed him under arrest. Before conducting a search of Daniel incident to the arrest, Deputy Wright asked if Daniel had anything sharp in his pockets. Daniel replied that he had a bag of marijuana in his pocket.

Daniel was indicted for possession of a controlled substance, and he moved to suppress the marijuana. In support of his motion, Daniel argued that the evidence had been discovered as a result of an unlawful seizure and was thereby tainted. Daniel asserted that the initial police questioning constituted an illegal seizure because he was not violating any law when the officer initiated the questioning, and the officer had no reasonable suspicion to believe that he had violated the law or was about to violate the law.

The trial court denied Daniel's motion, finding that no seizure took place. Daniel pled guilty to the charged offense,^[3] but was permitted, with the consent of the District Attorney General, to preserve the suppression issue as a certified question of law for appeal pursuant to Tennessee Rule Criminal Procedure 37(b)(2)(i). The Court of Criminal Appeals affirmed the trial court's denial of the motion to suppress. Thereafter, this Court granted Daniel's application for permission to appeal. For the reasons that follow, the judgments of the lower courts are reversed.

STANDARD OF REVIEW

The standard by which an appellate court reviews a trial court's findings of fact on suppression issues is as follows:

Questions 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. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court's findings, those findings shall be upheld. In other words, a trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). The application of the law to the facts found by the trial court, however, is a question of law which this Court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997); Beare v. Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn.1993). In this case, the trial court heard the testimony of only one witness. The facts are not disputed. As a result, the trial court's conclusion that a seizure did not occur is a conclusion of law derived from an application of the law to the undisputed facts of this case. Therefore, in determining whether the trial court and the Court of Criminal Appeals erred in denying the defendant's motion to suppress, we apply de novo review. Id.; see also State v. Crutcher, 989 S.W.2d 295, 303 (Drowota, J., dissenting).

ANALYSIS

The Fourth Amendment^[4] to the United States Constitution provides that the people shall "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." Similarly, Article 1, section 7 of the Constitution of Tennessee guarantees "that the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures...." However, neither the Fourth Amendment nor Article I, section 7 limit all contact between police and citizens. Instead these constitutional provisions are designed "to prevent arbitrary and oppressive interference with the privacy and personal security of individuals." INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S. Ct. 3074, 3081, 49 L. Ed. 2d 1116 (1976)); Yeargan, 958 S.W.2d at 629; State v. Downey, 945 S.W.2d 102, 106 (Tenn.1997) ("[A]rticle I, section 7 is identical in intent and purpose with the Fourth Amendment."). Thus, these constitutional protections are implicated only when a police officer's interaction with a citizen impermissibly intrudes upon the privacy or personal security of the citizen. See generally 4 Wayne R. LaFave, Search & Seizure, § 9.3 (3d ed. 1996 & Supp.1999) (hereafter LaFave § ___ at ___.)

In construing the demands of the Fourth Amendment, courts have recognized three distinct types of police-citizen interactions: (1) a full scale arrest which must be supported by probable cause, see Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); (2) a brief investigatory detention which must be supported by reasonable suspicion, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); and (3) brief police-citizen encounters which require no objective justification, see Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991). See, e.g., Crutcher, 989 S.W.2d at 300; United States v. Berry, 670 F.2d 583 (5th Cir.1982) (discussing the three types of police-citizen interactions). While arrests and investigatory detentions implicate varying degrees of constitutional protection, "not all personal intercourse between policemen and citizens involves ``seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ``seizure' has occurred." Terry, 392 U.S. at 19 n. 16, 88 S. Ct. 1868, at 1879 n. 16, 20 L. Ed. 2d 889; Crutcher, 989 S.W.2d at 300; State v. Moore, 776 S.W.2d 933, 937 (Tenn.1989).^[5]

Indeed, courts have repeatedly held that even when police have no basis for suspecting that an individual has committed or is about to commit a crime, the officer may approach an individual in a public place and ask questions without implicating constitutional protections. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386; Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983) (plurality opinion); Crutcher, 989 S.W.2d at 300; State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993); Moore, 776 S.W.2d at 938; State v. Butler, 795 S.W.2d 680, 685 (Tenn.Crim.App.1990). The rule has been further explained as follows:

law 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.

Royer, 460 U.S. at 497, 103 S.Ct. at 1324; see also Bostick, 501 U.S. at 434, 111 S.Ct. at 2386; Delgado, 466 U.S. at 216-17, 104 S.Ct. at 1762-63; Brown v. Texas, 443 U.S. 47, 50-53, 99 S. Ct. 2637, 2640-42, 61 L. Ed. 2d 357 (1979); Moore, 776 S.W.2d at 938.

Accordingly, a "seizure" implicating constitutional concerns occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. See Bostick, 501 U.S. at 437, 111 S.Ct. at 2387; Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988); Delgado, 466 U.S. at 215, 104 S.Ct. at 1762; Royer, 460 U.S. at 502, 103 S.Ct. at 1326-27; Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; Moore, 776 S.W.2d at 937; State v. Wilhoit, 962 S.W.2d 482, 486 (Tenn.Crim.App.1997); State v.Bragan, 920 S.W.2d 227, 243 (Tenn.Crim.App.1995); State v. Darnell, 905 S.W.2d 953, 957 (Tenn.Crim.App.1995); LaFave § 5.1(a). "In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether police conduct would have communicated to a reasonable person that the person was not free to decline the officer's request or otherwise terminate the encounter." Bostick, 501 U.S. at 440, 111 S.Ct. at 2389; see also Chesternut, 486 U.S. at 569, 108 S.Ct. at 1977.

Application of this objective standard ensures that the scope of these constitutional protections does not vary depending upon the subjective state of mind of the particular citizen being approached. Id. Under this analysis police-citizen encounters do not become "seizures" simply because citizens may feel an inherent social pressure to cooperate with police. People v. Paynter, 955 P.2d 68, 72 (Colo.1998). "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." Delgado, 466 U.S. at 216, 104 S.Ct. at 1762. 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. See generally Chesternut, 486 U.S. at 575, 108 S.Ct. at 1980; Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; People v. Pancoast, 659 P.2d 1348 (Colo.1982); LaFave § 5.1(a).

This test is "necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to ``leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs." Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979; Moore, 776 S.W.2d at 937. However, under the analysis delineated above, courts have consistently held that the Fourth Amendment is not implicated and no seizure occurs when police approach an individual, in a public place, or in a parked car,^[6] ask questions, and request to search, so long as police do not convey a message that compliance with their requests is required.^[7] On the other hand, courts have typically held that an encounter becomes a "seizure" if an officer: (1) pursues an individual who has attempted to terminate the contact by departing; (2) continues to interrogate a person who has clearly expressed a desire not to cooperate; (3) renews interrogation of a person who has earlier responded fully to police inquiries; (4) verbally orders a citizen to stop and answer questions; (5) retains a citizen's identification or other property; (6) physically restrains a citizen or blocks the citizen's path; (7) displays a weapon during the encounter. See generally LaFave § 9.3(a), at 104 (collecting cases).

Applying these governing principles to the facts in this case, we must determine whether the interaction between Officer Wright and Daniel constituted a seizure prior to the time Officer Wright arrested Daniel pursuant to the outstanding warrant. The State concedes that if a seizure occurred prior to the arrest, the evidence must be suppressed because the officer had no reasonable suspicion to justify the seizure.

Under the circumstances of this case, we conclude that Officer Wright's conduct in merely approaching the defendant, inquiring what was going on, and asking to see Daniel's identification did not constitute a seizure as that term is defined in the constitutional context.^[8] Although the evidence in the record is minimal, it appears that the initial encounter was not accompanied by physical force or a show of authority. There was no evidence that Officer Wright either drew a weapon, ordered Daniel to stop and answer questions, or demanded that Daniel produce identification. Moreover, there was no evidence that Wright physically restrained Daniel, instructed him not to walk away, or blocked his path. The encounter did not become a seizure simply because Daniel may have felt inherent social pressure to cooperate with Officer Wright. Delgado, 466 U.S. at 216, 104 S.Ct. at 1762; Paynter, 955 P.2d at 72.

However, what begins as a consensual police-citizen encounter may mature into a seizure of the person. While many of the circumstances in this case point in the direction of a consensual police-citizen encounter, one circumstance reflects a distinct departure from the typical consensual encounter—Officer Wright's retention of Daniel's identification to run a computer warrants check. Without his identification, Daniel was effectively immobilized. Abandoning one's identification is simply not a practical or realistic option for a reasonable person in modern society. Royer, 460 U.S. at 501-02, 103 S.Ct. at 1326; United States v. Jordan, 958 F.2d 1085, 1087 (D.C.Cir.1992). Contrary to the State's assertion, when an officer retains a person's identification for the purpose of running a computer check for outstanding warrants, no reasonable person would believe that he or she could simply terminate the encounter by asking the officer to return the identification. Accordingly, we hold that a seizure within the meaning of the Fourth Amendment and Article 1, section 7 occurred when Officer Wright retained Daniel's identification to run a computer warrants check. See Butler, 795 S.W.2d at 685 ("When the officer conveyed an intent to detain Riggins until everything ``checked out,' the defendant was seized within the meaning of the Fourth Amendment"); Cf. Royer, (holding that when officers took Royer to a small room, while retaining his ticket and identification, this show of authority was sufficient to transform the initial consensual encounter into a Fourth Amendment seizure); United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997) (holding that defendant was seized when officer obtained and failed to return defendant's driver's license and registration); United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.1995) (stating that "when law enforcement officials retain an individual's driver's license in the course of questioning him, that individual, as a general rule will not reasonably feel free to terminate the encounter"); United States v. Glover, 957 F.2d 1004, 1009 (2d Cir.1992) (concluding that the officer's failure to return identification papers together with failure to tell defendant he was free to leave constituted seizure); Jordan, 958 F.2d at 1088 (holding that "what began as a consensual encounter ... graduated into a seizure when the officer asked [the defendant's] consent to a search of his bag after he had taken and still retained [the defendant's] driver's license"); United States v. Winfrey, 915 F.2d 212, 216 (6th Cir.1990) (holding that seizure occurred when officer retained defendant's keys, driver's license, and automobile registration); United States v. Low, 887 F.2d 232, 235 (9th Cir.1989) (holding that retention of airline ticket longer than necessary for a brief scrutiny constituted a seizure); United States v. Battista, 876 F.2d 201, 205 (D.C.Cir.1989) (stating that "once the identification is handed over to police and they have had a reasonable opportunity to review it, if the identification is not returned to the detainee we find it difficult to imagine that any reasonable person would feel free to leave without it"); United States v. Cordell, 723 F.2d 1283, 1285 (7th Cir.1983) (holding that encounter became a detention when officer obtained defendant's driver's license and airline ticket, handed them to another officer, and told defendant they were conducting a narcotics investigation); United States v. Thompson, 712 F.2d 1356, 1359 (11th Cir.1983) (holding that police officer's retention of identification is indicative of a Fourth Amendment seizure); United States v. Elmore, 595 F.2d 1036, 1041-42 (5th Cir.1979) (holding that seizure occurred when DEA agent carried defendant's airline ticket to the airline counter); Rogers v. State, 206 Ga.App. 654, 426 S.E.2d 209, 212 (1992) (expressing agreement "with appellant that when [the officer] retained appellant's license, the encounter matured into an investigative stop protected by the Fourth Amendment"); State v. Frost, 374 So. 2d 593, 598 (Fla.Dist.Ct.App.1979) (holding that seizure occurred when officers retained possession of the defendant's airline ticket and driver's license); State v. Godwin, 121 Idaho 491, 826 P.2d 452, 454 (1992) (holding that seizure occurred when officer retained defendant's driver's license and told defendant to remain in the vehicle); State v. Holmes, 569 N.W.2d 181, 185 (Minn.1997) (holding that seizure occurred when officer retained possession of the defendant's college student identification card); State v. Painter, 296 Or. 422, 676 P.2d 309, 311 (1984) (holding that seizure occurred where officer retained defendant's license and credit card while making a radio check); Richmond v. Commonwealth, 22 Va.App. 257, 468 S.E.2d 708, 710 (1996) (holding "that what began as a consensual encounter quickly became an investigative detention once the [officer] received [appellant's] driver's license and did not return it to him"); State v. Thomas, 91 Wash.App. 195, 955 P.2d 420, 423 (1998) (stating that "[o]nce an officer retains the suspect's identification or driver's license and takes it with him to conduct a warrants check, a seizure within the meaning of the Fourth Amendment has occurred"). See generally, LaFave, § 9.3, at 103 n.74 (collecting cases where courts have held that retention of a person's identification papers or other property constitutes a seizure).

CONCLUSION

Accordingly, for the reasons stated herein, we conclude that Daniel was seized when Officer Wright retained his identification to run a computer check for outstanding warrants. The State concedes, and we accept for purposes of this decision, that the officer lacked the reasonable suspicion necessary to justify the seizure, and that the drugs discovered as a result of the illegal seizure must be suppressed as "fruit of the poisonous tree"^[9] since no intervening event or other attenuating circumstance purged the taint of the initial illegal seizure. Accordingly, we reverse the judgment of the Court of Criminal Appeals which upheld the trial court's denial of the motion to suppress, vacate the defendant's conviction, and dismiss the charge of possession of a controlled substance. Costs of this appeal are taxed against the State of Tennessee.

ANDERSON, C.J., BARKER, J., concur.

BYERS, Special Justice, Concurring/Dissenting With Separate Opinion, joined by BIRCH, J.

JOHN K. BYERS, Special Justice, concurring/dissenting.

I concur in the judgment reached by the majority in this case. I would, however, hold that for purposes of the Fourth Amendment to the United States Constitution and Article 1, section 7 of the Constitution of the State of Tennessee a seizure occurred when the officer asked the defendant for his identification rather than, as the majority holds, when the officer retained the identification for a records check.

Additionally, my framing of the issue differs from that of the majority in that I believe the correct question is whether a police officer may approach a citizen and require that person to produce identification when the officer has no reasonable basis for the approach.^[1]

I believe this case should be decided in accordance with the rulings of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), for federal constitutional analysis and under this court's holding in Hughes v. State, 588 S.W.2d 296 (Tenn.1979), for state constitutional analysis. I have found no suggestion that the federal cases cited by the majority have overruled Terry v. Ohio or Brown v. Texas; nor, do I find any suggestion that the Tennessee cases cited by the majority have overruled Hughes v. State.

I come to this conclusion because the facts in the case before us, for purposes of constitutional analysis, are practically the same as those of the Brown case. Brown v. Texas, 443 U.S. at 48-9, 99 S. Ct. 2637. The facts in the cases cited by the majority are significantly different-which leads me to believe the United States Supreme Court would adhere to the holding in Brown v. Texas and would not nullify Terry v. Ohio based upon these facts.

In Brown v. Texas, officers on patrol saw Brown and another man walking away from one another in an area of high incidence of drug traffic. Id. The officers stopped Brown, asked him to identify himself and explain what he was doing. One officer testified he stopped Brown because he "looked suspicious and [the officers] had never seen the subject in that area before." Id. at 49, 99 S. Ct. 2637. The officer did not claim to suspect Brown of any misconduct, nor did either officer have any reason to believe Brown was armed. Id.

Brown refused to identify himself and was arrested and charged with violation of a Texas statute criminalizing such refusal to provide identification to an officer "who has lawfully stopped him and requested the information." Id. The United States Supreme Court held:

In the absence of any basis for suspecting [Brown] of misconduct, the balance between the public interest and [Brown's] right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which [Brown] was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, [440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)].

The application of [the Texas statute], to detain [Brown] and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that [Brown] was engaged or had engaged in criminal conduct. Accordingly, [Brown] may not be punished for refusing to identify himself, and the conviction is reversed.

Brown v. Texas, 443 U.S. at 52, 99 S. Ct. 2637.

The factual scenario in the case before us is as cogent as the facts in Brown for the purpose of holding as I would that the seizure in this case occurred when the officer asked Daniel and the others to supply identification.

In Hughes v. State, 588 S.W.2d at 296, a police officer went to a store at the owner's request. The owner thought a man in the store-Neese-appeared suspicious because he remained in the store after the man he rode with-Hughes-drove away. The police seized Neese and went in search of Hughes, whom they located as he drove up an interstate approach ramp. Id. at 300.

Hughes voluntarily drove to the store where the episode began. An officer then approached Hughes's vehicle and asked Hughes to show his driver's license. It is unclear whether the officer asked Hughes to roll down the car window; however, the opinion indicates the officer did so.

When the window was rolled down, the officer smelled marijuana. Hughes was arrested and subsequently convicted for possession of marijuana. In reversing the conviction and dismissing the charge, this court stated:

There is not the slightest suggestion in the record that Hughes had violated, was violating, or was about to violate any law. None of the criteria of Delaware v. Prouse... was present to cause him to be brought under scrutiny. He was not in a high crime area; there was nothing in his behavior to suggest law violation; the officers had not seen any traffic violations; and there was nothing about the vehicle to incite suspicion.

As Judge Daughtrey phrased it in dissent:

Thus, the controlling question is whether the officer had a constitutionally valid basis for making the original intrusion into the privacy of an individual who had given the officer absolutely no reason to suspect that he was engaged in any criminal activity.

The answer is evident; the intrusion was illegal and impermissible. As held in Brown v. Texas... "none of the circumstances preceding the officers' detention justified a reasonable suspicion that he was involved in criminal conduct."

Hughes v. State, 588 S.W.2d at 308 (citation omitted).

There is not the slightest suggestion in this case that Daniel had violated or was about to violate the law when the officer requested that Daniel produce his identification.

The federal and state cases cited by the majority are distinguishable from this case and Brown and Hughes. The evidence in the cases cited by the majority shows the initial intrusion by the police officer was supported by articulable facts which would give rise to a reasonable or well-founded belief that a crime was being or was about to be committed. The same is not true in this case or in Brown or Hughes.^[2]

For the most part, the significant cases cited by the majority involved drug interdiction efforts and occurred in places of public conveyance. The approach of the officers in those cases was based upon the presence of facts indicating the defendants in question fit drug profiles established to alert officers to potential drug traffickers at work.

The drug profile, established by experienced officers observing the conduct of people involved in drug trafficking, has generally been recognized as sufficient to give a reasonable indicia of objective assessment by officers relying on the profile. Reliance on the objective criteria prepared in an administrative setting separates constitutionally permissible intrusions from intrusions based on mere unsupported suspicions of an officer, which threaten the constitutional rights of citizens. In short, the profiling procedure preserves the ability of the police to carry out their duties without unreasonable interference in the rights of citizens.

When the facts in the line of cases cited by the majority^[3] are reviewed and compared to Brown v. Texas and Hughes v. State, a clear and distinct difference emerges. In each of the cases cited by the majority, the facts show a reasonable suspicion of wrongdoing by the defendant.^[4]

In Florida v. Royer,^[5] 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983): Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988), the United States Supreme Court had the opportunity to overturn Brown v. Texas and did not do so.

If police officers may approach citizens under circumstances shown in this case, it means that citizens may at any time and any place for any reason or no reason whatsoever be stopped by the police and asked what they are doing and who they are. I find this notion intolerable in a government such as we have created where we each have appropriated unto ourselves the right to be free of unreasonable interference into our most basic freedom to go where we wish and retain the right to do so anonymously, i.e. to protect who we are, unless the state shows a reasonable basis for intruding upon these rights.

These cases, like all search and seizure cases, must be decided on the factual bases of each case. However, when the facts in the case under consideration so closely fit the facts of Brown v. Texas and Hughes v. State, it seems clear that the court should hold the seizure occurred when the officer demanded that Daniel show his identification.^[6]

Allowing police officer's to require people to show their identification absent a reasonable basis to do so serves no legitimate police function-allowing police officers to require people to show their identification when the officers have shown a reasonable basis for the request does.^[7] By requiring officers to show a reasonable basis to support the conduct, the constitutional rights of individuals are preserved and legitimate police function is not impeded.

The potential for abuse is inherent in authority; unchecked it can be oppressive: by allowing police officers the right to intrude upon a citizen or group of citizens at any time or any place and require them to show identification without any reason to do so creates an atmosphere in which abuse and oppression can thrive.

I would hold they do not have this authority because the right to go lawfully about one's business and the right to privacy in one's identity is protected by the Fourth Amendment to the United States Constitution and Article 1, section 7 of the Constitution of the State of Tennessee. To allow police officers to confront citizens and require them to show identification without any reason to do so sets the balance of the right of the citizen vis à vis the needs of the police to act seriously askew. To give police authority to do so serves no legitimate police function. To deny the authority deters no legitimate police function.

I am authorized to state that Justice Birch joins in this concurring/dissenting opinion.

NOTES

[1] Rule 37(b)(2)(i), Tennessee Rule Criminal Procedure, provides in pertinent part as follows:

(b) An appeal lies from any order or judgment in a criminal proceeding where the law provides for such appeal, and from any judgment of conviction: (2) Upon a plea of guilty or nolo contendere if: (i) Defendant entered into a plea agreement under Rule 11(e) but explicitly reserved with the consent of the state and of the court the right to appeal a certified question of law that is dispositive of the case....

[2] The State concedes, and we accept for purposes of this decision, that the officer lacked the reasonable suspicion required to justify a seizure, and that, if a seizure took place, the drugs found in Daniel's pocket must be suppressed as tainted "fruit of a poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963).

[3] Daniel was given a sentence of eleven months and twenty-nine days on the conviction with the entire sentence suspended upon payment of a $250 fine.

[4] The Fourth Amendment is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 (1961).

[5] The concurring opinion asserts that under Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979) and Hughes v. State, 588 S.W.2d 296 (Tenn.1979) a seizure occurs whenever an officer approaches a citizen and requests identification. In Brown, the officer failed to recognize that a citizen has a right to refuse to produce identification, and the seizure occurred when the officer arrested the citizen because the citizen refused to produce identification. See Brown, 443 U.S. at 50, 99 S.Ct. at 2640 ("When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.") (Emphasis added.) In Hughes, the officers located the defendant as he drove up an interstate approach ramp. Obviously, the defendant was stopped in some manner and directed to drive back to the Country Store by the officers even though the opinion states that "Hughes drove voluntarily to the Country Store and parked in front." Hughes, 588 S.W.2d at 300. Therefore, the seizure occurred at any one of the following times (1) when the officers in some manner stopped Hughes as he drove up the interstate approach ramp; (2) when the officers directed Hughes to drive back to the store; or (3) when the officers directed Hughes to roll down his window. The facts in both Brown and Hughes are clearly distinguishable from the initial approach in this case which involved only a request for identification.

[6] Although police need not have reasonable suspicion of illegal activity to approach a vehicle stopped in a public place and ask the occupant questions, see Pulley, 863 S.W.2d at 30, when police stop a moving vehicle, a seizure implicating the protection of both the state and federal constitutions has occurred. See Yeargan, 958 S.W.2d at 630; Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979). As previously recognized, to be constitutionally permissible, the seizure must be supported by reasonable suspicion. Id.

[7] See Bostick, 501 U.S. at 435, 111 S.Ct. at 2386; Delgado, 466 U.S. at 216, 104 S.Ct. at 1762; Royer, 460 U.S. at 501, 103 S.Ct. at 1326; Mendenhall, 446 U.S. at 556, 100 S.Ct. at 1878; Pulley, 863 S.W.2d at 30; Moore, 776 S.W.2d at 938; Wilhoit, 962 S.W.2d at 486; Butler, 795 S.W.2d at 685; see also Hammons v. State, 327 Ark. 520, 940 S.W.2d 424, 428 (1997); Thompson v. State, 724 So. 2d 62, 64 (Ala.Crim.App.1998); People v. Paynter, 955 P.2d 68, 73 (Colo.1998); Chambers v. State, 700 So. 2d 68 (Fla.Dist.Ct.App.1997); Quinn v. State, 268 Ga. 70, 485 S.E.2d 483, 485 (1997); People v. Evans, 296 Ill.App.3d 1, 228 Ill. Dec. 270, 689 N.E.2d 142, 148 (1997); State v. Baacke, 261 Kan. 422, 932 P.2d 396, 407 (1997); People v. Taylor, 454 Mich. 580, 564 N.W.2d 24, 28 (1997); State v. Harris, 590 N.W.2d 90, 98 (Minn.1999); State v. West, 119 N.C.App. 562, 459 S.E.2d 55, 57 (1995); State v. Konewko, 529 N.W.2d 861, 863 (N.D.1995); State v. Pierce, 125 Ohio App. 3d 592, 709 N.E.2d 203, 206 (1998); State v. Kirkpatrick, 320 S.C. 38, 462 S.E.2d 884, 888 (App.1995); Smith v. State, 944 S.W.2d 453, 458 (Tex.Ct.App.1997); Richards v. Commonwealth, 8 Va.App. 612, 383 S.E.2d 268, 270 (1989); State v. Armenta, 134 Wash.2d 1, 948 P.2d 1280, 1285 (1997). See generally LaFave § 9.3(a), at 102-03.

[8] Despite the concurring opinion's assertions, we stress that we are not holding that an officer may properly approach any citizen at any time, regardless of the circumstances, and ask or demand that the citizen show identification. Indeed, such a rule could easily be abused if either adopted as a matter of course or used arbitrarily, selectively, or for the purpose of harassment. Thus, a request or demand for identification must be evaluated along with the other relevant factors set out above in determining whether there was a show of authority such that a reasonable person would have believed that compliance was required or that he or she could decline and walk away.

[9] Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417.

[1] The evidence shows a police officer was on patrol on August 16th at approximately 9:00 p.m. in an area he did not normally patrol and with which he was unfamiliar. The sun was going down and it was dusky dark. He saw four young men standing around a vehicle on the end of a 7-11 parking lot which was not well-lighted and thought that was peculiar. He approached the people and asked them to produce identification. The officer did not testify to any objective facts to show a reasonable basis to suggest the people were involved in any wrongdoing.

[2] Footnote 5 of the majority opinion states Brown v. Texas is distinguishable from this case because the officer failed to recognize that a citizen has the right to walk away. The Brown court held the confrontation with Brown was constitutionally impermissible because "without any specific basis for believing he [was] involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits." Brown v. Texas, 443 U.S. at 52, 99 S. Ct. 2637.

In footnote 5, the majority also says Hughes v. State is distinguishable because the seizure occurred when Hughes was directed to drive back to the store. The Hughes opinion does not speak of Hughes being directed to drive back to the Country Store. The entire focus of the case's Fourth Amendment issues centered around the conduct of the officer at the Country Store. The court based its ruling upon this conduct.

[3] State v. Crutcher, 989 S.W.2d 295 (Tenn.1999) (the case was based on an inadequate search warrant); State v. Pulley, 863 S.W.2d 29 (Tenn.1993)(the case was reversed because the police officer stopped the vehicle without probable cause to do so); State v. Butler, 795 S.W.2d 680 (Tenn.Crim.App.1990) (distinguished the Hughes case on the facts).

[4] In Bostick, the issues did not concern the police's initial approach itself, but rather the place of the approach. Additionally, Crutcher was decided on a probable cause basis premised on a search and seizure issue, not a Terry, Brown, or Hughes type issue.

[5] Although it may seem far-fetched that police officers or other state officials would engage in or order widespread sweeps to check the identification of vast numbers of citizens for no reason, such city-wide identification checks could conceivably occur under the rule adopted by the majority position. A rule that could be (mis)used to sanction such unintended consequences should be considered to fall outside the constitutional pale.

[6] In footnote 7, the majority opinion stresses, in spite of the concurring opinion's assertions, that they are not holding police may approach any citizen at any time, regardless of the circumstances, and demand the citizen show identification.

If that is an option reserved in the majority opinion in this case when the state conceded the officer lacked any reasonable suspicion to support a seizure or probable cause to support a search, and where the officer testified to no articulable facts to show such circumstances, then that option should be exercised.

The belief by the police officer that is was "peculiar" to see four young men standing around a vehicle at a time when it was "dusky dark" does not support a reasonable suspicion the men were engaged in criminal activity. Further, the officer did not testify that when he arrived at the men's location he observed anything to cause him to believe unlawful activity was afoot. This case meets the Brown v. Texas and Hughes v. State prohibition against Fourth Amendment violations by the state.

[7] If the police can do nothing with the identification under these circumstances, the intrusion serves no useful police purpose, prohibiting this type of conduct does not deter legitimate police function.