State v. Pulley

• Decision Date: 30 August 1993
• Citation: 863 S.W.2d 29
• Parties: STATE of Tennessee, Appellant, v. Terry PULLY, Appellee.
• Court: Tennessee Supreme Court

Page 29

863 S.W.2d 29

STATE of Tennessee, Appellant, v. Terry PULLY, Appellee.

Supreme Court of Tennessee,

at Nashville.

Aug. 30, 1993.

Rehearing Denied Sept. 27, 1993.

Charles W. Burson, Atty. Gen. & Reporter, Christina Norris, Counsel for the State, Nashville, for appellant.

Michael R. Jones, Springfield, for appellee.

OPINION

DAUGHTREY, Justice.

We granted review of this case in order to determine whether a police officer, investigating two urgent, anonymous reports of a man threatening people with a shotgun, acted reasonably under the Fourth Amendment to the United States Constitution and Article 1, Section 7, of the Tennessee Constitution by briefly stopping the defendant to investigate the reports. Because we believe that the officer acted reasonably under the circumstances, we find that the evidence seized during the stop was improperly excluded. The decision of the Court of Criminal Appeals upholding the trial court's suppression order is, therefore, reversed, and the case is remanded to the trial court.

The record of the suppression hearing in this case indicates that Officer Paul McKissack received a radio report that the defendant, Terry Pulley, was driving a yellow Ford L.T.D. in the Village Green Trailer Park, was armed with a shotgun, and was "supposed to shoot someone." On his way to the site of the alleged incident, the officer received another similar, urgent report. Officer McKissack arrived at the trailer park within ten to twelve minutes of the first report and did not find Pulley, whom he knew, to be there. The officer then drove to a gas station about an eighth of a mile away where Pulley was parked in a yellow Ford. According to the officer, when he arrived, the defendant's car "might have started rolling a little bit," so the officer turned on his blue lights to signal Pulley to stop. After asking the defendant to get out of the car, the officer saw a shotgun on the front floorboard. He arrested the defendant for driving on a revoked license, for a second offense of driving under the influence of alcohol, and for possessing a loaded weapon, a hunting knife, and a billy club with the intent to go armed. The trial court suppressed the weapons and the results of the blood/alcohol test, however, presumably agreeing with the defendant's contention that the officer had no reasonable suspicion that the defendant had or would commit a crime, and therefore, no justification for the stop.

On appeal from the trial court's dismissal of the indictment and the Court of Criminal Appeals's affirmance, the state argues two points. Insisting, first, that the defendant was not "seized" within the meaning of the United States or the Tennessee Constitution, the state also contends that even if a "seizure" occurred, the officer acted reasonably under the circumstances.

The first of these assertions is meritless. A police officer may approach a car parked in a public place and ask for driver identification and proof of vehicle registration, without any reasonable suspicion of illegal activity. State v. Butler, 795 S.W.2d 680, 685 (Tenn.Crim.App.1990) (citing Michigan v. Chesternut, 486 U.S. 567, 575-76, 108 S.Ct. 1975, 1980-81, 100 L.Ed.2d 565 (1988)); see generally Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983), and cases collected at 3 LaFave, Search and Seizure § 9.2(h) note 230 (2d ed.1987). This case involves more than a mere approach, however. Officer McKissack testified that Pulley's car had begun to move, and thus, rather than approach a parked car, the officer turned on his blue lights to stop the defendant. When an officer turns on his blue lights, he or she has clearly initiated a stop. See United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct. 42, 44 n. 3, 66 L.Ed.2d 1 (1980). Moreover, as the United States Supreme Court observed in Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), "[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." See also United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). From the moment that Officer McKissack turned on his blue lights and brought Pulley to a stop, Pulley was certainly not free to leave the scene but, rather, had been "seized" within the meaning of the Terry decision.

Having established that Pulley was "seized" when he was pulled over, the next question is whether the stop complied with both state and federal constitutional prohibitions against "unreasonable searches and seizures." In general, although the Fourth Amendment requires "probable cause" before an arrest is deemed to be reasonable, the reasonableness of seizures less intrusive than a full-scale arrest is judged by weighing the gravity of the public concern, the degree to which the seizure advances that concern, and the severity of the intrusion into individual privacy. See, e.g., Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). In Terry v. Ohio, 392 U.S. at 20-1, 88 S.Ct. at 1879-80, the United States Supreme Court acknowledged police officers' need for "an escalating set of flexible responses, graduated in relation to the amount of information they possess." Id. at 10, 88 S.Ct. at 1874. The Terry Court held that to justify a stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880.

In Terry, the United States Supreme Court permitted an brief investigative stop and protective frisk for weapons in response to an officer's reasonable suspicion that men were "casing a joint" for a robbery. The Court held that a "stop and frisk" is constitutionally permissible

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous....

392 U.S. at 30, 88 S.Ct. at 1884. In Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972), the Court extended the use of the investigative stop, rejecting the argument "that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person." The Court insisted that when a known informer gives an officer information "immediately verifiable at the scene," the information may carry "enough indicia of reliability to justify the officer's forcible stop...." Id. at 146-7, 92 S.Ct. at 1923-24. ¹ Thus, the Fourth Amendment permits an investigative stop based on the corroborated tip of an informant in circumstances involving an immediate threat of danger.

When a stop is based on the tip of an informant, however, the danger of false reports, through police fabrication or from vindictive or unreliable informants, becomes a concern. ² Thus, both state and federal courts have developed tests for determining the reliability of informants' tips. In the context of "probable cause" determinations, Tennessee law requires a showing of both the informant's credibility and his or her basis of knowledge. See State v. Jacumin, 778 S.W.2d 430, 436 (Tenn.1989). The Court in Jacumin held that

while independent police corroboration could make up deficiencies in either prong, each prong represents an independently important consideration that 'must be separately considered and satisfied in some way.'

Id. Although this standard for probable cause mimics the former federal test, ³ the United States Supreme Court has abandoned this strict two-pronged test in favor of a "totality of the circumstances" analysis of probable cause. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Unlike Jacumin, which requires "[s]ome showing of veracity and some showing of basis of knowledge," ⁴ a majority of the Court in Gates agreed that "a deficiency in one [prong] may be compensated for ... by a strong showing as to the other...." Id. at 233, 103 S.Ct. at 2329. Tennessee's constitutional principles, however, continue to require both elements of informant reliability. ⁵

In the context of the investigatory stop, which requires "a lower quantum of proof than probable cause," ⁶ we also find the Jacumin factors useful in considering the reliability of a tip. The Court of Criminal Appeals applied Jacumin's two-pronged approach to a case involving an investigatory stop of a woman anonymously reported to be carrying drugs in her car. In State v. Coleman, 791 S.W.2d 504 (Tenn.Crim.App.1989), the informant stated that the defendant would travel along a given road to an identified location at a certain time with marijuana. The police stopped the defendant before corroborating enough details of the tip to substantiate the informant's credibility. The report, moreover, did not possess, "even by way of inference," the tipster's basis of knowledge. The Court of Criminal Appeals held that

while further independent corroboration may generally make up any deficiencies in an informant's tip, neither the informant's reliability nor his basis for knowledge was sufficiently substantiated in this case to establish the necessary 'reasonable and articulable suspicion' required by our state constitution.

Id. at 507. The ultimate question when confronted with an anonymous caller, then, is how much corroboration is necessary to show sufficient credibility and basis of knowledge.

Although the Jacumin factors are helpful in determining not only whether "probable cause" exists, but whether "specific and articulable facts" justify a stop,

[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with...