         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 15, 2004

      STATE OF TENNESSEE v. TERRELL DEBERRY AND DAMIEN
                LASHAWN NIXON, A/K/A "SKINNY"

                     Appeal from the Circuit Court for Lauderdale County
                          No. 7433 Joseph H. Walker, III, Judge



                   No. W2004-00018-CCA-R3-CD - Filed December 7, 2004


The defendant Terrell Deberry was indicted for possession with intent to deliver .5 grams or more
of cocaine. The defendant Damien Nixon was also indicted for possession with intent to deliver .5
grams or more of cocaine and for driving on a revoked license. After granting a motion to suppress
the cocaine found in the possession of defendant Deberry, the trial court permitted the state an
application for a discretionary appeal under Rule 9 of the Tennessee Rules of Appellate Procedure.
Later, the state determined that because the substantive effect of the trial court’s ruling resulted in
dismissal of the charges against each defendant, the more appropriate appellate remedy was under
Rule 3 of the Tennessee Rules of Appellate Procedure. This court granted the motion to accept the
appeal under Rule 3 and waived the timely filing of notice of appeal by the state. The issue
presented for review is whether the trial court erred by granting the motion to suppress. Because the
evidence was properly suppressed, the judgment is affirmed.

        Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed; Dismissed in Part

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN , JJ., joined.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
Tracey Brewer, Assistant District Attorney General, for the appellant, State of Tennessee.

Gary F. Antrican, District Public Defender, for the appellee, Terrell Deberry.

Rebecca S. Mills, Ripley, Tennessee, for the appellee, Damien Nixon.

                                             OPINION

        At approximately 6:36 p.m., on January 31, 2003, Halls Police Officer Kevin Brogdon
stopped a red Mitsubishi which was being driven without either headlights or taillights. When
Officer Brogdon approached the driver's side window, he recognized the defendant Damien Nixon.
After confirming that Nixon’s license had been revoked, the officer ordered him out of the car,
arrested him, and placed him in the back of his police cruiser. By that time, at least two other police
officers were present at the scene. Officer Brogdon then returned to the vehicle and asked Deberry,
a passenger, to step out. After seeking permission, the officer performed a pat-down for weapons.
When he found none, he conducted a more extensive search, lifted Deberry’s shirt, and ultimately
found a bag of drugs in his waistband. A search of the car yielded no other illegal substances. Each
defendant was taken to the jail, advised of his Miranda rights, and questioned by police. Special
Agent Danny Wilson of the Tennessee Bureau of Investigation assisted with the questioning of each
defendant.

        At the suppression hearing, Officer Brogdon testified that he asked Deberry to step out of the
car and opened the door for Deberry as he did so. Officer Brogdon recalled asking Deberry if he
had anything such as narcotics or weapons in his possession, to which Deberry replied, “No.”
According to the officer, he then asked whether Deberry had any objection to a personal search, to
which Deberry answered in the negative. Officer Brogdon recalled then patting down Deberry from
head to foot and finding no weapons. Officer Brogdon testified that afterward, he made a more
extensive search by reaching into Deberry’s pockets, where he found an unopened cigar. Finally,
Officer Brogdon intensified his search, lifted up the defendant’s shirt, and found the bag of illegal
drugs. The officer acknowledged that there were no drugs in the car, no scent of drugs there and no
weapons.

        Deberry testified that when he stepped out of the car, Officer Brogdon was standing right in
front of him, blocking his path. He remembered that there were also at least two other police cars
at the scene and several other officers. While Deberry could not remember the exact words the
officer used before initiating the search, he explained that he consented to a pat-down only because
he was frightened and believed the officer intended to search him anyway.

        At the conclusion of the hearing on the motion to suppress, the trial court determined that
there were sufficient grounds for the officers to stop the car and place the driver, Nixon, under arrest.
It ruled that the statement of the defendant Nixon was freely and voluntarily given. The trial court
also held, however, that under these particular circumstances, involving a traffic offense by the
driver, “there was no reasonable basis for the officer to request the passenger get out of the car and
submit to a search.” Further, it concluded that “there was no legal basis to disrobe the defendant
Deberry.”

        The state initially sought permission to appeal from the trial court under Tennessee Rule of
Appellate Procedure 9, contending that the prosecution could not proceed unless the trial court’s
suppression of the drugs was erroneous. The trial court granted permission to appeal on October 27,
2003. Because, however, the order was not presented to the Attorney General's Office in time
(within 10 days of the order) for a Rule 9 appeal, the state chose to proceed under Rule 3. Its
rationale was that the substantive effect of the trial court’s order of suppression of the drugs was a
dismissal of the indictment. See State v. Phillips, 30 S.W.3d 372, 373 n.1 (Tenn. Crim. App. 2000)



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(noting when a suppression order relates to seized drugs, the State ordinarily files a Rule 3 appeal
as of right).

         In this appeal, the state argues that Officer Brogdon properly asked the passenger, Deberry,
to step out of the car following the custodial arrest of the driver because the officer's search of the
vehicle incident to arrest could not effectively proceed if Deberry remained inside. Further, the state
argues that officers may order passengers out of a vehicle incident to a lawful traffic stop. In
addition, the state claims that because defendant Deberry gave consent, the search was not limited
to a pat-down for weapons as regulated by Terry v. Ohio, 392 U.S. 1, 27-28 (1968). Although the
trial court did not reach the question of the voluntariness of Deberry’s consent to search, the state
insists that he voluntarily consented to the full search. Finally, the state argues that even if the trial
court properly suppressed the evidence against Deberry, Nixon does not have standing to challenge
the admission of the cocaine as to his prosecution.

        Both the state and federal constitutions protect individuals from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any
evidence discovered subject to suppression. U.S. Const. amend. IV; Tenn. Const. art. I, § 7;
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490
(Tenn. 1997). Neither, however, limits all contact between citizens and law enforcement and both
are designed, instead, "'to prevent arbitrary and oppressive interference with the privacy and personal
security of individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Our courts have recognized three types of
police-citizen interactions: (1) a full-scale arrest, which must be supported by probable cause; (2)
a brief investigatory stop, which must be supported by reasonable suspicion; and (3) a brief
police-citizen encounter, which requires no objective justification. See Florida v. Bostick, 501 U.S.
429, 434 (1991); Brown v. Illinois, 422 U.S. 590 (1975); Terry, 392 U.S. at 1. "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.

        An automobile stop constitutes a "seizure" within the meaning of both the Fourth
Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution.
Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990); Delaware v. Prouse, 440 U.S. 648,
653 (1979); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994); State v. Westbrooks,
594 S.W.2d 741, 743 (Tenn. Crim. App. 1979). The fact that the detention may be brief and limited
in scope does not alter that fact. Prouse, 440 U.S. at 653; State v. Pulley, 863 S.W.2d 29, 30 (Tenn.
1993); Binion, 900 S.W.2d at 705; Westbrooks, 594 S.W.2d at 743. The basic question, as
indicated, is whether the seizure was "reasonable." Binion, 900 S.W.2d at 705 (citing Sitz, 496 U.S.
at 444). In Pulley, our supreme court ruled that "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." 863 S.W.2d
at 30.




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         Our determination of the reasonableness of a stop of a vehicle depends on whether the officer
had either probable cause or an "articulable and reasonable suspicion" that the vehicle or its
occupants were subject to seizure for violation of the law. See Prouse, 440 U.S. at 663; State v.
Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989). Probable cause has been generally defined
as a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. See
Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While probable cause is not
necessary for an investigative stop, it is a requirement that the officer's reasonable suspicion be
supported by "specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; Pulley, 863 S.W.2d at 30; Coleman,
791 S.W.2d at 505; see also State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (applying Terry
doctrine in context of vehicular stop). In determining whether reasonable suspicion exists, an
important factor in the analysis is that reasonable suspicion is a less demanding standard than
probable cause not only in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish probable cause, but also in the
sense that reasonable suspicion can arise from information that is less reliable than that required to
show probable cause. Pulley, 863 S.W.2d at 32 (citing Alabama v. White, 496 U.S. 325, 330
(1990)).

        Courts considering the issue of reasonable suspicion must look to the totality of the
circumstances. Those circumstances include the personal observations of the police officer,
information obtained from other officers or agencies, information obtained from citizens, and the
pattern of operation of certain offenders. Watkins, 827 S.W.2d at 294 (citing United States v. Cortez,
449 U.S. 411, 417-18 (1981)). Objective standards apply rather than the subjective beliefs of the
officer making the stop. State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996).

        The scope of review is limited when the trial court makes a finding of facts at the conclusion
of a suppression hearing, the facts are accorded the weight of a jury verdict. State v. Stephenson,
878 S.W.2d 530, 544 (Tenn. 1994). The trial court's findings are binding upon this court unless the
evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
see also Stephenson, 878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App.
1984). Questions of credibility of witnesses, the weight and value of the evidence, and resolution
of conflicts in 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 the
evidence. Odom, 928 S.W.2d at 23. The application of the law to the facts, however, requires de
novo review. State v. Daniel, 12 S.W.3d 420, 423-24 (Tenn. 2000). Likewise, if the evidence does
not involve a credibility assessment, the reviewing court must examine the record de novo without
a presumption of correctness. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        In United States v. Drayton, 536 U.S. 194, 201-02 (2002), the Supreme Court determined that
there is no Fourth Amendment violation when an officer simply approaches a person in a public
place and poses a question. Even when there is no basis to suspect a crime, officers may ask
questions, ask for identification, and ask for consent to conduct a search, so long as the means used


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to induce the cooperation are not coercive. Id.; see Daniel, 12 S.W.3d at 425. A reviewing court
must examine "all the circumstances surrounding the encounter" in determining whether the law
enforcement conduct would have indicated a lack of freedom "to decline the officers' requests or
otherwise terminate the encounter." Bostick, 501 U.S. at 439. As indicated, the subjective intent
of the officer is not controlling. State v. Johnson, 980 S.W.2d 414 (Tenn. Crim. App. 1998).

         Here, the trial court found that Officer Brogdon had a reasonable basis to stop Nixon’s
vehicle. Because the vehicle was being operated at night with its lights off, the officer had
reasonable suspicion to believe a misdemeanor was being committed. The trial court also concluded
that the officer had a basis to arrest Nixon. It determined that Officer Brogdon then approached the
passenger side door, asked Deberry to step outside, and Deberry complied. Implicit in the finding
of the trial court is that it was the legitimate objective of the officer to assure his own safety as to the
passenger, who was not a suspect as to the traffic violation. The testimony was in dispute as to what
the officer actually said to Deberry and the trial court made no finding as to whether Deberry
consented to the officer’s request to remove himself from the vehicle. However, nothing in the
record indicates that Deberry objected to exiting the vehicle. While determining that the officer had
no basis to ask Deberry to step out of the vehicle, the trial court did accredit the testimony of Deberry
to the extent that his consent to any search was limited to a pat-down, which was appropriate for a
weapons check. It also ruled that when the officer completed the pat-down without discovering any
weapons, he had no authority to make a more intrusive search, i.e., to “disrobe” Deberry by taking
off his clothes or by removing his shirt, and that the officer would not otherwise have found the
cocaine. It was on this basis that the trial court ordered suppression.

        It is well settled that a search conducted pursuant to a voluntary consent is an exception to
the requirement that all searches and seizures be conducted pursuant to a warrant. State v. Bartram,
925 S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). "To
pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion." State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992). The
following factors are used to evaluate the voluntariness of the consent:

        (1) whether the defendant is in custody;

        (2) the length of detention prior to the giving of consent;

        (3) the presence of coercive police procedures;

        (4) the defendant's awareness of the right to refuse to consent;

        (5) the defendant's age, education and intelligence;

        (6) whether the defendant understands his constitutional rights;

        (7) the extent of the defendant's prior experience with law enforcement; and


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         (8) whether the defendant was injured, intoxicated, or in ill health.

See, e.g., State v. Carter, 16 S.W.3d 762, 769 (Tenn. 2000). The state must show "more than
acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49
(1968). The trial court's finding that a search is or is not consensual, however, will not be overturned
unless the evidence preponderates against the ruling. Brady v. State, 584 S.W.2d 245, 251-52 (Tenn.
Crim. App. 1979).

        In its order of suppression, the trial court made no mention of the presence of at least three
other officers who had arrived at the scene by the time Deberry was searched or the fact that the
driver, Nixon, had already been placed in the back of a police cruiser. Even though Deberry claimed
that he could not move when he stepped out of the vehicle because his path was blocked, the trial
court made no reference to any possible coercion on the part of Officer Brogdon.

        The trial court did find that Officer Brogdon’s intent was to check for weapons when he
asked Deberry to get out of the car. The officer had testified that a pat-down of Deberry was
necessary to ensure his own safety. Although the officer contended that his intent was to ask
permission for a full search, there was nothing, as the trial court found, to indicate he had any reason
to believe Deberry possessed any contraband. The officer had not found drugs or weapons on the
driver, there was no indication of weapons or drugs in the car, and Deberry had been cooperative.1
Further, Deberry testified that he consented only to a weapons check because the officer had first
asked him if he had anything in his possession that would “poke” him during the pat-down. The trial
court fully accredited that portion of Deberry's testimony.

         Our supreme court has made the following observations:

                 In determining the scope of consent, the relevant considerations include any
         express or implied limitations regarding the time, duration, area, or intensity of police
         activity necessary to accomplish the stated purpose of the search, as well as the
         expressed object of the search. The scope of consent is not based on the subjective
         intentions of the consenting party or the subjective interpretations of the searching
         officer. Instead the standard is "that of 'objective' reasonableness – what would the
         typical reasonable person have understood by the exchange between the officer and
         the suspect."


         1
           The facts of this case are distinguishable from Maryland v. Pringle, 540 U.S. 366 (2003). In that case, an
officer stopped a car for speeding and subsequently obtained consent from the driver to search the vehicle. During the
consensual search, the officer found $763 in the glove box and cocaine in the backseat armrest. Because none of the
three occupants of the car, including Pringle, who was a front seat passenger, claimed the cocaine, the officer arrested
each of them. At the police station, one of the passengers claimed the cocaine. The Court held that a reasonable officer
could have concluded that there was probable cause to believe that Pringle was in possession of the drugs and therefore
did not violate the Fourth Amendment by arresting him. Id. In the instant case, the evidence does not indicate that the
officer had probable cause to believe that any crime had been committed by the defendant Deberry.

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State v. Troxell, 78 S.W.3d 866, 871-72 (Tenn. 2002) (quoting Florida v. Jimeno, 500 U.S. 248,
251 (1991)) (citations and footnote omitted).

         As indicated, Deberry contended that he consented only to a pat-down for weapons. The
officer believed Deberry had agreed to a full search. The trial court accredited the testimony of
Deberry to the extent that he did not expect to be “disrobed” when the pat-down did not reveal any
weapons. Although the order of suppression could have been more explicit so as to indicate what
a “reasonable person would have understood by the exchange,” the holding that the officer exceeded
the scope of consent is supported by evidence in the record. While it appears that the officer had a
reasonable basis to ask Deberry to step out of the car, deference should be afforded to the trial court,
who saw and heard the witnesses first-hand, unless the evidence preponderates against the findings.
In this instance, the evidence presented by the state is not so persuasive as to overcome the factual
conclusions of the trial judge.

         In a related issue, the state argues that even if the drugs are suppressed as to Deberry, the
driver, Nixon does not have standing to challenge the suppression because he did not have a
reasonable expectation of privacy as to what was in Deberry’s personal possession. A failure on the
part of the state to raise the issue of standing at trial serves as a waiver of the issue on appeal. State
v. White, 635 S.W.2d 396 (Tenn. Crim. App. 1982). In White, our court held as follows:

        [T]he State has a duty to notify the defendant that it opposes his motion on standing
        grounds, a result which reflects the traditional policies of notice and fair play. If the
        State fails to raise the standing issue, but instead opposes the motion on the merits,
        the defendant is entitled to infer that the State concedes his standing and need not
        offer any evidence relevant to his expectation of privacy.

Id. at 399-400 (citations omitted).

        In this case, standing was not raised in the trial court and the defendant did not respond to
the issue on appeal. The only mention of standing prior to this appeal came in the affidavit attached
to the motion to waive timely filing of notice of appeal. In the affidavit, the state argued that the
suppression order was overbroad because Nixon did not have standing to challenge the drugs seized
from Deberry. Because, however, the state failed to raise the issue of standing in the trial court, it
is our view that the issue is waived on appeal.

        Accordingly, the order of suppression is affirmed to the extent that the contraband found in
the possession of the defendant Deberry may not be admitted as evidence. The state waived the issue
of the defendant Nixon’s standing by failing to present the issue in the trial court. The judgment is
affirmed and the charges against each defendant for possession of cocaine are dismissed.


                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE

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