Seizure: What Constitutes; Police Command to "Come Here"; Reasonable Suspicion; Anonymous Tip

State. A defendant was "seized" within the meaning of the Fourth Amendment when, after he ignored an officer's initial request to speak with him made from inside a patrol car, a uniformed officer stepped out of the car, pointed at defendant, and, in the presence of two other officers who had arrived as back-up, stated that he wanted to speak with defendant.

". . . when Officer McDermott, rebuffed, followed up-'Hey you. I wanna talk to you. Come here.'-the defendant was seized; he reasonably would have thought that he was not free to leave. It is instructive to recall the details accompanying that command. Officer McDermott was in uniform, had stepped out of his marked cruiser, and had pointed at the defendant. The command had been delivered in the presence of two other policemen, who had arrived on the scene as back-up. Objectively, a reasonable person in those circumstances would not have felt free to leave. The question that follows is whether the officer at that point had a lawful basis for restraining the defendant. Once the police have encumbered a person's freedom of movement, i.e., made a stop, they provoke constitutional scrutiny. . . ."

The court went on to hold that an anonymous informant's tip that he had observed defendant pull a handgun from his waistband, show the handgun to a group of people on the street, and then return the gun to his waistband, did not constitute reasonable suspicion to conduct a stop and frisk of defendant.

Search Warrant: Application; Omission of Material Fact; Plain View Doctrine and Good Faith

State. The failure to inform a magistrate who issued a search warrant that a police officer had looked through an opening in a drawn venetian blind while leaning out from the front porch steps of defendant's home was a material omission that rendered the application for the search warrant unreliable. The court rejected application of the good faith exception to the warrant requirement.

"The State argues that the plain view doctrine is applicable here. We disagree. The plain view doctrine only has application when there was a lawful initial intrusion. . . . Such was not the case here. The initial intrusion was unlawful.

"Additionally, without the evidence viewed by the officers the affidavit for the search warrant did not provide probable cause for the warrant to have been issued. . . . Here, the judge who issued the warrant was not informed of a material fact as to how the contraband was seen. The mistake was not that of the judge, but instead was based on an illegal search. The good faith exception does not apply."

Search Incident to Arrest: Automobiles; Civil Warrant for Failure to Appear

State. This case upheld the search of a defendant's automobile incident to his arrest based on a civil warrant for failure to appear in an unrelated matter. The court said the nature of the offense supporting an arrest does not affect the validity of a search of the defendant's vehicle incident to the arrest.

". . . The nature of the offense supporting the arrest does not affect the validity of a search of defendant's vehicle incident to that arrest. The fact that the body attachment was signed by the clerk, under the supervision of the judge, is [also] not a problem. . . . When a defendant is arrested on a bench warrant, there may be no need to prevent him from destroying evidence. An officer taking an individual into custody on a bench warrant, however, does have a legitimate interest in determining whether the individual has a weapon. . . ."

Canine Sweeps: Qualifications of Dog and Handler

State. In a case of first impression, the Supreme Court of Tennessee ruled that a canine sweep, by which an officer's trained and certified drug detection dog sniffed around the perimeter of a pickup truck for the presence of narcotics, did not constitute a search under the Fourth Amendment, and thus required neither probable cause nor reasonable suspicion. The court found that there was sufficient evidence that the drug dog and its police officer handler were sufficiently trained and reliable to support a finding that once the dog alerted positive for drugs, the handler had probable cause to conduct a search of the inside of the vehicle.

The court noted that the dog received eight weeks of intensive training in the detection of various drugs, that the handler and dog attended bimonthly retraining sessions, and that the dog previously gave positive alerts in close to 100 situations where drugs were actually found.

Miranda: Need for Repeated Warnings; Continuation of Interrogation Process; Switching Subjects

State. Giving defendant Miranda warnings at the beginning of an in-custody interview was sufficient to render his statement after the resumption of questioning admissible, even though the police questioned him about a different subject when the interview resumed. The defendant had signed a written waiver of his rights, the questioning broke off but resumed only three minutes later, defendant indicated that he understood that he had been read his rights, and he invoked his right to counsel when he terminated the interrogation, thus indicating that he remembered and understood the warnings.

The court concluded that the second phase of the questioning was merely a continuation of the interrogation process.

"The fact that police interviewed Burruss about a different subject is of no consequence. As the Court of Criminal Appeals said in Dunn [v. State, 721 S.W.2d 325 (Tex.App. 1986)]:

Neither our constitutional nor statutory law requires that a defendant be rewarned where there is a transition from questioning him regarding one offense to questioning him regarding another offense, nor have we found any requirement in our law that the Miranda warnings must be limited to any specific unlawful conduct, nor do we know of any reason which requires that it be so limited, considering the purpose of the Miranda rule.

Dunn v. State, 721 S.W.2d at 338. . . ."