author: HENRY, Justice.

text:
    Jessie GIBSON, Plaintiff-Appellee, v. CONSOLIDATION COAL COMPANY, Defendant-Appellant.
    Supreme Court of Tennessee.
    Oct. 9, 1979.

      W. Keith McCord, McCord, Cockrill & Conroy, Knoxville, for defendant-appellant.
    John T. Johnson, Jr., James S. Tipton, Jr., Kramer, Johnson, Rayson, McVeigh & Leake, Donelson M. Leake, Kramer, Johnson, Rayson, McVeigh & Leake, Knoxville, for plaintiff-appellee.
   OPINION

HENRY, Justice.

In this workmen’s compensation action the trial judge found that plaintiff was totally disabled by the occupational disease of coal worker’s pneumoconiosis and awarded benefits under the Federal Coal Mine Health and Safety Act of 1969. We affirm.

I.

Section 50-1102, T.C.A., provides in pertinent part:

In considering whether an employee has the occupational disease of coal worker’s pneumoconiosis and is totally disabled or dies therefrom all the presumptions, criteria and standards contained in or promulgated by reason of the Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, specified as the basis for determining eligibility of applicants for benefits because of said disease or its effects shall be used and be applicable under this law; and where in a proceeding under this law for benefits it is determined the employee or his dependents would be entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, the said employee or his dependents by reason of said determination shall be considered totally disabled from coal worker’s pneumoconiosis and its effects, under this law the same as if said employee, or his dependents, establishes the right to recover benefits based upon a total disability from coal worker’s pneu-moconiosis, or death by reason thereof under the laws of this state.

By the adoption of this language it was the intent of the legislature to “adopt the Federal law concerning coal worker’s pneumoconiosis as the law in Tennessee.” Moore v. Old Republic Insurance Co., 512 S.W.2d 564, 567 (Tenn.1974). The presumptions, criteria and standards of “the federal act, and such portions of the federal regulations as pertain thereto, have become as much a part of our Workmen’s Compensation Law as if they had been enacted, in their entirety, by the General Assembly.” Blankenship v. Old Republic Insurance Co., 539 S.W.2d 23, 26 (Tenn.1976). Thus, the determination as to whether a worker “is totally disabled from pneumoconiosis must be governed by the federal statutes and regulations.” Lawson v. Oneida Fuel and Coal Co., 529 S.W.2d 220, 224 (Tenn.1975). We have recognized that “the criteria for total disability under the federal statutes and regulations are substantially different from and less stringent than those ordinarily governing claims under the Tennessee Workmen’s Compensation Act.” 529 S.W.2d at 222. See also, Hill v. Four-Leaf Coal Co., 529 S.W.2d 225 (Tenn.1975). However, the scope and standard of review are those traditionally applied in other compensation cases. See infra.

With this background we examine the federal law and the regulations issued pursuant thereto.

Any discussion of pneumoconiosis must start with the recognition that, to a substantial extent, benefits are awarded on the basis of legal and not technical medical definitions. Ansel v. Weinberger, 529 S.W.2d 304 (6th Cir. 1976). This is implicit in the nature and purpose of the act and the regulations governing its application.

Medical definitions must yield to the statute which defines pneumoconiosis as “a chronic dust disease of the lung arising out of employment in an underground coal mine.” 30 U.S.C. § 902(b).

The basic enactment is the Federal Mine and Safety Act of 1969 (30 U.S.C. § 801, et seq.), with Title IV being the pertinent portion. The Black Lung Benefits Act of 1972 amends portions of the 1969 Act. One of its purposes was to

[r]elax the often insurmountable burden of proving eligibility by prohibiting a denial of claims based solely on a negative chest roentgenogram and by presuming that miners with 15 years experience who are disabled by a respiratory or pulmonary impairment are disabled by pneumo-coniosis. 529 F.2d at 306

A distinction must be drawn between “true” pneumoconiosis and “presumed” pneumoconiosis. Code of Federal Regulations (CFR), Vol. 20, Sec. 410.414(a), specifies that a finding of the existence of pneu-moconiosis is made by (1) chest roentgeno-gram (X-ray), or (2) biopsy, or (3) autopsy. Such a finding would give rise to an irre-buttable presumption of the condition. This is true pneumoconiosis.

The Black Lung Act of 1972 added to the law the “presumed” pneumoconiosis provision, designed to liberalize the law for the benefit of miners who could not establish the existence of the disease by X-ray, biopsy or autopsy. This new provision is contained in 30 U.S.C. § 921(c)(4) which reads as follows:

(4) if a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner’s [or beneficiaries] claim . and it is interpreted as negative with respect to the requirements of paragraph (3) of this subsection [relates to diagnosis by X-ray, biopsy or other means], and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis . . . . The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine. (Emphasis supplied).

Regulation 20 C.F.R. § 410.414(b), adopted pursuant to this liberalized revision, provides, in part, as follows:

(b) Presumption relating to respiratory or pulmonary impairment. (1) Even though the existence of pneumoconiosis is not established as provided in paragraph (a) of this section [relates to X-ray, biopsy and autopsy], if other evidence demonstrates the existence of a totally disabling chronic respiratory or pulmonary impairment (see §§ 410.412, 410.422, and 410.-426), it may be presumed, in the absence of evidence to the contrary (see subpara-graph (2) of this paragraph), that a miner is totally disabled due to pneumoconiosis, or that a miner was totally disabled due to pneumoconiosis at the time of his death.
(2) This presumption may be rebutted only if it is established that the miner does not, or did not, have pneumoconiosis, or that his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine. [Emphasis and bracketed matter supplied]. 529 F.2d at 308

Thus, the present status of the federal law as adopted by the General Assembly is that true pneumoconiosis must be established by X-ray, biopsy or autopsy, while the presumed condition, in a case where a miner has been employed in an underground coal mine for fifteen years or more, may be established when “other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment.” When the condition is so established there is “a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.” 30 U.S.C. § 921(c)(4).

The regulations make it clear that pneu-moconiosis includes “any other respiratory or pulmonary impairment,” or any “respira-ble disease” so long as the conditions are met for the application of the presumption. 20 C.F.R. § 410.401(b)(2) and (3).

The presumption may not be rebutted solely by virtue of negative X-rays or biopsies or pulmonary function studies. The act requires, in 30 U.S.C. § 923(b), that:

In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits . and other supportive materials. (Emphasis supplied).

Thus the act contemplates a broad consideration of all relevant aspects of the claimant’s health, including a review of the totality of his physical condition. The presumption is not rebutted by X-rays or pulmonary function studies standing alone. The Sixth Circuit has spoken to this specific issue with unassailable reasoning. In Ansel v. Weinberger, supra, the Court said:

It is obvious that the negative X-rays may not be relied upon to rebut the presumption of Section 921(c)(4). If he had been able to produce a positive X-ray, there would have been no need to invoke the presumption. The very existence of a negative X-ray is a prerequisite to reliance upon the presumption of pneumo-coniosis as established by other evidence. Furthermore, under the 1972 amendment, negative X-ray evidence may not be the sole basis for a denial of benefits. 30 U.S.C. § 923(b). Nor do we believe the presumption of Section 921(c)(4) can be rebutted by showing that pneumoconiosis was not established by pulmonary function studies. The regulation which establishes the levels required for a finding of disabling pneumoconiosis on the basis of a ventilatory study does not purport to provide proof of the nonexistence of pneu-moconiosis. 529 F.2d at 309—10

See also, Tonker v. Mathes, 412 F.Supp. 823 (W.D.Va.1976), recognizing that because negative X-rays are not enough for denial, they are not sufficient to rebut, and pointing out that “[t]he Black Lung Act was intended to be remedial in nature and liberally construed in application.” 412 F.Supp. at 827.

II.

Jessie Gibson was employed in the Nation’s underground coal mines for a period of 47 years. His first employment was at age 17 and, as he phrases it, “that’s all I ever done.” The last eight years of his employment was with Consolidation.

During most of this employment he was exposed to coal dust. His respiratory problems date back at least to 1970 and have grown progressively worse. He quit in 1976 because he “didn’t have the breath to work and couldn’t hardly make it there and back.” Further, he said, “I couldn’t hardly breathe, my breathing was short. I’d run out of breath and have to sit down and rest.” He experienced difficulty in sleeping and was “coughing all the time,” expectorating “green looking phlegm.” He has never smoked or used tobacco in any form. His wife testified in his behalf confirming his difficulty in breathing, sleeping and coughing.

Various reports made by Dr. David A. Waterman, deceased at the time of the trial, appear in the record. In his Overall Ventilatory Pulmonary Function Study of June 10, 1977, his clinical diagnosis was:

CWP [coal worker’s pneumoconiosis] and silicosis, simple, category 1. chr. bronchitis, severe in a non-smoker. (Brackets ours).

This diagnosis establishes the existence of simple pneumoconiosis under 20 C.F.R. § 410.428; however, it does not, standing alone, establish the disability: This must come from “other evidence.” 30 U.S.C. § 921(c)(4).

Dr. Waterman, in the same study, indicated “considerable dyspnea [difficulty of breathing], shortage of breath, lightheadedness, etc.”

Dr. Vijaya R. Patel, a thoracic surgeon, first examined claimant on June 14, 1977, and continued to treat him for a number of months thereafter. He testified that he was suffering from severe, chronic and recurring bronchitis (confirmed by bron-choscopy), silicosis of category one, emphysema, dyspnea, and simple pneumoconiosis. He attributed his lung problems, including pneumoconiosis, silicosis, and bronchitis, to long employment in underground coal mines.

Dr. Patel performed pulmonary function studies and took X-rays that were suggestive of simple pneumoconiosis and silicosis and found internodular nodules in both lower lung fields. They were not sufficient to establish complicated pneumoconiosis. The pulmonary function studies were “near normal for his age,” but after completion he had “considerable dyspnea, a short wind and had lightheadedness.”

While Dr. Patel’s testimony was not strong in many significant areas, it did establish beyond doubt that claimant suffered from various pulmonary ailments, including simple pneumoconiosis, all of which were related to coal mining activities and which combined to make him “unable to perform any active job.” In arriving at his conclusion of total disability he used his judgment based on a series of clinical observations. Some of his testimony was susceptible to misunderstanding and misconstruction on the simple basis of his principal education and early background being in India. These problems were linguistic and semantic in nature. On balance we find his testimony probative and persuasive. It is evident that he took the totality of claimant’s condition and background into consideration, thus providing the “other evidence” upon which a finding of presumed pneumo-coniosis may be made. Thus, while X-rays and pulmonary studies did not establish pneumoconiosis, “other evidence demonstrates the existence of a totally disabling chronic respiratory or pulmonary impairment.” 20 C.F.R. § 410.414(bXl).

Dr. Charles L. Kirkpatrick, of Middles-boro, Kentucky, claimant’s treating physician, testified that he had chronic obstructive pulmonary disease manifested by emphysema, producing significant breathing problems. He classified these pulmonary problems as a class two functional impairment. On the basis of his examination he was of the opinion that claimant was totally disabled.

Dr. Arnold Richard Hudson, board certified in both internal and pulmonary medicine, testified for Consolidation. He took X-rays and examined the results of the pulmonary function studies made by Drs. Waterman and Patel. He testified that the pulmonary function studies showed no significant abnormality — in fact portions of it were excellent. They indicated that there was no impairment of ventilatory function. He found no objective evidence of pneumo-coniosis either in his own X-rays or those taken by Drs. Waterman and Patel. He testified that from a pulmonary standpoint claimant was not disabled.

As is not uncommon in worker’s compensation cases the medical evidence was in sharp conflict. There was material evidence from which the trial judge was justified in finding that this coal miner who was employed in underground mines for forty-seven years was suffering from “totally disabling respiratory or pulmonary impairment,” giving rise to a rebuttable presumption that he “is disabled due to pneumoconi-osis.” 30 U.S.C. § 921(c)(4), 20 C.F.R. § 410.414(b).

This presumption was not rebutted by X-rays or pulmonary studies. The Black Lung Act of 1972 (30 U.S.C. § 923(b)) makes it clear that “all relevant evidence” must be considered. Further, as pointed out in An-son, supra, if claimant had been able to produce positive X-rays there would have been no need for the presumption. Indeed, it is the very existence of negative X-rays that triggers the presumption. Under the statutory scheme, pulmonary function studies might establish the disease, but they are not conclusive and do not defeat the presumption arising from other evidence.

Applying the “presumptions, criteria and standards” contained in the Federal Coal Mine Health and Safety Act of 1969, the Black Lung Act of 1972, and the federal regulations promulgated pursuant thereto, all of which are superimposed on our law, and looking to the totality of claimant’s medical history and all other relevant evidence, including his own testimony and that of his wife, we find claimant to be totally disabled by coal worker’s pneumoconiosis.

III.

In arriving at this result we have abided our oft-stated standard of review under which the decision of a trial judge comes to this Court with a presumption of correctness and must be upheld if supported by any material evidence.

Applicant urges upon the Court the proposition that the material evidence standard is not appropriate in black lung cases. It is insisted that “the scope of review should be directed toward a determination of whether or not the trial judge based its (sic) decision upon the presumption, criteria and standards contained in or promulgated by the Act.”

These presumptions, criteria and standards being a part and parcel of the governing law, it is difficult to see how a trial judge could decide a black lung case without being governed by these statutory requirements. We have reviewed the cases treating them as governing principles, as this opinion will indicate. We have carefully studied the evidence presented to the trial judge and have briefly digested it in this opinion. From that review we are persuaded that the trial judge not only applied the presumptions, criteria and standards, but also, that he applied them correctly.

The application of these presumptions, criteria and standards, however, does not conflict with our established scope of review nor is any modification required to apply the federal standards.

The judgment of the Trial Judge is

Affirmed.

BROCK, C. J., COOPER and HARBI-SON, JJ., and McLEMORE, Special Judge, concur.

      . Defined in Dorland’s Medical Dictionary 1421 (W. B. Saunders 25th ed. 1974), as pneumoco-niosis due to the inhalation of the dust of stone, sand, or flint containing silicon dioxide, with formation of generalized nodular fibrotic changes in both lungs.


source: Caselaw Access Project

license: Public Domain

text:
    Patrick HUGHES, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 9, 1979.

      William C. Wilson, Nashville, for petitioner.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Elmer D. Davies, Jr., Dist. Atty. Gen., Douglas T. Bates, III, Asst. Dist. Atty. Gen., for respondent.
   OPINION

HENRY, Justice.

This is a search and seizure case arising under the Fourth Amendment to the Constitution of the United States and Article I, Section 7 of the Constitution of the State of Tennessee. More specifically it involves what has become known as a “stop and frisk” or Terry stop. Defendant was convicted of the possession of marijuana for the purpose of resale, with a sentence of eleven (11) months and twenty-nine (29) days plus a fine of $3,000.00. The Court of Criminal Appeals, in a split decision, affirmed the opinion. For the reasons discussed herein, we reverse.

I.

Procedural History

This is the second time this case has been before this Court. The petitioner and his companion, Dale Neese, were originally convicted of possessing marijuana for the purpose of resale, and sentenced to imprisonment for not less than one nor more than three years and fined $1,000.00. The Court of Criminal Appeals held the search to be unlawful and reversed the conviction. We granted the State’s petition and reversed the Court of Criminal Appeals, State v. Hughes, 544 S.W.2d 99 (Tenn.1976), on the basis of prejudicially inadmissible testimony.

We held that probable cause was shown by the testimony of the police officer that “he smelled the odor of marijuana coming from the vehicle when respondent Hughes lowered the window.” Our opinion contained a significant footnote:

1. The officers claim that defendants consented to the search, a claim denied by them. We assume, but do not decide, that no consent was given. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
If Hughes rolled down the window of his car in obedience to a demand from Officer Stafford that he exhibit his driver’s license, a different question would be presented, because, under the circumstances existing, the officers, not being state patrolmen, had no authority to demand exhibition of such license since Hughes had not then or immediately pri- or thereto been engaged in a violation of any municipal ordinance or state statute. T.C.A. § 59-709; Cox v. State, 181 Tenn. 344, 181 S.W.2d 338 (1944); Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633 (1947). However, this point was not fully developed at the hearing and our conclusion from the evidence is that Hughes parked his car voluntarily and then rolled down his window permitting the odor of marijuana to escape before Officer Stafford demanded to see his driver’s license. 544 S.W.2d at 101, fn. 1.

Thus, we specifically reserved the issue of the circumstances surrounding the lowering of the window.

Because of the admission of irrelevant and prejudicial proof and because the circumstances under which the window was rolled down were “not fully developed at the hearing,” we remanded for a new trial. Hence, the case is now before us on the record of that trial — and that trial alone— and only as to the petitioner. The Trial Judge sustained a motion for an acquittal as to Neese.

II.

The Factual Background

a. General

Shortly before midnight on 22 January 1973, Hughes and Neese, at the time young students at Middle Tennessee State University, drove to the Country Store. This establishment is a combination grocery store and restaurant.

The Volks wagon automobile in which they were riding was driven by Neese and owned by his father. Upon arrival Neese went into the store and asked the proprietor, Wilson Herbert, if it was still open. Upon receiving an affirmative reply, he returned to the automobile and spoke briefly with Hughes.

Hughes “scooted” over to the driver’s side and drove away. Neese returned to the store where he bought some eat-a-snacks and a coca-cola. While consuming them he first read magazines at the magazine rack, after which he apparently wandered aimlessly about the store.

b. The Information

The proprietor, strangely enough, did not testify at the suppression hearing; however, at trial he outlined Neese’s actions, all of which appeared to be consistent with the activities of a person waiting at a mercantile establishment for the expected return of a friend. We are not concerned, however, so much with what Neese did while in the store as what information was given by the proprietor to the police officer. It is on the basis of this information that this Court must determine whether the subsequent Terry stop was supported by “specific and articulable facts” or whether the officer acted upon a “mere hunch.”

Captain Jimmy Stafford, of the Franklin Police Department, received the call from storeowner Herbert and was the principal figure in the resulting investigation, search and seizure. According to his testimony at the suppression hearing Mr. Herbert:

advised that there was a car that had pulled up — Volkswagon had pulled up and there was a young man that had gotten out from under the driver’s side and that another person in the car got under the wheel and drove off and that thiá man had gotten out, had come in the store and was acting a little strange or suspicious that he would like for us to come out and check on it. (Emphasis supplied).

At the trial Captain Stafford phrased it thusly:

Mr. Herbert advised me on the telephone that he had a young fellow in the store that he was a little suspicious of and wanted me to come out and check it out and see what he was up to . . . Mr. Herbert stated that a car had pulled up, a Volkswagon, pulled up and the driver got out and came into the store and the other person in the car got under the wheel and drove off and proceeded out the interstate. (Emphasis supplied).

This is the sole information upon which the police acted. There is no proof that the police officers knew the proprietor or that he was reliable. There is no indication that his establishment was located in a high crime area and none that any crime had been committed or was about to be committed. Herbert advised of no specific fact that would constitute “strange or suspicious” conduct. And it must be borne in mind that Neese was in a public business during the hours it was open to the public.

In fact, the proprietor admitted on cross-examination, by affirmative response, that “the main cause of apprehension of course was the lateness of the night of his arrival and the fact that it was closing time . . ” He reiterated that Neese did nothing unlawful.

c. The Seizure of Neese

When the officers arrived at the Country Store, Neese was still inside. They asked him to step outside, identified him by checking his driver’s license and “invited” him to sit in the rear seat of the patrol car. They did not consider him to be under arrest or that he was being detained; however, it is undisputed that the doors had no inside handles or latches, could not be opened from the back seat and one could only leave the car with assistance from someone on the outside. The police, of course, say that Neese “could have walked off” if he wanted to; however, when asked what his reaction would have been had Neese tried to leave, the officer's response was “I don’t know.” From these facts we find that Neese was in custody. He had been accosted and restrained of his liberty. Therefore, he had been “seized” under the Fourth Amendment. See Section III, infra.

While Neese was being detained a radio check was made by the officers and it was determined that he had no criminal record. Thus, the officers knew that as to Neese, there was nothing in his background to suggest participation in any criminal activity, nor did the information indicate any threatened or actual criminal conduct. As to Hughes, it is significant, if not critical to this inquiry, to note that there was no information from any source that implicated him in any criminal activity, or even any suspicious circumstances — at any time prior to his seizure.

Neese was kept in the back seat of the car at all times. After they had identified and questioned him, without Miranda warning or other advice with respect to his constitutional rights, the police, with Neese still in the back seat, drove toward the interstate looking for Hughes, who was observed as he drove up the ramp leading from Interstate 65.

d. The Searches and Seizure of Hughes

Hughes drove voluntarily to the Country Store and parked in front. The officers followed and parked alongside. Captain Stafford approached the automobile and Hughes rolled down the window, under circumstances that we fully expected the Trial Judge to determine on remand.

Hughes testified that he was directed to roll down the window. It is his testimony that at the time Captain Stafford approached the car the windows were all up, the night being cold; that the Captain asked for his driver’s license and that he had to roll the window down in order to comply.

Neese testified that the Captain directed the window be rolled down by making a circular or rotating motion with his hand and forearm.

Captain Stafford’s testimony is somewhat less than helpful. He admits asking for Hughes’ driver’s license, and that the window was up at the time. First he denied asking Hughes to roll down the window. When asked if he made any movement indicating that he wanted it rolled down, his response was:

I don’t recall it. I don’t recall doing anything like that, no sir. (Emphasis supplied)
* * * * * ⅜
The best I can recall it seems as though as I walked up to the car itself and — the window was possibly being rolled down at that time. (Emphasis supplied).
At another place he said he asked for Hughes’ driver’s license after the window was coming down. Again, he testified:
I don’t recall whether the window was being rolled down prior to my asking. . (Emphasis supplied).

Immediately thereafter he testified that it all happened “within the same instant.”

This question and answer followed:

Q. . and it could be that you asked for the driver’s license and he rolled the window down in response to it, isn’t that true?
A. It’s possible.

Again:

Q. ... he could have very easily rolled the window down after you asked for the driver’s license, couldn’t he?
A. Yes, sir.
* * * * * *
Q. Well, as the window was being rolled down, at that point had you asked to see his driver’s license?
A. The best I recall he asked him for the driver’s license — I just honestly can’t say whether the window was up or down. (Emphasis supplied).
* * * * * *
Q. Did you make a motion — and I would like for you to think about this — did you make a motion with your hands in a circular fashion.
A. I could have — I just don’t recall. (Emphasis supplied).

The testimony on this material issue leaves much to be desired. It was the nebulous nature of the proof as to this aspect of the case on the first trial, that, in part, prompted our remand. The Trial Judge made no finding. See footnote 1, supra. The Court of Criminal Appeals took the position that “the officer did not infringe on Hughes’ rights when he smelled the escaping marijuana, regardless of when Hughes rolled down the window. We disagree; this conclusion not only overlooks the significance our former opinion placed on the reasons prompting the window to be rolled down, but also sidesteps the critical inquiry relating to the officer’s right to approach the Hughes’ vehicle in the first instance. At no time, had anyone pointed the finger of suspicion at Hughes and, as the officer stated, “I seen him do nothing.”

It is a familiar rule of law in Tennessee jurisprudence that “contradictory statements of a witness in connection with the same fact have the result of ‘cancelling each other out.’ ” Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn.Ct.App.1978). Perhaps the leading case is Johnston v. Cincinnati, N. O. & T. P. Ry. Co., 146 Tenn. 135, 240 S.W. 429 (1921). There the Court speaking through Mr. Special Justice Trabue, stated the rule thusly:

The question here is not one of the credibility of a witness or the weight of the evidence; but it is whether there is any evidence at all to prove the fact. If two witnesses contradict each other, there is proof on both sides, and it is for the jury to say where the truth lies; but if the proof of a fact lies wholly with one witness, and he both affirms and denies it, and there is no explanation, it cannot stand otherwise than unproven. For his testimony to prove it is no stronger than his testimony to disprove it, and it would be mere caprice in a jury upon such evidence to decide it either way. 146 Tenn. at 158, 240 S.W. at 436.

The “wishy washy” nature of the officer’s testimony leaves the issue clouded. If it be established that Hughes rolled the window down voluntarily, it must be upon the officer’s testimony. Hughes testified that he was directed to roll down the window in that when the officer asked for his driver’s license he had to roll down the window [or alight which has the same legal significance] in order to comply. Neese testified that the officer directed that the window be rolled down by making a circular motion with a hand and arm. The testimony of the officer is self-emasculating; it does not establish a voluntary lowering of the window.

Moreover, the burden of proof lies heavily upon the State to establish that the window was rolled down voluntarily and the vehicle then exposed to the officer’s view and sense of smell. This follows because we are dealing with an exception to the search warrant requirements of the Fourth Amendment and the burden of proving voluntariness lies upon the State. “The burden is on those seeking the exemption to show the need for it.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971). See also, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Additionally, the element of volun-tariness is a part of the State’s case and, like all other necessary elements, must be established by the prosecution. We hold that the proof does not establish that the window was rolled down voluntarily.

We would be entirely justified in reverting to our initial holding that the officer had no authority to demand exhibition of a driver’s license, under Sec. 59-709, T.C.A., and if the window was rolled down pursuant to demand for such exhibition, “a different question would be presented.” Having now held that the window was not rolled down voluntarily, we would be wholly warranted in finding that all else that transpired constituted an unwarranted intrusion and an infringement upon the personal security and liberty of a citizen. Instead we prefer to rest our decision, under all the facts and circumstances as developed on the second trial, on Fourth Amendment considerations, divorced from the narrow proposition of the entitlement of the police officer to demand the production of a driver’s license.

III.

The “Stop and Frisk” Cases

The first articulation by the Supreme Court of the United States of the “stop and frisk” exception to the traditional requirement of probable cause as a condition of conducting a search came in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The Terry fact scenario is familiar. Officer McFadden, a longtime Cleveland police officer, was patrolling the streets of downtown Cleveland. He was alone and all events occurred during daylight hours. Two men standing on a street corner attracted his attention and he placed them under surveillance. One of these men left the other and walked down the street past several stores, pausing to look in a particular store window. He then continued along the street, turned around and again stopped at the same store window. Thereafter, he rejoined his companion and the two talked briefly. Then the second man went through the same motions. This ritual was repeated by the two men alternately some five or six times each. After the two men had been observed “pacing, peering, and conferring,” they walked off together in the direction taken by a third man who had previously engaged them in conversation. Officer McFadden, suspecting that they were “casing a job, a stick-up,” followed them until they stopped in front of a store to talk to the same man who had conferred with them earlier. He then approached the three men, identified himself as a police officer and asked for their names.

The Court recognizes at the very outset that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. at 16, 88 S.Ct. at 1877, 20 L.Ed.2d at 903. Further, the danger of the argument which attempts to distinguish between a “stop” and an “arrest” or “seizure,” “seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen.” (Emphasis supplied) 392 U.S. at 17, 88 S.Ct. at 1878, 20 L.Ed.2d at 903. Thus, the Fourth Amendment comes into play irrespective of the nature or nomenclature of the intrusion. Therefore, officer McFadden “seized” Terry and “subjected him to a search.” 392 U.S. at 19, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. Thus, the Court determined that its dual inquiry was “whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (Emphasis supplied) 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905.

With this predicate, and after making it clear that the notions which underlie both the warrant procedure and the requirement of probable cause remain valid, the Court laid down a balancing test:

[I]t is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” (citations omitted) And in justifying the particular intrusion 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. [18] The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? (citations omitted) Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulable hunches, a result this Court has consistently refused to sanction, (citations omitted) And simple “good faith on the part of the arresting officer is not enough.” (Emphasis supplied). 392 U.S. at 21, 22, 88 S.Ct. at 1879, 1880, 20 L.Ed.2d at 905, 906.

Footnote 18 reminds that:

This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.

Conceding the right of a police officer to search for weapons in the absence of probable cause to arrest, the Court restricts and circumscribes that right:

[Tjhere must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of a police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

Thus, the “frisk” of Terry was upheld on the basis of the officer’s reasonable belief that “criminal activity may be afoot” and that Terry “may be armed and presently dangerous.”

Mr. Justice Harlan’s concurring opinion is of significance, especially under the facts of the case under consideration:

[I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. . If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. (Emphasis supplied).
* * * * * *
Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. 392 U.S. at 32, 34, 88 S.Ct. at 1886, 20 L.Ed.2d at 912, 913.

Thus, in the context of a “stop and frisk” situation, the Court freed Fourth Amendment analysis from the rigidity of the probable cause standard but in so doing it imposed a standard of specific and articu-lable facts. The detection and prevention of crime and the safety of the officer are balanced against the nature and extent of and the reasons for the intrusion.

While Terry has been eroded somewhat and its holding has been enlarged to encompass other factual situations, it continues to be solid authority for these propositions:

a. that whenever an officer accosts an individual and restrains his liberty to walk away there has been a “seizure” under the Fourth Amendment;
b. that Fourth Amendment principles govern “stop and frisk” cases;
c. that in justifying a “stop and frisk”, the officer must be able to point out (and on trial the state must prove) specific and articulable facts reasonably warranting the intrusion;
d. that the initial confrontation must be valid;
e. that the officer’s action must be justified at its inception.

The Supreme Court released the companion case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), on the same date as the release of Terry.

Officer Martin, while in uniform and patrolling his beat, observed Sibron for an eight-hour period ending at midnight. During this period he saw Sibron in conversation with six or eight persons known by the officer to be drug addicts. He heard nothing nor did he see anything pass between Sibron and any of the others. Late in the evening the officer saw Sibron enter a restaurant and speak with three more known addicts, but he overheard nothing and saw nothing pass. As Sibron was eating, Officer Martin approached him and ordered him outside. Once outside the officer told him, “You know what I am after.” Sibron mumbled something and reached in his pocket. Simultaneously, the officer thrust his hand into the same pocket thereby discovering heroin.

Citing Terry, the Court said:

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. 392 U.S. at 64, 88 S.Ct. at 1903, 20 L.Ed.2d at 935.

Justice Harlan, in a relevant and significant concurring opinion, held that a frisk is not to be permitted “[i]f the nature of the suspected offense creates no reasonable apprehension for the officer’s safety . unless other circumstances [do].” 392 U.S. at 74, 88 S.Ct. at 1907, 20 L.Ed.2d at 941. This is essentially what the Court held in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Terry was substantially expanded in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The Terry stop rested upon the personal knowledge of the officer; in Adams, the basis was a tip by a person known to the officer and who had supplied information in the past, which the Court held had sufficient “indicia of reliability to justify the officer’s forcible stop of Williams,” even if not enough to justify a search warrant. 407 U.S. at 147, 92 S.Ct. at 1924, 32 L.Ed.2d at 617. In Terry the suspected criminal activity was preparation for an armed robbery; here it was a mere possessory offense. In Terry the pat-down was validated on the basis of a founded fear of the possession of weapons; here, again, it was a possessory offense with no suspicion that defendant was going armed.

In Adams, the facts were that a lone police officer was on patrol duty in a high crime area, when a person known to him approached the cruiser with information that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. The officer went to the parked car, tapped on the window and asked the occupant to open the door. When Williams, the occupant, rolled down the window instead, the officer reached into the car and removed a loaded revolver from Williams’ waistband. The gun was not in plain view, but it was where the informant had indicated. The tip was reliable. Williams was arrested for unlawful possession of a handgun. A search made incident to the arrest revealed substantial quantities of heroin and other contraband.

The Court held that the pistol was discovered as a result of a limited intrusion designed to insure the officer’s safety. The Court said:

The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others,” he may conduct a limited protective search for concealed weapons, (citation omitted) The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable . So long as the officer is entitled to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. (Emphasis supplied). 407 U.S. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617.

Thus the Adams court makes it clear that the right to frisk depends upon the validity of the investigative stop, and an investigative stop is permissible whenever an officer has reasonable suspicion supported by specific and articulable facts. An officer may not frisk unless the initial stop was justified.

While the validity of border searches is governed in substantial part by rules relating to a highly specialized law enforcement activity, the case of United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), is both relevant and significant.

Two officers of the Border Patrol were observing northbound traffic from a point south of San Clemente, about 65 miles from the Mexican border. The road was dark and they were illuminating passing cars with the headlights of the patrol car. They pursued and stopped a vehicle containing three occupants who “appeared to be of Mexican [descent].” Upon questioning it developed that two of the passengers were aliens who had entered the country illegally. Brignoni-Ponce was charged with the transportation of illegal immigrants under applicable federal law.

Respondent was convicted; however, on appeal the Circuit Court of Appeals for the Ninth Circuit held that the Fourth Amendment forbids stopping a vehicle, even for the limited purpose of questioning its occupants, unless the officers have a “founded suspicion” that the occupants are aliens illegally in this country. Founded suspicion could not be supported solely by Mexican ancestry.

The Supreme Court, on certiorari, held that under the Fourth Amendment, except at the border and its functional equivalents, officers could stop vehicles only if they were aware of specific articulable facts, together with rational inferences therefrom, that reasonably warranted suspicion of illegal entry. Because the intrusion fell outside the border search exemption the Court applied the conventional rules mandated by the Fourth Amendment.

The Court held that the border patrol could not make random vehicle stops for illegal aliens but must have a factual basis for such stops. Thus, the Court adhered to the reasonable suspicion — specific and artic-ulable facts standard of Terry-Adams.

The Court reiterated the teachings of Terry that “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person,” 422 U.S. at 878, 95 S.Ct. at 2578, 45 L.Ed.2d 614, and Fourth Amendment constraints require that “the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. 422 U.S. at 878, 95 S.Ct. at 2579, 45 L.Ed.2d at 614-615.

Foreshadowing the subsequent holding of the Court, in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Court specifically held that a stop on a random basis by the Border Patrol, even though the stop is “modest, we conclude that it is not ‘reasonable’ under the Fourth Amendment.” 422 U.S. at 883, 95 S.Ct. at 2581, 45 L.Ed.2d at 618.

Thereafter, the Court held:

Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle contain aliens who may be illegally in the country. 422 U.S. at 884, 95 S.Ct. at 2582, 45 L.Ed.2d at 618.

The Terry opinion has been criticized for its failure to formulate guidelines governing the announced standard and more particularly, for not amplifying upon the concept of “reasonable suspicion.” The Court, in Brignoni-Ponce extended the Terry doctrine to the. stop of automobiles, and partially filled the void left by Terry. Among the factors which go to determine the existence of reasonable suspicion, in vehicular stop cases, are the characteristics of the area, the driver’s behavior, the aspects of the vehicle itself, an extraordinarily large number of passengers and their actions; “the officer is entitled to assess to the facts in light of his experience in detecting illegal entry and smuggling.”

The Terry doctrine was substantially expanded in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). There the Court held in a Per Curiam opinion, reflecting the view of six members of the Court, that when an automobile is lawfully stopped for a traffic violation, the motorist may be required to alight from the car, even though the officer had no reason to suspect foul play at the time of the stop.

Two police officers on routine patrol observed Mimms driving a vehicle on an expired license plate. After stopping him for the purpose of issuing a traffic summons, he was ordered to get out and produce his owner’s card and driver’s license. After he had done so the officers noticed a large bulge under his short jacket. Fearing that he was armed, he was frisked and a loaded .38 caliber pistol was discovered. This prosecution ensued.

Mimms contended that the search was unconstitutionally infirm because the officers could point to no “objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.” 434 U.S. at 108, 98 S.Ct. at 332, 54 L.Ed.2d at 335.

The Court noted that the initial intrusion on freedom of movement — the stop — was not questioned; therefore, the Court dealt only with “the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable . . . .” 434 U.S. at 109, 98 S.Ct. at 332, 54 L.Ed.2d at 336. (Emphasis supplied).

The Court held the State’s justification based upon the safety of the officer was both “legitimate and weighty.” The Fourth Amendment was not violated; the search, or pat-down, was justified under Terry. It also stated that “we do not hold today ‘that whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car.’ ” See footnote 6, 434 U.S. at 111, 98 S.Ct. at 333, n. 6, 54 L.Ed.2d at 337.

It must be kept in mind that the initial intrusion or restriction was admittedly lawful under the facts of this case. The pat-down was permissible under the “armed and presently dangerous” doctrine of Terry.

We note next the recent and highly significant case of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), in which the Supreme Court of the United States condemned random stops. Prouse was decided after the former decision of this Court in the instant case and after the most recent decision of the Court of Criminal Appeals.

A patrolman stopped an automobile occupied by Prouse, for the purpose of checking the license of the driver and the registration of the car. He had observed no violation and no suspicious activity. As he was walking toward the stopped vehicle, the officer smelled marijuana smoke; subsequently, he seized marijuana in plain view on the car floor.

The trial court suppressed the evidence; the Delaware Supreme Court affirmed; the Supreme Court granted certiorari, heard argument and affirmed.

We note, in passing, that this is a substantially stronger case for the prosecution than the case at bar, for, in Prouse, the contraband was in plain view.

The crux of the Court’s holding is as follows:

[Ejxcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. (Emphasis supplied). 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673.

Thus, the Terry doctrine of specific and articulable facts giving rise to reasonable suspicion continues to be applied.

Lastly, we note the highly significant case of Brown v. Texas, - U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The opinion in this case was released after we heard argument in the case at bar. We think Brown is controlling on the issues presented in the case sub judice.

Two El Paso police officers observed Brown and another man walking in opposite directions away from one another in an alley, in an area marked by a high incidence of drug traffic. The officers believed, under the circumstances which they branded as “suspicious,” that the two men had been together or were about to meet until the patrol car appeared. One of the officers got out and asked Brown to identify himself and explain what he was doing there. Brown refused to identify himself and angrily asserted that the officers had no right to stop him. They then frisked him and found nothing. Upon his continued refusal to identify himself, he was arrested and charged under a Texas statute making it unlawful for a person to refuse to give his name and address upon request of an officer who has lawfully arrested him. A search made after the arrest revealed nothing.

Brown was convicted in municipal court. Upon appeal to the County Court of El Paso County, he was again convicted and fined $45.00 and the court costs. This judgment, being for a fine not exceeding $100.00, was not appealable. Appeal was taken from the County Court to the Supreme Court of the United States, which noted probable jurisdiction and reversed.

To the case at bar the opening language of the discussion of the legal issues is of critical import:

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. In convicting appellant, the County Court necessarily found as a matter of fact that the officers “lawfully stopped” appellant, (citation omitted) The Fourth Amendment, of course, applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, [89 S.Ct. 1394, 22 L.Ed.2d 676] (1969); Terry v. Ohio, 392 U.S. 1, 16-19, [88 S.Ct. 1868, 1877, 20 L.Ed.2d 889] (1968). ‘[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’ id., at 16, [88 S.Ct. at 1877] and the Fourth Amendment requires that the seizure be ‘reasonable.’” United States v. Brignoni-Ponce, 422 U.S. 873, 878, [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607] (1975). (Emphasis supplied). 99 S.Ct. at 2640.

Citing Delaware v. Prouse, supra, United States v. Brignoni-Ponce, supra, and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court said:

A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field, (citations omitted) To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. (Emphasis supplied). 99 S.Ct. at 2640.

The State contended' that Brown was stopped because the officers had a “reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed.” After noting the requirement that “officers . . . have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity,” the Court said:

The flaw in the State’s case is that none of the circumstances preceding the officer’s detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. . . . There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant’s activity was no different from the activity of other pedestrians in that neighborhood. 99 S.Ct. at 2641.

Again this is a substantially stronger case for the prosecution than the case at bar.

Finally, we point out that no search or frisk “unlawful at its inception may be validated by what it turns up.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441, 453 (1963).

IV.

Conclusion

We apply these principles to the case at bar.

We view the activities of Neese and Hughes as being inseparable for purposes of adjudicating the Fourth Amendment rights of Hughes.

Neese was accosted in the Country Store on the basis of information which contained no specific and articulable facts or inferences from facts, sufficient to generate a reasonable conclusion that a crime had been, was, or was about to be committed. At maximum the information was a wholly subjective and inarticulate hunch. It completely fails the test of objectivity. He was restrained of his liberty to walk away and, thus, was subjected to an invalid seizure under the Fourth Amendment.

This carries over to invalidate the subsequent search and seizure of Hughes. The Hughes activities were merely a continuation of a forbidden intrusion and, in no sense, may they be isolated or may they be treated as a second and unrelated transaction. The wholly unwarranted deprivation of Neese’s liberty was the initial intrusion that tainted the entire episode culminating in the confrontation with Hughes and the search of the automobile.

If we isolate the events surrounding the Hughes episode and analyze them separate and apart as opposed to treating them as the culmination of a progression of the investigation, the results are the same.

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, supra, 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, supra, “none of the circumstances preceding the officers’ detention justified a reasonable suspicion that he was involved in criminal conduct.” 99 S.Ct. at 2641.

The question of whether Hughes gave his consent to the search of his automobile is of no significance. The consent, if given, was subsequent to the initial wrongful intrusion. Just as there was an unconstitutional seizure when the El Paso officers stopped Brown in an alley and required him to identify himself in the absence of specific objective facts, so it was constitutionally impermissible for the officers to approach Hughes and demand his driver’s license. A citizen has a constitutionally ordered right to be secure in his person and possessions and to be free from “arbitrary invasions solely at the unfettered discretion” of the police.

The search or frisk was unlawful in its inception; the initial confrontation of Neese was constitutionally impermissible; and the deprivation suffered by Hughes, either on a derivative or direct and personal basis are on the same footing.

The judgment of the Court of Criminal Appeals is reversed and this action is dismissed.

Reversed and Dismissed.

BROCK, C. J., and FONES, J., concur.

COOPER and HARBISON, JJ., concur in results only.

      . At the suppression hearing on remand the Trial Judge declined to address this issue, merely noting that “it was controverted as to whether the window was . . down or up,” a finding that is more characterized by its brevity than its enlightenment.

      . There is a discrepancy between the statements of Hughes and Neese to the police officer with respect to the purpose of the trip. The officer says that Neese told him that he and Hughes were going to Florida; that they had had motor trouble; and that Hughes had a friend who could repair it. According to the officer, Hughes told him he went to see about a Blazer that was mired up in the mud and that he was on his way back to Murfreesboro.

      . His officer companion died between the two trials. No effort was made to introduce his former testimony.

      . The proprietor, neither at the trial nor the suppression hearing, detailed any strange or suspicious conduct.

      .The Trial Judge, after the suppression hearing, stated that “the proprietor of the Country Store became suspicious of Defendant Neese for reasons which need not be gone into.” A more accurate phrase would have been, “for reasons that were never given.”

      . The officer testified that he smelled burning marijuana after the window was lowered. This prompted the search of the automobile and the discovery of the contraband upon which the prosecution was based.

      . We do not consider it either necessary or appropriate to discuss the remaining facts, in view of the conclusion we reach in Section IV, infra.

      . There is no indication that it was unusual for people to be in the store during the hours it was open for public business. His action was no different from the activity of the normal patron in a grocery store and restaurant. See Brown v. Texas, supra, for similar language applied to an analogous situation.


author: LEWIS, Judge.

text:
    Claude GARRETT and John C. Garrett, Jr. d/b/a Cole & Garrett Funeral Directors, Plaintiffs-Appellees, v. FOREST LAWN MEMORIAL GARDENS, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    June 29, 1979.
    Rehearing Denied Aug. 3, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.

      Tyre B. Harris, Dodson, Harris, Robinson & Aden, Nashville, for plaintiffs-appellees.
    Cecil D. Branstetter, Branstetter, Moody & Kilgore, Nashville, for defendant-appellant.
   OPINION

LEWIS, Judge.

This suit is on a Petition for Contempt filed in the Chancery Court at Nashville alleging that defendant is in violation of a permanent injunction issued against it in August, 1972.

The suit resulting in the issuance of the permanent injunction is Garrett, et al. v. Forest Lawn Memorial Gardens, 505 S.W.2d 705 (Tenn.1974). There, plaintiffs sought an injunction against defendant to prevent it from soliciting and entering into contractual arrangements providing for the sale of burial spaces, funeral merchandise and membership in the Forest Lawn Memorial Membership Association. The Supreme Court granted certiorari to construe T.C.A. §§ 56-1101, 3201, 3205, and 3208, “so as to clarify the distinction which the statutes and cases make between a funeral director and home, on one hand, and associations and similar companies on the other.”

The allegations were that defendant was engaged in the cemetery business and operated a division, Forest Lawn Memorial Membership Association, which entered into contracts for the sale of funeral services and attendant amenities on a pre-need basis. The contracts were alleged to be in violation of T.C.A. §§ 56-3205 — 3211. A membership fee of $100.00 was charged and granted the right of members to purchase the funeral service at $455.00.

The Court determined that the contracts were contracts of insurance under the definition of T.C.A. § 56-1101 and were in violation of T.C.A. § 56-3205 by constituting a contract which “tends to limit or restrict the freedom of choice in the open market regarding contract purchases and arrangements with reference to any part of a funeral service for such insured.” 505 S.W.2d at 707.

T.C.A. § 56-3207 makes it unlawful for a company to contract with a funeral director for the procurement of services for the insureds.

T.C.A. § 56-3208 makes it illegal for certain groups and organizations to contract to furnish merchandise and/or services upon a person’s death. It also forbids such a contract where there is a promise of a rebate, reduction in price or discount available.

In examining the statutes in question, the Supreme Court determined that T.C.A. § 56-3201, is applicable to a licensed funeral director or home, as well as an association such as defendant, but not to an individual funeral home or director when the pre-need contract stipulates an option for a cash payment in the amount of the maximum price named in the settlement of the contract.

In construing T.C.A. § 56-3208, the Court determined that the first paragraph was not applicable to a funeral home or director but was applicable to an association separate from a funeral home. The Court held that the first paragraph precludes an association “from dealing in funeral merchandise whether or not a discount is involved.” 505 S.W.2d at 709.

As to T.C.A. § 56-3205, the Court found it applicable to associations and similar companies but not to individual funeral directors or homes who may contract within the other statutory limitations on a pre-need basis.

The Supreme Court affirmed the Judgment of the Court of Appeals affirming the Chancellor’s Decree issuing the permanent injunction.

In his Memorandum of June 29, 1978, the Chancellor, in the suit at bar, found the following portion of the contract in issue to be pertinent in his decision.

Seller agrees to sell to the undersigned Purchaser(s) and Purchaser(s) agree to buy from seller_funeral service(s) for a total consideration of $_
Further, under the heading “FUNERAL SERVICES PROVIDED”:
Funeral Service shall consist of_cas-kets) #_color_vault(s)_, removal of the deceased to a mortuary (not over 50 miles radius from Goodletts-ville), securing necessary permits, professional care and preparation, use of private slumber room, use of funeral facilities _, service of a licensed funeral director and assistant, funeral acknowl-edgement cards, memorial record book and staff services.

The defendant had argued that the agreement had provided for the deposit of all monies received to be in a trust fund as prescribed by T.C.A. §§ 62-527 — 535 which thus made the contracts legal.

The Chancellor found no proof that such a trust fund had been established and further that T.C.A. § 62-535 seemed to exclude from its provisions any contract subject to regulation or registration by the State of Tennessee, Department of Insurance.

The Chancellor held that the injunction specifically prohibits contracts in violation of T.C.A. §§ 56-3205 — 3208. Defendant was held to have violated these sections. Defendant was held in contempt of court but no punishment imposed because “respondents were relying in good faith upon the advice of counsel who redrafted their agreement . . . .”

Defendant has assigned three (3) errors in the court below:

The Chancellor erred because, as a matter of law, appellant did not violate T.C.A. §§ 56-3205 — 3208, the code sections covered by the injunction.
The Chancellor erred in finding appellant guilty of contempt because he improperly imposed the burden of proof on appellant and there is no material evidence to support the findings.
The Chancellor erred in holding appellant in contempt of court because the Chancellor found appellant had not willfully violated the injunction.

In support of its position on assignment one (1), defendant asserts that the contract in this case was made directly with Wood-lawn Memorial Gardens, Inc., a funeral home. Therefore, only the second paragraph of T.C.A. § 56-3208 would apply. Defendant asserts that it has complied with the second paragraph of T.C.A. § 56-3208 because the purchaser is not promised a discount of any nature.

Further, defendant contends that the sale of pre-need burial services and merchandise is specifically legalized by T.C.A. §§ 62-528 —538, which, being passed subsequent to T.C.A. § 56-3208, evinces a legislative intent to permit the sale of pre-need burial services and merchandise while insuring the integrity of monies advanced for them. In addition, a construction of T.C.A. §§ 62-528 —538 prohibiting the sale of pre-need funerals would destroy the consumer-protective purposes of T.C.A. §§ 62-528—538.

Defendant also contends that the Chancellor’s grounds for his decision were improper because the contract specifically avers the creation of the trust fund. Further, defendant claims that the Chancellor erred in holding that T.C.A. §§ 62-528—535 is not applicable to the contract at bar because, in the Chancellor’s words, “T.C.A. § 62-535 seems to exclude from these provisions any contract or security which under pre-existing laws .is subject to regulation or registration by any division of the Department of Insurance.” It is defendant’s position that since the courts have construed pre-need funeral contracts to be contracts of insurance and thus subject to regulation by the Department of Insurance, the Chancellor’s rationale has rendered T.C.A. §§ 62-528—535 “totally inapplicable to any situation.”

Defendant’s contention that the contract in this case was made directly with Woodlawn Memorial Gardens, Inc., a funeral home, is not substantiated by the record. By the terms of the contract itself, the “Seller” is named as “Forest Lawn Memorial Gardens, Inc.” The Security Agreement also refers to the “Company” as “Forest Lawn Memorial Gardens, Inc.” Further, the Security Agreement refers to Forest Lawn Memorial Gardens, Inc. as a “cemetery corporation.” The record is devoid of any mention of a “Woodlawn Memorial Gardens, Inc.”

, Defendant’s contention that its sale of pre-need burial services and merchandise is legalized by T.C.A. §§ 62-528—538 is unwarranted. The provisions of T.C.A. §§ 56-3205—3208 and T.C.A. §§ 62-528— 538 must be read in pari materia.

The repeal of statutes by implication is not favored in the law. Only where the conflict between the earlier statute(s) and later statute(s) is completely irreconcilable will the earlier statute be held repealed by implication. Massachusetts Mut. Life Ins. Co. v. Vogue, Inc., 54 Tenn.App. 624, 393 S.W.2d 164 (1965). See also, Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170 (Tenn.1975) (Prior act repealed only to extent of repugnancy and conflict).

These apparently conflicting code sections are reconcilable and T.C.A. §§ 62— 528—538 not rendered negatory, contrary to defendant’s contentions.

These code sections appear in Chapter 5 of the Tennessee Code Annotated, entitled “Funeral Directors and Embalmers”. T.C.A. § 62-501 defines “Funeral establishment” as “any business, whether a proprietorship, partnership, firm, association or corporation, engaged in . the preparing of dead human bodies for burial

T.C.A. § 62—528 states:

62-528. Contracts for future funeral services void—Exceptions.—Any agreement, contract or plan requiring the payment of money in a lump sum or instal-ments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body, or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the use of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be paid to and held by a bank or trust company which is authorized to do business in this state, or an insured federal savings and loan association, and subject to the terms of an agreement for the benefits of the purchaser of said agreement, contract or plan, provided, however, for the purpose of §§ 62-528— 62-535, personal property shall not be construed to include cemetery lots or permanent grave markers.

T.C.A. §§ 56-3201 — 3208 provide for who can issue a burial policy and when. Consistent with the injunction in this cause, defendant is not one of those persons/companies.

For those who do not fall within the ambit of T.C.A. §§ 56-3201 — 3208, i. e. funeral directors and homes, and can issue such policies, in order to do so, they must comply with the terms of T.C.A. §§ 62-501 —538.

Further, T.C.A. § 62 — 535 takes defendant outside the scope of T.C.A. §§ 62— 528 — 535.

62-535. Exclusions. — Nothing in §§ 62-528 — 62-535 shall be construed to apply to any contract or security which under pre-existing laws is subject to regulation or registration by any division of the department of insurance of the state of Tennessee, nor shall it apply to any burial association where the certificate for burial benefits does not exceed one hundred dollars ($100).

Defendant, as a cemetery corporation organized and existing under the laws of the State of Tennessee is not entitled to claim the benefits of T.C.A. §§ 62-501 — 538, by the terms therein.

By its second assignment of error, defendant asserts that the Chancellor erred in placing the burden of proof on defendant and further that there is no material evidence to support the findings.

Defendant contends that proceedings for contempt resulting from the violation of an injunction are proceedings for criminal contempt. Therefore, the burden is upon complainant to establish guilt beyond a reasonable doubt.

It is defendant’s position that the Chancellor placed the burden on defendant by rejecting the defense of the establishment of a trust account because defendant had not proved its existence. Further, defendant maintains that the Chancellor imposed upon it the burden of proving that the price charged for pre-need burial services and merchandise constitutes a promise of a discount in violation of T.C.A. § 56-3208.

The Chancellor’s Memorandum of June 29, 1978, after a synopsis of defendant’s position regarding T.C.A. §§ 62-527 — 535, states:

However, there was no proof that the trust fund had been established and T.C.A. § 62-535 seems to exclude from these provisions any contract or security which under preexisting law is subject to regulation or registration by any division of the Department of Insurance of the State of Tennessee.

Pursuant to T.C.A. § 62-535, quoted supra, the Chancellor is correct in noting the inapplicability of T.C.A. §§ 62-528 — 535 to defendants. Therefore the issue of the burden of proof as to the establishment of a trust fund is moot.

Further, since the defendant is a “cemetery corporation” within the scope of the first paragraph of T.C.A. § 56-3208, the trial in this cause did not require any proof as to a promise of discount. The only proof required was that defendant was engaged in writing “any type of life insurance by whatever name called, upon the lives of citizens of this state, to enter into any contract with any citizens of this state, contracting and agreeing to furnish merchandise or services upon the death of any person insured.”

The record and exhibits thereto establish that defendant was engaged in just such transactions. The contract, being in evidence, mandates that conclusion.

Defendant’s final contention is that the Chancellor erred in holding it in contempt of court because he found defendant had not willfully violated the injunction.

In the Court’s Memorandum, the Chancellor states:

The Court concludes, therefore, that the respondents are in contempt of Court for violating the previous orders of the Court.

The Court did not impose punishment because the defendant had been relying in good faith upon the advice of counsel who had redrafted the agreement.

Defendant was held in contempt for violating an order of the Court. Although the distinction is sometimes very hazy, there is a distinction between a criminal and a civil contempt. The defendant’s actions at bar constitute a criminal contempt which is one directed against the dignity and authority of the court. See O’Brien v. State ex rel. Bibb, 26 Tenn.App. 270, 170 S.W.2d 931 (1942). A civil contempt is one where a person refuses or fails to comply with an order of the court and punishment is meted out for the benefit of a party litigant. See Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (1966). In neither a civil nor criminal contempt case is the defense of acting under the advice of counsel sufficient to prevent a finding that defendant is guilty of contempt. Rather, acting in good faith upon the advice of counsel is a mitigating factor considered in determining the appropriate punishment. See Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908 (1964); Blair v. Nelson, 67 Tenn. (8 Baxter) 1 (1874); Churchwell v. Callins, 36 Tenn.App. 119, 252 S.W.2d 131 (1952).

Being a matter of criminal contempt, it is incumbent that defendant receives the benefit of the presumption of innocence and that it be proven guilty beyond a reasonable doubt.

Here, the contract speaks for itself. It is in violation of both the statutory law and the injunction of August, 1972. The defendant, on the face of the pleadings and exhibits attached thereto, was guilty as a matter of law. The burden thus shifted to defendant to assert any affirmative defenses available or to refute the evidence offered against it. As is evident from the record below and our analysis of the issues raised on this appeal, defendant has failed to meet its burden.

The assignments of error are overruled. The judgment of the Chancellor, as modified on September 5, 1978, is affirmed. Costs are taxed to defendant.

SHRIVER, P. J., and TODD, J., concur.

      . 56-3201. Burial policies — Cash option — Requirements. — It shall be unlawful for any person, partnership, corporation, company or any organization of any nature whatsoever, to execute or issue a contract on the life of any person residing in this state which provides that the death benefit, upon the insured’s death, shall be settled by furnishing the deceased insured with burial or some part of such service, at a price named in said contract exceeding one hundred dollars ($100), unless it is also stipulated therein that said death benefit may be paid in cash in a like amount as the maximum price named or expressed for the burial service or benefit in settlement of such contract, at the option of the representative of the deceased insured, which option must be evidenced in writing, signed by the representative of such deceased insured; and be it further provided, that nothing contained in this section shall be construed to apply to any of the organizations named in § 56-2429, or to any burial association when the certificate for burial benefits does not exceed one hundred dollars ($100).

      . 56-3208. Contracts for funeral merchandise or service. — It shall be unlawful for any life insurance company, fraternal benefit society, or similar company, or association, engaged in writing any type of life insurance by whatever name called, upon the lives of citizens of this state, to enter into any contract with any citizens of this state, contracting and agreeing to furnish merchandise or services upon the death of any person insured.
      It shall further be unlawful for any person, firm or corporation to issue any policy or certificate, or to enter into any contract, conditioned to take effect on the death of any person, wherein such person, or the personal representative, heirs or next of kin of such person, is promised any rebate, discount or reduction in price for or on account of funeral merchandise, expenses or services by virtue of his being issued such policy or certificate, or being designated as beneficiary therein, or by virtue of his entering into such contract or being designated therein as the recipient of any such rebate, discount or reduction in price.

      . 56-3205. Designation of funeral director by insurer. — It shall be unlawful for any life insurance company, fraternal benefit society, or other similar company, association, or society issuing insurance policies, contracts, or certificates upon the lives of citizens of this state, to designate in said policy contract, or certificate, or otherwise, the person, firm or corporation to conduct the funeral of the insured, or to organize, promote or operate any enterprise or plan, or to enter into any contract with such insured or with any other person, which plan or contract tends to limit or restrict the freedom of choice in the open market of the person or persons having the legal right of such choice regarding contracts, purchases and arrangements with reference to any part of a funeral service for such insured.