State v. Gregory Steele

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED AUGUST SESSION, 1998 December 18, 1998

Cecil W. Crowson

Appellate Court Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801-CC-00024 )

Appe llant, )

) FRANKLIN COUNTY

V. )

)

) HON. BUDDY D. PERRY, JUDGE GREGORY STEELE, )

)

Appellee. ) (MOTION TO SUPPRESS GRANTED)

FOR THE APPELLEE: FOR THE APPELLANT:

ROBERT S. PETERS JOHN KNOX WALKUP SWAFFORD, PETERS & PRIEST Attorney General & Reporter 100 Firs t Avenu e, S.W . Win cheste r, TN 37 398 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

JAMES MICHAEL TAYLOR

District Attorn ey Ge neral

WILLIAM B. COPELAND

Assistant District Attorney General 324 Dinah Shore Boulevard Win cheste r, TN 37 398

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The State of T ennes see (Sta te) appe als from a judgm ent of the trial court

suppressing evidence found pursuant to a search of Grego ry Steele, th e Defe ndant, by a law enforcement officer. The State appeals pursuant to Rule 3(c) of the Tennessee Rules of App ellate P roced ure on the ba sis tha t the trial c ourt’s order granting the motion to suppress had the substantive effect of dismissing the indictme nts against th e Defe ndant. T he two ind ictmen ts charged the Defe ndant w ith DUI in violation of Tennessee Code Annotated section 55-10-401, and possessing methamphetamine, a Schedule II controlled substance, with the intent to sell or deliver in violatio n of Te nnes see C ode A nnota ted se ction 3 9-17- 417. In this court, the state contend s the trial court erroneously suppressed the evidence found by the officer. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this court that the jud gmen t of the trial cou rt should b e affirme d.

Officer Jeff Pe rry of the Frank lin Cou nty Sh eriff’s Department testified that he was on routine patrol on November 6, 1996. At approximately 2:30 a.m., he discovered a vehicle p arked a t Pleasa nt Grove boat dock with tw o (2) pe ople appa rently sleeping inside it. Although this was a public loca tion with no restrictions on public parking, Officer Perry called in the license plate tag number to make sure the car was properly registered. He admitted on cross-examination that he had no reason whatsoever to believe that there had been any commission of a crime. After finding that the car was properly registered, Officer Pe rry exited his patrol car, walked up to the ve hicle, then tapped on the w indow to perform a “welfare check” on the occupants of the car. After looking inside of the vehicle, he still did not

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observe anything that wou ld indicate th at a crime was be ing com mitted. Officer Perry observed that the keys were in the ignition and the radio was playing, but the car was not running. He did not observe a weapon or any alcohol inside the vehicle. The Defendant was in the driver’s seat. When he did not get a response, he tapped a little louder. T he De fendan t and his p assen ger then awoke .

When they both woke up, Officer Perry stated that “from looking at ‘em,” he could tell they were okay. On cro ss-examin ation, Perry stated tha t he “was trying to asce rtain if they had -- if they had received it [damage or harm] up to this point, to check on ‘em being out there at 2:30 in the morning . . . I didn’t know if they’d been in a fight o r what, I could n’t tell, I co uldn’t observe anything like that.” He explained that “in my opinion a welfare check goes far beyo nd ph ysical w ell-being. I mean there could be a mental distress there. They could be in an argument, they could have been inv olved in a d omes tic violence or dom estic situatio n, anythin g of that nature.”

As Officer Perry was still concerned about the occupants of the vehicle, he asked Defendant if he would step out of the car. Defendant exited the vehicle and Officer Perry noticed the odor of alcohol as soon as the vehicle’s door opened. Defendant adm itted tha t he ha d bee n drink ing ea rlier. He patted down the Defendant and fou nd a po cketknife in the De fendan t’s left front poc ket. As Officer Perry was pulling the knife out of Defendant’s pocket, a small lip balm type canister also came out. Defendant got nervous, so he asked him what it was. Defendant responded that he did not know what it was. Officer Perry looked inside the canister and fou nd a wh ite powd ery subs tance.

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At that point, Officer Perry asked Defe ndant to perform some field sobriety tests. After he explained the tests to the Defendant, the Defendant performed the tests unsa tisfacto rily to Offic er Perry. Officer Perry described Defendant’s demeanor as “real confused at the first of everything and then up until the last point that he knew he was going to be placed into custody his speech was slurred, he just seemed a little bit confused . . . and I couldn’t get a whole lot out of him. ”Defendant was then placed into custody for being un der the influ ence a nd pos session of a Schedule II narcotic.

The Defendant testified that on November 6, 1996, he parked his vehicle at the Pleasant Grove boat dock. He described that he was going through a divorce at that time and h ad been s leeping in his car. W anting to have som eone to talk with, Defendant asked one of his employees to accompany him that night after she got off work at midnight. They pulled in the parking lot at the boat dock to talk, but later fell asleep. L ater that ev ening, he was aw akene d by Officer Perry. Defendant estimated that at th at time they ha d bee n in the pa rking lo t for app roxim ately three (3) hours, as Officer Perry advise d him that it wa s 3:20 a.m. D efend ant tha nked him for awaking them as he had to be at his business to start cooking breakfast. At that time, Officer Pe rry asked him to step out of the vehicle . Defe ndan t cons idered it in his best interest to step outside. He was then asked by Officer Perry if he had been drinking. Defendant responded negatively and stated that he had been sleeping. Officer Perry th en as ked if D efend ant ha d anyth ing in his pockets, and Defendant answered that he ha d keys, a c igarette lighter, and som e change . Officer Perry said, “Let me see,” and then proceeded to run his hands down into Defendant’s pockets. Defendant stated that he had no choice but to allow Officer Perry to search him. He could no t recall if there w as a po cketknife in his pock et that nigh t.

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When asked to perform field sobriety tests, Defe ndan t was a ble to to uch h is nose with both ha nds, wa lk heel to toe, and then stand on one leg while holding the other foot approximately two (2) inches from the car’s bumper. Defendant asked Officer Perry if he could wait a few minutes to perform the final balancing test as he had just woken up , but Perry refuse d. Def enda nt state d that h e lost h is balance and had to perform the test ag ain. Defendant described that he had difficulty performing that test du e to the fac t he had just woke n up.

Defendant testified that he did no t drink a ny alco hol wh ile at the boat dock, but he had c onsu med one (1 ) can o f beer p rior to pic king u p his e mplo yee. He also recalled that the re was a “fifth” of G eorge Dicke l whisk ey beh ind the seat on the floorboard underneath some other objects, but he had not consumed any of that whiskey that night. Defendant did admit that he had probably ingested some metha mphe tamine s the m orning b efore.

Stipulated evidence included test results from which it was determined that while Defendant had no alcohol in his blood, he did have m etham pheta mine s in his bloods tream a t the time o f his arrest.

The trial court found that the Defendant was parked in a lawful public place and was not viola ting an y laws. W hile Officer Pe rry had de termine d that the s ubjects of the vehicle were okay, he asked the Defe ndan t to step out of th e vehic le because he noticed a n odo r of alco hol. G iven the fact tha t there w as no alcoh ol in the Defendant’s blood system , the trial c ourt no ted tha t it was u nlikely that he smelled much there. The trial court determined that this was a situation “where the individual had a right to be there, and although I’m not faulting the officer in any way, and I

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want to make tha t as clear as I can o n the record, this is no t a -- this is a case whe re it’s approp riate for m e to gran t the mo tion to sup press, an d I’m goin g to do so .”

Upon review of the trial court’s finding on a motion to suppress, this court shou ld uphold the trial court’s decision unles s the evidence in the record preponderates against th ose findin gs. “Questions of credibility of the witnesses, the weight and va lue of th e evide nce, a nd res olution of conflicts in the evidenc e are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence, as well as all reasonable and legitimate inferences that ma y be draw n from th e eviden ce. Id.

Upon review of the re cord, th e evide nce d oes n ot prep onde rate ag ainst the findings of the trial cou rt. As the trial cou rt corre ctly found, the Defendant’s car was parked in a public place. While an officer may legitimately approach a ve hicle parked in a pu blic place and m ake a reque st for ide ntificatio n of the driver, th is officer had alread y verified the ca r’s regis tration a nd ind icated in his testimony that the only reason he approached the vehicle was to verify the well-being of the occup ants of that vehic le. State v. Pully, 863 S.W.2d 29, 30 (Tenn . 1993); State v. Butler, 795 S .W .2d 68 0, 685 (Ten n. Crim . App. 1 990) (c itations omitted). The application of this law to the facts found by the trial court is a question of law which this court reviews de novo. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). The Defendant and his companion awakened after the officer tapped on the windows, and the officer verified that at that point he had determined the occupants were physically not in any danger. Until this po int, the officer had been performing community caretaking

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and/or public safety functions whic h involved no coe rcion or de tention. State v. Rodney Hawkins, No. 03C01-9606-CC-00239, slip op. at 4, L oudon Coun ty (Tenn. Crim. App., a t Knox ville, July 16, 1997) (citing United States v. Berry, 670 F.2d 583, 591 (5th Cir. 1982)). Ho wever, it is at this point tha t Hawkins is disting uisha ble from the case sub judice. In Hawkins, the defendant was found by the police parked “awkwardly” within the middle of the road having a conversa tion with a fem ale companion who was standing outside of his vehicle. The female was drinking an alcoh olic beverage. When the police officer approached Defendant Hawkins, he observed an open container of bee r sitting between his leg s, a white powd ery substance near the vehicle’s console and a plastic bag hanging from the console. Defendant in the case sub judice was parked lawfully in a public place, with no appea rance o f any alcoh ol or drug s appa rent to the in vestigating officer.

Officer Perry admitted that the Defendant and his companion appeared to be “okay” when they awoke. The seizure and search of Def enda nt whic h follow ed this observation was based solely upon the officer’s speculation that occupants of the car might have “mental distress” or had been involved in a “dome stic situation .” This is not enoug h to justify the seizure an d search of D efendant by O fficer Perry.

As the trial court correctly found, it was only when the officer requested that the Defen dant step outside th e vehicle th at he no ticed an odor of alcohol. The officer testified that he did not notice any alcoholic beverages in plain view nor did he notice any othe r susp icious crimin al activity. After no ticing th e odo r of alco hol, the officer asked the Defendant if he had been drinking and the Defendant admitted that he had . At that point, the o fficer pro ceed ed to s earch and th en pe rform field sobriety tests upon th e Defe ndant. W e agree with the trial court’s findings that the

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officer overstepped his bounds after he verified the physical condition of the Defendant and his c ompa nion. There is no evidence which preponderates against the trial court’s findings that, under the totality of the c ircum stanc es, the officer d id not have re ason able s uspic ion to d etain th e Def enda nt, i.e. seize and search Defen dant after verifying his p hysical sa fety. This iss ue is witho ut merit.

We affirm the ju dgme nt of the trial co urt.

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THOMAS T. W OODALL, Judge

CONCUR:

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JOSEPH M. TIPTON, Judge

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JOE G. RILEY, Judge