State v. James Pinkerton

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 15, 1998
• Docket: 01C01-9706-CC-00220
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH 1998 SESSION April 15, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9706-CC-00220 Appellee, ) ) CANNON COUNTY VS. ) ) HON. J.S. DANIEL, JAMES PINKERTON, ) JUDGE ) Appellant. ) (Certified Question of Law)

FOR THE APPELLANT: FOR THE APPELLEE:

LARRY D. BRANDON JOHN KNOX WALKUP 103 North Spring Street Attorney General and Reporter P.O. Box 5065 Murfreesboro, TN 37133-5065 LISA A. NAYLOR Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

WILLIAM C. WHITESELL, JR. District Attorney General

DAVID L. PUCKETT Assistant District Attorney General Rutherford County Judicial Bldg. Room 303 Murfreesboro, TN 37130

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The defendant, James Pinkerton, appeals from a DUI judgment of

conviction entered by the Circuit Court of Cannon County. The defendant pled

guilty to DUI, first offense, reserving the right to appeal as a certified question of

law the trial court’s denial of his motion to suppress. Tenn. R. Crim. P. 37

(b)(2)(i). The defendant contends the actions of the arresting officer constituted

a “stop” for Fourth Amendment purposes, and the officer lacked reasonable

suspicion based upon specific and articulable facts that a crime was being

committed or was about to be committed. After a review of the record, the

judgment of the trial court is AFFIRMED.

BACKGROUND

A.

Cannon County Sheriff’s Deputy Charlie Harris received a telephone

complaint from April Gannon, who resided on Highway 53 South. She advised

that the defendant was driving a white Chevrolet S-10 truck on Highway 53

South, and he had been drinking alcohol. She requested that Deputy Harris

investigate the matter. Deputy Harris proceeded to the location to investigate the

complaint.

The deputy first saw the defendant about thirty (30) yards from Gannon’s

driveway and observed him turn into the driveway. Deputy Harris pulled in

behind the defendant and parked his vehicle. The deputy did not activate his

blue lights. The defendant was walking toward the front door of Gannon’s house

when the deputy approached the defendant and asked for his name. When the

defendant responded, the officer noticed an odor of alcohol on his breath. When

asked if he had been drinking, the defendant stated he had “just a couple.”

Deputy Harris then asked the defendant to perform a field sobriety test. Due to

2 the defendant’s poor performance on the field sobriety test, the defendant was

arrested for driving under the influence.

B.

At the hearing on the motion to suppress, the trial court found that the

actions of Deputy Harris did not constitute an “investigatory stop.” The question

certified to this Court is whether the trial court erred “in overruling defendant’s

Motion to Suppress the evidence obtained by Deputy Charley Harris as a result

of [that] court’s finding that the Deputy’s conduct was not a ‘stop’ requiring the

court to apply the law in State v. Cobb, [C.C.A. No. 01C01-9011-CC-00366,

Hickman County (Tenn. Crim. App. filed May 7, 1991, at Nashville)].”

ANALYSIS

The defendant argues the unreported case of State v. Cobb, supra, and

State v. Coleman, 791 S.W.2d 504 (Tenn. Crim. App. 1989), are controlling of

the issue certified.

Deputy Harris received information from a citizen who gave her name,

address, and specific information about the defendant. The deputy observed a

vehicle matching the description given by the complainant pull into her

residence. The officer did not activate his blue lights , but simply parked his

vehicle behind the defendant’s in the driveway. Unlike the facts in Cobb and

Coleman, Deputy Harris did not stop the defendant’s vehicle. The defendant

voluntarily parked his vehicle intending to go inside the residence. There is no

showing the defendant stopped his vehicle as a result of any action by Deputy

Harris. See State v. Moore, 776 S.W .2d 933, 935 (Tenn. 1989). Accordingly,

3 there was no investigatory stop of the vehicle.

Defendant also contends that his “seizure” by Deputy Harris was not

supported by specific, articulable facts. We find no constitutional violation. The

officer was on the property of a complainant who asked for his assistance. The

defendant’s vehicle was not “stopped” by the officer. The officer simply

approached the defendant and asked him his name. There was no stop or

seizure at this time. See State v. Moore, 776 S.W.2d at 935; State v. Butler, 795

S.W.2d 680, 685 (Tenn. Crim. App. 1990). Upon the defendant responding, the

officer smelled alcohol. He then had sufficient cause to detain the defendant for

field sobriety tests. Based upon the defendant’s poor performance of the field

sobriety tests, the officer had probable cause to arrest the defendant. We find

no unconstitutional seizure.

The judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

_________________________

4 JOSEPH M. TIPTON, JUDGE

_________________________ DAVID H. WELLES, JUDGE