State vs.Gregory Weaver

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED APRIL SESSION, 1998 August 18, 1998

Cecil W. Crowson

Appellate Court Clerk

STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9705-CC-00188 )

Appellee, )

) MONTGOM ERY COUNTY

V. )

)

) HON . ROB ERT W. W EDE MEY ER, GRE GOR Y KE ITH W EAVE R, ) JUDGE )

Appe llant. ) (DUI; RE CKLE SS DR IVING)

FOR THE APPELLANT: FOR THE APPELLEE:

PETER M. OLSON JOHN KNOX WALKUP OLSON & OLSO N, PLC Attorney General & Reporter 114 Fra nklin Stree t Clarksville, TN 37040 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

JOHN WESLEY CARNEY, JR.

District Attorn ey Ge neral

LANCE BAKER

Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Defe ndan t, Greg ory Ke ith W eaver , appe als as o f right fro m his

convictions of DUI, fourth offense, reckless driving, driving on a revoked license, second offense, violating the open container law, and violating the implied consent law following a jury trial in the M ontgom ery Cou nty Crim inal Cou rt. In this ap peal, Defendant argues that the trial court erred in denyin g his M otion to Supp ress a ll evidence obtained as a result of the investigatory stop of him immediately preceding his arrest for DUI and the other related offenses . We affirm the judgment of the trial court.

On Octo ber 3, 1995, the Clarksville police dispa tcher notified patrol officers that the police department had received a report of a reckless driver who was poss ibly drunk. According to the report, the suspect vehicle was a red Ford Ranger being driven by a white male with dark hair and a bad complexion. The report further indicated that the Ranger had left the area near the Texaco station and was traveling toward Krog er.

Shor tly after the dispa tcher re layed th is information to the Clarksville officers, Officer Joe Papastathis informed Officer Robert Miller that he had seen the suspect vehicle at the reported location which was in Officer Miller’s patrol area. Officer Miller then saw the vehicle and began to follow it in an attempt to corroborate the report. Officer Miller observed Defendant make a “slightly wider turn than what most cars would take if you turned.” At this point Defe ndan t pulled into the drivew ay to his home and stopped. Officer Miller pulled into Defendant’s driveway and parked the

3

patrol car directly behind D efendant’s ve hicle. At the time, Officer Miller was unawa re that the d riveway be longed to Defen dant.

At some point after Officer Miller pulled into the driveway, but before he confronted Defenda nt, Officer Robe rt Smith radioe d Offic er Miller and to ld him that the su spec t’s vehicle had nearly hit his car when he was driving to work just a few minutes earlier. Thereafter, Officer Miller approach ed Defen dant’s truck, whe re he smelled alcohol and saw an open bottle of whiskey in the car. Officer Miller asked Defendant if he had been drinking, and Defendant admitted that he had, and that he had “pro bably ha d too m uch.”

Prior to trial, Defendant filed a motion to suppress the evidence garnered from the encounter with Officer Miller. The proper standard of review for suppression issues was set forth by our supreme court in State v. Odom, 928 S.W.2d 18, 23 (Tenn. 19 96):

The party prevailing in the trial court is entitled to the strongest legitim ate view of the e vidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence suppo rts the trial court’s findings, those findings shall be upheld . In other wo rds, a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.

Defendant argue s in this appeal that Officer Miller lacked the reasonable suspicion necessary to d etain and qu estion him. Mo re specifically, he contends that Officer Miller’s obs ervations did not provide sufficient corroboration of the information supplied by the anonymous call placed to the dispatcher, as is req uired by State v. Pully, 863 S.W .2d 29 (T enn. 19 93).

4

W e first note that we find Officer Miller’s actions to be an “investigatory stop”

according to constitu tional stan dards. “[S]topping a n autom obile and detaining its occup ants constitute a ‘seizure’ within the m eaning of [the Fou rth and F ourteen th amen dmen ts of the United States Constitution], even though the purpose of the stop is limited and the res ulting detention qu ite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979) (citations omitted). In some circumstances, an officer may brie fly detain a susp ect with out pro bable caus e in order to investiga te possib le crimina l activity. Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637 , 2641 , 61 L. E d. 2d 3 57 (19 79). A perso n is seized “if, in view of all of the circumstances surrounding the incide nt, a reasonab le person wo uld have believed that he was n ot free to leave.” United States v. Men denh all, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (19 80). W hen O fficer Miller pu lled into the driveway, and then approached Defendant’s parked car, a reasonable person would have believed he was no longer free to leave.

This type of investigatory stop is constitutionally permissible only when a police officer has a reasonable suspicion, supported by specific and articulable facts, that a criminal offense h as bee n or is abo ut to be co mm itted. See Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1 968). In order to determ ine the spec ific and articulable facts, this Court m ust cons ider the “tota lity of the circum stance s.” State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citation omitted). Among the relevant elements to be considered are “objective observations, information obtained from other police officers or agencies, information obtained from citizens, and the pattern of opera tion of certain offende rs.” Id.

5

When the info rmatio n relied upon is provided by an anonymous person, heightened concerns are raised about the reliability of the information because of the poss ible danger of “false reports, through police fabrication or from vindictive or unrelia ble informants.” Pully, 863 S.W .2d at 31. As a re sult, our courts have developed a methodology for evaluating the reliability of citizen information. For showings of proba ble caus e base d on an informa nt’s tip, our supreme court has followed the former federal two-pronged test tha t require s proo f of the in forma nt’s basis of knowledg e and cred ibility. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 2 1 L. Ed. 2 d 637 (1 969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (19 64); State v. Jacumin, 778 S.W .2d 430, 436 (Tenn. 198 9). W hile this standard is typically used to determine probable cause, courts of th is State have held this standard is to be used as a guide in assessing the reliability of an informa nt’s tip supp orting an investigative detention . Pully, 863 S.W.2d at 31; State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. A pp. 198 9), perm. to appeal denied (Tenn. 1990). We also note that reasonable suspicion requires a lower level of proof than probable cause, allowing for citizen information that is less reliable than that required for proba ble caus e show ings. Pully, 863 S.W.2d at 32 (citing Alabama v. Wh ite, 496 U.S . 325, 330 , 110 S. C t. 2412, 24 16, 110 L. Ed. 2d 301 (19 90)).

W e must determine if there was sufficient corroboration of the information supplied to Officer Miller by the dispatc her to support a reasonable suspicion of illegal activity. The record indicates that the Clarksville police dispatcher received a telephone call from an unknown citizen warning of a potential drunk driver in a red Ford pickup tru ck in the a rea of the Texac o station a nd Kro ger. The suspect was described by the caller as a white male with dark hair and a bad complexion. Although the caller’s basis of knowledge is unclear from the record, the

6

circumstances in which the information was given and the language of the caller suggest first-hand, eyewitness knowledge. “When an informant reports an incident at or near the time of its occurrence, a court can often assume that the rep ort is first- hand, and henc e reliable.” Pully, 863 S.W.2d at 32. The proximity in time between the anonym ous ca ll to the dispatcher and Officer Miller’s subsequent information is significant in asses sing the re liability of the inform ation. See id. (citations omitted). Officer Miller receive d corrob oration of that information from Officer Papastathis, who radioed that he had just seen the red truck in the area described by the anonymous caller. There after, Officer Miller saw the truck and began to follow it. He then observed Defendant make a “wider turn than most cars would take.” As Officer Miller continue d following Defen dant in an attempt to corroborate the information that had been given to him, Defendant pulled into a driveway. Officer Miller testified at the hearing that “[Q]uite frankly, I thought maybe [Defendant] was doing this just to avoid me being behind him, so that’s why the obse rvation pe riod was not that lon g.” It is clear from the facts that Officer Miller was unaware that the driveway Defendant pulled into was actually that of Defendant’s. Once Officer Miller pulled his patrol car into Defendant’ s driveway, this constituted a “stop” according to constitutional standa rds.

At som e poin t after O fficer M iller pulled into Defendant’s driveway, he received information from a fellow officer saying that the person driving the red truck had nearly run him off the road on his way to work at the police station just minutes earlier. However, this information came too late, i.e., after the stop, to be considered in determining whether or not the officer’s c orrobora tion was s ufficient. We therefore disagree with the trial court’s finding that this last info rmatio n sho uld be considered in the ana lysis.

7

Howeve r, even though the trial court erred in considering the information relayed to Officer M iller from his fe llow officer re porting tha t Defendant had nearly hit him, we are nonetheless able to uphold the trial court’s finding that sufficient corroboration existed in this case. We base this finding upon the information provided to Officer Miller by the dispatcher, the subsequent corroboration from Officer Papastath is, Defendan t’s unusually wide turn, Officer Miller’s personal observations, and his reaso nable belief that D efendant pu lled into the driveway to avoid being pu rsued b y police. Ba sed on all the foreg oing, we find that the inform ant’s reliability a nd his basis fo r know ledge were s ufficien tly subs tantiate d in this case to establish the necessary “reasonable and articulable suspicion” required by our sta te constitu tion. See Coleman, 791 S.W.2d at 507.

We m ust also look to the reasonableness of the investigatory detention which turns on the facts and circumstances of each particular c ase. See Pully, 863 S.W.2d at 34 (citing Men denh all, 446 U.S . at 561, 10 0 S. Ct. at 1 881, 64 L. Ed. 2 d 497 (Pow ell, J., concurring)). In order to judge the reasonab leness of the inves tigatory detention involved in the case before us, we mus t weigh “the gra vity of the public concern, the degree to w hich the seiz ure adva nces tha t concern , and the s everity of the intrusion into individual privac y.” Pully 863 S.W .2d at 30 (citation om itted). The public interest served by the investigatory d etention in this case was the prevention of a drunk driving accident. Certainly the gravity of the concern over drunk driving is signific ant because of its threat to the safety of any citizen on the public roads. Also, the brief deten tion of D efend ant for q uestio ning w as a re latively minor intrusion into Defendant’s privacy. Thus, we find the detention of Defendant in the case sub judice to be reasonable.

8

The e vidence does n ot prepo nderate against th e trial court’s d enial of Defendant’s motion to suppress the evidence gained as a result of the encounter with Office r Miller. W e acco rdingly affirm the judgm ent of the tria l court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WA DE, Presiding Judge

___________________________________

L. T. LAFFERTY, Special Judge