State vs.Gregory Weaver

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 18, 1998
• Docket: 01C01-9705-CC-00188
• Status: Published

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

-2- 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).

-3- 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.

-4- 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

-5- 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.

-6- 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.

-7- 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

-8-