         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     June 6, 2006 Session

           STATE OF TENNESSEE v. WILLIAM LARRY LITTLES

                   Direct Appeal from the Circuit Court for Tipton County
                          No. 5055 Joseph H. Walker, III, Judge



                  No. W2005-02686-CCA-R3-CD - Filed September 7, 2006


This is a direct appeal from a conviction on a jury verdict of driving under the influence of an
intoxicant (DUI), fourth or subsequent offense. The Defendant, William Larry Littles, filed a motion
to suppress evidence obtained as a result of a warrantless seizure, alleging the police did not have
reasonable suspicion to conduct the investigatory stop that led to the seizure. The Defendant’s
motion to suppress was denied. Following his conviction he was sentenced to eighteen months in
the custody of the Tennessee Department of Correction (TDOC). This sentence was suspended, and
he was ordered to serve 180 days in jail followed by supervised probation. On appeal, the Defendant
raises a single issue: that the trial court erred in denying his motion to suppress. We affirm the
judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which J.C. MCLIN , J., joined. GARY R.
WADE, P.J., not participating.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, William Larry Littles.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;
and Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION


                                             FACTS

       The conviction at issue stems from an incident originating on Highway 51 North in Tipton
County between Millington and Atoka. The record reveals that shortly after 9:00 p.m. on the
evening of March 1, 2004, Ms. Linda Sunderland was driving home when she was nearly run off the
road by the Defendant as he passed her vehicle. After observing the Dependant’s “erratic” driving,
Ms. Sunderland called 911 on her cell phone to report the incident, and shortly thereafter she
observed an officer with the Atoka Police Department follow the Defendant into a convenience store
parking lot. The Defendant was confronted and subsequently arrested for driving under the
influence.

        In March of 2005, a Tipton County grand jury indicted the Defendant on three charges: (1)
driving under the influence of an intoxicant, see Tenn. Code Ann. § 55-10-401; (2) driving under
the influence with prior DUI convictions, see id. § 55-10-403; and (3) violating the implied consent
law, see id. § 55-10-406. The Defendant filed a motion to suppress the evidence gathered from his
seizure, arguing the police lacked probable cause for his arrest. In July of 2005, an evidentiary
hearing was conducted pursuant to the Defendant’s motion to suppress.

         At this evidentiary hearing, Ms. Sunderland testified that on the date of the incident, she was
driving home from a church meeting in Millington, traveling north on Highway 51 through Tipton
County, when “a car went past me, ran my tires off the road.” Ms. Sunderland stated that the
“driving” of the man in the car that passed her was “just erratic. It was just back and forth, weaving.
He almost ran off the road himself a couple of times.” Ms. Sunderland explained that when she
tried to pass this driver on the left, he swerved into her lane and almost hit her again.

        Because she believed the driver of this vehicle to be a danger to himself and others on the
road, Ms. Sunderland called 911 from her cell phone to report the incident. The 911 dispatcher
forwarded the information to the police. A police officer called Ms. Sunderland back on her cell
phone and instructed her to continue to follow the vehicle and a police officer would intercept them
where Kimbrough Road crossed Highway 51 near Crosstown. In accordance with the prearranged
instructions, Ms. Sunderland flashed her headlights off and on as she approached Kimbrough Road
and a police officer pulled out between her and the Defendant’s vehicle. The police representative
on the phone instructed Ms. Sunderland to follow the police cruiser into the parking lot of a
convenience store, which she did. She observed the driver pull into the parking lot of the
convenience store, the police car follow, and the driver exit the vehicle and “quickly” enter the store.

        On cross-examination, Ms. Sunderland admitted she could not identify the Defendant as the
driver of the vehicle that night nor could she describe the vehicle, but she stated: “I followed the car,
I never left sight of the car. So whoever got out of that car, that’s the person that [the police] were
after.” Ms. Sunderland further stated that while she could not remember the specifics of the car at
the hearing, she “probably described it to the officer at the time.”

        Lieutenant Mike Durham of the Atoka Police Department testified that while he never spoke
directly with Ms. Sunderland that night, he received a call from dispatch and agreed that he would
intercept a vehicle suspected of erratic driving at the intersection of Highway 51 and Kimbrough
Road. He was told that he would know it was the suspect vehicle because it was being followed by
a citizen who would flash her headlights. Officer Durham found the vehicle in question and
followed it for approximately a quarter mile before it “made a quick right turn” into a convenience


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store parking lot. During the short time he followed the vehicle, Officer Durham observed that the
driver of the vehicle “jerked the steering wheel over to off [sic] the white line, the fog line” two
times. According to Officer Durham, there was “not a lot of traffic at the time.” Officer Durham
followed the Defendant into the parking lot, where the Defendant parked by the front door. Officer
Durham first activated his blue lights after the Defendant had parked but before the Defendant exited
his vehicle.

        Officer Durham explained that the Defendant exited his vehicle and “real quick . . . went
toward the door and went in the store.” Officer Durham followed the Defendant into the store, asked
him to step outside, and once outside, the two talked for a few minutes. Officer Durham stated that
when he first made contact with the Defendant in the store, he “noticed” a “strong intoxicating odor”
about the Defendant and that the Defendant’s “speech was slurred.” Once outside the store, Officer
Durham observed the Defendant more closely and determined that the Defendant was “more
intoxicated than [he] thought he was in the store.” The Defendant stood as if he was trying to brace
himself and “staggered” when he walked. Officer Durham asked the Defendant to perform three
separate field sobriety tests, but the Defendant declined to perform all three. The Defendant was
then informed of his rights pursuant to the implied consent law but refused to sign the implied
consent form. When asked if he had been drinking, the Defendant replied in the affirmative.

        At the conclusion of the hearing, the trial court denied the Defendant’s motion to suppress,
noting that the police had reasonable suspicion to conduct an investigatory stop of the Defendant due
in large part to the information provided by Ms. Sunderland. In its order, the trial court found the
warrantless seizure was acceptable pursuant to the “concerned citizen on a cell phone exception.”

         In August of 2005, the Defendant received a jury trial, during which evidence was introduced
that was consistent with that presented at the hearing on the motion to suppress. At the conclusion
of the trial, the jury first found the Defendant guilty of DUI, and in a separate proceeding, found him
guilty of a fourth or subsequent offense of DUI. The Defendant was subsequently sentenced to
eighteen months in the custody of the TDOC, suspended, and placed on probation after service of
180 days in jail. The Defendant was also assessed a fine of $15,000 by the jury, which was reduced
to $3,000 by the trial court, and his driver’s licence was suspended. The judgment of conviction
reflects that the violation of the implied consent law included in the Defendant’s indictment was “not
charged as a criminal offense.” The Defendant timely filed a motion for a new trial in August of
2005, which was denied. This appeal followed.

                                            ANALYSIS
        On appeal, the Defendant asserts that the trial court erred in denying his motion to suppress
evidence discovered as a result of the investigatory stop and seizure. To support this claim, the
Defendant argues that “from the standpoint of the officer,” the only basis on which to conduct the
investigatory stop and seizure was witnessing the Defendant cross the fog line two times, hurriedly
walking into a store, and the “hearsay” information supplied by a citizen on a cell phone. Thus, the
Defendant asserts, the police lacked “reasonable suspicion” to believe that an offense was being
committed and therefore violated the Defendant’s constitutional rights to be free from warrantless


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searches and seizures. As such, the Defendant further argues that the evidence obtained from his
seizure should have been suppressed and the case against him dismissed. We disagree.

I. Standard of Review
        When reviewing the correctness of a trial court’s grant or denial of a pretrial motion to
suppress, an appellate court must uphold the trial court’s findings of fact “unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). This standard
recognizes that the credibility of the witnesses, the weight and value of the evidence, and resolution
of conflicts in the evidence are matters “entrusted to the trial judge as the trier of fact.” Id.
Moreover, it is settled law that the party prevailing at the trial court is entitled to the strongest
legitimate view of the evidence and all reasonable inferences drawn from that evidence, see State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001), and the defendant has the burden of establishing that
the evidence contained in the record preponderates against the findings of fact made by the trial
court, see Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

         However, this Court is not bound by the trial court’s conclusions of law. See State v.
Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The application of the law to the facts as found by
the trial court is a question of law which an appellate court reviews de novo. See State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000). Because the facts presented at the suppression hearing in this
case were undisputed, only questions of law are before this Court. Therefore, our review of the
record before us is purely de novo. See State v. Gonzalez, 52 S.W.3d 90, 94 (Tenn. Crim. App.
2000).

II. Constitutional Protections from Unlawful Searches and Seizures
   A. General Rule
        Both the Fourth Amendment to the United States Constitution and article 1, section 7 of the
Tennessee Constitution prohibit “unreasonable searches and seizures.”1 The intent and purpose
behind these constitutionally protected rights is to “safeguard the privacy and security of individuals
against arbitrary invasions of government officials.” Camara v. Municipal Court of San Francisco,




       1
        The Fourth Amendment to the United States Constitution provides as follows:
                Unreasonable searches and seizures. The right of the people to be secure in their persons,
                houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
                and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and
                particularly describing the place to be searched, and the persons or things to be seized.
       Article 1, section 7 of the Tennessee Constitution guarantees that:
                the people shall be secure in their persons, houses, papers and possessions, from
                unreasonable searches and seizures; and that general warrants, whereby an officer may be
                commanded to search suspected places, without evidence of the fact committed, or to seize
                any person or persons not named, whose offences are not particularly described and
                supported by evidence, are dangerous to liberty and ought not to be granted.

                                                         -4-
387 U.S. 523, 528 (1967).2 As a general rule, warrantless searches or seizures are presumed
unreasonable, and any evidence discovered thereby is subject to suppression unless the prosecution
demonstrates by a preponderance of the evidence that the search or seizure was conducted pursuant
to a narrowly defined exception to the warrant requirement. See Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971); State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003).

    B. Seizure
        Before the constitutional protections against an unreasonable seizure are triggered, there must
be a seizure.3 Our courts have recognized three types of police-citizen interactions: (1) a full scale
stop and arrest, which must be supported by probable cause, see Whren v. United States, 517 U.S.
806, 809-10 (1996); (2) a brief investigatory stop, which must be based on reasonable suspicion
supported by specific and articulable facts, see Terry v. Ohio, 392 U.S. 1, 20-23 (1968); and (3) a
brief police-citizen encounter, which requires no objective justification, see United States v. Drayton,
536 U.S. 194, 201-02 (2002). See also Daniel, 12 S.W.3d at 424. Of the three categories, only the
first two raise to the level of a “seizure” for constitutional analysis purposes.

        An encounter between a government official and a citizen is a seizure “[o]nly when the
officer, by means of physical force or show of authority, has in some way restrained the liberty of
a citizen[.]” Terry, 392 U.S. at 20 n.16. In determining whether an encounter between a citizen and
the police is a consensual encounter or a seizure, courts are instructed to look to the surrounding
circumstances and “determine whether the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers’ requests or otherwise terminate the
encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991). See also Gonzalez, 52 S.W.3d 52 at 96.

         Both the United States Supreme Court and our state supreme court have held that a stop of
an automobile and the detention of its occupants constitutes a seizure even if the purpose of the stop
is limited and the detention is brief. See Whren, 517 U.S. at 809-10; State v. Vineyard, 958 S.W.2d
730, 734 (Tenn. 1997). In the case at hand, the trial court noted in its order denying the Defendant’s
motion to suppress that the “officer did not initiate a ‘stop’ of the defendant’s vehicle. . . . The
defendant’s vehicle was stopped before the officer activated his lights.” Nonetheless, it is
established law in Tennessee that “[w]hen an officer turns on his blue lights, he or she has clearly
initiated a stop[,] “and the vehicle’s driver is” ‘seized’ within the meaning of the Terry decision.”
State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). Therefore, the Defendant was “seized”as he sat
in his parked vehicle in the lot of the convenience store when the officer activated his blue lights,
and the primary issue before this Court is whether or not this warrantless seizure was constitutionally
“unreasonable.”


         2
          The intent and purpose of the prohibitions against unreasonable searches and seizures found in the Tennessee
Constitution have been found to be the same as that behind the provision found in the Fourth Amendment to the United
States Constitution. See State v. Simpson, 968 S.W .2d 776, 779 (Tenn. 1998).

         3
          The Defendant has not alleged an unlawful search. On appeal, the Defendant argues only that he was subjected
to an unlawful seizure when the police “stopped his vehicle,” and that the evidence obtained subsequent to this seizure
was tainted and should be suppressed.

                                                         -5-
III. Investigatory Stop
        In the case at hand, the Defendant was seized without a warrant. While a warrant is normally
required when a government official intrudes upon the privacy of a citizen, there are several narrowly
defined exceptions to this warrant requirement. One such recognized exception exists when the
police make a brief investigatory stop. See Terry, 392 U.S. at 21; Garcia, 123 S.W.3d at 343. In
order for such a warrantless seizure to be deemed reasonable, the Unites States Supreme Court has
held that the detention must have been based on “reasonable” suspicion, supported by “specific and
articulable facts” that a criminal offense has been committed or is about to be committed. Terry, 392
U.S. at 20-21.

        The language of the Defendant’s claim on appeal clearly indicates that he considers the first
interaction between himself and the police the night of his arrest to have been an “investigatory
stop,” but he argues such a stop was unjustified as it was not adequately supported by “reasonable
suspicion.”4 The Defendant argues that (1) the minor violations of crossing the fog line in the
absence of traffic, (2) the fact hat he “quickly” entered the convienience store, and (3) the
informant’s “hearsay” tips, were all inadequate to support a reasonable suspicion that he committed
a crime, and therefore, the investigatory stop was an unreasonable seizure. The State argues that the
police did have reasonable suspicion under the circumstances in this case to initiate an investigatory
stop based upon reliable testimony from a citizen-informant and other objective factors. We agree
with the State.

   A. Reasonable Suspicion Analysis
        Determining whether or not reasonable suspicion existed in a particular stop “is a fact-
intensive and objective analysis.” Garcia, 123 S.W.3d. at 344. The likelihood of criminal activity
required for reasonable suspicion is clearly not as great as that required for probable cause and is
“considerably less” than would be needed to satisfy a preponderance of the evidence standard.
United States v. Soklow, 490 U.S. 1, 7 (1989). See also State v. Keith, 978 S.W.2d 861, 866 (Tenn.
1998).

        When evaluating whether a police officer’s reasonable suspicion is supported by specific and
articulable facts, a court “must consider the totality of the circumstances.” State v. Hord, 106
S.W.3d 68, 71 (Tenn. Crim. App. 2002). This inquiry looks to such factors as the public interest
served by the seizure, the nature and scope of the intrusion, and the objective facts on which the law
enforcement officer relied in light of his experience. See Pulley, 863 S.W.2d at 30-31. The
objective facts on which an officer relies can include, but is not limited to, his or her own
observations, information obtained from other officers or agencies, offenders’ patterns of operation,
and--most crucial in this case--information from informants. See State v Lawson, 929 S.W.2d 406,
408 (Tenn. Crim. App. 1996).



         4
           The Defendant has not alleged on appeal that the police lacked the higher standard of “probable cause” to stop
and arrest him, as was alleged in his original motion to suppress. Furthermore, the Defendant has not alleged that upon
conclusion of the investigatory stop, the police lacked “probable cause” to arrest him for the offense of DUI.

                                                          -6-
    B. Informant Information
        It is well established that the facts forming the basis of an officer’s reasonable suspicion need
not rest upon the personal knowledge or observations of the officer. See Keith, 978 S.W.2d at 865
(citing Adams v. Williams, 407 U.S. 143, 147 (1972)). However, when a seizure is based on the tip
of an informant, the danger of a false report is a recognized concern. See, e.g, Gonzalez, 52 S.W.3d
at 99. Because of this potential danger, the veracity of the informant upon whose statement a
seizure is initiated is subject to scrutiny. In conducting this analysis, Tennessee courts have
distinguished anonymous or confidential informants from citizen informants.

        Our supreme court has held that when considering whether or not information obtained from
an anonymous informant adequately supports an officer’s reasonable suspicion, “some showing of
both the informant’s veracity or credibility and his or her basis for knowledge” is required. Keith,
978 S.W.2d at 866 (citing State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989)). However, a
different standard is applied to a “citizen informant.” Information from a citizen informant is
presumed reliable and not subjected to the same level of scrutiny as that of an anonymous informant.
See State v. Melson, 638 S.W.2d 342, 354 (Tenn. 1982). Thus, information obtained from a citizen
informant is not subject to the two-prong reliability test. Citizen informant information is presumed
reliable because the informant has necessarily gained their information through first-hand
experience, and their motivation for communicating with the authorities is based on the “interest of
society or personal safety.” State v. Luke, 995 S.W.2d 630, 636 (Tenn. Crim. App. 1998).

        In the case at hand, a concerned citizen dialed 911 to report the Defendant after he was
witnessed driving erratically and in a manner that the citizen believed posed a danger for the
Defendant and others traveling the public roads of Tennessee. The citizen-informant followed the
Defendant and maintained contact with either the 911 dispatcher or law enforcement, providing the
proper authorities with a description of the Defendant’s vehicle and its location. This citizen-
informant was present when the police intercepted the Defendant, and she was also present when the
police effected the investigatory stop and ultimate arrest of the Defendant. The citizen-informant
also gave a formal statement to the police.

       The record reveals that the citizen-informant in this case gained her information through first-
hand observation and her motivation for communicating with the authorities is based in the “interest
of society or personal safety.” Luke, 995 S.W.2d at 636. Accordingly, the citizen-informant
provided reliable, specific and articulate facts from which the police officer could form a reasonable
suspicion that the Defendant was driving under the influence. See State v. Fred Taylor Smith, No.
W2002-02199-CCA-R3-CD, 2003 WL 22309485, at *3 (Tenn. Crim. App., Jackson, Oct. 8, 2003)
(upholding an investigatory stop where “a citizen who had seen the defendant at close range and who
had observed his driving on a public road, reported his suspicion that the defendant was driving
under the influence to the police”).

  C. Totality of the Circumstances.
       The Defendant also claims that neither the minor infraction of driving across the fog line
when there was no danger to other traffic, citing State v. Smith, 21 S.W.3d 251 (Tenn. Crim. App.


                                                  -7-
1999), nor his “flight” into the store, citing Grey v. State, 542 S.W.2d 102 (Tenn. Crim. App. 1976),
constituted specific and articulable facts that would support a reasonable suspicion that an offense
had occurred or was about to occur. However, as stated above, when evaluating whether a police
officer’s reasonable suspicion is supported by specific and articulable facts, a court “must consider
the totality of the circumstances.” Hord, 106 S.W.3d at 71. In this case, the police officer observed
the Defendant cross the white fog line twice in only a quarter of a mile. This observation
corroborated the citizen-informant’s eye-witness reports of extensive and dangerous erratic driving.
Officer Durham testified at trial that after activating his blue lights, the Defendant “looked back at
me and kept walking on into the store.”5 Because the Defendant’s “flight” occurred after the officer
activated the blue lights, we will not consider this fact in determining whether there was sufficient
reasonable suspicion to justify an investigatory stop.

        Based on the totality of the circumstances, we find the police officer had ample specific and
articulable facts upon which to base a reasonable suspicion that the Defendant was involved in
criminal activity, specifically driving while under the influence of an intoxicant. The citizen-
informant’s initial 911 call and subsequent reports to law enforcement are presumed reliable. See
Melson, 638 S.W.2d at 354. Additionally, the fact that the citizen-informant maintained contact
with law enforcement throughout the entire incident and was present when the Defendant was
confronted by the police weigh heavily in favor of further accrediting her reports of the Defendant’s
criminal activity. The arresting police officer’s own observations of the Defendant’s erratic driving
further bolstered the specific and articulable facts upon which the officer could base a reasonable
suspicion sufficient to conduct an investigatory stop. Accordingly, the Defendant’s seizure pursuant
to an investigatory stop was not unlawful within the purview of the Tennessee and United States
Constitutional protections against unreasonable searches and seizures, and the evidence resulting
from this seizure was properly admitted at trial. This issue is without merit.

                                         CONCLUSION
        Based on the forgoing reasoning and authorities, we conclude that the trial court properly
denied the Defendant’s motion to suppress evidence discovered as a result of the investigatory
seizure. The judgment of the trial court is affirmed.



                                                             ___________________________________
                                                             DAVID H. WELLES, JUDGE




        5
         Both the evidence presented at the suppression hearing and the proof adduced at trial may be considered in
reviewing a trial court’s ruling on a motion to suppress. See State v. Henning, 975 S.W .2d 290, 299 (Tenn. 1998).

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