            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                         March 29, 2011 Session

                  STATE OF TENNESSEE v. JAMES DAVID MOATS

                Direct Appeal from the Criminal Court for McMinn County
                           No. 09048    Carroll L. Ross, Judge


                   No. E2010-02013-CCA-R3-CD - Filed November 8, 2011


The defendant, James David Moats, stands convicted of driving under the influence (“DUI”),
fourth or greater offense, a Class E felony. The trial court sentenced him as a Range I,
standard offender to two years in the Tennessee Department of Correction. On appeal, the
defendant argues that the trial court erred by denying his motion to suppress and motion for
judgment of acquittal. Following our review, we conclude that under the facts of this case
the police officer seized the defendant when she pulled up behind the defendant’s parked
vehicle and activated her blue emergency lights. We further conclude that the officer did not
have a reasonable suspicion of criminal activity to justify the seizure. As such, the trial court
erred by denying the defendant’s motion to suppress evidence, and we reverse the judgment
of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which JAMES C URWOOD W ITT, J R.,
J., joined, and J.C. M CL IN, J., mortuus.1

Matthew C. Rogers (at trial and on appeal), and Randy Rogers (at trial), Athens Tennessee,
for the appellant, James David Moats.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Robert Steven Bebb, District Attorney General; and James H. Stutts, Assistant
District Attorney General, for the appellee, State of Tennessee.




        1
          This case was originally assigned to our colleague and friend, Judge J.C. McLin. After Judge McLin’s
untimely death on September 3, 2011, the case was re-assigned. Prior to his death, Judge McLin and his staff had done
extensive work on this case. W e have utilized much of that work, incorporated it into this opinion, and take this
opportunity to acknowledge the faithful service of Judge McLin as a member of this Court.
                                          OPINION

                                             Facts

       In February 2009, a McMinn County grand jury indicted the defendant, James David
Moats, for DUI, eighth offense. Prior to trial, the defendant moved to suppress the evidence
against him, arguing that the police officer did not have reasonable suspicion to seize him.

       At the suppression hearing Etowah Police Sergeant, Phyllis Bige, testified that she
came into contact with the defendant on December 7, 2008, while on patrol. Between 1:45
a.m. and 2:00 a.m., she saw a vehicle parked in the Bi-Lo grocery store parking lot. She
drove by the vehicle and saw the defendant sitting inside on the driver’s side. The vehicle’s
lights were on, and the vehicle was stationary. Sergeant Bige testified that the parking lot
had a “No Loitering” sign and that the police had been asked to “extra patrol” the area. She
said that she left the parking lot, patrolled another area for five minutes, and returned to the
parking lot. Sergeant Bige testified that she approached the vehicle and asked the defendant
“if he was okay.” She said that the vehicle’s keys were in the ignition, but the vehicle was
not running. She noticed an open beer can, and the defendant admitted that he had been
drinking. She called for her sergeant to come to the scene, and when he arrived, they asked
the defendant to exit the vehicle. He had difficulty exiting the vehicle. Subsequently, he
performed poorly on three field sobriety tests. Sergeant Bige testified that the defendant
submitted to a blood alcohol content (“BAC”) test, which revealed that his BAC was 0.19%.

        On cross-examination, Sergeant Bige testified that the defendant was the only person
in the parking lot. She said that the grocery store had requested extra patrols because of a
rise in drug transactions. Sergeant Bige testified that she did not see the defendant doing
anything illegal nor did he appear to need help or medical attention. She testified that she
“drove up behind [the vehicle], initiated [her] blue lights and walked up to him.” She
reaffirmed that she did not see anything illegal, saying that it was “only strange that a car
would be sitting in a parking lot at almost . . . 2:00 a.m. with the lights on.” Sergeant Bige
agreed that “[w]hen [she] initiated the blue lights,” it was “fair to say that [the defendant]
was not free to leave.”

        The trial court denied the motion to suppress, reasoning that “a police officer may
approach a car parked in a public place and ask for driver identification and proof of vehicle
registration without any reasonable suspicion of illegal activity.” The case proceeded to trial
on February 4, 2010.

      At trial, Sergeant Bige testified that on December 7, 2008, at approximately 1:50 a.m.,
she was on patrol and drove through the Bi-Lo grocery store parking lot. She explained that

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the store had requested that the police do extra patrols because of problems in the parking lot.
Sergeant Bige said that “No Loitering” signs were posted in the parking lot. She observed
a pickup truck parked with its lights on in the parking lot, which she said “was kind of out
of the ordinary.” She patrolled another area for five minutes and returned to the parking lot.
The truck was still parked, so she drove up behind it and activated her blue lights. She called
in the license plate number before approaching the vehicle. Sergeant Bige testified that the
defendant was sitting in the driver’s seat, with the keys in the ignition, although the truck was
not running. She observed an open beer can in the cupholder. Sergeant Bige testified that
the defendant appeared “almost disoriented, very slow to speak, very sleepy acting.” He was
unable to provide identification upon request although he looked through his wallet for a
license. Sergeant Bige testified that the defendant admitted that he had been drinking. When
she asked him why he was in the parking lot, he responded that he “was just there.” She said
that she asked him to exit the truck, and he had “[a] very difficult exit from the vehicle.”
Another officer, Sergeant Crawford, arrived and began directing the defendant in field
sobriety tests. Sergeant Bige testified that she observed the defendant’s performance. He
attempted three tests but performed “very poorly.” Sergeant Bige placed him under arrest
and asked him whether he would consent to a BAC test. He consented, and she transported
him to a hospital for the test. The parties stipulated that the result was that the defendant had
a BAC of 0.19%.

       On cross-examination, Sergeant Bige testified that the defendant’s vehicle was not
running when she first encountered it. She agreed that she never saw the defendant driving
the vehicle.

        The defendant testified that he met a person with whom he had worked in the 1990s,
named Bill Hyatt, earlier in the day. Mr. Hyatt and another man had stopped by the
defendant’s house. The other man left, while Mr. Hyatt stayed with the defendant, but they
planned to meet him later. Eventually, the defendant and Mr. Hyatt went to the Log Cabin
Bar. Mr. Hyatt drove the defendant’s mother’s truck, and the defendant rode with him. The
defendant said that he drank alcohol, but he did not recall Mr. Hyatt drinking. He testified
that he was celebrating that he was going to be “a new daddy.” The other man met them at
the bar later. When they decided to leave, Mr. Hyatt drove, and the other man followed
behind. The defendant asked Mr. Hyatt to take him to his girlfriend’s house. Because that
was going to be out of the way for Mr. Hyatt and the other man, Mr. Hyatt refused. The
defendant testified that Mr. Hyatt parked the truck at the Bi-Lo grocery store, in the same
spot where Sergeant Bige found him later. Mr. Hyatt left with the other man. The defendant
testified that it was a cold night, and because of injuries to his back, if he stayed out in the
cold, he “could get to the situation that [he] couldn’t walk.” He explained that the heat only
worked on the driver’s side of the truck, so he moved to the driver’s side to stay warm. The



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defendant said that he saw the police officer drive by the first time and shut off the truck.
When the officer returned, the truck was not running.

        On cross-examination, the defendant testified that he had a cell phone with him that
night but was unable to operate it. He said that he did not walk to the gas station nearby
because he was concerned about being arrested for public intoxication. The defendant
testified that he did not know how the beer got into the truck.

       Following the close of proof, the jury convicted the defendant of DUI, fourth offense,
a Class E felony. The trial court sentenced him as a Range I, standard offender to two years
in the Tennessee Department of Correction.

                                           Analysis

       The defendant argues that the trial court erred by denying his motion to suppress
evidence. He contends that the officer seized him when she activated her blue lights and that
she had no reasonable suspicion to seize her. We agree.

       “When evaluating the correctness of a trial court’s ruling on a pretrial motion to
suppress, the court on appeal must uphold the trial court’s findings of fact unless the
evidence preponderates otherwise.” State v. Williams, 185 S.W3d 311, 314 (Tenn. 2006).
“Questions of 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.” State v. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). However, appellate review of a trial court’s conclusions of law
and application of law to facts on a motion to suppress evidence is a de novo review. See
State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006); State v. Walton, 41 S.W.3d 75, 81
(Tenn. 2001).

        Both the Fourth Amendment to the United States Constitution and Article I, section
7 of the Tennessee Constitution protect individuals from unreasonable searches and seizures.
These constitutional provisions are designed “to prevent arbitrary and oppressive interference
with the privacy and personal security of individuals.” State v. Daniel, 12 S.W.3d 420, 424
(Tenn. 2000) (quoting INS v. Delgado, 466 U.S. 210, 216 (1984)). Therefore, “[u]nder both
the federal and state constitutions, a warrantless seizure is presumed unreasonable, and
evidence discovered as a result thereof is subject to suppression unless the State demonstrates
that the seizure was conducted pursuant to one of the narrowly defined exceptions to the
warrant requirement.” Nicholson, 188 S.W.3d at 656; see also State v. Binette, 33 S.W.3d
215, 218 (Tenn. 2000). One such exception is a brief investigatory stop by a law
enforcement officer if the officer has a reasonable suspicion, based upon specific and

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articulable facts, that a person has either committed a criminal offense or is about to commit
a criminal offense. Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d at 218. This
narrow exception has been extended to the investigatory stop of vehicles. See United States
v. Brignoni-Ponce, 422 U.S. 873, 881 (1975); State v. Watkins, 827 S.W.2d 293, 294 (Tenn.
1992). In evaluating whether a police officer has a reasonable suspicion, supported by
specific and articulable facts, a court must consider the totality of the circumstances. Binette,
33 S.W.3d at 218. Those circumstances may include the personal observations of the police
officer, information obtained from other officers and agencies, information obtained from
citizens, and the pattern of operation of certain offenders. State v. Watkins, 827 S.W.2d 293,
294 (Tenn. 1992). Additionally, the court must consider any rational inferences and
deductions that a trained officer may draw from those circumstances. Id. Reasonable
suspicion is something more than an “inchoate and unparticularized suspicion or hunch.”
Terry, 392 U.S. at 27.

        This case is closely analogous to Williams, 185 S.W.3d at 313-314. In that case, a
police officer testified that he saw the defendant’s car parked on a road, stopped behind the
car, and initiated his blue emergency lights. Id. While the defense presented a different
version of events, the trial court and the supreme court found that the same analysis applied.
Id. at 314. The supreme court determined that the officer seized the defendant the moment
that he activated his emergency lights because a reasonable citizen would not feel free to
leave after the officer’s show of authority in activating the lights. Id. at 317. The court held
that
        the defendant’s encounter with the officer was not voluntary, but rather
        occurred under a show of authority—the activation of the blue emergency
        lights—from which a reasonable person would not have felt free to leave.
        “Few, if any, reasonable citizens, while parked, would simply drive away and
        assume that the police, in turning on the emergency flashers, would be
        communicating something other than for them to remain.” Lawson v. State,
        120 Md. App. 610, 707 A.2d 947, 951 (Md. Ct. Spec. App. 1998).

Id. The supreme court reasoned that there were situations in which officers could activate
their emergency lights for purposes of their safety or the safety of others; however, the
officer in that case was not performing a community caretaking function because there was
“nothing in this case to indicate that the officer was concerned that the defendant was in need
of assistance.” Id. at 318. The Williams court went on to rule that the officer did not have
a reasonable suspicion of illegal activity and upheld the trial court’s granting of the
defendant’s motion to suppress. Id. at 320.

     Under the authority of Williams, it is clear that Sergeant Bige seized the defendant the
moment she activated her emergency lights because the use of the lights was a show of

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authority and a reasonable citizen would not have felt free to leave. See id. at 317. She was
not performing a community caretaking function because, as she testified, there was no
indication that the defendant needed assistance nor was there any other evidence that she
needed to activate the lights for safety reasons. Additionally, Sergeant Bige had no
reasonable suspicion of illegal activity. She testified that she thought it was strange that a
truck was parked in the grocery store parking lot near 2:00 a.m. with its lights on.
Essentially, she had an “inchoate and unparticularized suspicion or hunch,” which does not
rise to the level of reasonable suspicion. Terry, 392 U.S. at 27. Without reasonable
suspicion, her seizure of the defendant violated the constitutional prohibition against
unreasonable seizures. Therefore, we conclude that the evidence does not support the trial
court’s findings and reverse the trial court’s determination that the officer did not seize the
defendant without reasonable suspicion when she activated her emergency lights.

                                         Conclusion

       Based on the foregoing reasons, we reverse the trial court’s ruling on the defendant’s
motion to suppress, vacated the conviction, and dismiss the charge of driving under the
influence.


                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




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