        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2011

             STATE OF TENNESSEE v. STEVEN DANIEL PACK

               Direct Appeal from the Circuit Court for Coffee County
                         No. 37,359    Walter Kurtz, Judge


                 No. M2010-02465-CCA-R3-CD - Filed July 26, 2011


The Defendant-Appellant, Steven Daniel Pack, pled guilty in the Circuit Court of Coffee
County to driving under the influence, third offense, a Class A misdemeanor, and driving on
a revoked license, a Class B misdemeanor. He was sentenced to eleven months and twenty-
nine days for driving under the influence, third offense, all of which was suspended after
service of 180 days in confinement. In regard to the driving on a revoked license conviction,
Pack was sentenced to six months, all of which was suspended after service of 60 days in
confinement. These sentences were to be served consecutively. Pursuant to Rule 37 of the
Tennessee Rules of Criminal Procedure, Pack reserved as a certified question of law whether
there was reasonable suspicion to support the stop and detention of the defendant as required
by the 4th Amendment of the U.S. Constitution and Article 1 Section 7 of the Tennessee
Constitution. Upon review, we affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

James Threet, Manchester, Tennessee, for the Defendant-Appellant, Steven Daniel Pack.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Michael Payne, District Attorney General; and Marla Holloway, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                        OPINION

      Pack was charged with driving under the influence third offense, driving with a
revoked license, violation of implied consent, and indecent exposure. These charges
stemmed from an investigatory stop by Officer Sam Campbell of the Tullahoma Police
Department. Pack filed a motion to suppress, in which he claimed the investigatory stop was
unconstitutional. Pack argued that Officer Campbell lacked a reasonable suspicion that Pack
violated the law. Following a suppression hearing, the trial court denied the motion. Pack
subsequently pled guilty to driving under the influence, third offense, and driving with a
revoked license. As part of the plea agreement, Pack reserved for appeal a certified question
of law challenging the legal basis for the stop.

       Suppression Hearing. Officer Campbell testified that on the night of April 17, 2009,
the night of the offense, he was on patrol in his police vehicle. The police vehicle was
parked off of Volney Street, which was “a back side street that goes behind some business
establishments” and intersected with South Anderson Street. Officer Campbell said his
police vehicle faced east towards South Anderson Street. The headlights of the police
vehicle were initially turned off. Around midnight, Officer Campbell saw Pack’s vehicle
traveling on South Anderson Street. Pack “made a hard turn onto Volney and turned onto
the side of the road[.]” Officer Campbell said Pack’s vehicle was parked facing east on
Volney Street. Officer Campbell saw Pack exit his vehicle and begin to urinate on the road.

       Officer Campbell stated, “Pack stepped out of his vehicle and faced west towards
South Anderson, towards my direction.” Officer Campbell testified that he saw Pack’s
genitals, turned on his headlights, and drove toward Pack. Officer Campbell said he
activated his blue lights when he “observed Mr. Pack trying to turn around and enter his
vehicle.” Officer Campbell then initiated the investigatory stop. He saw a large puddle of
urine next to the driver’s side door of Pack’s vehicle. The video of the investigatory stop
taken from the police vehicle that night was introduced as an exhibit.

        On cross-examination, Officer Campbell testified that he could tell Pack was urinating
before he turned on the headlights. Once the headlights were turned on, Officer Campbell
said he “could see [Pack] was actually urinating.” Officer Campbell said Pack first noticed
the police vehicle because of the headlights. Pack “immediately turned around and sat down
into his vehicle.” Officer Campbell testified that Pack had urine on his pants and in his
vehicle. Officer Campbell estimated that Pack’s vehicle was parked six to twelve feet from
a street light. When Pack first exited his vehicle, he walked towards the street light. Officer
Campbell said Pack “was in the light when he was urinating.” Officer Campbell testified that
Pack was not driving erratically before he parked on Volney Street.

        Following the proof at the hearing, the trial court denied the motion to suppress. The
trial court determined that Officer Campbell had a reasonable suspicion that Pack violated
the law by indecent exposure and public urination.

                                        ANALYSIS




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        I. Certified Question Presented. The judgment order sets forth the following
certified question of law:

       [W]as the stop and detention of the defendant lawful under the 4th
       Amendment of the U.S. Constitution and Art. 1 Sect. 7 of the State
       Constitution[?] The stop and the detention of the defendant was warrantless
       there [sic] the State must establish reasonable suspicion for the police officers
       [sic] actions.

Pack claims Officer Campbell initiated the investigatory stop before there was a reasonable
suspicion of criminal activity. Pack contends the testimony of Officer Campbell was not
credible. He argues that the video of the investigatory stop establishes that Officer Campbell
could not have seen the criminal activity before he activated the blue lights. In response, the
State argues that the trial court properly denied the motion to suppress. The State contends
the trial court’s decision was adequately supported by the testimony of Officer Campbell.
Upon review, we agree with the State.

       Standard of Review. The standard of review applicable to suppression issues
involves a mixed question of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn.
2003). “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005)
(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court
explained this standard in State v. Odom:

       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. The party prevailing in the trial court is entitled to
       the strongest legitimate view of the evidence 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 supports the
       trial court’s findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23.

       Investigatory Stop of Vehicle. The Fourth Amendment to the United States
Constitution and article I, section 7 of the Tennessee Constitution protect against
unreasonable searches and seizures. The stop of a vehicle and the detention of its occupants
constitutes a seizure within the meaning of both the Fourth Amendment to the United States
and article I, section 7 of the Tennessee Constitution. Whren v. United States, 517 U.S. 806,
809-10 (1996); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).



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        A warrantless search or seizure “is presumed unreasonable, and evidence discovered
as a result thereof is subject to suppression unless the State demonstrates that the search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). A warrant is not
required for an investigatory stop if the officer has “a reasonable suspicion, supported by
specific and articulable facts, that a criminal offense has been or is about to be committed.”
State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997) (citing Terry v. Ohio, 392 U.S. 1, 21
(1968)). Probable cause is not required for an investigatory stop. State v. Coleman, 791
S.W.2d 504, 505 (Tenn. Crim. App. 1989) (citing Terry, 391 U.S. at 27 and Hughes v.
State, 588 S.W.2d 296, 305 (Tenn. 1979)).

       The Tennessee Supreme Court has stated that a “[r]easonable suspicion is a less
demanding standard than probable cause.” Bridges, 963 S.W.2d at 492 (quoting Alabama
v. White, 496 U.S. 325, 330 (1990)). Reasonable suspicion for an investigatory stop will be
found to exist only when the events which preceded the stop would cause an objectively
reasonable police officer to suspect criminal activity on the part of the individual stopped.
State v. Levitt, 73 S.W.3d 159, 172 (Tenn. Crim. App. 2001); State v. Norword, 938 S.W.2d
23, 25 (Tenn. Crim. App. 1996). The likelihood of criminal activity required for reasonable
suspicion is 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.
Sokolow, 490 U.S. 1, 7 (1989); see also State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998).

       In this case, the evidence does not preponderate against the denial of the motion to
suppress. The trial court found that Officer Campbell had reasonable suspicion that Pack
violated the law through indecent exposure and public urination. The record supports this
determination. Officer Campbell testified that he watched Pack get out of his vehicle and
urinate on a public road. Officer Campbell said Pack’s genitals were exposed. Officer
Campbell stated that he did not initiate the investigatory stop until after he observed the
public urination and the indecent exposure. The testimony of Officer Campbell established
that he had a reasonable suspicion that Pack committed an offense.

        Relying primarily on State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000), Pack asks
this court to disregard Officer Campbell’s testimony based on the video of the investigatory
stop. Pack contends the video shows Officer Campbell was unable to see the criminal
activity before he activated the blue lights. As discussed above, the trial court is entrusted
with resolving all conflicts in the evidence. See Odom, 928 S.W.2d at 23. This court is to
uphold the trial court’s findings if they are supported by the greater weight of the evidence.
Id. In viewing the video, we conclude the greater weight of the evidence supports the trial
court’s finding that the stop was initiated because Pack was “engaged in [] public urination.”
Furthermore, unlike Binette, Officer Campbell presented live testimony regarding his
observations prior to the investigatory stop. We acknowledge that the video is dark and that

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Pack’s visibility in the video is limited. We cannot state, however, that Officer Campbell
was unable to see Pack urinate before he activated the blue lights. The video shows the
police vehicle parked across the street from Pack’s vehicle at a distance. Pack’s vehicle is
parked close to the street separating the two vehicles. In the video, Officer Campbell turns
on his headlights and drives toward Pack’s vehicle. The headlights shine directly at Pack’s
vehicle and the blue lights are activated when the police vehicle crosses the street. At that
point, the police vehicle is at a close proximity to Pack’s vehicle. We are not persuaded that
Officer Campbell was unable to see the criminal activity before he activated the blue lights.
We hold that the investigatory stop was constitutional, and therefore the trial court properly
denied the motion to suppress. Pack is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing reasons, we affirm the judgments of the trial court.


                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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