                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                February 4, 2015 Session

        STATE OF TENNESSEE v. MECHELLE L. MONTGOMERY

              Appeal by Permission from the Court of Criminal Appeals
                        Circuit Court for Williamson County
                   No. IICR076574      James G. Martin III, Judge



                 No. M2013-01149-SC-R11-CD - Filed March 27, 2015


The defendant, who was indicted for driving under the influence and violating the open
container law, moved to suppress all evidence discovered during the search of her car, which
included an open container of alcohol and a small amount of marijuana. The trial court
granted the motion to suppress, holding that one of the officers involved had unreasonably
prolonged the investigatory stop. The Court of Criminal Appeals affirmed. Because the
officer had a reasonable basis for extending the stop by ten to fifteen minutes while awaiting
a second officer and the duration of the detention did not exceed the proper parameters, we
set aside the order of suppression and remand to the trial court for further proceedings.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
              Appeals Reversed; Case Remanded to the Trial Court

G ARY R. W ADE, J., delivered the opinion of the Court, in which S HARON G. L EE, C.J., and
C ORNELIA A. C LARK and H OLLY K IRBY, JJ., joined. JEFFREY S. B IVINS, J., not participating.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; James E. Gaylord and Leslie E. Price, Senior Counsel; Clark B. Thornton, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Carlin C. Hess, Assistant
District Attorney General, for the appellant, State of Tennessee.

Lee Ofman, Franklin, Tennessee, for the appellee, Mechelle L. Montgomery.

                                       OPINION
                            I. Facts and Procedural History
      Mechelle Montgomery (the “Defendant”), who was indicted by the Williamson
County Grand Jury for driving under the influence, Tenn. Code Ann. § 55-10-401 (2012 &
Supp. 2014), and violating the open container law, id. § 55-10-416 (2012 & Supp. 2014),
moved to suppress all evidence resulting from the search of her car. At the hearing on the
motion to suppress, Officer David Reiman, a deputy with the Williamson County Sheriff’s
Office, was the only witness to testify.

       At approximately 3:00 p.m. on the date of the arrest, Officer Reiman learned through
dispatch that a woman named Corey Brown, who lived on Trinity Road in Williamson
County, had called 911 to report an “unwanted person” at her residence. Ms. Brown stated
that she and her boyfriend had observed in their driveway a black Ford Mustang driven by
the Defendant, who had previously been in a relationship with Ms. Brown’s boyfriend.
Because the Defendant had harassed her before, Ms. Brown expressed fear that “there was
going to be a conflict.” According to the dispatch, Ms. Brown identified the Defendant by
name and indicated that there appeared to be a passenger in the Defendant’s vehicle. Ms.
Brown further stated that she believed the Defendant to be intoxicated “based on a
conversation [that she] had had with her.”

        In response to the call, Officer Chris Shoap took the lead in the ensuing investigation,
while Officer Reiman acted as backup. As the officers drove toward the Brown residence
in separate vehicles, they observed a black Ford Mustang with two female occupants parked
in a church parking lot on Trinity Road. Officer Shoap continued on to the residence while
Officer Reiman drove into the church lot and parked his patrol car to the side of the Mustang
so as not to block its exit. He did not activate his blue lights. Officer Reiman then
approached the driver’s side window and asked if either of the women was Mechelle
Montgomery. When the Defendant, who occupied the driver’s seat, identified herself,
Officer Reiman detected the smell of alcohol, which he believed “to be coming from [the
Defendant].” Officer Reiman described the Defendant’s eyes as “watery” and her speech as
“slightly slurred.” When Officer Reiman asked the Defendant and the passenger for
identification, they handed over their driver’s licenses. Officer Reiman retained the licenses
for “ten to fifteen minutes,” but he otherwise took no action until Officer Shoap returned.

         When Officer Shoap arrived, he asked the Defendant to step out of her car and then
conducted a series of field sobriety tests. Afterward, Officer Shoap asked the Defendant to
sit in the back of his patrol car. He did not apply handcuffs. Officer Reiman stated that he
believed the Defendant to be “under arrest and not free to leave at that point.” He further
testified that he and Officer Shoap detected the odor of “burnt marijuana in and about the
vehicle.” The officers conducted a search, finding a Burger King cup in the center console
containing an alcoholic beverage and a “hand-rolled . . . marijuana joint” under the
passenger-side floor mat. During cross-examination, Officer Reiman described the location
of the Brown residence as “[j]ust a little farther down” Trinity Road from the church parking
lot. He confirmed that he had neither spoken to Ms. Brown nor visited her residence, and
that his information was based on what dispatch had communicated to him by radio.

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         Because the audio and video recordings taken from Officer Reiman’s patrol car had
not yet been provided to defense counsel, the hearing was continued for almost three months.
At the reconvened proceeding, Officer Reiman testified that when he approached the
Mustang, the key was in the ignition and the engine was in operation. He confirmed that his
initial interaction with the Defendant led him to suspect “that [she] was driving under the
influence of alcohol,” but “[b]ecause the call was [Officer] Shoap’s,” Officer Reiman chose
to await his return. Officer Reiman acknowledged that after he took possession of the
driver’s licenses, he commented, “[W]e’re going to hang out here for a little bit.” Although
Officer Reiman had previously testified that it had taken Officer Shoap approximately ten
to fifteen minutes to return to the church lot, he could not state with certainty at the second
proceeding how long he had detained the Defendant while waiting for Officer Shoap. While
Officer Shoap was performing the field sobriety tests, Officer Reiman “assisted by
supervising [and] making sure the scene was safe.” The video recording of the field sobriety
tests was admitted into evidence and played during the hearing. Officer Reiman expressed
the opinion that the Defendant “did not do well” on the tests. He did recall, however, that
the Defendant had mentioned suffering from nerve damage that affected her speech and
balance, a condition for which she had been prescribed medication.

        The trial court granted the Defendant’s motion to suppress, ruling, in pertinent part,
as follows:

              The Court does not know how much time passed between the initial
       encounter between [Officer] Reiman and [the Defendant] and the arrival of
       [Officer] Shoap, whether it was ten (10) or fifteen (15) minutes, or a shorter
       time or a longer time. However, the length of passage of time is irrelevant.
       [The Defendant] was not free to leave. Even though her vehicle may not have
       been blocked by the position of [Officer] Reiman’s vehicle, [Officer] Reiman
       was in possession of [the Defendant’s] driver’s license . . . .

       ....

               . . . When he seized [the Defendant], [Officer] Reiman had available to
       him the information which had been relayed by the 911 dispatcher regarding
       an “unwanted person.” The information was allegedly attributable to the
       girlfriend of [the Defendant’s] former boyfriend which, on its face, would have
       questionable merit. [Officer] Reiman observed at the time of his encounter
       with [the Defendant] that she was seated in the driver’s side of the vehicle, the
       engine to the vehicle was running, her speech was slightly slurred, and she had
       watery eyes. Based upon the information available to him, including his

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       observations of [the Defendant] and the totality of the circumstances, [Officer]
       Reiman elected not to further investigate, conduct field sobriety tasks, or
       charge [the Defendant] with a criminal offense. Instead, . . . [he waited] until
       [Officer] Shoap arrived, communicate[d] his observations to [Officer] Shoap,
       and let [Officer] Shoap make [the appropriate] decision . . . . As a
       consequence, [Officer] Reiman did not make a brief investigatory detention
       based upon information available to him. . . .

              . . . Because [Officer] Shoap did not testify, the basis for his decision
       cannot be discerned by the Court without speculation. However, [Officer]
       Reiman’s seizure of [the Defendant] and his holding her for the arrival of
       [Officer] Shoap was without lawful authority.

        In a split decision, the Court of Criminal Appeals affirmed the trial court, holding that
the State had “failed to meet its burden of establishing by a preponderance of the evidence
that it was reasonable for Officer Reiman to detain [the Defendant] without investigating
either the possible trespassing or the suspected DUI.” State v. Montgomery, No. M2013-
01149-CCA-R3-CD, 2014 WL 954929, at *9 (Tenn. Crim. App. Mar. 12, 2014). We granted
the State’s application for permission to appeal to determine whether the investigatory stop
was reasonable.

                                     II. Standard of Review
        The standard of review applicable to suppression issues is well established. When the
trial court makes findings of fact after a suppression hearing, its conclusions are binding
upon this Court unless the evidence in the record preponderates otherwise. State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996). As a general rule, “[q]uestions 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.” Id. When the findings of fact are
based entirely on evidence that does not involve issues of witness credibility, an appellate
court conducts a de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
Review of a trial court’s application of law to the facts is de novo with no presumption of
correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing State v. Crutcher, 989
S.W.2d 295, 299 (Tenn. 1999)).

                                       III. Analysis
       Both the federal and state constitutions provide protections from unreasonable
searches and seizures; the general rule is that a warrantless search or seizure is presumed
unreasonable, and any evidence discovered by virtue thereof is subject to suppression. See
U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated . . . .”); Tenn.

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Const. art. I, § 7 (“[T]he people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures . . . .”). “[T]he most basic
constitutional rule . . . is that ‘searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated exceptions.’”
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997)
(“[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.”).

       “This Court has recognized three categories of police interventions with private
citizens: (1) a full-scale arrest, which requires probable cause; (2) a brief investigatory
detention, requiring reasonable suspicion of wrongdoing; and (3) a brief police-citizen
encounter, requiring no objective justification.” State v. Echols, 382 S.W.3d 266, 277 (Tenn.
2012). “While arrests and investigatory stops are seizures implicating constitutional
protections, consensual encounters are not.” State v. Nicholson, 188 S.W.3d 649, 656 (Tenn.
2006). Even when there is no basis for suspecting criminal activity, an “officer may
approach an individual in a public place and ask questions without implicating constitutional
protections.” State v. Daniel, 12 S.W.3d 420, 425 (Tenn. 2000); see also Florida v. Bostick,
501 U.S. 429, 434 (1991) (“[A] seizure does not occur simply because a police officer
approaches an individual and asks a few questions.”). “‘Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen may
we conclude that a ‘seizure’ has occurred.’” Daniel, 12 S.W.3d at 424 (quoting Terry v.
Ohio, 392 U.S. 1, 19 n.16 (1968)). In determining whether a seizure has occurred, the key
question is whether, “in view of all the circumstances surrounding the incident, a reasonable
person would have believed that he or she was not free to leave.” Id. at 425.

       A seizure that qualifies as a brief investigatory detention will be upheld so long as the
seizing officer has reasonable suspicion, supported by specific and articulable facts, to
believe that a criminal offense has been or is about to be committed. Terry, 392 U.S. at 21;
State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998). Reasonable suspicion is an objective
standard evaluated in light of the totality of the circumstances surrounding the seizure, which
may include an officer’s observations, information from other law-enforcement personnel
or agencies, information from citizens, known patterns of criminal offenders, deductions
based upon experience, and the nature of the suspected crime. State v. Williamson, 368
S.W.3d 468, 474-75 (Tenn. 2012). In addition to requiring that a seizure be “justified at its
inception,” an investigatory detention must remain “reasonably related in scope to the
circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20. A

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detention that is reasonable at the outset “can become unreasonable and constitutionally
invalid ‘if the time, manner[,] or scope of the investigation exceeds the proper parameters.’”
State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting United States v. Childs, 256 F.3d
559, 564 (7th Cir. 2001)). When assessing the reasonableness of the duration or scope of a
detention, “the proper inquiry is whether . . . the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly.” Simpson, 968
S.W.2d at 783.

       In this instance, the officers, in response to a dispatch, observed a car in a church
parking lot matching the description of the vehicle driven by a suspected trespasser reported
to be “intoxicated.” Officer Reiman pulled into the church lot to investigate while Officer
Shoap, the lead officer, went to the Brown residence, the site of the alleged trespassing
incident. Officer Reiman parked his patrol vehicle so as not to block the Defendant’s car,
refrained from activating his blue lights, and approached the car to ascertain the identity of
the occupants. After detecting an odor of alcohol and observing the Defendant’s slurred
speech and watery eyes, Officer Reiman took possession of the Defendant’s driver’s license,
explaining, “[W]e’re going to hang out here for a little bit.” In our view, Officer Reiman
seized the Defendant at that point. See Daniel, 12 S.W.3d at 427 (holding that a consensual
encounter “mature[d] into a seizure” when an officer retained possession of the defendant’s
license to run a warrants check).

        At the time Officer Reiman seized the Defendant, he had the following information
pertaining to her possible criminal activity: (1) he was aware that Ms. Brown had indicated
that the Defendant was intoxicated based on an earlier conversation between the two; (2) he
had observed the Defendant in the driver’s seat of the Mustang with the engine engaged; and
(3) he had detected the odor of alcohol and had observed other signs of intoxication,
including the Defendant’s watery eyes and slurred speech. Although the Defendant does not
challenge the sufficiency of these circumstances as justification for the investigatory
detention, she argues that Officer Reiman unreasonably prolonged her detention by waiting
for Officer Shoap instead of taking immediate steps to confirm or dispel his suspicions
regarding her possible criminal activity. The State argues that Officer Reiman did not
unreasonably prolong the detention when he waited approximately ten to fifteen minutes for
Officer Shoap to return to the scene.

       The United States Supreme Court confronted a similar set of facts in United States v.
Sharpe, which involved a state highway patrolman assisting a federal DEA agent in the
pursuit of two suspects believed to be transporting marijuana. 470 U.S. 675, 677-78 (1985).
The officers became separated, and the patrolman later stopped the suspected vehicle. Id.
at 678. The patrolman detained the occupants of the vehicle, took possession of their driver’s
licenses, and waited for approximately fifteen minutes pending the arrival of the DEA agent.

                                             -6-
Id. at 678-79. When the DEA agent arrived, he placed his weight on the rear of the suspects’
vehicle, thereby determining that it was overloaded, and sniffed the rear window, detecting
the odor of marijuana. Id. at 679. During a subsequent search of the vehicle, officers found
over a ton of marijuana. Id. The Court ruled that “[i]t was appropriate for the [state
patrolman] to hold [the suspects] for the brief period pending [the DEA agent’s] arrival,”
especially given that the DEA agent had expertise in drug stops and the patrolman “could not
be certain that he was aware of all of the facts” regarding the suspects’ possible criminal
activity. Id. at 687 n.5. Moreover, the Court cautioned judges against using “a post hoc
evaluation of police conduct . . . [to] imagine some alternative means by which the objective
of the police might have been accomplished.” Id. at 686-87. “The question is not simply
whether some other alternative was available, but whether the police acted unreasonably in
failing to recognize or to pursue it.” Id. at 687.

       The Defendant insists that Officer Reiman acted unreasonably because he should have
conducted the field sobriety tests on his own instead of holding the suspects for a brief period
pending the arrival of Officer Shoap. We do not agree. Officer Reiman knew that Officer
Shoap, the lead officer on the call, was “just . . . down the road” from the site of the
investigatory detention. The record corroborates that testimony, establishing that the Brown
residence is at 125 Trinity Road and that the church is at 147 Trinity Road. It was reasonable
for Officer Reiman to wait a short period to find out whether Officer Shoap had acquired
additional information at the Brown residence. Moreover, by waiting for Officer Shoap,
Officer Reiman was able to “assist[] by supervising [and] making sure the scene was safe”
while Officer Shoap conducted the field sobriety tests. Finally, it was prudent for Officer
Reiman to wait for a second officer given the presence of a passenger inside the Defendant’s
vehicle. See Michigan v. Long, 463 U.S. 1032, 1047 (1983) (“[I]nvestigative detentions
involving suspects in vehicles are especially fraught with danger to police officers.”). Under
these circumstances, Officer Reiman had a reasonable basis for waiting ten to fifteen
minutes1 for Officer Shoap rather than completing the investigation on his own. Cf.
Thompson v. Commonwealth, No. 2004-SC-1070-MR, 2005 WL 2675032, at *3 (Ky. Oct.
20, 2005) (holding that an officer acted reasonably when he detained suspects “for
approximately fifteen minutes while waiting for backup and for additional information
[regarding the ownership of the suspects’ vehicle]”); State v. Sera, 43-704, p. 9-10 (La. App.
2 Cir. 10/29/08); 997 So. 2d 707, 712 (concluding that a “detention was not unduly
prolonged” where an officer delayed a search by ten minutes to wait for backup); Hartman


        1
         Although the trial court did not make a finding as to how long Officer Reiman waited for Officer
Shoap to return to the scene, nothing in the record contradicts Officer Reiman’s initial estimate of ten to
fifteen minutes. Further, the trial court did not question the veracity of any portion of Officer Reiman’s
testimony. Accordingly, we accept his testimony that approximately ten to fifteen minutes elapsed while he
waited for Officer Shoap.

                                                   -7-
v. State, 144 S.W.3d 568, 573-74 (Tex. Ct. App. 2004) (holding that an officer did not
unreasonably prolong a detention by delaying field sobriety tests by five to fifteen minutes
while waiting for backup).

       In our view, the duration of the detention did not exceed “the proper parameters,”
Troxell, 78 S.W.3d at 871, and the officers acted with reasonable diligence in their efforts
to substantiate their suspicions, see Simpson, 968 S.W.2d at 783. We conclude, therefore,
that the record preponderates against the finding of the trial court that the officers
unreasonably prolonged their investigatory detention of the Defendant.

                                      IV. Conclusion
        Because the duration of the investigatory stop was not unreasonable under the
circumstances, the order of suppression is reversed and the case is remanded to the trial court
for further proceedings. It appearing that the Defendant is indigent, costs are taxed to the
State of Tennessee.


                                                          ____________________________
                                                          GARY R. WADE, JUSTICE




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