         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs September 27, 2000

                    STATE OF TENNESSEE v. TRACY L. FRY.

            Appeal as of Right from the Criminal Court for Washington County
                           No. 24456    Lynn W. Brown, Judge



                                 No. E1999-02758-CCA-R3-CD
                                        March 22, 2001

Tracy Fry, the Defendant and Appellant, pled guilty to driving under the influence, second offense.
With the State's and trial court's agreement, however, she specifically reserved the right to appeal
a dispositive question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(1). The issue reserved for
review is whether Officer Kyte “had reasonable suspicion based on specific and articulable facts, to
approach and subsequently seize the defendant leading to the arrest of the defendant.” We conclude
that the initial encounter between Officer Kyte and the Defendant was not a seizure, that the
encounter provided reasonable suspicion sufficient to justify an investigatory detention of the
Defendant, and that sufficient probable cause to arrest the Defendant developed during the course
of the brief investigatory detention. Thus, the judgment of the trial court is affirmed.

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

JERRY SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., and JAMES
CURWOOD WITT, JR., J., joined.

Michael D. Kellum, Johnson City, Tennessee, for the appellant, Tracy L. Fry.

Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Assistant Attorney General,
Nashville, Tennessee; Joe Crumley, District Attorney General and Victor Vaughn, Assistant District
Attorney, for the appellee, State of Tennessee.

                                            OPINION

                                      Factual Background

       On February 15, 1998, Officer J. T. Kyte of the Washington County Sheriff’s Department
received a disturbance call from his dispatcher describing an address and a vehicle. Officer Kyte
went to the address, an abandoned business, and found the Defendant sitting in the parking lot in a
vehicle matching the dispatcher’s description. Officer Kyte approached the Defendant and began
to question her. When he did, he smelled alcohol emanating from the Defendant’s automobile.
Officer Kyte asked the Defendant how much she had to drink, and she replied “not enough.” A male,
later determined to be the person who had initially called the police about the Defendant, drove in
the parking lot and parked behind the Defendant’s car. Officer Kyte went to question the occupant
of the second car briefly, and returned to the Defendant’s car. Officer Kyte then asked the Defendant
to exit her vehicle. The Defendant did so, but became belligerent toward the person in the second
car. Officer Kyte proceeded to perform field sobriety tests on the Defendant, and the results of the
tests indicated that the Defendant was intoxicated. Officer Kyte then placed the Defendant under
arrest.
         The Defendant filed a motion to suppress all evidence resulting from the stop. Following a
suppression hearing, the trial court denied the Defendant’s motion. Subsequently, the Defendant
pled guilty to driving under the influence, second offense, but reserved a certified question of law
pursuant to Tenn. R. Crim. P. 37(b)(2)(1). The question, as properly certified, is stated as follows:
“Whether the officer had reasonable suspicion based on specific and articulable facts, to approach
and subsequently seize the defendant leading to the arrest of the defendant.”

                                        Standard of Review
        The proper standard of review for suppression issues was set forth by our supreme court in
State v. Odom:
        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. In other words, a trial court's findings of fact in a suppression hearing will
        be upheld unless the evidence preponderates otherwise.

928 S.W.2d 18, 23 (Tenn.1996).

                                            Suppression

        The Defendant claims that the trial court erred, because Officer Kyte had no basis of
suspicion, other than a dispatcher’s call, that justified his investigation of the Defendant. We
disagree. In construing the demands of the Fourth Amendment, courts have recognized three distinct
types of police-citizen interactions: (1) a full scale arrest which must be supported by probable
cause, see Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); (2) a brief
investigatory detention which must be supported by reasonable suspicion, see Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); and (3) brief police-citizen encounters which
require no objective justification, see Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386,
115 L. Ed. 2d 389 (1991). “Not all personal intercourse between policemen and citizens involves
'seizures' of persons. 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." Terry,
392 U.S. at 19 n.16. “Indeed, courts have repeatedly held that even when police have no basis for
suspecting that an individual has committed or is about to commit a crime, the officer may approach



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an individual in a public place and ask questions without implicating constitutional protections.”
State v. Daniel, 12 S.W.3d 420, 425 (Tenn. 2000) (citations omitted).
         In this case, the Defendant was already stopped in the parking lot of a closed business when
Officer Kyte approached her. There is no indication that Officer Kyte activated his emergency
equipment, or initially detained the Defendant in any other way. The record indicates only that
Officer Kyte approached the Defendant’s car and began asking her questions. Accordingly, we agree
with the trial court that this was an “encounter” rather that a “seizure” and required no objective
justification. See State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993); State v. Wilhoit, 962 S.W.2d
482, 486 (Tenn. Crim. App. 1997).
         It is equally clear, however, that the brief encounter became a “seizure” when Officer Kyte
asked the Defendant to step out of the car. See Wilhoit, 962 S.W.2d at 487. Thus, we must
determine whether that seizure was justified. Initially, we note that merely asking the Defendant to
exit the car was not an arrest, but an investigatory detention. Id. Although less intrusive than a
full-blown arrest, an investigatory detention is subject to the constitutional protection of the Fourth
Amendment against "unreasonable searches and seizures." Terry, 392 U.S. at 20. The law is well
settled in Tennessee that an investigative detention requires only a showing of reasonable suspicion
rather than probable cause. See, e.g., State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).
Reasonable suspicion must be based on specific and articulable facts indicating that a criminal
offense has been or is about to be committed. Terry, 392 U.S. at 21; Watkins, 827 S.W.2d at 294.
In evaluating whether reasonable suspicion is based on specific and articulable facts, we must
consider the totality of the circumstances, including the personal observations of the police officer,
information obtained from other officers or agencies, information obtained from citizens, and the
pattern of operation of certain offenders. Watkins, 827 S.W.2d at 294. We must also consider the
rational inferences and deductions that a trained police officer may draw from the circumstances.
Watkins, 827 S.W.2d at 294 (citing Terry, 392 U.S. at 21).
         Here, when Officer Kyte approached the Defendant, he noticed a strong smell of alcohol
coming from the Defendant’s car. He asked her how much she had to drink, and she replied “not
enough.” As the Officer tried to question the Defendant further, she became uncooperative and,
ultimately, “belligerant.” We find sufficient specific and articulable facts to support the officer’s
reasonable suspicion which in turn supported the detention of the Defendant for the purpose of
conducting field sobriety tests. The Defendant’s poor performance on the field sobriety tests
provided probable cause for the Defendant’s arrest.
         Accordingly, the judgment of the trial court is AFFIRMED.


                                                       ___________________________________
                                                       JERRY SMITH, JUDGE




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