        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         AUGUST SESSION, 1998        December 18, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,             )   C.C.A. NO. 01C01-9801-CC-00024
                                )
           Appe llant,          )
                                )   FRANKLIN COUNTY
V.                              )
                                )
                                )   HON. BUDDY D. PERRY, JUDGE
GREGORY STEELE,                 )
                                )
           Appellee.            )   (MOTION TO SUPPRESS GRANTED)



FOR THE APPELLEE:                    FOR THE APPELLANT:

ROBERT S. PETERS                     JOHN KNOX WALKUP
SWAFFORD, PETERS & PRIEST            Attorney General & Reporter
100 Firs t Avenu e, S.W .
Win cheste r, TN 37 398              KAREN M. YACUZZO
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     JAMES MICHAEL TAYLOR
                                     District Attorn ey Ge neral

                                     WILLIAM B. COPELAND
                                     Assistant District Attorney General
                                     324 Dinah Shore Boulevard
                                     Win cheste r, TN 37 398




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The State of T ennes see (Sta te) appe als from a judgm ent of the trial court

suppressing evidence found pursuant to a search of Grego ry Steele, th e Defe ndant,

by a law enforcement officer.       The State appeals pursuant to Rule 3(c) of the

Tennessee Rules of App ellate P roced ure on the ba sis tha t the trial c ourt’s order

granting the motion to suppress had the substantive effect of dismissing the

indictme nts against th e Defe ndant. T he two ind ictmen ts charged the Defe ndant w ith

DUI in violation of Tennessee Code Annotated section 55-10-401, and possessing

methamphetamine, a Schedule II controlled substance, with the intent to sell or

deliver in violatio n of Te nnes see C ode A nnota ted se ction 3 9-17- 417. In this court,

the state contend s the trial court erroneously suppressed the evidence found by the

officer. After a thorough review of the record, the briefs submitted by the parties,

and the law governing the issue presented for review, it is the opinion of this court

that the jud gmen t of the trial cou rt should b e affirme d.



       Officer Jeff Pe rry of the Frank lin Cou nty Sh eriff’s Department testified that he

was on routine patrol on November 6, 1996.              At approximately 2:30 a.m., he

discovered a vehicle p arked a t Pleasa nt Grove boat dock with tw o (2) pe ople

appa rently sleeping inside it. Although this was a public loca tion with no restrictions

on public parking, Officer Perry called in the license plate tag number to make sure

the car was properly registered. He admitted on cross-examination that he had no

reason whatsoever to believe that there had been any commission of a crime. After

finding that the car was properly registered, Officer Pe rry exited his patrol car,

walked up to the ve hicle, then tapped on the w indow to perform a “welfare check”

on the occupants of the car. After looking inside of the vehicle, he still did not

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observe anything that wou ld indicate th at a crime was be ing com mitted. Officer

Perry observed that the keys were in the ignition and the radio was playing, but the

car was not running. He did not observe a weapon or any alcohol inside the vehicle.

The Defendant was in the driver’s seat. When he did not get a response, he tapped

a little louder. T he De fendan t and his p assen ger then awoke .



       When they both woke up, Officer Perry stated that “from looking at ‘em,” he

could tell they were okay. On cro ss-examin ation, Perry stated tha t he “was trying to

asce rtain if they had -- if they had received it [damage or harm] up to this point, to

check on ‘em being out there at 2:30 in the morning . . . I didn’t know if they’d been

in a fight o r what, I could n’t tell, I co uldn’t observe anything like that.” He explained

that “in my opinion a welfare check goes far beyo nd ph ysical w ell-being. I mean

there could be a mental distress there. They could be in an argument, they could

have been inv olved in a d omes tic violence or dom estic situatio n, anythin g of that

nature.”



       As Officer Perry was still concerned about the occupants of the vehicle, he

asked Defendant if he would step out of the car. Defendant exited the vehicle and

Officer Perry noticed the odor of alcohol as soon as the vehicle’s door opened.

Defendant adm itted tha t he ha d bee n drink ing ea rlier.        He patted down the

Defendant and fou nd a po cketknife in the De fendan t’s left front poc ket. As Officer

Perry was pulling the knife out of Defendant’s pocket, a small lip balm type canister

also came out. Defendant got nervous, so he asked him what it was. Defendant

responded that he did not know what it was. Officer Perry looked inside the canister

and fou nd a wh ite powd ery subs tance.




                                            -3-
       At that point, Officer Perry asked Defe ndant to perform some field sobriety

tests. After he explained the tests to the Defendant, the Defendant performed the

tests unsa tisfacto rily to Offic er Perry. Officer Perry described Defendant’s demeanor

as “real confused at the first of everything and then up until the last point that he

knew he was going to be placed into custody his speech was slurred, he just

seemed a little bit confused . . . and I couldn’t get a whole lot out of him. ”Defendant

was then placed into custody for being un der the influ ence a nd pos session of a

Schedule II narcotic.



       The Defendant testified that on November 6, 1996, he parked his vehicle at

the Pleasant Grove boat dock. He described that he was going through a divorce

at that time and h ad been s leeping in his car. W anting to have som eone to talk with,

Defendant asked one of his employees to accompany him that night after she got

off work at midnight. They pulled in the parking lot at the boat dock to talk, but later

fell asleep. L ater that ev ening, he was aw akene d by Officer Perry. Defendant

estimated that at th at time they ha d bee n in the pa rking lo t for app roxim ately three

(3) hours, as Officer Perry advise d him that it wa s 3:20 a.m. D efend ant tha nked him

for awaking them as he had to be at his business to start cooking breakfast. At that

time, Officer Pe rry asked him to step out of the vehicle . Defe ndan t cons idered it in

his best interest to step outside. He was then asked by Officer Perry if he had been

drinking. Defendant responded negatively and stated that he had been sleeping.

Officer Perry th en as ked if D efend ant ha d anyth ing in his pockets, and Defendant

answered that he ha d keys, a c igarette lighter, and som e change . Officer Perry said,

“Let me see,” and then proceeded to run his hands down into Defendant’s pockets.

Defendant stated that he had no choice but to allow Officer Perry to search him. He

could no t recall if there w as a po cketknife in his pock et that nigh t.

                                             -4-
      When asked to perform field sobriety tests, Defe ndan t was a ble to to uch h is

nose with both ha nds, wa lk heel to toe, and then stand on one leg while holding the

other foot approximately two (2) inches from the car’s bumper. Defendant asked

Officer Perry if he could wait a few minutes to perform the final balancing test as he

had just woken up , but Perry refuse d. Def enda nt state d that h e lost h is balance and

had to perform the test ag ain. Defendant described that he had difficulty performing

that test du e to the fac t he had just woke n up.



       Defendant testified that he did no t drink a ny alco hol wh ile at the boat dock, but

he had c onsu med one (1 ) can o f beer p rior to pic king u p his e mplo yee. He also

recalled that the re was a “fifth” of G eorge Dicke l whisk ey beh ind the seat on the

floorboard underneath some other objects, but he had not consumed any of that

whiskey that night.     Defendant did admit that he had probably ingested some

metha mphe tamine s the m orning b efore.



       Stipulated evidence included test results from which it was determined that

while Defendant had no alcohol in his blood, he did have m etham pheta mine s in his

bloods tream a t the time o f his arrest.



       The trial court found that the Defendant was parked in a lawful public place

and was not viola ting an y laws. W hile Officer Pe rry had de termine d that the s ubjects

of the vehicle were okay, he asked the Defe ndan t to step out of th e vehic le because

he noticed a n odo r of alco hol. G iven the fact tha t there w as no alcoh ol in the

Defendant’s blood system , the trial c ourt no ted tha t it was u nlikely that he smelled

much there. The trial court determined that this was a situation “where the individual

had a right to be there, and although I’m not faulting the officer in any way, and I

                                            -5-
want to make tha t as clear as I can o n the record, this is no t a -- this is a case whe re

it’s approp riate for m e to gran t the mo tion to sup press, an d I’m goin g to do so .”



       Upon review of the trial court’s finding on a motion to suppress, this court

shou ld uphold the trial court’s decision unles s the evidence in the record

preponderates against th ose findin gs. “Questions of credibility of the witnesses, the

weight and va lue of th e evide nce, a nd res olution of conflicts in the evidenc e are

matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). The party prevailing in the trial court is entitled to the strongest

legitimate view of the evidence, as well as all reasonable and legitimate inferences

that ma y be draw n from th e eviden ce. Id.



       Upon review of the re cord, th e evide nce d oes n ot prep onde rate ag ainst the

findings of the trial cou rt. As the trial cou rt corre ctly found, the Defendant’s car was

parked in a public place. While an officer may legitimately approach a ve hicle

parked in a pu blic place and m ake a reque st for ide ntificatio n of the driver, th is

officer had alread y verified the ca r’s regis tration a nd ind icated in his testimony that

the only reason he approached the vehicle was to verify the well-being of the

occup ants of that vehic le. State v. Pully, 863 S.W.2d 29, 30 (Tenn . 1993); State v.

Butler, 795 S .W .2d 68 0, 685 (Ten n. Crim . App. 1 990) (c itations omitted). The

application of this law to the facts found by the trial court is a question of law which

this court reviews de novo. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998)

(citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). The Defendant and

his companion awakened after the officer tapped on the windows, and the officer

verified that at that point he had determined the occupants were physically not in any

danger. Until this po int, the officer had been performing community caretaking

                                            -6-
and/or public safety functions whic h involved no coe rcion or de tention. State v.

Rodney Hawkins, No. 03C01-9606-CC-00239, slip op. at 4, L oudon Coun ty (Tenn.

Crim. App., a t Knox ville, July 16, 1997) (citing United States v. Berry, 670 F.2d 583,

591 (5th Cir. 1982)). Ho wever, it is at this point tha t Hawkins is disting uisha ble from

the case sub judice. In Hawkins, the defendant was found by the police parked

“awkwardly” within the middle of the road having a conversa tion with a fem ale

companion who was standing outside of his vehicle. The female was drinking an

alcoh olic beverage. When the police officer approached Defendant Hawkins, he

observed an open container of bee r sitting between his leg s, a white powd ery

substance near the vehicle’s console and a plastic bag hanging from the console.

Defendant in the case sub judice was parked lawfully in a public place, with no

appea rance o f any alcoh ol or drug s appa rent to the in vestigating officer.



       Officer Perry admitted that the Defendant and his companion appeared to be

“okay” when they awoke. The seizure and search of Def enda nt whic h follow ed this

observation was based solely upon the officer’s speculation that occupants of the car

might have “mental distress” or had been involved in a “dome stic situation .” This is

not enoug h to justify the seizure an d search of D efendant by O fficer Perry.



       As the trial court correctly found, it was only when the officer requested that

the Defen dant step outside th e vehicle th at he no ticed an odor of alcohol. The

officer testified that he did not notice any alcoholic beverages in plain view nor did

he notice any othe r susp icious crimin al activity. After no ticing th e odo r of alco hol,

the officer asked the Defendant if he had been drinking and the Defendant admitted

that he had . At that point, the o fficer pro ceed ed to s earch and th en pe rform field

sobriety tests upon th e Defe ndant. W e agree with the trial court’s findings that the

                                            -7-
officer overstepped his bounds after he verified the physical condition of the

Defendant and his c ompa nion. There is no evidence which preponderates against

the trial court’s findings that, under the totality of the c ircum stanc es, the officer d id

not have re ason able s uspic ion to d etain th e Def enda nt, i.e. seize and search

Defen dant after verifying his p hysical sa fety. This iss ue is witho ut merit.



       We affirm the ju dgme nt of the trial co urt.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




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