        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   June 28, 2011 Session

       STATE OF TENNESSEE v. ROBERT LEE VANDERGRIFF, JR.

               Direct Appeal from the Criminal Court for Union County
                        No. 3790     E. Shayne Sexton, Judge


                  No. E2010-02560-CCA-R3-CD - Filed June 28, 2012


The defendant, Robert Lee Vandergriff, Jr., was convicted of driving while intoxicated, a
Class A misdemeanor, by a Union County jury. He was sentenced to a term of eleven
months and twenty-nine days, all of which was suspended but for eight days service in the
county jail. On appeal, the defendant’s single contention of error is that the trial court erred
by failing to grant his motion to suppress. Specifically, he asserts this decision was error
because he was seized without reasonable suspicion. Following review of the record, we
affirm the denial of the motion to suppress.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., J., joined. J ERRY L. S MITH, J., not participating.

Bradley L. Henry, Knoxville, Tennessee, for the appellant, Robert Lee Vandergriff, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William Paul Phillips, District Attorney General; and LaTasha Wassom, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Procedural History

        The defendant’s conviction arose from his encounter with Officer Kenny Crider after
the defendant stopped his truck in the middle of a highway. Around 9 p.m., on January 2,
2009, Officer Crider was traveling north on Highway 33. As he traveled, he observed that
a state trooper and a van were sitting in a parking lot. When he returned his eyes to the road,
Officer Crider was forced to “slam on his brakes” to avoid hitting the defendant’s truck,
which was parked in a “no pass” zone on the two-lane highway. After bringing his vehicle
to a stop, Officer Crider activated his blue lights in order to make other cars aware of the
presence of his and the defendant’s vehicle. He took this action strictly as a safety
precaution, as traffic in the area was moderate. Officer Crider had no suspicion that a crime
had been or was about to be committed.

       Officer Crider and the defendant both exited their respective vehicles and began
walking toward each other. He noticed that the defendant was unsteady on his feet and was
“unbalanced.” Before Officer Crider could ask what was going on, the defendant asked
Officer Crider why he had stopped him. Officer Crider informed him that he had in fact not
stopped him, as the defendant’s vehicle had been stationary when he approached. The
defendant informed Officer Crider that he had been involved in an accident during which
someone had “sideswiped” the side mirror on his truck before leaving the scene. Officer
Crider did observe that the mirror was missing from the truck but did not see any other
evidence of an accident having occurred at the location.

       During their subsequent conversation, Officer Crider noticed that the defendant still
remained unsteady on his feet. Despite instructions from the officer to lean on the patrol car,
the defendant kept attempting to tie his shoe, almost falling over several times in the process.
The defendant did not appear to comprehend the instructions given by Officer Crider. Other
officers, including the state trooper Officer Crider had observed in the parking lot, soon
arrived on the scene. The vehicles were then moved to the side of the road, and two officers
began directing the traffic in the area.

       Because of his observations, Officer Crider eventually asked the defendant about his
condition. The defendant informed him that he had a back injury and had taken prescribed
hydrocodone. He stated that he had taken four of the pills within four hours. Because of
concern for the defendant’s safety, Officer Crider administered alternate sobriety tests on
which the defendant performed poorly. Based upon his unsteadiness, confusion, and poor
performance on the tests, the defendant was arrested for driving under the influence.

       Based upon these acts, the defendant was indicted by a Union County grand jury for:
(1) driving under the influence; (2) violation of the implied consent law; and (3) failure to
comply with the financial responsibility law. Prior to trial, the defendant filed a motion to
suppress the evidence, arguing that Officer Crider did not have reasonable suspicion to
effectuate a seizure of the defendant’s person. According to the defendant, the seizure
occurred upon activation of the blue lights. The trial court denied the motion, finding that
no seizure had occurred, and the case proceeded to trial. Following a jury trial, the defendant
was convicted of driving under the influence and sentenced to eleven months and twenty-
nine days. The court further ordered that the sentence was to be suspended to unsupervised

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probation after service of eight days in the county jail. Following the denial of the
defendant’s motion for new trial, he filed the instant timely appeal.

                                           Analysis

        On appeal, the defendant raises the single issue of whether the trial court erred by
denying his motion to suppress. His argument is based upon the premise that Officer Crider
seized him, for Fourth Amendment purposes, by activating the blue lights on his patrol car
without reasonable suspicion supported by specific and articulable facts to believe that
criminal activity had or was about to occur. There is no dispute in the record that no
reasonable suspicion existed in Officer Crider’s mind when he activated the lights on his car,
as he specifically testified to such, stating that he believed the truck had probably just broken
down. As argued by the State, the issue in this case is in fact whether a seizure actually
occurred at that point. The trial court found that the initial activation of the blue lights did
not constitute a seizure, but rather only an exercise of Officer Crider’s community caretaking
function.

       In reviewing a trial court’s denial of a motion to suppress, this court must look to the
evidence and facts accredited by the trial court which are most favorable to the State as the
prevailing party. State v. Daniel, 12 S.W.3d 40, 423 (Tenn. 2000). In reviewing the trial
court’s determinations, “[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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial
court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial court’s
application of law to the facts purely de novo. 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 citizens against unreasonable searches and seizures.
Our supreme court has previously noted that, generally, “[A]rticle I, section 7 is identical in
intent and purpose with the Fourth Amendment.” State v. Downey, 945 S.W.2d 102, 106
(Tenn. 1997) (citations omitted).

       “[U]nder both the federal and state constitutions, 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) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)).
Accordingly, a trial court begins with the presumption that a warrantless search or seizure

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is unreasonable, and the burden is on the State to demonstrate that one of the exceptions to
the warrant requirement was applicable at the time of the search or seizure. Id.

        “However, neither the Fourth Amendment nor Article I, section 7 limit all contact
between police and citizens.” Daniel, 12 S.W.3d at 424. The United States Supreme Court
has long recognized that police officers may engage citizens in encounters unrelated to the
detection and investigation of criminal conduct. See Cady v. Dombrowski, 413 U.S. 433, 441
(1973). In doing so, officers operate in their so-called “community caretaking” capacity. Id.
The constitutional protections against unreasonable searches and seizures “are implicated
only when a police officer’s interaction with a citizen impermissibly intrudes upon the
privacy or personal security of the citizen.” Daniel, 12 S.W.3d at 424. Our courts have thus
articulated three categories of police-citizen interaction and their corresponding evidentiary
requirements: “(1) full-scale arrest, which must be supported by probable cause; (2) brief
investigatory detention, which must be supported by reasonable suspicion of criminal
activity; and (3) brief police-citizen encounter that requires no objective justification.” State
v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citations omitted).

        “Generally, an officer may approach an individual in a public place and ask questions
without implicating constitutional protections, so long as a reasonable person would feel free
to disregard the police and go about his business.” State v. Williams, 185 S.W.3d 311, 315
(Tenn. 2005). More particularly, our supreme court has held 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.’” Id. (quoting State v.
Pulley, 863 S.W.2d 29, 30 (Tenn. 1993)). The community caretaking interaction becomes
a seizure, however, “‘when an officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen.’” Id. at 316 (quoting Terry v. Ohio, 392 U.S.
1 (1968)). As the United States Supreme Court has articulated it, “a seizure occurs ‘only if,
in view of all the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.’” Id. (quoting United States v. Mendenhall, 446 U.S.
544, 554 (1980)). Factors to consider when determining this include: (1) the time, place and
purpose of the encounter; (2) the words used by the officer; 3) the officer’s tone of voice and
general demeanor; (4) the officer’s statements to others who were present during the
encounter; (5) the threatening presence of several officers; (6) the display of a weapon by an
officer; and (7) the physical touching of the person of the citizen. Daniel, 12 S.W.3d at 425-
26. The analysis “is designed to assess the coercive effect of police conduct, taken as a
whole, rather than to focus on particular details of that conduct in isolation.” Id. at 426.

        The defendant relies upon Williams to support his premise that any activation of blue
lights behind a parked car is in fact a seizure of the person inside and must be supported by
reasonable suspicion. The defendant is correct that the court in Williams did find that the

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officer who had pulled up behind a parked vehicle on a roadway and activated his blue lights
had in fact seized the person. See Williams, 185 S.W.3d at 318. However, Williams cannot
be read to stand for the proposition that any activation of blue lights behind a parked car
constitutes a seizure. The court went on to specifically note that “[n]ot all use of the
emergency blue lights on a patrol car will constitute a show of authority resulting in the
seizure of a person.” Id. The court continued that “when officers act in their community
caretaking function, they may want to activate their emergency equipment for their own
safety and the safety of other motorist. Id. However, in Williams, because there was nothing
“to indicate the officer was concerned that the defendant was in need of assistance” and
because no other vehicles were in the area, the court concluded, under those circumstances
that a seizure had in fact occurred and reasonable suspicion was required. Id.

       Despite the defendant’s argument to the contrary, the facts in the instant case are not
analogous to those in Williams. Here, as found by the trial court, Officer Crider was acting
within his community caretaker function, and this fact was evidenced by testimony in the
record. Officer Crider testified that he activated his blue lights to alert other motorists to
prevent them for slamming into his vehicle, as he had almost slammed into the defendant’s
parked truck. The activation was safety based and done out of concern for the defendant,
himself, and other motorists on the roadway. Officer Crider specifically noted that traffic in
the area was “moderate” at the time of the incident. It was not done as a show of authority
directed at the defendant. Indeed, when Officer Crider exited the vehicle, he did not suspect
that any criminal activity was occurring, rather he testified that he believed that the truck had
simply broken down. He approached the defendant, who had also exited his vehicle, and
inquired as to what had happened.

       We conclude that the defendant has failed to establish that the evidence preponderates
against the trial court’s determination that the seizure of the defendant did not occur with the
activation of Officer Crider’s blue lights but, rather, only afterwards when he observed
certain behavior by the defendant which led to a reasonable suspicion that he was under the
influence. To hold otherwise would result in desecration of the caretaking duty that police
officers have to the public. To expect this officer to nearly slam into a parked car on a public
roadway after dark with moderate traffic in the area - and not allow him to stop and
investigate following the activation of his blue lights for safety reasons - is not logical.
Indeed, to not take that action could result in a violation of the officer’s caretaking duty to
other motorists to ensure their safety on the roadway. The defendant is entitled to no relief.

                                       CONCLUSION

       Based upon the foregoing, the denial of the motion to suppress is affirmed.



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      _________________________________
      JOHN EVERETT WILLIAMS, JUDGE




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