          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE           FILED
                             MARCH 1999 SESSION
                                                            July 8, 1999

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                *    C.C.A. #01C01-9808-CC-00323

              Appellant,           *    WILLIAMSON COUNTY

VS.                                *    Honorable Timothy L. Easter, Judge

RONALD R. FONTENOT,                *    (Motion To Suppress)

              Appellee.            *




FOR THE APPELLANT:                      FOR THE APPELLEE:

JOHN KNOX WALKUP                        V. MICHAEL FOX
Attorney General and Reporter           315 Deaderick Street
                                        First American Center, 20th Floor
MARVIN E. CLEMENTS, JR.                 Nashville, TN 37238-2075
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243

RONALD L. DAVIS
District Attorney General

LEE E. DRYER
Assistant District Attorney General
P. O. Box 937
Franklin, TN 37065-0937




OPINION FILED: _______________


AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                             OPINION

         The Williamson County Grand Jury indicted the defendant, Ronald R.

Fontenot, for three counts of driving under the influence.1 The trial court found

that the initial traffic stop was invalid and thus granted Fontenot’s motion to

suppress and dismissed the state’s case. The state appeals, alleging that the

arresting officer conducted a legitimate investigatory stop based on reasonable,

articulable suspicion of criminal activity, and, therefore, the trial court should

have denied the motion to suppress. We AFFIRM the trial court’s judgment.



                                             BACKGROUND

         Sergeant Ball of the Williamson County Sheriff’s Department followed the

defendant’s vehicle for some distance on Lewisburg Pike. He observed the

defendant execute a left-hand turn onto Wilhoite Road, a dead-end road. Ball

testified that he had no particular reason for following the defendant’s vehicle,

but he believed the defendant may have braked heavily when making this turn.

Ball stopped his vehicle and waited several minutes before entering Wilhoite.

Ball met the defendant as he was returning to Lewisburg Pike, approximately

100 yards from the intersection.             Ball turned around and, on reaching Lewisburg

Pike, observed that the defendant’s vehicle had resumed its original direction of

travel on that roadway. Ball observed the vehicle’s “taillights in the [unspecified]

distance.” Ball pursued the vehicle, believing that the defendant might be

fleeing, and on his reaching the vehicle he activated his blue lights. The

defendant promptly pulled over and stopped his vehicle. Ball testified that during

this entire incident he observed no traffic violations.


         1
            The three counts are: (1) that the defendant operated a motor vehicle while under the
influence of an intoxicant, in violation of Tennessee Code Annotated § 55-10-401; (2) that the
defe nda nt op erate d a m otor v ehic le wh ile his b lood a lcoh ol con tent m et or e xce ede d .10 %, in
violation of Tennessee Code Annotated § 55-10-401; and (3) that his actions constituted a second
offens e of driving w hile under the influenc e beca use he allegedly had a prior out-o f-state
conviction for driving u nder the influence .

                                                    -2-
       Based on investigation subsequent to the stop, including Ball’s

observation of an odor consistent with consumption of alcohol on or about the

defendant, the defendant’s red eyes, the defendant’s statements and his

performance of field sobriety tests, Ball arrested the defendant for driving under

the influence. The defendant filed a motion to suppress all evidence acquired

after the traffic stop. At the subsequent suppression hearing, the trial court

noted that one’s accelerating from an intersection does not necessarily constitute

fleeing and that the defendant promptly pulled over and stopped when Ball

activated his blue lights. The trial court found “no articulable facts” to support the

stop, granted the defendant’s motion, and dismissed the case. The state

appeals, arguing that Ball legitimately stopped the vehicle pursuant to an

investigation.



                              STANDARD OF REVIEW

       A trial court’s determination of fact at a suppression hearing “is

presumptively correct on appeal.” State v. Stephenson, 878 S.W.2d 530, 544

(Tenn. 1994). This Court upholds a trial court’s decision “unless the evidence in

the record preponderates against the finding.” State v. Henning, 975 S.W.2d

290, 299 (Tenn. 1998). “Questions of credibility of 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. “The party prevailing in the

trial court is entitled to the strongest view of the evidence, as well as all

reasonable and legitimate inferences that may be drawn from the evidence.” Id.;

see also State v. Curtis, 964 S.W.2d 604, 608 (Tenn. Crim. App. 1997) (The

state, appealing a trial court’s granting a motion to suppress, must show this

Court that the evidence in the record preponderates against the trial court’s

findings of fact.). This Court does review de novo the trial court’s application of

law. See State v. Yeager, 958 S.W.2d 626, 629 (Tenn. 1997).



                                          -3-
                                   ANALYSIS

       The sole issue presented for review is whether the trial court erred by

finding that Ball lacked reasonable suspicion supported by specific and

articulable facts such that warranted the investigatory stop of the defendant and

therefore erred by granting the defendant’s motion to suppress and dismissing

the state’s case.



       “Stopping an automobile and detaining its occupants constitute a ‘seizure’

within the meaning of [the Fourth and Fourteenth Amendments to the United

States Constitution].” Delaware v. Prouse, 440 U.S. 648, 653 (1979). Even

absent probable cause, a warrantless stop may be a valid investigative

procedure if the police officer has reasonable suspicion, supported by specific

and articulable facts, that a criminal offense has been or is about to be

committed. See Brown v. Texas, 443 U.S. 47, 51 (1979); Terry v. Ohio, 392

U.S. 1, 20 (1968); State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997).

However, a warrantless stop is presumptively unreasonable. See Simpson, 968

S.W.2d at 780. In the instant case, Ball testified that he observed no violations

by the defendant prior to the stop. Further, the record does not indicate that Ball

either had received reliable information that the defendant had, or was about to,

commit an offense, cf. State v. Banner, 685 S.W.2d 298 (Tenn. Crim. App.

1984), or was aware of an outstanding capias for the defendant’s arrest, cf. State

v. Watkins, 827 S.W.2d 293 (Tenn. 1992).



       The record submitted does not provide the requisite preponderance of

evidence for this Court’s interfering with the trial court’s suppressing the

evidence. See Curtis, 964 S.W.2d at 608. Evidence from an invalid traffic stop




                                         -4-
is subject to suppression. See State v. Norwood, 938 S.W.2d 23, 26 (Tenn.

Crim. App. 1996). The trial court did not erroneously grant the defendant’s

motion. Further, the state’s evidence originated solely from investigation after

the stop, and without this evidence the record is void of any evidence against the

defendant. Therefore, the trial court properly dismissed the case. This issue is

without merit.



                                 CONCLUSION

      We AFFIRM the trial court’s judgment.




                                         _______________________________
                                         JOHN EVERETT W ILLIAMS, Judge




CONCUR:




______________________________
DAVID H. WELLES, Judge




______________________________
JOE G. RILEY, Judge




                                        -5-
