        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 20, 2009

              STATE OF TENNESSEE v. DONALD LOCKHART

             Direct Appeal from the Criminal Court for Loudon County
                       No. 11318    E. Eugene Eblen, Judge




                No. E2008-02046-CCA-R3-CD - Filed March 24, 2010


Appellant Donald Lockhart was indicted by a Loudon County Grand Jury for driving under
the influence in violation of Tennessee Code Annotated section 55-10-401. The trial court
denied a motion to suppress evidence derived from the stop of Appellant’s vehicle.
Thereafter, Appellant pled guilty to the charge, but under Tennessee Rule of Criminal
Procedure 37(b) preserved the following issue for appeal: “Whether the trial judge erred by
failing to suppress evidence gathered pursuant to a traffic stop of the [Appellant] that was
conducted by the Lenoir City Police Department and which the [Appellant] alleged was
conducted in the absence of a valid warrant, probable cause or reasonable suspicion, all in
violation of [Appellant’s] constitutional rights to be free of unreasonable searches and
seizures?” On appeal, he argues that the citizen informant’s tip, combined with an officer’s
determination that Appellant was impaired during a welfare check minutes before the stop,
was insufficient to establish reasonable suspicion. Upon review, we affirm.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined. J AMES C URWOOD W ITT, J R., J., filed a concurring opinion.

Kent L. Booher, Lenoir City, Tennessee, for the appellant, Donald Lockhart.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Russell Johnson, District Attorney General; Frank Harvey, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background
       The State called two witnesses at the suppression hearing. Lenoir City Police
Department Lieutenant Mike Tennell testified that he conducted a welfare check on
Appellant on the night of April 28, 2006, after receiving reports from family members that
he was contemplating suicide. Lieutenant Tennell discovered a blue-green Ford Taurus
parked in front of Appellant’s house. He found Appellant inside the house, slouched on a
chair and “extremely intoxicated.” Lieutenant Tennell, a twenty-year veteran of the force,
said the Appellant was “lucky to stand up.” After conducting the welfare check, Lieutenant
Tennell left Appellant’s house.

       A few minutes later, the police received a call from Appellant’s wife indicating he
was driving by the house where she was staying. When the dispatcher relayed the
information and a description of the car–a green Ford Taurus–over the police radio system,
Lieutenant Tennell immediately recognized that the call concerned Appellant. He informed
the dispatcher, as well as the other officers listening, that he had seen Appellant five to ten
minutes earlier and that he believed Appellant was intoxicated.

       Lieutenant Tennell said that he was at Appellant’s residence around “10:30 to 10:50,
10:55,” and the call from dispatch was around 11:00. Lieutenant Tennell said that “[i]t was
readily apparent to [him] that the same person that had called for us to do a welfare check on
[Appellant] had called back to say [Appellant] was in [Appellant’s] car now at their residence
or had driven by their residence.” The distance between Appellant’s house and the house
where Appellant’s wife was staying was approximately six blocks. Further, Lieutenant
Tennell knew Appellant and was familiar with his vehicle; Lieutenant Tennell recalled that
the police had responded to “many calls” from Appellant’s wife around the time period in
question.

       Lenoir City Patrolman Jeremy Dishner testified that he heard the dispatch concerning
Appellant and then Lieutenant Tennell’s report that the subject was intoxicated. Officer
Dishner observed Appellant driving between 4th Avenue and 5th Avenue, approximately
four blocks from the house where Appellant’s wife was staying. Although he did not see
Appellant drive suspiciously, Officer Dishner stopped Appellant on the basis of the
information he had from dispatch regarding the call from Appellant’s wife and the
information from Lieutenant Tennell. Officer Dishner was not familiar with the Appellant
and had never had contact with him. Officer Dishner said that the Appellant was under the
influence and described his level of impairment as significant. Appellant was ultimately
arrested and charged with driving under the influence.




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       The trial court denied Appellant’s motion to suppress.1 Appellant then pled guilty to
the charge, but specifically preserved his appeal of the suppression decision under Rule
37(b). He now contends that the trial court erred in denying his motion, arguing that Officer
Dishner did not have a constitutional basis for stopping him.

                                               II. Analysis

       As noted above, this appeal comes via a properly preserved certified question under
Tennessee Rule of Criminal Procedure 37(b)(2). See State v. Armstrong, 126 S.W.3d 908,
912 (Tenn. 2003); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The issue it presents
is dispositive. See State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000). Although
we are analyzing a certified question, we use the same standard of review as we would to
analyze the underlying issue: the denial of a motion to suppress. See State v. Hanning, 296
S.W.3d 44, 48 (Tenn. 2009).

        In reviewing a trial court’s determinations regarding a suppression hearing,
“[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 both questions of law and the trial court’s
application of law to the facts purely de novo. See Hanning, 296 S.W.3d at 48; State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the State, as the prevailing party, 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.”
Odom, 928 S.W.2d at 23.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.”2 Generally, a warrantless search is presumptively unreasonable, thus
violative of constitutional protections. See State v. Walker, 12 S.W.3d 460, 467 (Tenn.
2000); see also State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). Evidence derived from
such a search is subject to suppression unless the State “demonstrates by a preponderance of


        1
           The record does not contain either a written order from the trial court or the transcript of the
court’s order. Nevertheless, it is clear both that the court denied the motion and, as discussed below that the
denial was proper.
        2
         In State v. Downey, our supreme court noted that “article I, section 7 is identical in intent and
purpose with the Fourth Amendment.” 945 S.W.2d 102, 106 (Tenn. 1997) (quotation marks omitted).

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the evidence that the search or seizure was conducted pursuant to an exception to the warrant
requirement.” Keith, 978 S.W.2d at 865; see also State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997). One of the permissible exceptions is met when an officer temporarily seizes
a citizen if the officer “has a reasonable suspicion, based on specific and articulable facts,
that a criminal offense has been, is being, or is about to be committed.” Keith, 978 S.W.2d
at 865; see also Hanning, 296 S.W.3d at 48. Thus, the question here is whether the record
demonstrates that Officer Dishner had a reasonable suspicion that Appellant was committing
or had committed a crime. See Hanning, 296 S.W.3d at 49.

        While it is not possible to precisely articulate what “reasonable suspicion” means, it
is a “common sense” and “nontechnical” conception dealing “with the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians,
act.” Keith, 978 S.W.2d at 867 (quoting Ornelas v. United States, 517 U.S. 690, 699,
(1996)). At a minimum, however, there must be more than an officer’s mere “inchoate and
unparticularized suspicion or hunch.” Hanning, 296 S.W.3d at 49 (quotation marks omitted).

        The analysis of whether an officer had reasonable suspicion is “a fact-intensive and
objective analysis,” which requires “reviewing the record for specific and articulable facts.”
 Id. (quotation marks omitted); see also State v. Garcia, 123 S.W.3d 335, 344 (Tenn. 2003).
In determining whether an officer had reasonable suspicion, “a court must consider the
totality of the circumstances.” Keith, 978 S.W.2d at 867; see also Garcia, 123 S.W.3d at 344.
As our supreme court has explained:

       Circumstances relevant to the evaluation include, but are not limited to, the
       officer’s personal objective observations, information obtained from other
       police officers or agencies, information obtained from citizens, and the pattern
       of operation of certain offenders. A court must also consider the rational
       inferences and deductions that a trained officer may draw from the facts and
       circumstances known to him–inferences and deductions that might well elude
       an untrained person. Finally, the content, quality, and quantity of information
       possessed by police must be assessed in determining whether it is sufficiently
       reliable to support a finding of reasonable suspicion.

Keith, 978 S.W.2d at 867 (quotation marks and citations omitted). Moreover, “reasonable
suspicion can be established with information that is different in quality or content than that
required to establish probable cause and can arise from information that is less reliable than
that required to show probable cause.” Hanning, 296 S.W.3d at 49 (quotation marks
omitted); see also Keith, 978 S.W.2d at 866; State v. Simpson, 968 S.W.2d 776, 781-82
(Tenn. 1998); State v. Pulley, 863 S.W.2d 29, 32 (Tenn. 1993). However, there must be
“some minimal level of objective justification for making the stop.” Keith, 978 S.W.2d at

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867 (quoting United States v. Sokolow, 490 U.S. 1, 7-8, 109 S. Ct. 1581, 1585 (1989)). “An
officer may make an investigatory stop based upon a police dispatch as long as the individual
or agency placing the dispatch has the requisite reasonable suspicion supported by specific
and articulable facts that indicate criminal conduct.” State v. Luke, 995 S.W.2d 630, 636
(Tenn. Crim. App. 1998). Reasonable suspicion can also be based upon a tip from an
informant. See, e.g., Pulley, 863 S.W.2d at 31. Tennessee law distinguishes between
“citizen informants” and “criminal informants.” See State v. Cauley, 863 S.W.2d 411, 417
(Tenn. 1993). It also distinguishes between known and anonymous informants. Compare id.
(known informant) with Hanning, 296 S.W.3d at 50 (anonymous informant). The law
provides that information provided by a known citizen witness “is presumed to be reliable,”
and therefore “the prosecution is not required to establish either the credibility of the
informant or the reliability of his information.” Cauley, 863 S.W.2d at 417 (citing State v.
Melson, 638 S.W.2d 342, 354-56 (Tenn. 1982)).

        In this case, Officer Dishner had an ample basis for a reasonable suspicion that
Appellant was driving under the influence in violation of Tennessee Code Annotated section
55-10-401. We begin by noting that, although there was a tip from a known citizen, the
critical information in this case came from Lieutenant Tennell. Just minutes before Officer
Dishner stopped Appellant, Lieutenant Tennell personally visited Appellant during a welfare
check and determined that he was intoxicated to the point of being “really impaired.”
Appellant does not challenge the validity of Lieutenant Tennell’s welfare check, nor the
veracity of his opinion. Officer Dishner knew Lieutenant Tennell believed Appellant was
too intoxicated to drive and was entitled to rely on that information. See Keith, 978 S.W.2d
at 867. Moreover, when Appellant’s wife called to report that Appellant was driving around
her house, the information she provided was presumed to be reliable because she was a
known citizen informant. See Cauley, 863 S.W.2d at 417. As in Cauley, where the citizen’s
report merely placed the defendant’s brother’s car at the scene of the crime–it did not allege
the defendant committed a crime–the information provided by Appellant’s wife was
“innocuous by itself,” and its significance lay with the information previously gathered by
Lieutenant Tennell. Id. at 417-18.3 When Lieutenant Tennell heard the description of the car
given by the dispatcher, he immediately recognized it as Appellant’s, and he immediately
recognized that Appellant was likely driving under the influence. Because this information
was highly reliable, Officer Dishner had reasonable suspicion to initiate a stop. Accordingly,
the trial court was correct in denying the motion to suppress.

                                             III. Conclusion


        3
          The record is unclear regarding whether Appellant’s wife accused Appellant of driving under the
influence, stalking, or something else. The record does suggest, however, that there had been a series of calls
concerning Appellant’s behavior toward her during the days leading up to his arrest.

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      Upon review of the record and the parties’ briefs, for the foregoing reasons, the
judgment of the trial court is affirmed.


                                                ___________________________________
                                                NORMA McGEE OGLE, JUDGE




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