        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          FEBRUARY SESS ION, 1998        March 24, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                 )   C.C.A. NO. 03C01-9709-CR-00427
                                    )
            Appe llant,             )
                                    )   HAMILTON COUNTY
V.                                  )
                                    )
                                    )   HON. STEPHEN M. BEVIL, JUDGE
EMO RY W OOD ,                      )
                                    )
            Appellee.               )   (STATE APP EAL)



FOR THE APPELLEE:                        FOR THE APPELLANT:

PHILLIP L. DUV AL                        JOHN KNOX WALKUP
537 Market Street, Suite 204             Attorney General & Reporter
Chattanooga, TN 37402
                                         ELLEN H. POLLACK
                                         Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         WILLIAM COX
                                         District Attorn ey Ge neral

                                         C. PARKE MASTERSON
                                         Assistant District Attorney General
                                         600 Market Street, Suite 310
                                         Chattanooga, TN 37402




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Appella nt, the Sta te of Tennessee, brings this appeal as of right following

a hearing regarding a motion to suppress evidence. The Hamilton County Grand

Jury indicted the Appellee, Emory Wood, for driving under the influence of an

intoxicant and po ssessio n of a pisto l with the inten t to go arm ed. Appellee filed a

motion to suppress all of the evidence discovered through a search of his person

and his vehicle. A hearing was cond ucted by the trial court, an d the trial court

granted the motion to suppress the evidence. The State appeals on the basis that

the evidence was found after a reasonable stop and a lawful search of W ood’s car.

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



       Recently, in State v. Odom, 928 S.W.2d 18 (Tenn . 1996), the sup reme cou rt

held as follows:

       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 suppo rts
       the trial court’s findings, those findings shall be upheld. In other words,
       a trial court’s findin gs of fact in a supp ressio n hea ring will b e uph eld
       unless the evidence preponderates otherwise.

Odom, 928 S.W.2d at 23.

       At the suppression hearing, Officer James Hixson of the Chattanooga Police

Department testified that he was patrolling the Main Street area when he saw the car

Appellee was driving stop and pick up a woman at the corner of Mitchell and East

Main Stree t. Office r Hixso n belie ved the wom an wa s a pro stitute b ecau se tha t is an

area known for prostitutes to solicit customers. Officer Hixson stated that he

followed A ppellee’s car for sev eral block s in order to investigate his susp icions.




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       After Officer Hixson pulled A ppellee over an d approac hed the car, Appellee

exited the vehicle. Officer Hixson placed him on the back of his vehicle and patted

him down. Because he noticed the odor o f an alc oholic bever age u pon A ppelle e’s

breath, Officer Hixson administered several field sobriety tests on the Appellee.

Officer Hixson began to search the automobile with a flashlight and located a .357

caliber handgun underneath the driver’s seat. After the initial stop, Officer Hixson

learned that the woman inside Appellee’s car was not a prostitute and that the car

Appellee was driving belonged to someone else.



       On cross-examination, Officer Hixson stated that while he was following the

car Appellee was driving, he noticed that Appellee was swerving. Officer Hixson

further testified that when Appellee exited his vehicle, he stumbled. On redirect

examination, when questioned as to wha t he told Defendant was the reason for the

stop, Office r Hixso n state d, “I told h im that I thought that he picke d up a p rostitute.”



       Appellee testified that he was driving on Main Street when he stopped and

picked up a friend . He wa s on th e way to his au nt’s home when he was stopped by

Officer Hixson. Appellee stated that he was not spee ding, w eaving or havin g troub le

keeping his vehicle in its lane. After administering the field sobriety tests, Officer

Hixson told Ap pellee he wa s und er arre st for driv ing under the influence of an

intoxicant. Appellee stated that Officer Hixson then s earch ed his car without asking

permission, using a flashlight. Appellee stated that he did not know there was a gun

in the vehicle as it was not his vehicle.



       The trial court specifically found that the re was not an y basis or reasona ble

suspic ion based upon a rticulable fac ts that a crim e was b eing com mitted so as to

                                             -3-
warrant a stop by Officer Hixson. Reasonable suspicion must be ba sed o n spe cific

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

State v. Kelley, 948 S.W .2d 757 , 760 (Tenn . Crim. App. 19 96) (citations om itted).

The trial court stated that, “I think it is clear based on the officer’s in itial testimony

that the reason he stopped the car was because he thought that Mr. Wood picked

up a prostitu te as a basis for stopping the car.” The trial court determined that even

if Appellee ha d allow ed a p rostitute to ride in his car , that in its elf is no t a violatio n

of the law.      The trial court determined that any search which followed the

unrea sona ble stop was not lawful and any evidence, as a result, was not admissible.



       As the Appellee is entitled to the strongest legitimate view of the evidence and

the testimony supports the trial court’s findings, there was no error in the

suppression of the evide nce. The evidence does not preponderate against the trial

court’s find ings of fac t.



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


                                     ____________________________________
                                     THOMAS T. W OODALL, Judge

CONCUR:


___________________________________
JERRY L. SMITH, Judge


___________________________________
WILLIAM B. ACREE, JR., Special Judge




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