         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 December 14, 2004 Session

              STATE OF TENNESSEE v. JOHN ALLAN LEZOTTE

                     Appeal from the Criminal Court for Monroe County
                           No. 04-007    Carroll L. Ross, Judge



                   No. E2004-01002-CCA-R3-CD - Filed February 18, 2005


The defendant, John Allan Lezotte, entered pleas of guilt to driving under the influence and child
endangerment, reserving the right to appeal a certified question of law. See Tenn. R. App. P. 3(b);
Tenn. R. Crim. P. 37(b)(2). The single issue presented for review is whether the trial court erred by
denying the defendant's motion to suppress. The judgments are affirmed.


                 Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON , AND JAMES
CURWOOD WITT , JR., JJ., joined.

Robert M. Cohen, Maryville, Tennessee, for the appellant, John Allan Lezotte.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Chalmers Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

         On August 17, 2003, Officer Randy Huskey of the Tennessee Wildlife Resources Agency
was patrolling the Carson Island/Smokey Branch Area of Tellico Lake by boat when he observed the
defendant, who was on shore with a can of beer in his hand. The officer traveled to the Tellico
Harbor Marina, docked, and then drove to the entrance of the Carson Island boat ramp, where he
met Wildlife Officer Joe Pike. As the two officers awaited the arrival of Officer Corey Russell, the
defendant, driving a pick-up truck, slowly approached them on a gravel road. According to Officer
Huskey, a fishing rod in the back of the truck was visible. When he saw coolers in the rear of the
vehicle and observed that a child passenger was not wearing a seat belt, he directed the defendant
to stop.

       At the suppression hearing, Officer Huskey, whose interest was piqued when he saw the
defendant with the beer, testified that he stopped the defendant not only to check whether he had a
fishing license but also because the child was not properly restrained. The marina was known to the
officer as a "problem area" for unruly behavior. According to Officer Huskey, when the defendant
opened the door he smelled of alcohol and had to use both hands to steady himself. Officer Huskey
saw that the child was small, about two years of age, and did not have any restraining device. The
defendant claimed that he had not been fishing and maintained that the officer could not have seen
the fishing pole in the back of his truck. The officer, however, maintained that the primary reason
for the stop was to determine whether the defendant had a fishing license . The stop eventually
evolved into an arrest for driving under the influence of alcohol.

         After listening to an audio tape of the preliminary hearing and considering the evidence
submitted during the suppression hearing, the trial court concluded that the officer had actually
begun his investigation as a result of seeing the defendant with a beer in his hand in "a trouble area
. . . a problem island." The trial court concluded that Officer Huskey had contacted two other
officers to assist in the investigation which, in the observations of the trial court, "had nothing to
do . . . with fishing." Affording little credence to testimony regarding the presence of the fishing
pole and the basis for a license compliance check, the trial court determined that the officers
nevertheless had a valid basis for an investigatory stop because Officer Huskey had seen the
defendant drinking and, minutes later, driving his vehicle. It was the trial court's observation that
if an officer knows "somebody's drinking and they're in a vehicle, but [does not] know to what
extent," there is a valid reason for an investigatory stop. The trial court chose not to address whether
"someone on a ramp at a fishing dock with fishing tackle in the back of [his] vehicle and coolers
can't be stopped and asked for [his] license."

        In this appeal, the defendant argues that his having been seen with a beer in his hand was an
insufficient basis for an investigative stop. He also contends that the presence of a fishing pole in
his vehicle is not an indication that he had been fishing, thereby warranting a stop, and that any
reference to the lack of restraint for the child passenger in his vehicle was pretextual. In response,
the state argues that because Officer Huskey saw the defendant with a beer in his hand minutes
before the stop and because there had been reports of misbehavior in the general area, an
investigatory stop was warranted. In the alternative, the state, citing Hughes v. State, 259 S.W.2d
527 (Tenn. 1953), and Monroe v. State, 253 S.W.2d 734 (Tenn. 1952), contends that wildlife
officers may make investigatory stops of those persons participating in the privilege of fishing or
hunting at any time. The state also argues that the officer had a reasonable basis to stop the vehicle
when the child occupant was observed in the front seat of the vehicle without any restraining device.


        Both the state and federal constitutions protect individuals from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any
evidence discovered subject to suppression. U.S. Const. amend. IV; Tenn. Const. art. I, § 7;
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490
(Tenn. 1997). Neither, however, limits all contact between citizens and law enforcement and both
are designed, instead, "'to prevent arbitrary and oppressive interference with the privacy and personal
security of individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v.


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Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Our courts have recognized three types of
police-citizen interactions: (1) a full-scale arrest, which must be supported by probable cause; (2)
a brief investigatory stop, which must be supported by reasonable suspicion; and (3) a brief
police-citizen encounter, which requires no objective justification. See Florida v. Bostick, 501 U.S.
429, 434 (1991); Brown v. Illinois, 422 U.S. 590 (1975); Terry v. Ohio, 392 U.S. 1 (1968). "Only
when the officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a 'seizure' has occurred." Terry, 392 U.S. at 19 n.16.

        An automobile stop constitutes a "seizure" within the meaning of both the Fourth
Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution.
Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990); Delaware v. Prouse, 440 U.S. 648,
653 (1979); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994); State v. Westbrooks,
594 S.W.2d 741, 743 (Tenn. Crim. App. 1979). The fact that the detention may be brief and limited
in scope does not alter that fact. Prouse, 440 U.S. at 653; State v. Pulley, 863 S.W.2d 29, 30 (Tenn.
1993); Binion, 900 S.W.2d at 705; Westbrooks, 594 S.W.2d at 743. The basic question, as
indicated, is whether the seizure was "reasonable." Binion, 900 S.W.2d at 705 (citing Sitz, 496 U.S.
at 444). In Pulley, our supreme court ruled that "the reasonableness of seizures less intrusive than
a full-scale arrest is judged by weighing the gravity of the public concern, the degree to which the
seizure advances that concern, and the severity of the intrusion into individual privacy." 863 S.W.2d
at 30.

         Our determination of the reasonableness of a stop of a vehicle depends on whether the officer
had either probable cause or an "articulable and reasonable suspicion" that the vehicle or its
occupants were subject to seizure for violation of the law. See Prouse, 440 U.S. at 663; State v.
Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989). Probable cause has been generally defined
as a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. See
Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While probable cause is not
necessary for an investigative stop, it is a requirement that the officer's reasonable suspicion be
supported by "specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; Pulley, 863 S.W.2d at 30; Coleman,
791 S.W.2d at 505; see also State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (applying Terry
doctrine in context of vehicular stop). In determining whether reasonable suspicion exists, an
important factor in the analysis is that reasonable suspicion is a less demanding standard than
probable cause not only in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish probable cause, but also in the
sense that reasonable suspicion can arise from information that is less reliable than that required to
show probable cause. Pulley, 863 S.W.2d at 32 (citing Alabama v. White, 496 U.S. 325, 330
(1990)).

        Courts considering the issue of reasonable suspicion must look to the totality of the
circumstances. Those circumstances include the personal observations of the police officer,
information obtained from other officers or agencies, information obtained from citizens, and the
pattern of operation of certain offenders. Watkins, 827 S.W.2d at 294 (citing United States v. Cortez,


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449 U.S. 411, 417-18 (1981)). Objective standards apply rather than the subjective beliefs of the
officer making the stop. State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996).

        The scope of review is limited. When the trial court makes a finding of facts at the
conclusion of a suppression hearing, the facts are accorded the weight of a jury verdict. State v.
Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court's findings are binding upon this
court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996); see also Stephenson, 878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479
(Tenn. Crim. App. 1984). Questions of credibility of witnesses, the weight and value of the
evidence, and resolution of conflicts in evidence are matters entrusted to the trial judge as the trier
of fact. 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 the evidence. Odom, 928 S.W.2d at 23. The application of the law to the facts,
however, requires de novo review. State v. Daniel, 12 S.W.3d 420, 423-24 (Tenn. 2000). Likewise,
if the evidence does not involve a credibility assessment, the reviewing court must examine the
record de novo without a presumption of correctness. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.
1997).

         Because the trial court made no findings beyond the reasonableness of the stop based upon
the defendant's driving after the consumption of beer, this court will examine the propriety of the
search on that issue. The record establishes that the area was known for unruly behavior. The
officer had seen the defendant drinking beer and, when he arranged for other officers to meet him
and assist, he observed the defendant driving with coolers in the back of his truck and an
unrestrained two-year-old in the front seat. Under those circumstances, an investigatory stop appears
reasonable. Some deference must be given the findings of fact by the trial judge. Furthermore, there
is a significant public concern for driving safety and especially for the safety of the children who are
passengers of an automobile. Here, the initial degree of intrusion was fairly minimal. The officers
were on foot and the defendant was driving slowly in their direction on a gravel road. Officer
Huskey had an articulable basis for suspicion. The officer had seen the defendant consuming alcohol
in an open area known for unruly behavior only minutes before seeing him driving his vehicle. When
the defendant opened the door, the smell of alcohol and the unsteadiness of gait gave reason for a
full arrest.

       Accordingly, the judgments are affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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