        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 October 25, 2011 Session

        STATE OF TENNESSEE v. DAVID INGRAM OWNBY, ALIAS

                  Appeal from the Criminal Court for Knox County
                 No. 91543 _____ Jon Kerry Blackwood, Senior Judge




                   No. E2011-00543-CCA-R3-CD - Filed May 3, 2012




J AMES C URWOOD W ITT, J R., J., concurring.

               I concur in that the facts of the case would engender a reasonable suspicion that
the defendant was driving while impaired. I would emphasize that the presence of the
defendant’s vehicle headed in the wrong direction in the restaurant’s drive-through lane, in
addition to the condition of the driver, is the fact that justifies the seizure.

               By contrast, in State v. James David Moats, No. E2010-02013-CCA-R3-CD
(Tenn. Crim. App., Knoxville, Nov. 8, 2011), the police officer who arrested Mr. Moats for
driving under the influence originally observed him at about 2:00 a.m. as he was sitting in
his car parked in the parking lot of a grocery store. The store was closed at that hour. The
officer drove her cruiser up to Mr. Moats’s vehicle and activated her blue lights. The trial
court denied Mr. Moats’s motion to suppress the discovery of evidence of his intoxication,
but this court reversed, stating

                      Under the authority of [State v.]Williams, [185 S.W3d
              311 (Tenn.2006),] it is clear that Sergeant Bige seized the
              defendant the moment she activated her emergency lights
              because the use of the lights was a show of authority and a
              reasonable citizen would not have felt free to leave. See
              [Williams, 185 S.W.3d] at 317. She was not performing a
              community caretaking function because, as she testified, there
              was no indication that the defendant needed assistance nor was
              there any other evidence that she needed to activate the lights for
              safety reasons. Additionally, Sergeant Bige had no reasonable
                suspicion of illegal activity. She testified that she thought it was
                strange that a truck was parked in the grocery store parking lot
                near 2:00 a.m. with its lights on. Essentially, she had an
                “inchoate and unparticularized suspicion or hunch,” which does
                not rise to the level of reasonable suspicion. Terry [v. Ohio, 392
                U.S. 1, 27 (1968)]. Without reasonable suspicion, her seizure of
                the defendant violated the constitutional prohibition against
                unreasonable seizures. Therefore, we conclude that the
                evidence does not support the trial court’s findings and reverse
                the trial court’s determination that the officer did not seize the
                defendant without reasonable suspicion when she activated her
                emergency lights.

Id., slip op. at 6.

               In James David Moats, the presence of a sleeping or inattentive person in a
vehicle that is not parked so as to suggest that an impaired driver parked it did not, without
more, justify a reasonable suspicion to seize the person. By contrast, in the present case, the
defendant was not only sleeping or unconscious in his vehicle but also had apparently parked
it in a manner that suggested his impairment.

              Given the likely frequency with which officers discover sleeping drivers inside
their parked vehicles, I believe the distinction made above is important.

                                                      ____________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




                                                -2-
