         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 8, 2003 Session

               STATE OF TENNESSEE v. FRED TAYLOR SMITH

                      Appeal from the Circuit Court for Tipton County
                           No. 4415    Joseph H. Walker, Judge



                   No. W2002-02199-CCA-R3-CD - Filed October 8, 2003


The defendant, Fred Taylor Smith, entered pleas of guilt to driving under the influence and driving
under the influence per se. See Tenn. Code Ann. § 55-10-401(a)(1)-(2). The trial court merged the
two convictions and imposed a sentence of 11 months and 29 days with a requirement of service of
75%. As a part of the plea agreement, the defendant reserved a certified question of law challenging
the validity of the investigatory stop. The judgment is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

J. Barney Witherington, IV, for the appellant, Fred Taylor Smith.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and
Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.


                                            OPINION

         On October 15, 2001, at approximately 8:00 A.M., Freeman Jones Weems, III, a customer
at Jerry's Quick Stop in Munford, observed the defendant stumble twice on his way into the market.
According to Weems, once inside the market, the defendant almost fell on two occasions, first
attempting to open the beer cooler door and later when he approached the counter. One of the clerks
refused to sell beer to the defendant. When Weems observed the defendant leave the market and
enter his car, he followed in his own vehicle.

       At the suppression hearing, Weems testified that the defendant failed to slow down as he
entered the Munford-Atoka Road, almost causing a wreck. Weems then telephoned 911 and
provided a police dispatcher with a license number and car description. He continued to follow the
defendant while maintaining contact with the 911 dispatcher until police officers arrived about five
minutes after his original call. Weems testified that the defendant "nearly [drove] into his house
trying to get in the driveway." Officer Mark Daugherty of the Munford Police Department arrived
just before the defendant entered his driveway.

       After confirming the license number and the description of the vehicle, Officer Daugherty
turned on his blue lights, initiated his siren, and made the stop. The officer acknowledged at the
suppression hearing that he based his arrest upon the information received in the dispatch.

         The trial court determined that the police officer had made a proper investigatory stop based
upon reasonable suspicion and supported by specific and articulable facts. It concluded that because
the officer was in direct contact with the dispatcher and in indirect contact with an eyewitness to
illegal activity taking place at that moment, the stop was entirely appropriate. The trial court found
that the officer had corroborated the information by identifying the vehicle and its license number
before activating his blue lights and siren. It further observed that the tip was not anonymous but
one from a citizen informant who had identified himself as genuinely concerned by the prospect of
a drunken driver.

         In this appeal, the defendant contends that the officer did not have a reasonable basis to
initiate the stop and that there was inadequate corroboration of the tip provided by the informant.
The defendant submits that upholding the validity of the stop would permit any citizen to be seized
by a complaint, properly motivated or not, to the dispatcher.

        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). An automobile stop constitutes a “seizure” within the meaning of both the Fourth
Amendment of 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). The state always carries the burden of establishing the reasonableness of any detention. See
State v. Matthew Manuel, No. 87-96-III (Tenn. Crim. App., at Nashville, Nov. 23, 1988).

        Among the narrowly defined exceptions to the warrant requirement is an investigatory stop.
See Terry v. Ohio, 392 U.S. 1, 27-28 (1968). An investigatory stop is deemed less intrusive than an
arrest. See id. 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.


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         Our determination of the reasonableness of the stop of the vehicle depends on whether the
officers 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,
792 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, 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).

         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).

        In this instance, a citizen who had seen the defendant at close range and who had observed
his driving on a public road, reported his suspicion that the defendant was driving under the
influence to the police. The citizen informant followed the defendant by car, maintained contact
with the dispatcher, provided directions for the arresting officer as to the location of the defendant's


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automobile, and was present when the officer arrived. The officer corroborated the license number
and description of the vehicle before making the investigatory stop. In our view, the detention was
based upon an articulable and reasonable suspicion that the defendant was driving under the
influence.

       Accordingly, the judgment is affirmed.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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