         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 6, 2005

                     STATE OF TENNESSEE v. JON A. ENGLE

                  Direct Appeal from the Circuit Court for Chester County
                          No. 04-275   Roy B. Morgan, Jr., Judge



                   No. W2005-01087-CCA-R3-CD - Filed March 16, 2006


Defendant, Jon A. Engle, was convicted of DUI and sentenced to eleven months and twenty-nine
days, with all but ten days suspended, and a fine of $1,500 and costs. He appealed, arguing that the
arresting officers did not have reasonable suspicion to stop his vehicle. However, Defendant filed
neither a motion to suppress the stop in the trial court nor a motion for new trial. Accordingly, we
conclude that this issue is waived and affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Jon A. Engle.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
James G. Woodall, District Attorney General; and Anna M. Banks, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

       At Defendant’s trial, Officer Jason Crouse of the Henderson Police Department testified that
on May 22, 2004, the Chester County dispatch had received several calls reporting a gray Mustang
automobile traveling south on Highway 45 swerving in and out of lanes. He responded to the call
and observed a gray Mustang swerving several times over the fog line and then making a sudden left
turn. Believing that the driver was impaired, Crouse stopped the vehicle around 2:14 a.m.
Defendant, who was the driver, rolled down his window and said he had been in Jackson “watching
the Lakers play.” Defendant had bloodshot eyes, his speech was slurred, and a strong odor of alcohol
emanated from his vehicle. Crouse asked Defendant to perform field sobriety tests, and Defendant
failed three of the four exercises. Defendant then was transported to the sheriff’s department and
registered .18 on the intoximeter test.

        Officer Ricky Hardy of the Henderson Police Department testified that he arrived at the scene
as the field sobriety tests were being administered to Defendant. In his opinion, Defendant was
intoxicated.

      Bobbie Rushing, a corrections officer at the Chester County Jail, testified that Defendant was
uncooperative during booking and, as a consequence, was placed in the “drunk tank.” She said
Defendant had red eyes, his speech was slurred, and she believed he was intoxicated. She said that
Defendant beat on the door of the drunk tank and threatened her job.

        Defendant testified that on the day of his arrest, he and a friend had been watching a
basketball game on television at “a place called Barley’s” in Jackson and had left when his friend
became ill. He drove his friend to the gym where his friend worked and then stopped at a
McDonald’s restaurant before proceeding toward his residence in Adamsville. He said that the only
alcohol he had consumed that night was a Long Island tea about 9:30 p.m. He was eating his food
and drinking a Coke as he was driving. Just before he was stopped by Officer Crouse, he drank “a
big mouthful” of Listerine mouthwash. He said that, as for the second field sobriety test, the officer
did not explain what he was to do. He was nervous as he was performing the tests and was distracted
by the flashing lights. Defendant said that Officer Crouse left the room while he was supposed to
be observing him and that he asked for water while at the jail because he kept burping. On cross-
examination, Defendant said he believed he had registered .18 on the intoximeter test because of the
Listerine he had swallowed.

                                            ANALYSIS

         Defendant’s sole argument on appeal is that Officer Crouse did not have reasonable suspicion
to stop his vehicle, thus requiring that the fruits of the stop be suppressed. Defendant did not raise
this claim by filing a pretrial motion to suppress, the legality of the stop was not questioned at the
trial, and it was not raised in a motion for new trial, since none was filed. Accordingly, as we will
explain, this claim is waived.

       As this court explained in State v. Coulter, 67 S.W.3d 3, 37 (Tenn. Crim. App. 2001), a
motion to suppress evidence must be filed prior to the trial:

               Tenn. R. Crim. P. 12(b)(3) provides that motions to suppress evidence must
       be raised prior to trial. "The rule is applicable when a claim of a constitutional right
       is involved whose violation would lead to suppression of evidence." State v. Goss,
       995 S.W.2d 617, 628 (Tenn. Crim. App. 1998). Moreover, like other motions, a
       motion to suppress is governed by Tenn. R. Crim. P. 47. State v. Bell, 832 S.W.2d
       583, 588 (Tenn. Crim. App. 1991); State v. Burton, 751 S.W.2d 440, 445 (Tenn.
       Crim. App. 1988).


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      An issue questioning the legality of a search, which is raised for the first time on appeal, is
waived, as explained in State v. Clark, 67 S.W.3d 73, 76 (Tenn. Crim. App. 2001):

               The defendant asserts that the stop of his vehicle constituted an unreasonable
       seizure under the Fourth Amendment to the United States Constitution and article I,
       section 7 of the Tennessee Constitution. However, we may not consider this issue.
       The defendant was obligated to file a motion to suppress evidence on such a basis
       before the day of trial. See Tenn. R. Crim. P. 12(b)(3). Failure to do so constitutes
       a waiver of the issue. See Tenn. R. Crim. P. 12(f).

        This issue is waived for the additional reason that it was not raised in a motion for new trial,
as required by Tennessee Rule of Appellate Procedure 3(e), which provides in pertinent part:

               [I]n all cases tried by a jury, no issue presented for review shall be predicated
       upon error in the admission or exclusion of evidence, jury instructions granted or
       refused, misconduct of jurors, parties or counsel, or other action committed or
       occurring during the trial of the case, or other ground upon which a new trial is
       sought, unless the same was specifically stated in a motion for a new trial; otherwise
       such issues will be treated as waived.

       Accordingly, this issue is waived and the judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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