        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 17, 2014 Session

                 STATE OF TENNESSEE v. COREY M. WILLIS

             Direct Appeal from the Circuit Court for Williamson County
                   No. II-CR067378     James G. Martin, III, Judge




                No. M2014-00252-CCA-R3-CD - Filed October 27, 2014


The defendant, Corey M. Willis, was charged with various driving under the influence (DUI)
offenses. He filed a motion to suppress, alleging that the police lacked reasonable suspicion
to perform the traffic stop. The trial court granted the motion, and the State appeals. Upon
review, we affirm the trial court’s ruling.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which R OGER A. P AGE, J.,
and L ARRY J. W ALLACE, S P. J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim
R. Helper, District Attorney General; and Carlin C. Hess, Assistant District Attorney
General, for the appellant, State of Tennessee.

Robert Wilson Jones and Henry Ambrose, Franklin, Tennessee, for the appellee, Corey M.
Wilson.

                                         OPINION

                                  I. Factual Background

       On June 10, 2013, the defendant was charged by indictment with DUI; DUI, per se;
and DUI, second offense. Subsequently, on October 22, 2013, the defendant filed a motion
to suppress the evidence derived from the traffic stop, alleging that the police acted without
reasonable suspicion.

       At the suppression hearing, Laura Jackson testified that on January 28, 2013, she lived
at 345 Sliders Knob Avenue. Around 3:30 a.m., she was awakened by a loud noise and lights
shining through her open bedroom window. She got out of bed, went to the window, looked
outside, and saw a car driving “really fast.” As Jackson watched, the car turned down the
next road, German Lane. Jackson said that she called the police and told them that

              I had seen a car. He’d driven around the cul-de-sac several
              times, and it was a car that didn’t look like it belonged in my
              neighborhood because it’s a dead-end where I live – lived at that
              time. And he’d driven around several times and then he had
              turned down – he looked suspicious, what he was doing.

                     ....

              . . . I told them that we’d had cars broken in to [sic], and that
              someone had recently broken in to [sic] someone’s house. We’d
              had a number of issues, so I just wanted to make sure it was
              somebody who belonged in the neighborhood because they
              didn’t look like they knew where they were going.

Jackson also told the police that she was a single mother and was concerned that “strange
people” might be in her neighborhood.

       On cross-examination, Jackson stated that she could tell by the way the lights were
shining into her bedroom window that the car had driven around the cul-de-sac a couple of
times. She thought the car was a sedan; however, because of the darkness, she could not
discern any further details about the car.

       Franklin Police Officer Tammy Lee Crowe testified that around 3:30 a.m. on January
28, 2013, she was advised by police dispatch that a complainant had reported an unusual
vehicle in the area of Sliders Knob Avenue. She proceeded to the area to investigate,
knowing that the area had a history of vehicle burglaries. When she arrived, she did not see
any vehicles on Sliders Knob Avenue. After she turned onto German Lane, which was a
“dead end” street, she saw a Toyota 4Runner sport utility vehicle (SUV) driving in a wooded
area where there were no houses or roads. She had never seen a vehicle in that area on any
previous occasion, so she found the vehicle’s activity suspicious.

       Officer Crowe began to pursue the SUV, but she became concerned that her patrol car
could not “make it up into that area” because of the steep terrain. She stopped her vehicle
and turned her spotlight on the SUV. She saw two subjects in the SUV and asked them to
come to her patrol car. They complied, and Officer Crowe learned that the defendant was

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the driver of the SUV.

       On cross-examination, Officer Crowe said that when she spotted the SUV, its
headlights and taillights were on, and the SUV was moving uphill. She turned her spotlight
on the defendant’s SUV, then she used her patrol car’s public address (P.A.) system to ask
the men to walk to her vehicle. When they arrived, she asked them to put their hands on the
hood of her patrol car. She explained that she made the request because she was alone.
Officer Crowe had the men keep their hands on the car until backup arrived on the scene.
While waiting, she asked them who was driving and what they were doing in the woods.
When backup arrived, the officers patted down the suspects to check for weapons. Officer
Crowe did not handcuff the men, but she did have them sit in the back of her patrol car.

       In response to questioning regarding why she thought a crime might have been
committed, Officer Crowe responded, “[T]here was no residence back there. They could be
trespassing and they could be the suspicious vehicle I was called to the scene to investigate.”
She said that the defendant told her they were in the area because his uncle had owned the
property, and the defendant wanted to show it to his friend. The passenger said that the
defendant was driving him home and that he did not know why they were in the area.

       Officer Crowe said that the cul-de-sac had “curbing and there was a cut out to go into
that wooded area, but there was not a road.” The defendant had driven the SUV into the
woods and up a hill, traveling approximately forty feet. The SUV stopped when Officer
Crowe turned her spotlight on it. Officer Crowe said that her car was low to the ground and
that she did not believe that it could make the drive into the woods and up the hill.

       The State contended that Officer Crowe made a brief investigatory stop that was
supported by reasonable suspicion that the appellant had or was about to commit a criminal
offense. The State contended that the reasonable suspicion was based upon three facts: the
information from a citizen informant, Jackson, about the SUV in the neighborhood;
Jackson’s information and Officer Crowe’s own knowledge of recent burglaries in the
neighborhood; and the lateness of the hour.

       Defense counsel argued, and the State conceded, that the defendant was seized when
Officer Crowe activated her spotlight and ordered the defendant to come to her vehicle. He
further noted that no one saw a crime being committed and maintained that the facts cited by
the State did not support reasonable suspicion. Defense counsel argued that Officer Crowe
had, at best, a “inchoate and unparticularized suspicion or hunch” that someone had
committed a crime.

       The trial court specifically found that Jackson and Officer Crowe were credible. The

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court stated:

                So what is or what are the specific and articulable facts in this
                case that would give rise to reasonable suspicion for Officer
                Crowe to make the stop? Well, you get a call from a concerned
                citizen who says that there’s a loud noise. There have been prior
                burglaries in the neighborhood. The officer is aware that there
                are prior burglaries in the neighborhood. It’s three o’clock in
                the morning. The time is certainly suspicious. The officer’s
                familiar with the area. The defendant and the passenger are in
                an area where there are no homes. It’s certainly an unusual
                circumstance to see them up there at three o’clock in the
                morning. . . . This is a close case in the Court’s mind, and that’s
                about the best I can tell you. The Court believes that, and the
                Court finds that Officer Crowe was doing what she should do at
                three o’clock in the morning on January the 28th, 2013. She
                was investigating what appeared to be very suspicious activity.
                But there are no – there are no specific and articulable facts here
                to cause her to believe a criminal offense had been or was about
                to be committed. . . . There’s no evidence at that point in time
                that there’s been any crime committed; none. There’s no
                specific and articulable facts to believe that a crime was about
                to be committed. So on one hand, I do not fault Officer Crowe
                in any way for conducting her investigation and in making a
                determination that this neighborhood is safe. But on the other
                hand, . . . the Court finds that [the seizure] simply violates the
                Fourth Amendment and Article 1, Section 7 of our Constitution,
                so I grant the motion to suppress.

       The State appealed the trial court’s ruling,1 arguing that Officer Crowe had reasonable
suspicion to stop the defendant.

                                               II. Analysis



        1
          After the trial court’s ruling, the State initially requested and was granted the right to pursue an
interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Thereafter, the State
determined that it could not go forward without the suppressed evidence. The trial court entered an order
stating that the parties had agreed that the indictment would be dismissed and that the court’s order granting
the Rule 9 application would be stricken. The State then pursued the instant appeal.

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       In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
prevailing party 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.” Odom, 928 S.W.2d at 23.

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect citizens against “unreasonable searches and seizures.” In
general, warrantless searches and seizures are presumptively unreasonable and any evidence
obtained as a result of the warrantless action is subject to suppression. State v. Richards, 286
S.W.3d 873, 878 (Tenn. 2009). However, if the State “demonstrates by a preponderance of
the evidence that the search or seizure was conducted pursuant to an exception to the warrant
requirement,” the evidence will not be suppressed. State v. Keith, 978 S.W.2d 861, 865
(Tenn. 1998). Our courts have thus articulated three categories of police-citizen interaction
and their corresponding evidentiary requirements: “(1) full-scale arrest, which must be
supported by probable cause; (2) brief investigatory detention, which must be supported by
reasonable suspicion of criminal activity; and (3) brief police-citizen encounter that requires
no objective justification.” State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citations
omitted); see also State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).

       As we have noted, the State maintained that the stop was a brief investigatory stop
supported by reasonable suspicion. The State conceded that the defendant was seized when
Officer Crowe activated her spotlight and used her P.A. system to order the defendant and
the passenger to come to her car. Analyzing “whether reasonable suspicion existed in a
particular traffic stop is a fact-intensive and objective analysis.” State v. Garcia, 123 S.W.3d
335, 344 (Tenn. 2003). In determining whether an officer had reasonable suspicion, “a court
must consider the totality of the circumstances.” Id.

       “‘[R]easonable 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.’” Keith, 978 S.W.2d at 866 (emphasis omitted) (quoting State v.
Pulley, 863 S.W.2d 29, 32 (Tenn. 1993)). Reasonable suspicion does not require “‘proof of
wrongdoing,’” but it does require some “‘minimal level of objective justification for making
the stop.’” Keith, 978 S.W.2d at 867 (quoting United States v. Sokolow, 490 U.S. 1, 7

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(1989)). While impossible to precisely define, “reasonable suspicion” has been recognized
as “‘common sense, nontechnical conceptions’” dealing “‘with the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians
act.’” Id. (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). However, an
officer’s “inchoate and unparticularized suspicion or hunch” is not sufficient reasonable
suspicion. State v. Day, 263 S.W.3d 891, 907 (Tenn. 2008) (quoting Terry v. Ohio, 392 U.S.
1, 27 (1968)) (internal quotations omitted).

        The trial court noted that the lateness of the hour, the presence of a strange vehicle in
the area, and the appellant’s presence on an unimproved piece of property were “unusual.”
Nevertheless, the trial court held that these facts did not establish reasonable suspicion to
believe that a criminal offense had been or was about to be committed. The trial court noted
that, in view of Moats, the State did not rely on the community caretaking function. The
court also noted that the facts to support reasonable suspicion were weaker in the instant case
than the facts in Moats.

        Our supreme court has held that the lateness of the hour and the defendant’s presence
in a “high crime area” may be factors in determining reasonable suspicion; however, those
factors alone do not establish reasonable suspicion. Moats, 403 S.W.3d at 179; see also State
v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996). In the instant case, Jackson
reported to the police that she was concerned about a strange car in her neighborhood
because of recent burglaries; however, she did not report that she had witnessed any criminal
behavior. Further, Officer Crowe did not observe the defendant engage in any criminal
behavior. See Moats, 403 S.W.3d at 180. As the trial court aptly observed, “What you’ve
got are two citizens riding around in a car at three o’clock in the morning in a quiet
residential neighborhood, which is peculiar. But [peculiar] doesn’t make it criminal.” As
our supreme court noted in Moats, the officer had the right to investigate further in a
consensual manner; however, the officer did not have the right to seize the defendant based
on a “‘hunch’” that a criminal act might be afoot. We agree with the trial court and conclude
that the trial court did not err by granting the defendant’s motion to suppress.

                                       III. Conclusion

       Finding no error, we affirm the judgment of the trial court.


                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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