        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                          Assigned on Briefs May 20, 2015

           STATE OF TENNESSEE v. CALEB JOSEPH LATHAM

                  Appeal from the Circuit Court for Blount County
                   No. C-21955    Tammy M. Harrington, Judge


                No. E2014-01606-CCA-R3-CD – Filed August 3, 2015


The Defendant, Caleb Joseph Latham, entered guilty pleas to driving under the influence
(“DUI”), first offense, and DUI per se. See Tenn. Code Ann. § 55-10-401. As a part of
his guilty pleas, the Defendant reserved a certified question of law pursuant to Tennessee
Rule of Criminal Procedure 37(b)(2) challenging his warrantless seizure. Following our
review, we conclude that the trial court should have granted the Defendant‟s motion to
suppress because he was subjected to a seizure without reasonable suspicion. The ruling
of the trial court is reversed, and the charges against the Defendant are dismissed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
                                  Case Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

J. Liddell Kirk (on appeal), Knoxville, Tennessee; Raymond Mack Garner, District
Public Defender; and Matthew Elrod, Assistant District Public Defender (at trial), for the
Appellant, Caleb Joseph Latham.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Betsy Brockman
Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                              FACTUAL BACKGROUND

       On November 4, 2013, the Blount County grand jury returned an indictment
charging the Defendant with DUI and DUI per se in violation of Tennessee Code
Annotated section 55-10-403. On June 30, 2014, the Defendant filed a motion to
suppress evidence seized as a result of the seizure and search accompanying his arrest.
The motion to suppress alleged that the Defendant‟s seizure was unlawful because the
seizing officer did not have reasonable suspicion that a criminal offense had been or was
about to be committed. The Defendant further argued that any evidence gained
subsequent to the unlawful seizure should be suppressed as fruit of the poisonous tree.
The trial court held a hearing on the motion to suppress on July 14, 2014, and the
following evidence was presented.

       At approximately 2:00 a.m. on November 25, 2012, Officer Matt Wyrick of the
Maryville Police Department (“MPD”) was on patrol when he pulled into a Hardee‟s
parking lot and observed a car in the back left corner of the parking lot. The car did not
appear to be running, although the car‟s left turn signal was activated. Officer Wyrick
also observed that the car was not parked in a parking space and was “right up next to the
dumpster.” Officer Wyrick testified that “it struck [him] as being odd” that a car would
be “sitting in [a] back corner parking lot of a closed business around 2:00 a.m. with its
turn signal on,” and he decided to investigate further.

       Officer Wyrick testified that he was concerned that criminal activity could have
been going on or that someone might have had a medical emergency. He also considered
that “there might have been some type of sexual encounter going on inside the vehicle”
given the car‟s location in the back corner of the parking lot.

       As Officer Wyrick pulled in closer to the car, he was able to observe several
people inside the car. Officer Wyrick testified that he parked his patrol car behind the
suspect car, and he agreed that, due to the positioning of his patrol car, the suspect car
was not able to leave at that point. Officer Wyrick testified that he did not activate his
blue lights and that only his car‟s headlights were turned on.

       Officer Wyrick approached the car and began speaking with the driver, whom
Officer Wyrick identified as the Defendant. The Defendant told Officer Wyrick that
“[t]here was [sic] some ignition problems with the car and they were trying to get the car
started to leave.” Officer Wyrick described the Defendant‟s demeanor as “very calm, not
argumentative at all. . . . just like a normal person.” According to Officer Wyrick, there
were no other officers on the scene at the time, and he did not remove his gun from its
holster.

       While Officer Wyrick was standing next to the car speaking with the Defendant,
he smelled a “strong odor of alcohol coming from the Defendant and from the subjects
that were inside the car.” When he asked the Defendant whether he had been drinking,
the Defendant told Officer Wyrick that he had consumed five or six beers. Officer
                                           -2-
Wyrick instructed the Defendant to “hang tight” while he went back to his patrol car to
request a backup unit.

        On cross-examination, Officer Wyrick testified that there were no yellow lines
delineating parking spaces near the dumpster area on the night the Defendant was
arrested. Officer Wyrick agreed that, on the night in question, he had not received a
phone call or dispatch request to investigate the Hardee‟s area. Rather, he was on a
regular patrol through the parking lot when he noticed the vehicle. Officer Wyrick
agreed that he would characterize the car as “odd” and “suspicious.” However, he further
agreed that the car was parked legally on private property and that there was no traffic
infraction taking place. Officer Wyrick agreed that there was nothing unlawful about the
turn signal being on.

       According to Officer Wyrick, there was a sports bar located next-door to the
Hardee‟s, which was still open for business, but he denied that there was anyone else in
the area near where the Defendant‟s car was parked. Officer Wyrick testified that, to the
best of his knowledge, the Hardee‟s parking lot adjoined the parking lot of the sports bar
and that there were no curbs separating the two lots.

       Officer Wyrick testified that his patrol car was parked “probably a car length or
less” behind the Defendant‟s vehicle. He agreed that the Defendant‟s car was “boxed in”
because there was a dumpster to the left of the car, a fence to the right of the car, and the
patrol car was parked directly behind the Defendant‟s car.

         Officer Wyrick admitted that, at the time, he could not be certain that the
Defendant was not a Hardee‟s employee, and he agreed that the Defendant could have
been in the parking lot for a legitimate reason. Officer Wyrick was asked whether he
“just more or less had a hunch and . . . wanted to check something out.” Officer Wyrick
responded that he “knew that [he] saw something and that made [him] investigate further
. . . .” He testified that he was suspicious of the car based on “the time of the day, the
location that the car was at in the parking lot, and . . . movement inside the car . . . .”
According to Officer Wyrick, he did not smell alcohol until the Defendant rolled the car
window down and Officer Wyrick began speaking with him.

      The trial court made the following oral ruling denying the Defendant‟s motion to
suppress:

       I do find that based on the specific positioning of the officer‟s police car[,]
       and the fact that the Defendant could not move his car because the officer‟s
       car was in his path[,] that [consensual] encounter is not an appropriate
       analysis for the [c]ourt to consider. It‟s -- I believe the officer testified
                                             -3-
      truthfully and I appreciate that and quite simply [the Defendant] couldn‟t
      move his car if the officer‟s car was in his way. So, it‟s not a [consensual]
      encounter. It‟s a seizure.

              And so then it becomes -- the analysis, quite correctly pointed out,
      becomes reasonable suspicion. And the [c]ourt must then look at the
      totality of the circumstances of what the officer had before him at that time
      as far as in making a determination and whether reasonable suspicion
      existed. . . . There are numerous cases that being parked at a closed
      business is just simply not enough for reasonable suspicion. . . . So, we
      have to look at -- there are a few things in this case that the officer testified
      to. It‟s 2:00 a.m., the business is closed. That, in and of itself, is not
      enough for reasonable suspicion. He is well within his rights to be in any
      parking lot unless it‟s been posted or unless there‟s other issues. I mean, he
      can be there. The officer said that he was parked incorrectly and he was
      parked near a dumpster. The officer testified that he found that to be
      unusual that the car was parked near the dumpster. And further he went on
      to say that the turn signal for the vehicle was on. And while that may seem
      like a minor detail, it does distinguish the facts from just merely sitting in a
      parking lot. It‟s after hours, it‟s dark, the business is closed. But that‟s
      coupled with incorrect parking, parked near a dumpster, and a turn signal is
      on. So I think that raises a different issue[]. There‟s more of an issue. And
      so based on the totality of the circumstances, I do find that the approach of
      the vehicle on the seizure was [based upon] reasonable suspicion. I‟m
      going to uphold the stop. . . . But I will say this: It was very close. Very
      close.

        Following the trial court‟s denial of his motion to suppress, the Defendant pled
guilty to DUI in count one and DUI per se in count two; count one merged into count two
by operation of law. As part of his guilty pleas, the Defendant properly preserved the
following certified question of law pursuant to Tennessee Rule of Criminal Procedure
37(b)(2):

      Whether the officer‟s conduct in blocking the Defendant‟s vehicle‟s path
      with a patrol vehicle amounted to a seizure[,] and if so, whether the seizure
      of the Defendant was based upon an articulable reasonable suspicion that he
      was engaged in some type of criminal conduct justifying said seizure (in
      violation of [the] Defendant‟s rights pursuant to the Fourth and Fourteenth
      Amendments to the [United States] Constitution and [a]rticle I, [s]ection
      VII of the Tennessee Constitution).

                                             -4-
                                        ANALYSIS

       On appeal, the Defendant contends that he was subjected to an unlawful seizure
when Officer Wyrick blocked his car‟s path with his patrol vehicle. Specifically, the
Defendant contends that being parked near a dumpster in the parking lot of a closed
business with his car‟s turn signal on did not provide the officer with reasonable
suspicion to believe that criminal activity was taking place. The State responds that
“Officer Wyrick expressed specific and articulable facts” that “would lead a reasonable
officer to believe the [D]efendant committed or was about to commit a crime or the
[D]efendant was in need of medical assistance.” The State argues that “the inability to
properly operate a motor vehicle is indicative of impairment,” which would provide an
officer with reasonable suspicion, justifying a brief seizure and further investigation.
Alternatively, the State argues that the officer was exercising his role as a community
caretaker because he was concerned that the car‟s occupants might be in need of medical
help. To support this line of reasoning, the State asks that we adopt the community
caretaking function as an exception to the warrant requirement.

                                   I. Standard of Review

       A trial court‟s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Likewise, questions of credibility, the weight and value of the evidence,
and the resolution of conflicting evidence are matters entrusted to the trial court, and this
court will not reverse the trial court‟s factual findings unless the evidence preponderates
against them. Id. (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Both proof
presented at the suppression hearing and proof presented at trial may be considered by an
appellate court in deciding the propriety of the trial court‟s ruling on a motion to
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). The evidence is to be
viewed in the light most favorable to the prevailing party on a motion to suppress with all
reasonable and legitimate inferences that may be drawn by the evidence. State v. Carter,
16 S.W.3d 762, 765 (Tenn. 2000). However, our review of the application of the law to
the facts is de novo. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

                                  II. Warrantless Seizure

      The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. Any
warrantless search or seizure is presumed to be unreasonable and requires the State to
prove by a preponderance of the evidence that the search or seizure was conducted
                                             -5-
pursuant to an exception to the warrant requirement. State v. Simpson, 968 S.W.2d 776,
780 (Tenn. 1998). Two types of police-citizen encounters are considered seizures for
constitutional analysis purposes: “(1) the full-scale arrest, which must be supported by
probable cause; [and] (2) the brief investigatory detention, which must be supported by
reasonable suspicion of wrong-doing[.]” State v. Day, 263 S.W.3d 891, 901 (Tenn.
2008) (citations omitted).

        A police officer may make an investigatory stop based upon reasonable suspicion,
supported by specific and articulable facts, that a criminal offense has been or is about to
be committed. Terry v. Ohio, 329 U.S. 1, 20-21 (1968); Binette, 33 S.W.3d at 218.
Furthermore, a police officer must have such a reasonable suspicion in order to stop a
vehicle without a warrant. State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002).
Reasonable suspicion is determined by an examination of the totality of the
circumstances. Binette, 33 S.W.3d at 218. Circumstances relevant to an analysis of
reasonable suspicion include “the officer‟s personal objective observations . . . [and any]
[r]ational inferences and deductions that a trained officer may draw from the facts and
circumstances known to him.” State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997).

        The Defendant‟s certified question contemplates a two-part inquiry: (1) whether
Officer Wyrick‟s actions constituted a seizure; and (2) if so, whether that seizure was
supported by reasonable suspicion. As to the first issue, the State does not challenge the
trial court‟s finding that the Defendant was seized when Officer Wyrick parked behind
his car. A seizure occurs when, “in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.” United
States v. Mendenhall, 446 U.S. 544, 554 (1980); see also State v. Daniel, 12 S.W.3d 420,
425 (Tenn. 2000). Here, Officer Wyrick testified that, because of the placement of his
patrol car, it would have actually been impossible for the Defendant to move his vehicle
and terminate the encounter. Therefore, we agree that the Defendant was seized at the
time that Officer Wyrick parked his patrol car behind the Defendant‟s vehicle.

        Next, we turn to the second inquiry: whether Officer Wyrick had reasonable
suspicion that there was criminal activity taking place at the time he parked his patrol car
behind the Defendant‟s car. In State v. Moats, our supreme court examined whether an
officer had reasonable suspicion to seize the defendant under facts similar to the present
case. 403 S.W.3d 170 (2013). In Moats, a police officer observed the defendant parked
in his pick-up truck at 2:00 a.m. in the parking lot of a grocery store, which was closed at
the time. Id. at 175. The pick-up truck‟s headlights were on, although the truck‟s engine
was not running. Id. There were “no loitering” signs posted in the area, and a business
owner had previously requested that police patrol the area after business hours due to
suspected illegal drug activity. Id. The officer described the truck as “out of the
ordinary” but continued on her patrol. Id. She returned to the parking lot about five
                                            -6-
minutes later and the truck was in the same position. Id. At that time, she parked her
patrol car behind the truck, activated her blue lights, and called in the license plate
number. Id. The officer approached the defendant‟s vehicle, and she saw an open beer
can on the truck‟s dashboard; the defendant admitted to drinking “a few beers.” Id.
Thereafter, the defendant performed poorly on several field sobriety tests, and a later test
for blood alcohol content registered 0.19%. Id.

        In Moats, the officer testified that the defendant was the only person in the parking
lot, that she did not see him drive the truck or do anything illegal before she approached
the truck, and that the defendant did not appear to need medical assistance. Id. Rather,
the officer testified that it was “strange that a car would be . . . in a parking lot at almost .
. . 2 a.m. with the lights on.” Id.

       Following its review, our supreme court concluded that the officer “was unable to
offer specific and articulable facts sufficient to qualify as reasonable suspicion that the
[d]efendant had committed or was about to commit a criminal offense.” Id. at 180. The
court focused on the officer‟s admission that “she did not see the [d]efendant drive the
truck, engage in a drug transaction, or otherwise do anything illegal before activating her
blue lights and approaching the truck.” Id. The court concluded that “[t]he early
morning hour and a general request for officers to be on the lookout for suspected illegal
drug activity do not, without more, rise to the level of reasonable suspicion.” Id.

       In Moats, the court further concluded that the officer‟s actions were not a valid
exercise of her community caretaking role because, taking into account the totality of the
circumstances at the time she activated her blue lights, a reasonable person would not
have felt free to leave. Id. at 186. The court noted that the community caretaking
function falls within a third-tier of police-citizen encounters, which are consensual and do
not require probable cause or reasonable suspicion. Id. at 180. “These consensual
encounters . . . „involve no coercion or detention.‟” Id. (citing State v. Hawkins, 969
S.W.2d 936, 939 (Tenn. Crim. App. 1997)). Because the officer‟s actions constituted a
seizure, the encounter was not consensual, and had to be supported by either reasonable
suspicion or probable cause in order to be lawful. Id. at 182, 186.

        Likewise, in United States v. See, the Sixth Circuit Court of Appeals reversed a
district court‟s denial of a motion to suppress under similar circumstances. 574 F.3d 309
(6th. Cir. 2009). In See, the officer was on routine patrol at a housing complex in a high-
crime area, when he spotted the defendant parked “in a dimly lit part of the parking lot
farther from the building than other vacant spots.” Id. at 311. The officer had previously
been instructed to pay “special attention” to the area. Id. There were three men in the
car, which had been backed into a parking space. Id. The officer parked his patrol car
directly in front of the defendant‟s vehicle so that the defendant could not move his
                                               -7-
vehicle. Id. The officer eventually searched the defendant‟s car and found a firearm that
had its serial number removed, and the defendant was arrested. Id.

       The See court first determined that the officer‟s blocking of the defendant‟s car
constituted a warrantless Terry seizure because “a reasonable person in [the defendant‟s]
position would not have felt free to leave.” Id. at 313. The court noted that the officer
“was not responding to a complaint, he did not suspect the men of a specific crime, he
had not seen the men sitting in the car for an extended period of time, he was not acting
on a tip, he had not seen the men do anything suspicious, and the men did not try to flee
upon seeing the [officer] approach.” Id. at 314. Based on these facts, the court
concluded that the officer “did not have reasonable suspicion that criminal activity was
occurring, and the Terry stop was therefore improper.” Id.

       Turning to the present case, after carefully reviewing the record, we conclude that
Officer Wyrick did not have reasonable suspicion that criminal activity had occurred or
was about to occur at the time the Defendant was seized. At the time Officer Wyrick
seized the Defendant, Officer Wyrick was in possession of the following information: the
Defendant‟s vehicle was parked in the Hardee‟s parking lot in the early morning hours,
and the restaurant was closed; the car was not parked in a designated parking space but,
instead, was stopped near a dumpster; the car‟s turn signal was on despite the fact that the
car was not running at the time; and, as Officer Wyrick pulled in closer to the
Defendant‟s vehicle, he could see that the car had more than one occupant.

        At the suppression hearing, Officer Wyrick was unable to articulate a concrete
reason for seizing the Defendant. When asked whether he was concerned that criminal
activity might be occurring, Officer Wyrick responded, “That‟s a possibility, yes. That
was also in my mind.” He went on to testify that he was “concerned about whether
somebody in the car had maybe had a medical emergency, slumped over, turned their
turn signal on by accident or had passed out in the vehicle.” He testified that the location
of the car “next to a dumpster was not a normal place for a car to be parked at 2:00 in the
morning[,]” and it also “struck [him] as there might have been some type of sexual
encounter going on inside the vehicle. Or possibly narcotics.” According to Officer
Wyrick, he “knew that [he] saw something and that made [him] investigate further . . . .”
However, in determining whether to make a brief investigatory stop, an officer may not
rely upon an “inchoate and unparticularized suspicion or „hunch.‟” Terry, 392 U.S. at 27.

      The State relies on the fact that the Defendant‟s car was “improperly parked” near
a dumpster in support of its argument that the officer had reasonable suspicion.
However, Officer Wyrick testified that there were no yellow lines delineating parking
spaces in the area where the Defendant‟s car was parked. In fact, according to Officer

                                            -8-
Wyrick, the Defendant‟s car was parked legally on private property, and no traffic
infraction had been committed.

       Additionally, although the trial court noted that the fact that the turn signal was
activated distinguished this case from others, we fail to see how a turn signal would
increase an officer‟s reasonable suspicion that criminal activity is taking place. In Moats,
the defendant was parked with his car‟s headlights on and the engine turned off. We
consider that situation analogous to the present case, where the Defendant was parked
with his car turned off and a turn signal activated. In fact, Officer Wyrick agreed that the
Defendant could have had “all his lights on if he wanted to.” Surely, such a situation
might lead an officer to wonder if the occupants of the car might need help, and thus,
could authorize an officer‟s community caretaking role, but it does not, without
something more, provide the reasonable suspicion necessary to authorize a seizure. See
See, 574 F.3d at 315 (noting that the officer “had every right to investigate further, but he
should have simply parked his patrol car alongside [the defendant‟s] vehicle to carry out
the investigation in a consensual manner”) (Gilman, J., concurring). Because Officer
Wyrick lacked reasonable suspicion to seize the Defendant, all evidence obtained
attendant to the seizure should have been suppressed.

        Finally, we decline the State‟s invitation to adopt the community caretaking
function as an exception to the warrant requirement. That issue was squarely decided by
our supreme court in Moats. In the face of a vigorous dissent, the Moats majority noted
the following:

               We are aware that the doctrine of community caretaking, as
       interpreted and applied in our state—i.e., as a type of third-tier consensual
       police-citizen encounter—represents a minority rule among other
       jurisdictions. Indeed, as the dissent points out, the vast majority of courts
       have applied the community caretaking doctrine as “an exception” to the
       warrant requirement of the Fourth Amendment to the United States
       Constitution. E.g., United States v. Coccia, 446 F.3d 233, 237-38 (1st Cir.
       2006); United States v. Pichany, 687 F.2d 204, 205 (7th Cir. 1982); People
       v. Luedemann, 857 N.E.2d 187, 198-99 (2006); State v. Graham, 175 P.3d
       885, 890 (2007); Ullom v. Miller, 705 S.E.2d 111, 120 (2010). As noted in
       this opinion, however, this Court has for decades interpreted article I,
       section 7 of the Tennessee Constitution as imposing stronger protections
       than those of the federal constitution, which, under stare decisis, we are not
       prepared to dismissively brush aside. Particularly in the area of search and
       seizure law, we have often rejected the standards adopted by the United
       States Supreme Court in favor of more protective doctrines, tests, and rules.
       See, e.g., State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000) (noting that
                                             -9-
      Tennessee has never recognized the “good faith” exception to the
      exclusionary rule that was adopted by the Supreme Court in United States
      v. Leon, 468 U.S. 897 (1984)); State v. Jacumin, 778 S.W.2d 430, 435-36
      (Tenn. 1989) (refusing to adopt the test for probable cause as established by
      the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), because it is
      “inadequate”); State v. Lakin, 588 S.W.2d 544, 549 n.2 (Tenn. 1979)
      (“Where, . . . as in the particular phase of search and seizure law under
      consideration, there has been a settled development of state constitutional
      law which does not contravene the federal, we are not inclined to overrule
      earlier decisions unless they are demonstrably erroneous.”).

              While we recognize the rationale underlying the majority rule, we
      see no reason to depart from the standards of community caretaking that
      have developed in our state, particularly because neither party has
      articulated a persuasive basis for recognizing this as yet another exception
      to the constitutional protections against unreasonable searches and seizures.
      See Lakin, 588 S.W.2d at 549 (recognizing that, in the context of the “open
      fields” doctrine, “[a]lthough the decisions in this state may be somewhat
      more restrictive than those in other states or than federal decisions, no
      compelling reason has been demonstrated in this case for modifying or
      overruling them”). The [d]efendant has argued strongly against treating
      community caretaking as an exception to the warrant requirement, and the
      State has simply asserted that “the touchstone of this fact-intensive analysis
      is reasonableness.” Unlike the dissent, we decline to adopt an approach to
      community caretaking that would diminish “the most basic constitutional
      rule” that warrantless searches and seizures are per se unreasonable, simply
      because it has been adopted by a majority of other courts.



403 S.W.3d at 187-88 n.8. The cases supporting warrantless searches and seizures based
upon the community caretaking doctrine involve circumstances wherein it was apparent
that a person or persons were in danger of suffering injury or in need of immediate help.
Because the danger was apparent, obviously the person under threat would readily
consent to a warrantless entry or seizure for his or her own protection and benefit.
However, an officer‟s subjective thought or guess as to which of several circumstances
might in fact exist is not, and should not be, an exception to the warrant requirement.
Moats does not foreclose an officer‟s ability to engage in the community caretaking
function, it merely strikes a balance between an officer‟s role in that respect and a
citizen‟s right to be free from warrantless search or seizure. The State‟s argument in this
respect is without merit.
                                           -10-
                                     CONCLUSION

       In sum, we conclude that the Defendant was subjected to an unlawful seizure
without reasonable suspicion. Therefore, the trial court erred in denying his motion to
suppress evidence obtained subsequent to that illegal seizure. The ruling of the trial court
is reversed, and the charges against the Defendant are dismissed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




                                            -11-
