            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                      Assigned on Briefs at Knoxville October 15, 2013

            STATE OF TENNESSEE v. MECHELLE L. MONTGOMERY

                    Appeal from the Circuit Court for Williamson County
                      No. IICR076574 James G. Martin, III, Judge


                    No. M2013-01149-CCA-R3-CD - Filed March 12, 2014


JEFFREY S. BIVINS, J., dissenting.

       I respectfully dissent. There appears to be little dispute about the facts of this case.
In my opinion, the totality of the circumstances based on these facts demonstrate that the
actions of Deputy Reiman were within the bounds of constitutional reasonableness. Unlike
the officer in State v. Moats, 403 S.W.3d 170 (Tenn. 2013), Deputy Reiman was careful to
pull beside the Defendant’s vehicle in the church parking lot and to not activate his blue
lights when he pulled into the church parking lot. As a result, no seizure took place at this
point.

        The seizure in this case took place only when Deputy Reiman obtained the
Defendant’s driver’s license shortly after he detected the odor of alcohol and observed the
slurred speech and watery eyes of the Defendant. At this point, Deputy Reiman had
reasonable suspicion to suspect that the Defendant had committed the offense of DUI.
Deputy Reiman testified that he was in the parking lot with the Defendant and her passenger
for a total of ten to fifteen minutes before Deputy Shoap arrived after his investigation of the
“unwanted subject” investigation at the residence of the 911 caller.1 Although Deputy
Reiman was uncertain at the second hearing how much time elapsed before Deputy Shoap
returned, there is nothing in the record to contradict his time estimate in the first hearing.
Moreover, the trial court made no finding questioning the credibility of Deputy Reiman.

       Thus, the majority concludes that a wait of less than ten or fifteen minutes before the
deputies acted upon the reasonable suspicion of the DUI rose to the level of a violation of the
Defendant’s constitutional rights. Under the facts of this case, I disagree. Although Deputy


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           Indeed, Deputy Reiman’s ten or fifteen minute estimate was of the entire time that Deputy Shoap was
gone. It had to take some amount of that time for Deputy Reiman to park his vehicle, approach the Defendant’s
vehicle, converse with the occupants of the vehicle, and confiscate the Defendant’s driver’s license.
Shoap’s investigation of the 911 call apparently did not lead to evidence of an additional
crime by the Defendant, Deputy Reiman had no way of knowing that until Deputy Shoap
returned. In my opinion, a ten or fifteen minute wait was not unreasonable under the totality
of these circumstances. Likewise, I strongly disagree with the trial court’s conclusion of law
that “the length of passage of time is irrelevant.” To the contrary, the length of time is
critical to an objective analysis of these facts. The possibility implied by the trial court that
Deputy Reiman would have waited how ever long it took for Deputy Shoap to return, even
if true, is effectively applying a subjective, as opposed to an objective standard. The
objective standard indicates that at most a ten or fifteen minute lapse of time occurred.

       For these reasons, I would reverse the judgment of the trial court and remand this case
for the additional appropriate proceedings. Accordingly, I respectfully dissent from the
majority opinion in this case.



                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE




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