           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                           April 20, 2004 Session

                 STATE OF TENNESSEE v. JONATHAN W. SUSMAN

                    Direct Appeal from the Criminal Court for Hamilton County
                               No. 243354     Rebecca Stern, Judge



                                        No. E2003-02262-CCA-R3-CD
                                               June 18, 2004

The Defendant, Jonathan W. Susman, pled guilty to driving while under the influence of an
intoxicant. As part of his plea agreement, he expressly reserved with the consent of the trial judge
and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2)(i). The question is whether there were sufficient specific and articulable facts
to justify a police officer detaining the Defendant in order for him to perform field sobriety tests.
We conclude that there were, and we affirm the trial court’s judgment.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Andrew L. Berke, Chattanooga, Tennessee, for the appellant, Jonathan W. Susman.

Paul G. Summers, Attorney General and Reporter; Brent T. Cherry, Assistant Attorney General; Bill
Cox, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                                     OPINION


        On January 11, 2002, Officer Nicholas Allen of the Chattanooga Police Deprtament was on
patrol. At about 1:48 a.m., Officer Allen stopped a vehicle that was traveling in front of the
Defendant.1 The Defendant also stopped his vehicle and asked whether he could go around Officer
Allen’s vehicle. At that time, the officer witnessed the Defendant driving the car. Officer Allen
gave the Defendant permission to go around, which he did. The Defendant then parked his vehicle
in a nearby parking lot. The Defendant got out of his vehicle, crossed the street, and approached the
officer. In Officer Allen’s words, “I saw him coming, told him to stop, go back across the street to

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           Apparently, the Defendant and the driver of the other vehicle were traveling together.
his vehicle. He did.” Officer Allen testified that the Defendant did not come within twenty feet of
him. He also testified that the reasons he did not want the Defendant near him were for his safety
and to prevent him from “interfering with [his] investigation” and administration of field sobriety
tests.

         Shortly thereafter, the Defendant approached again. He got much closer to Officer Allen this
time, and the officer smelled alcohol on his breath. Again the officer told the Defendant to return
to his vehicle. Although the Defendant went back to his car, he only stayed there “maybe two
minutes”; then he approached the officer a third time. Officer Allen again smelled alcohol on the
Defendant. He told the Defendant to go back to his vehicle. When the officer completed his initial
traffic stop, he crossed the street and had the Defendant perform a series of field sobriety tests, which
the Defendant failed. Officer Allen then placed the Defendant under arrest for driving while under
the influence. A blood alcohol test revealed the Defendant’s blood alcohol level to be .14. When
the attorney for the Defendant asked the officer why he detained the Defendant, he replied that he
had done so because he saw the Defendant driving, he smelled alcohol on the Defendant’s breath,
and the Defendant “interfered with [his] investigation on the first traffic stop.”

        The Defendant filed a motion to suppress the evidence recovered as a result of Officer Allen
detaining the Defendant. The trial court denied the motion, and the Defendant pled guilty to DUI.
However, he expressly reserved the right to appeal a certified question of law, which is stated on the
judgment form as: “Did the police officer have the authority to perform field sobriety tests on the
defendant under circumstances of this case.”

      Tennessee Rule of Criminal Procedure 37(b)(2) provides that an appeal lies from any
judgment of conviction entered pursuant to a plea of guilty or nolo contendere if:

                (i) The defendant entered into a plea agreement under Rule 11(e) but
        explicitly reserved with the consent of the state and of the court the right to appeal
        a certified question of law that is dispositive of the case, and the following
        requirements are met:
                        (A) The judgment of conviction, or other document to which such
                judgment refers that is filed before the notice of appeal, must contain a
                statement of the certified question of law reserved by defendant for appellate
                review;
                        (B) The question of law must be stated in the judgment or document
                so as to identify clearly the scope and limits of the legal issue reserved;
                        (C) The judgment or document must reflect that the certified question
                was expressly reserved with the consent of the state and the trial judge; and
                        (D) The judgment or document must reflect that the defendant, the
                state, and the trial judge are of the opinion that the certified question is
                dispositive of the case[.]




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See also State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The prerequisites for the consideration
of the merits of a certified question of law having been met, we begin our analysis of whether the
officer was justified in detaining the Defendant for the purpose of having him perform field sobriety
tests.

        First, we must determine whether Officer Allen’s detention of the Defendant constituted a
seizure under the Fourth Amendment. If so, then we must determine whether the officer possessed
an articulable, reasonable suspicion for an investigatory detention under Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny. In Terry, the Supreme Court stated that
not every encounter between a police officer and a citizen constitutes a seizure. 392 U.S. at 19 n.16.
“Only when the officer, by means of physical force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. In U.S. v. Mendenhall,
446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), the Supreme Court stated, “a person has
been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.”
446 U.S. at 554.

        In this case, Officer Allen repeatedly told the Defendant to return to his car. When the officer
completed his first traffic investigation, he crossed the street and had the Defendant perform field
sobriety tests. We conclude that, at the time the officer had the Defendant perform the field sobriety
tests, he was “seized” under both the United States and Tennessee Constitutions.

        Next, we must determine whether Officer Allen possessed an articulable, reasonable
suspicion for an investigatory stop under Terry v. Ohio. Police may constitutionally initiate an
investigatory stop if they have reasonable suspicion, supported by specific and articulable facts, that
a person has either committed a criminal offense or is about to commit a criminal offense. See
Terry, 392 U.S. at 21; State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002); State v. Simpson, 968
S.W.2d 776, 780 (Tenn. 1998). Detention of the person must last no longer than necessary to
effectuate the purpose of the stop. See State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002). The
officer must employ the least intrusive means reasonably available to investigate his or her
suspicions in a short period of time. See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75
L. Ed. 2d 229 (1983). When evaluating whether a police officer’s reasonable suspicion is supported
by specific and articulable facts, a court must consider the totality of the circumstances. See State
v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

        Considering the totality of the circumstances of this case in light of the well-settled principles
of law set forth above, we conclude that Officer Allen’s decision to initiate an investigatory detention
was based upon reasonable suspicion, supported by specific and articulable facts, that the Defendant
was driving under the influence. Officer Allen testified that he witnessed the Defendant driving a
car. The Defendant twice failed to comply with the officer’s request that the Defendant remain
across the street while the officer completed his investigatory detention of the driver of the first
vehicle. The trial court found this behavior to be somewhat indicative of impaired judgment. We
agree. The officer smelled alcohol on the Defendant’s breath. Considering these circumstances, the


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officer had the right to briefly detain the Defendant further for the purpose of administering field
sobriety tests. See State v. David L. Groom, No. M2002-00798-CCA-R3-CD, 2003 WL 1563667,
at *4 (Tenn. Crim. App., Nashville, Mar. 27, 2003). Therefore, the trial court did not err by denying
the Defendant’s motion to suppress.

       The judgment of the trial court is affirmed.


                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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