            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                         NOVEMBER 1998 SESSION
                                                         December 9, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,            )
                               )   C.C.A. No. 01C01-9712-CC-00575
        Appellee,              )
                               )   Robertson County
v.                             )
                               )   Honorable John H. Gasaway, III, Judge
                               )
JOHNNY GREGORY KNIGHT,         )   (DUI)
                               )
        Appellant.             )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Jeff K. Walker                     John Knox Walkup
Julia A. Reinhart                  Attorney General & Reporter
Goodman & Walker                   425 Fifth Avenue, North
124 South Court Square             Nashville, TN 37243-0493
Springfield, TN 37172
                                   Georgia B. Felner
                                   Assistant Attorney General
                                   425 Fifth Avenue, North
                                   Nashville, TN 37243-0493

                                   John Wesley Carney, Jr.
                                   District Attorney General
                                   204 Franklin Street, Suite 300
                                   Clarksville, TN 37040-3420

                                   Dent Morriss
                                   Assistant District Attorney General
                                   204 Franklin Street, Suite 300
                                   Clarksville, TN 37040-3420




OPINION FILED: _____________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION

       The appellant, Johnny Gregory Knight, referred herein as the defendant, appeals

as of right from a judgment entered by the Robertson County Circuit Court. On December

2, 1997, the defendant pled guilty to the offense of driving under the influence of an

intoxicant. Pursuant to the plea agreement, the trial court sentenced the defendant to

eleven months and twenty-nine days, which the court suspended except for forty-eight

hours. The defendant was placed on probation for eleven months and twenty-seven days

and fined $350. As a condition of his plea, the defendant reserved the right to appeal, as

a certified question of law, the trial court’s denial of the motion to suppress his arrest for

lack of probable cause by law enforcement officers.



       After an appropriate review of the entire record in this cause, briefs of all parties,

and applicable law, we affirm the trial court’s judgment.



                                      BACKGROUND



       The evidentiary hearing at the motion to suppress established the following facts.

On June 23, 1996, the defendant arrived at the home of Edgar McNabb in Springfield,

Tennessee, driving a Lexus automobile. McNabb testified the defendant had been drinking

and was cursing at McNabb’s wife. McNabb and the defendant got into a fight and

McNabb struck the defendant in the cheek, causing a bloody wound. In the meantime, a

neighbor called for an ambulance. The defendant got back in his car and drove away. As

the defendant left, McNabb heard the police coming. McNabb advised the police officers

that the defendant had been drinking and there had been a fight between the two of them.

McNabb, who had a felony conviction for theft in Louisiana, declined to press charges

against the defendant. The officers left to look for the defendant.



       Officer Richard Morriss, Springfield Police Department, testified he went to the home

of Edgar McNabb in response to a disturbance call. McNabb informed Officer Morriss that


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he had struck the defendant and that the defendant had been drinking heavily and was

injured. Officer Morriss put out a radio broadcast for the defendant with a description of the

car he was driving, a newer model Lexus, off-white or cream-colored. Based on the

information given by McNabb, Officer Morriss left McNabb’s residence with the intention

to stop the defendant.



       While southbound on Memorial Boulevard, Officer Morriss observed the driver of

a Lexus make a right turn onto a road behind the Quick Lube. The driver sat in the Quick

Lube parking lot for about 35 or 40 seconds, then backed slowly into the street. During this

time, Officer Morriss did not observe the driver commit any traffic violations. As Officer

Morriss was sitting at a stop sign, the driver of the Lexus drove slowly past him. Officer

Morriss estimated the Lexus’s speed at 15 to 20 miles per hour. Officer Morriss made a

right turn, activated his blue lights, and followed the Lexus. At the 17th Avenue stop sign,

Officer Morriss observed the driver come to a “rolling stop” and make a left turn. Officer

Morriss testified that in addition to the “rolling stop,” the driver failed to give a turn signal.

After the turn, the driver traveled approximately 500 feet and turned into a long driveway

adjacent to a house.



       Officer Morriss approached the vehicle and observed the defendant, slouched in the

driver’s seat and bleeding from his left cheek. The officer smelled a strong odor of

intoxicants. Officer Morriss had the defendant get out of his car and observed the

defendant was very unsteady on his feet. Officer Morriss elected not to offer the defendant

a field sobriety test due to his injuries. The defendant appeared surprised that he was

injured and asked Officer Morriss who had hit him. The defendant admitted he had

consumed seven or eight beers. The defendant agreed to take a blood-alcohol test.



       Based upon this testimony, the trial court found Officer Morriss had made a valid

investigatory stop and from Officer Morriss’s observations, the defendant was driving

under the influence. The trial court denied the motion to suppress the arrest of the

defendant.



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                                     LEGAL ANALYSIS



       The defendant strongly contends that the arresting officer, Officer Morriss, did not

have a reasonable suspicion, based on objective and articulable facts, to justify stopping

the defendant’s vehicle. In support of this argument, the defendant submits three factors:

(a) the arresting officer had no personal knowledge of any conduct of the defendant

sufficient to justify stopping the defendant’s vehicle, (b) the arresting officer did not

establish the credibility of the witness who reported the defendant’s conduct, and (c) the

total circumstances before the arresting officer did not provide objective and articulable

facts warranting an investigatory stop of the defendant. The state disagrees with the

position of the defendant and argues that no investigatory stop occurred, rather the

defendant did not stop but continued to drive to his destination.



       The proper standard of review for suppression issues was set forth by our supreme

court in State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996):


              The party prevailing in the trial court 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. So long as the greater
              weight of the evidence supports the trial court’s findings, those
              findings shall be upheld. In other words, a trial court’s findings
              of fact in a suppression hearing will be upheld unless the
              evidence preponderates otherwise.



                                          A. and C.


       In this appeal, the defendant argues (a) the defendant’s misdemeanor conduct did

not occur in the arresting officer’s presence and thus the basis for the arrest is invalid and

the evidence suppressible, and (c) the arresting officer did not provide objective and

articulable facts to warrant an investigatory stop. In order for a law enforcement officer to

arrest an individual for a misdemeanor, the offense must have been committed or

threatened in the officer’s presence. Tenn. Code Ann. § 40-7-103(1). Under both the

federal and state Constitutions, a warrantless seizure is presumed unreasonable, and

evidence discovered as a result thereof is subject to suppression unless the state

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demonstrates that the seizure was conducted pursuant to one of the narrowly defined

exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55,

91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); State v. Yeargan, 958 S.W.2d 626, 629

(Tenn. 1997); State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996). One narrowly

defined exception was found valid in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880,

20 L.Ed.2d 889 (1968). In Terry, the Court determined that the law enforcement practice

of a brief investigatory stop is constitutionally permissible if the officer has a reasonable

suspicion, supported by specific and articulable facts, that a criminal offense has been or

is about to be committed.



       In State v. Yeargan, 958 S.W.2d at 632, our supreme court held:


              Reasonable suspicion is a less demanding standard than
              probable cause not only in the sense that reasonable 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.


(quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301

(1990); State v. Pully, 863 S.W.2d 29, 32 (Tenn. 1993)). We now come to the question,

was the defendant’s detention an “investigatory stop”? Counter to the state’s argument, we

believe this to be an investigatory stop according to constitutional standards.



       When an officer activates his blue lights, he has clearly initiated a stop. State v.

Pully, 863 S.W.2d 29, 30 (Tenn. 1993); U.S. v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675,

679, 83 L.Ed.2d 604 (1985). In some circumstances, an officer may briefly detain a

suspect without probable cause in order to investigate possible criminal activity. Brown v.

Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). A person is seized

“if, in view of all of the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.” U.S. v. Mendenhall, 446 U.S. 544, 554, 100

S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). When Officer Morriss initiated his blue lights as

the defendant passed him, and blew his horn at the defendant, there was every indication


                                             5
that the defendant was to stop and no longer would be free to leave.



       In order to determine the specific and articulable facts, this court must consider the

“totality of the circumstances.” State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

Among the relevant elements to be considered are the “objective observations, information

obtained from other police officers or agencies, information from citizens, and the pattern

of operation of certain offenders.” Id. We agree with the trial court that McNabb’s

statements that the defendant had been “drinking” or “drinking a lot” would be a reasonable

inference on the part of Officer Morriss that the defendant would likely be driving under the

influence of an intoxicant. We believe it was reasonable for Officer Morriss to investigate

further the suspicion of the defendant’s intoxication. This suspicion, coupled with the

officer’s observations of the defendant’s slow driving, failure to give a turn signal, and

making a “rolling stop” through a stop sign, justified the stop of the defendant.



       The public interest served by the investigatory detention in this case was the

prevention of a drunk driving accident. Certainly, the gravity of the concern over drunk

driving is significant because of its threat to the safety of any citizen on the public roads.

State v. Gregory Keith Weaver, Montgomery County No. 01C01-9705-CC-00188 (Tenn.

Crim. App., Nashville, August 18, 1998). Since we believe Officer Morriss had reasonable

grounds and a suspicion the defendant may have been driving under the influence, we find

the defendant’s arrest was valid. There are objective and articulable facts in this record

to support the investigatory stop of the defendant. This issue is without merit.




                                              6
                                             B.



       In this issue, the defendant argues the arresting officer did not establish the

credibility of the witness, Edgar McNabb, who reported the defendant’s conduct. In other

words, for Officer Morriss to rely on the information given to him by McNabb, the officer

must have established for himself that the informant had personal knowledge of the

suspicious circumstances and that the informant was credible. The state contends Officer

Morriss corroborated the information given to him by McNabb.



       First, we recognize that Officer Morriss’s information was not provided by “an

anonymous person,” but by a citizen informant who had firsthand knowledge of his fight

with the defendant and the citizen’s observation that the defendant had been drinking.

State v. Pully, 863 S.W.2d 29, 31 (Tenn. 1993); State v. Kelly, 948 S.W.2d 757, 761-62

(Tenn. Crim. App. 1996). As part of his argument, the defendant contends that McNabb’s

statements are suspect in that he is a convicted felon and he committed an assault, which

called his veracity into question, thus requiring Officer Morriss to confirm McNabb’s

reliability. However, the evidence in this record established Officer Morriss did not know

McNabb prior to the disturbance call, nor did the officer know the complainant was a

convicted felon.



       When the information supporting an investigatory stop comes from an informant,

Tennessee Constitutional principles require a showing that (1) the informant had a basis

for his or her information that a person was involved in criminal conduct, and (2) the

informant is credible or his or her information is reliable. Pully, 863 S.W.2d at 31; State v.

Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). The trial court, in its ruling, found

that the information given by McNabb to Officer Morriss was reliable. Officer Morriss found

the defendant slowly driving his automobile, which may infer driving under the influence.

Furthermore, the defendant, who was bloody from a wound to his cheek, indicated to the

officer that he was not aware he had been in a fight. The defendant also appeared to be

intoxicated. All of these factors supported the reliability of the information given by the



                                              7
informant, McNabb. There is no merit to this issue.



       The evidence does not preponderate against the trial court’s denial of the

defendant’s motion to suppress the evidence gained as a result of the encounter with

Officer Morriss. We, accordingly, affirm the judgment of the trial court.




                                    ________________________________________
                                    L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE




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