        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 17, 2016 Session

           STATE OF TENNESSEE v. DEBORAH JEAN WESTON

                  Appeal from the Circuit Court for Blount County
                     No. C22651    Tammy Harrington, Judge


                No. E2015-01530-CCA-R3-CD – Filed August 2, 2016


In this appeal as of right, the State challenges the order of the trial court granting the
defendant‟s motion to suppress the evidence obtained during the stop of the defendant
and dismissing the driving under the influence charge in this case. Because the
community caretaking exception does not apply in this case and because reasonable
suspicion did not otherwise justify the stop of the defendant‟s vehicle, we affirm the
judgment of the trial court.

            Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Mike Flynn, District Attorney General; and Tracy Jenkins, Assistant
District Attorney General, for the appellant, State of Tennessee.

Joe Costner, Maryville, Tennessee, for the appellee, Deborah Jean Weston.

                                       OPINION

              This case began with the defendant‟s warrantless arrest for driving under
the influence (“DUI”) on November 1, 2013. The affidavit of complaint, which is
appended to the arrest warrant that was issued following her arrest, indicates that
Maryville Police Department Officer Dwight W. Porter, III, observed “a motor vehicle
accident” involving the defendant and another motorist. When he approached the
defendant, she told him “that her foot slipped off the brake causing both vehicles to
collide.” The officer detected an odor of an alcoholic beverage about the defendant‟s
person, and she told him “that she had consumed a glass of wine at a local restaurant.”
After the defendant performed poorly on field sobriety tests, she agreed to be transported
to the hospital to have her blood drawn for alcohol and toxicology testing. She was then
taken to the Blount County Justice Center.

             On January 9, 2014, the defendant moved the Blount County General
Sessions Court to dismiss the charges, arguing that Officer Porter lacked “sufficient legal
cause” to stop her vehicle and that the officer lacked “probable cause to make the
subsequent arrest.” No order disposing of the defendant‟s motion appears in the record
on appeal.

              In November 2014, the Blount County Grand Jury charged the defendant
with alternative counts of DUI. On March 3, 2015, the defendant moved the Blount
County Circuit Court to suppress all evidence obtained as a result of Officer Porter‟s stop
of the defendant‟s vehicle and to dismiss the charges, arguing that the stop violated the
defendant‟s Fourth Amendment rights.

                At the July 10, 2015 hearing on the defendant‟s motion, Officer Porter
testified that at approximately 8:00 p.m. on the day of the offense, he was traveling west
on Highway 321 in Maryville when he, along with a number of other vehicles, stopped
for the red light at the intersection of Highway 321 and the Highway 129 Bypass. He
said that he was in the inside lane and that he observed the defendant‟s vehicle in the
outside lane of Highway 321 two cars ahead of his. He described what happened next:

              I observed a white male that was out of his truck and . . . he
              looked at the rear of his truck and walked to . . . the
              [d]efendant‟s driver‟s side window and began talking with
              her. And then right as I flipped my blue lights on because to
              me it was obvious they had been involved in a motor vehicle
              accident, due to . . . how close the cars were together, in my
              experience as a police officer, led me to believe he was out of
              his car looking at the rear of his vehicle, which would
              indicate that his vehicle had been struck and he was checking
              it at that time, I initiated my lights in order to make sure that
              everybody was okay. Because I was under the understanding
              that there was an accident at that point.

The other cars allowed him to pull forward, and he eventually pulled behind the
defendant‟s vehicle. By the time he got near the cars, the other driver had returned to his
vehicle, and both drivers had begun moving forward. The other driver stopped his
vehicle some distance away, but the defendant did not initially stop. Officer Porter did
not indicate how far the defendant traveled before he was able to stop her vehicle.

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               The defendant, citing our supreme court‟s decision in State v. Moats, 403
S.W.3d 170 (Tenn. 2013), argued that Officer Porter‟s stopping the defendant to check on
her welfare was not a recognized exception to the warrant requirement. She insisted that
“the law is very clear” that a police officer “can‟t stop somebody for a welfare check to
see if they‟re injured.” The State argued that, in addition to community caretaking, the
officer‟s stop of the defendant‟s vehicle was justified because the officer had reasonable
suspicion that the defendant had violated traffic rules related to following too closely and
failing to exercise due care. The State emphasized that the officer‟s subjective intent was
irrelevant.

             At the conclusion of the hearing, the trial court found that Officer Porter‟s
testimony established that he stopped the defendant‟s vehicle for “a welfare check.” The
court concluded that “under the current line of cases,” it was constrained to grant the
defendant‟s motion.

               In this appeal, the State asserts that the trial court erred by finding that
Officer Porter lacked reasonable suspicion to stop the defendant‟s vehicle and asks this
court to adopt a community caretaking exception to the warrant requirement. The
defendant argues that under the standard announced by both the Moats majority and the
dissent, the stop of the defendant‟s vehicle was unconstitutional, noting that the facts did
not support a conclusion that anyone was in need of the assistance of a police officer.

                A trial court‟s factual findings on a motion to suppress are conclusive on
appeal unless the evidence in the record preponderates against them. State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus,
questions of credibility, the weight and value of the evidence, and the resolution of
conflicting evidence are matters entrusted to the trial judge, and this court must uphold a
trial court‟s findings of fact unless the evidence in the record preponderates against them.
Odom, 928 S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to
the facts, however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998).

              Our supreme court made its first extensive examination of the relationship
between the community caretaking function of the police and the protections of the
Fourth Amendment in Moats. In that case, the court concluded that “the community
caretaking function exists within the third tier of consensual police-citizen encounters
that do not require probable cause or reasonable suspicion, whereas the requisite level of
probable cause or reasonable suspicion must be satisfied when a seizure has taken place.”
State v. Moats, 403 S.W.3d 170, 182 (Tenn. 2013), overruled by State v. Kenneth
McCormick, ___ S.W.3d ___, No. M2013-02189-SC-R11-CD (Tenn. May 10, 2016).
Recently, however, in State v. Kenneth McCormick, the court revisited the ruling in
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Moats and concluded that “Moats was erroneous when initially decided and that more
good than harm will be accomplished by overruling it.” Kenneth McCormick, slip op. at
12-13. The court observed that “the holding in Moats is contrary to the overwhelming
weight of authority in this country, which recognizes the community caretaking doctrine
as an exception to federal and state constitutional warrant requirements” and that “the
authority on which Moats relied to limit the community caretaking doctrine to consensual
police-citizen encounters provides no support for the limitation.” Id., slip op. at 13
(citations omitted). The court specifically “overrule[d] Moats and disavow[ed] any other
prior or subsequent Tennessee decisions limiting the community caretaking doctrine to
consensual police-citizen encounters.” Id.

               In place of the framework established in Moats, the court recognized the
community caretaking doctrine as “„analytically distinct from consensual encounters‟”
and determined that it “„[may be] invoked to validate a search or seizure as reasonable‟
under the Fourth Amendment and article I, section 7 of the Tennessee Constitution.” Id.
(citation omitted) (alteration in original). The court then expressed a test to determine the
applicability of the community caretaking exception, beginning “with the foundational
principle that „[a]n action is reasonable under the Fourth Amendment [and article I,
section 7 of the Tennessee Constitution], regardless of the individual officer‟s state of
mind, as long as the circumstances, viewed objectively, justify the action. The officer‟s
subjective motivation is irrelevant.‟” Id., slip op. at 15 (quoting Brigham City, Utah v.
Stuart, 547 U.S. 398, 404 (2006)) (other citations and internal quotation marks omitted)
(alteration in original). With this basis, the court held

              that the community caretaking exception will justify a
              warrantless seizure so long as “the State establishes that (1)
              the officer possessed specific and articulable facts which,
              viewed objectively and in the totality of the circumstances,
              reasonably warranted a conclusion that a community
              caretaking action was needed, such as the possibility of a
              person in need of assistance or the existence of a potential
              threat to public safety; and (2) the officer‟s behavior and the
              scope of the intrusion were reasonably restrained and tailored
              to the community caretaking need.”

Kenneth McCormick, slip op. at 15 (quoting Moats, 403 S.W.3d at 195 (Clark and Koch,
JJ., dissenting). A determination whether an officer acted reasonably in exercising his
community caretaking function requires “careful consideration” of the facts presented
“including „the nature and level of distress exhibited by the citizen, the location, the time
of day, the accessibility and availability of assistance other than the officer, and the risk

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of danger if the officer provides no assistance.‟” Kenneth McCormick, slip op. at 15
(quoting Moats, 403 S.W.3d at 195-96 (Clark and Koch, JJ., dissenting)).

               In this case, Officer Porter testified that just after 8:00 p.m., he was
traveling west on Highway 321 when he observed a number of other westbound cars
stopped for the red light at the traffic light marking the intersection of westbound
Highway 321 and the Highway 129 Bypass. He stated that he was “two cars back in the
inside lane” while the defendant and the other driver “were in the outside lane.” From his
vantage point, he observed a man outside of a truck “looking at the rear of his truck.”
Officer Porter saw the man approach the driver‟s side window of the defendant‟s car and
speak with her briefly. At that point, Officer Porter initiated his blue lights, but he said
that he did not think that the drivers noticed that he had turned on the blue lights. By the
time the officer was able to maneuver his cruiser behind the defendant‟s car, the man had
returned to his truck, and both drivers had begun moving forward. The man stopped a
short distance away “in front of Thunder World.” Officer Porter said that he stopped the
truck “because [he] wanted to get at least one vehicle stopped.” The defendant “kept
going.” The record does not indicate when, exactly, the defendant stopped her vehicle
but similarly does not indicate that any type of chase ensued. The record does indicate
that the officer stopped the defendant‟s vehicle after he stopped the other driver and took
the opportunity to examine the other driver‟s truck. He did not observe any damage to
the other driver‟s truck. Officer Porter candidly admitted that he “[n]ever saw the two
vehicles touching, never saw the impact occur, and . . . was unable to see any damage
based on where [he] was at.” Nevertheless, he insisted that he stopped both vehicles
because he “[w]anted to make sure there were no injured parties in the vehicle” and
“wanted to check their status because it was obvious . . . that they had been involved in a
motor vehicle accident.”

               In our view, the circumstances presented do not support the application of
the community caretaking exception in this case. The seizure of the defendant occurred
some time after and some distance away from the initial incident that caused Officer
Porter to activate his blue lights in the first place. Nothing in the record suggests that the
defendant exhibited any “level of distress” or that either driver otherwise indicated any
need for the officer‟s assistance. Additionally, the evidence suggested no “risk of
danger” or “threat to public safety” had Officer Porter decided not to intervene. Indeed,
both drivers had driven away from the scene initially observed by Officer Porter with no
damage to either vehicle.

               Additionally, we cannot agree with the State that Officer Porter had
reasonable suspicion to stop the defendant‟s vehicle for following too closely, see T.C.A.
§ 55-8-124(a), or for failing to exercise due care, see id. § 55-8-136(b). Police officers
are constitutionally permitted to conduct a brief investigatory stop supported by specific
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and articulable facts leading to a reasonable suspicion that a criminal offense has been or
is about to be committed. Terry v. Ohio, 392 U.S. 1, 20-23 (1968); State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000). Whether reasonable suspicion existed in a particular case
is a fact-intensive, but objective, analysis. State v. Garcia, 123 S.W.3d 335, 344 (Tenn.
2003). The likelihood of criminal activity that is required for reasonable suspicion is not
as great as that required for probable cause and is “considerably less” than would be
needed to satisfy a preponderance of the evidence standard. United States v. Sokolow,
490 U.S. 1, 7 (1989). A court must consider the totality of the circumstances in
evaluating whether a police officer‟s reasonable suspicion is supported by specific and
articulable facts. State v. Hord, 106 S.W.3d 68, 71 (Tenn. Crim. App. 2002). The
totality of the circumstances embraces considerations of the public interest served by the
seizure, the nature and scope of the intrusion, and the objective facts on which the law
enforcement officer relied in light of his experience. See State v. Pulley, 863 S.W.2d 29,
34 (Tenn. 1993).

              Officer Porter did not see the defendant driving her vehicle prior to his
observing the other driver outside of his truck. He had no opportunity to view how
closely the defendant followed the vehicle prior to both drivers‟ stopping at the traffic
light or to observe any measures the defendant might have taken to avoid colliding with
the truck in front of her, assuming that she did, in fact, strike the other vehicle. Under
these circumstances, the facts do not preponderate against the trial court‟s finding that
Officer Porter stopped the defendant‟s vehicle “to check the welfare of those involved.”
Although “„reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause,‟” Pulley, 863 S.W.2d at
32 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)), and although the test for
determining the presence of reasonable suspicion is an objective one, see Kenneth
McCormick, slip op. at 15-16, “the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion,” Terry, 392 U.S. at 21.

              Because Officer Porter lacked reasonable suspicion to stop the defendant‟s
vehicle, we affirm the judgment of the trial court.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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