            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs October 29, 2002

             STATE OF TENNESSEE v. JAMES DEWEY JENSEN, JR.

                  Direct Appeal from the Criminal Court for Hamilton County
                            No. 235041    Stephen M. Bevil, Judge



                                     No. E2002-00712-CCA-R3-CD
                                          November 15, 2002

A Hamilton County jury convicted the defendant, James Dewey Jensen, Jr.,1 of a seventh offense of
driving under the influence, theft of identity, and violation of the Motor Vehicle Habitual Offenders
Act. The sole issue presented by the defendant in this appeal is whether the trial court erred in
denying the motion to suppress evidence obtained as a result of the vehicle stop. We affirm the
judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W.
WEDEMEYER, J., joined.

Jeffrey S. Schaarschmidt, Chattanooga, Tennessee, for the appellant, James Dewey Jensen, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Thomas E. Kimball, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                                 OPINION

       During the suppression hearing, Officer Donald Bond with the Hamilton County Sheriff’s
Department testified that on August 30, 2000, the police dispatcher advised him an EMS unit
reported a possible DUI driver on Lee Highway in Hamilton County. The EMT, Paul Boberhouser,
reported he was driving behind a yellow automobile which had crossed the center line several times.
Boberhouser reported that while he was following the vehicle in his ambulance, the vehicle went
down a dead end street and ran over a mailbox. Boberhouser reported the vehicle subsequently



        1
         The defendant's name is spelled as it appears on the indictment. On some documents, his name appears as
James “Jenson,” Jr. Our po licy is to use the nam e as it appears on the indictm ent.
turned onto Blue Bell Avenue where the automobile entered a driveway, and two people exited the
vehicle.

        Officer Bond testified he met Boberhouser at the intersection of Lee Highway and Blue Bell
Avenue. Boberhouser parked his ambulance on one side of the intersection, and Officer Bond
parked his patrol car on the other side of the intersection. When Boberhouser told Officer Bond the
vehicle had entered a driveway, Officer Bond said, “It’s over with.” Officer Bond testified he and
Boberhouser, who were once roommates, then discussed other topics unrelated to the incident.
Officer Bond believed there was sufficient room for a vehicle to “get around” the patrol car and the
ambulance because it was a large intersection.

       Officer Bond testified that while they were talking, he saw headlights coming over a hill
toward them. The red lights on the ambulance were flashing, but the blue lights on the patrol car
were not on at this time. When Boberhouser saw the vehicle, he identified it as the vehicle he had
been following.

       Officer Bond testified the defendant pulled up to the intersection, and his car stalled. The
defendant unsuccessfully attempted to restart the vehicle. Officer Bond then got out of his patrol car
and asked the defendant if he was having trouble with his vehicle. The defendant answered, “Yeah,
I cannot get my vehicle started.” Officer Bond testified when he approached the vehicle, he smelled
alcohol on the defendant, and the defendant’s face was flushed. Officer Bond then asked the
defendant to step out of the vehicle. The defendant was subsequently arrested.

      On cross-examination, Officer Bond testified he activated his blue lights during the
encounter, but he could not recall when he did this. He stated he activated his blue lights either when
Boberhouser identified the vehicle or when he got out of his patrol car to inspect the stalled vehicle.

       During the suppression hearing, the defendant testified that as he approached the intersection,
he saw a patrol car and an ambulance. He stated he saw the lights on both vehicles flashing and
thought an accident had occurred. The defendant stated he could not drive around the patrol car and
the ambulance, so he stopped behind the vehicles. Officer Bond then began walking toward the car.
The defendant testified that at that moment, he did not feel free to leave. He stated the vehicle was
loud due to a loose manifold, and in order to hear Officer Bond speak, he turned off the engine.

        The trial court denied the defendant’s motion to suppress. The trial court found Officer Bond
did not receive information from an anonymous informant, but from someone he personally knew.
Further, the trial court fully accredited Officer Bond’s testimony as to the events and found the
officer had a duty to inquire about the stalled vehicle based upon public safety grounds.




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                                    STANDARD OF REVIEW

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from
that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this court is not bound
by the trial court’s conclusions of law. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of
establishing that the evidence contained in the record preponderates against the findings of fact made
by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).


                                     SEARCH AND SEIZURE

        The Fourth Amendment of the United States Constitution states the following:

                The right of the people to be secure in their persons, houses, papers,
                and effects, against unreasonable searches and seizures, shall not be
                violated, and no warrants shall issue, but upon probable cause,
                supported by oath or affirmation, and particularly describing the place
                to be searched, and the persons or things to be seized.

Further, Article I, Section 7 of the Tennessee Constitution provides:

                [t]hat the people shall be secure in their persons, houses, papers and
                possessions, from unreasonable searches and seizures; and that
                general warrants, whereby an officer may be commanded to search
                suspected places, without evidence of the fact committed, or to seize
                any person or persons not named, whose offences are not particularly
                described and supported by evidence, are dangerous to liberty and
                ought not to be granted.

       The purpose and intent of Article I, Section 7 is identical with that of the Fourth Amendment,
which is to “safeguard the privacy and security of individuals against the arbitrary invasions of
government officials.” Randolph, 74 S.W.3d at 334 (Tenn. 2002) (quoting Camara v. Municipal
Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967)); State v. Gonzalez, 52
S.W.3d 90, 95 (Tenn. Crim. App. 2000).




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        Under the United States and Tennessee constitutions, either probable cause or reasonable
suspicion will justify a traffic stop despite the subjective motivations of the police officer involved.
United States v. Whren, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996); State
v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997). In examining the validity of the traffic stop, courts
must determine whether the stop was reasonable under both the state and federal constitutions. State
v. Jennette, 706 S.W.2d 614, 618 (Tenn. 1986). The reasonableness of a stop is measured
objectively through an examination of the totality of the circumstances. Ohio v. Robinette, 519 U.S.
33, 39, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996).

A. Consensual Encounter

        The first issue we must address is whether a “stop” or “seizure” occurred requiring
constitutional protections. After reviewing the record, we conclude the encounter between Officer
Bond and the defendant was a consensual encounter.

        When a police officer’s interaction with a citizen impermissibly intrudes upon the privacy
or personal security of the citizen, it violates the Fourth Amendment to the United States
Constitution and Article 1, Section 7 of the Tennessee Constitution, which is identical in intent and
purpose to the Fourth Amendment. Daniel, 12 S.W.3d at 424. Not every encounter between police
officers and citizens is a “seizure,” however. Randolph, 74 S.W.3d at 338. A seizure occurs only
when an officer restrains the liberty of an individual by means of physical force or show of authority.
Terry v. Ohio, 392 U.S.1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The courts have held
the Fourth Amendment permits three types of police-citizen interactions: (1) a full scale arrest
supported by probable cause; (2) a brief investigatory detention supported by reasonable suspicion;
and (3) a brief police-citizen encounter, which requires no objective justification. Daniel, 12 S.W.3d
at 424.

         A law enforcement officer does not violate the Fourth Amendment by merely approaching
a person in a public place and posing a question. United States v. Drayton, ___ U.S. ___, ___, 122
S. Ct. 2105, 2110, 153 L. Ed. 2d. 242 (2002). Even if an officer has no basis for suspecting a crime
is being committed, he or she may pose questions or ask for identification, provided he or she does
not induce cooperation by coercive means. Id; see Daniel, 12 S.W.3d at 425. In order to determine
if an interaction between an officer and an individual is a seizure or a consensual encounter, the court
must consider all the surrounding circumstances and ascertain whether the “police conduct would
have communicated to a reasonable person that the person was not free to decline the officer’s
requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct.
2382, 115 L. Ed. 2d 389 (1991).

        In the case at bar, the trial court fully accredited Officer Bond’s testimony at the suppression
hearing. Officer Bond testified the defendant’s car stalled behind the ambulance and patrol car; he
did not do anything to indicate to the defendant that he was required to stop his vehicle. The police
officer also testified the lights on both the patrol car and the ambulance were activated when he
approached the defendant’s vehicle. Although activation of blue lights ordinarily triggers a “stop”


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or “seizure,” see Randolph, 74 S.W.3d at 338, it is not unusual for a police officer to activate the
blue lights on his or her patrol car for safety purposes when on the side of a road or at an accident
site. Furthermore, the defendant testified he stopped because he thought an accident had occurred,
not because he thought Officer Bond had indicated he was required to stop.

        Officer Bond testified that he walked to the defendant’s vehicle because he thought it had
stalled. Officer Bond then asked the defendant whether he was having problems with his vehicle;
the defendant replied that the car would not start. When describing the interaction between police
officers and citizens on public highways, the United States Supreme Court noted:

               Because of the extensive regulation of motor vehicles and traffic, and
               also because of the frequency with which a vehicle can become
               disabled or involved in an accident on public highways, the extent of
               police-citizen contact involving automobiles will be substantially
               greater than police-citizen contact in a home or office. Some such
               contacts will occur because the officer may believe the operator has
               violated a criminal statute, but many more will not be of that nature.
               Local police officers . . . frequently investigate vehicle accidents in
               which there is no claim of criminal liability and engage in what, for
               want of a better term, may be described as community caretaking
               functions, totally divorced from the detection, investigation, or
               acquisition of evidence relating to the violation of a criminal statute.

Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2423, 2528, 37 L. Ed. 2d 706 (1973). These
community caretaking or public safety functions do not involve coercion or detention, rather a police
officer may initiate a conversation with a citizen and ask questions as long as the citizen is willing
to answer the questions. State v. Hawkins, 969 S.W.2d 936, 939 (Tenn. Crim. App. 1997). This
type of encounter is a consensual encounter, which does not require probable cause or reasonable
suspicion. Id.

        When Officer Bond approached the defendant and questioned him regarding the stalled
automobile, he was engaged in a “community caretaking function,” which was “totally divorced
from the detection, investigation, or acquisition of evidence” relating to an offense. Cady, 413 U.S.
at 441. The police officer noticed the defendant appeared to have car trouble and decided to help
him instead of leaving him stranded in the road at night.

        We conclude the initial contact between the defendant and Officer Bond did not constitute
a seizure, but rather was a consensual encounter, requiring neither reasonable suspicion nor probable
cause to believe the defendant was engaged in criminal activity. We note that once Officer Bond
requested the defendant to step out of the vehicle, the consensual encounter was converted into a
seizure requiring constitutional protections, and a reasonable person in the same situation could
reasonably believe he or she would not be free to leave. However, Officer Bond testified that prior
to requesting the defendant to step out of his vehicle, he smelled alcohol on the defendant, and the


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defendant’s face was flushed. We conclude these observations, combined with the information
Officer Bond received from the EMT, constituted sufficient cause for the officer to briefly detain the
defendant to ascertain whether the defendant was driving under the influence. See State v. Wilhoit,
962 S.W.2d 482, 488 (Tenn. Crim. App. 1997).

B. Terry Stop

       Even if the initial contact between Officer Bond and the defendant constituted a “stop”
invoking constitutional examination, we, nevertheless, conclude it was a proper investigatory stop.

        A policeman may make an investigatory stop when the officer has a reasonable suspicion,
supported by articulable and specific facts, that a criminal offense has been or is about to be
committed. Terry, 392 U.S. at 21; see also United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct.
744, 750, 151 L. Ed. 2d 740 (2002); Randolph, 74 S.W.3d at 334. For a court to determine whether
a policeman's reasonable suspicion is supported by articulable and specific facts, the court must
consider the totality of the circumstances, that is, the entire picture. Arvizu, 534 U.S. at 273, 122
S. Ct. at 750; State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998). This inquiry includes such
factors as objective observations, information obtained from other officers or agencies, information
obtained from citizens, and certain offenders’ patterns of operation. Simpson, 968 S.W.2d at 783;
State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996). While an officer’s hunch is
insufficient to justify an investigative stop, the likelihood of criminal activity required for reasonable
suspicion is not as great as that required for probable cause and is less than would be needed to
satisfy a preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7, 109 S.
Ct. 1581, 104 L. Ed. 2d 1 (1989).

        An informant’s tip may provide the specific and articulable facts required to establish
reasonable suspicion. State v. Keith, 978 S.W.2d 861, 866 (Tenn. 1998). Tennessee courts have
distinguished “citizen informants” from “criminal informants.” State v. Stephens, 989 S.W.2d 290,
291 (Tenn. 1999). A citizen informant acquires his or her information through first-hand experience
and acts in the interest of public safety. State v. Luke, 995 S.W.2d 630, 636 (Tenn. Crim. App.
1998). Citizen sources are presumed reliable. State v. Melson, 638 S.W.2d 342, 356 (Tenn.1982),
cert. denied, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983). However, where the informant
is from the criminal milieu, application of the two-prong Aguilar-Spinelli test is required. State v.
Cauley, 863 S.W.2d 411, 417 (Tenn. 1993).

        Reasonable suspicion may be established through less reliable information than is required
to demonstrate probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110
L. Ed. 2d 301 (1990); Keith, 978 S.W.2d at 866. Therefore, the two-prong test of reliability for a
criminal informant’s tip is not as strictly applied if the tip is being used to show reasonable suspicion
for an investigatory stop rather than probable cause for a search and seizure. Keith, 978 S.W.2d at
866.




                                                   -6-
        In the case at bar, the informant was Paul Boberhouser, an EMT and former roommate of
Officer Bond. Boberhouser followed the defendant’s car and saw it cross the center line several
times and hit a mailbox. He reported these events to the dispatcher while following the vehicle and
to Officer Bond a short time later. Boberhouser then identified the vehicle in the presence of Officer
Bond. Therefore, Boberhouser was not an informant from the criminal milieu; his information is
presumed reliable.

        We conclude Officer Bond had reasonable suspicion to stop the defendant’s vehicle and
investigate a possible DUI offense based on the information obtained from Boberhouser. Even
though Boberhouser could not identify the defendant as the person who drove the vehicle he
followed, Boberhouser positively identified the vehicle. This information established sufficient
cause to stop the vehicle.

         Regardless of the DUI offense and although not argued by the parties, Officer Bond also had
sufficient cause to stop the vehicle based on information from Boberhouser that the vehicle hit a
mailbox and left the scene. See Tenn. Code Ann. § 55-10-105 (“The driver of any vehicle involved
in an accident resulting only in damage to fixtures or other property legally upon or adjacent to a
highway . . . or any other premises which are generally frequented by the public at large, shall take
reasonable steps to locate and notify the owner or person in charge of such property of such fact . .
. .”). Unquestionably, the officer had sufficient cause to stop the vehicle identified to him as the one
that hit a mailbox and did not stop. Furthermore, the fact that the officer may not have subjectively
thought he could do so, or did not stop the vehicle for this reason, is not determinative. See Whren,
517 U.S. at 813; Vineyard, 958 S.W.2d at 736.

       Therefore, the traffic stop was valid, and the trial court properly denied the defendant’s
motion to suppress. We affirm the judgment of the trial court.



                                                        _______________________________________
                                                        JOE G. RILEY, JUDGE




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