# FILED August 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9705- CC-00188 ) Appellee, ) ) MONTGOM ERY COUNTY V. ) ) ) HON . ROB ERT W. W EDE MEY ER, GRE GOR Y KE ITH W EAVE R, ) JUDGE ) Appe llant. ) (DUI; RE CKLE SS DR IVING)

FOR THE APPELLANT : FOR THE APPELLEE : PETER M. OLSON JOHN KNOX WALKUP OLSON & OLSO N, PLC Attorney General& Reporter 114 Fra nklin Stree t Clarksvi lle, TN 37040 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JOHN WESLEY CARN EY, JR. District Attorn ey Ge neral LANCE BAKER Assistant Distri ct Attor ney General 204 Franklin Street, Suite 200 Clarksvi lle, TN 37040

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Greg ory Ke ith W eaver , appe als as o f right fro m his convicti ons of DUI, four th offen se, reckl ess drivi ng, driv ing on a revoked license, second offense, viol ating t he open container l aw, and violat ing the i mplied consent law following a jury trial in the M ontgom ery Cou nty Crim inal Cou rt. In this ap peal, Defendant argues that the tri al court erred in denyin g his M otion to Supp ress a ll evidence obtained as a r esult of the invest igatory

stop of him immediately preceding his arrest for DUI and the other related offenses . We affirm the judgment of t he trial court.

On Octo ber 3, 1995, the Clarksville police dispa tcher notified patrol officers that the poli ce d epartment had received a report of a reckl ess driver

who was poss ibly drunk. Accordi ng to the report, the suspect vehicle was

a red Ford Ranger being driven by a white male with dar k hair and a bad compl exion. The report f urther indicated that theRanger had left the area near t he Texaco stati on and was travel ing toward Krog er.

Shor tly after t he dispa tcher re layed th is information to t he Clarksvill e officers, Officer Joe Papastathi s informed Off icer Robert Miller that he had seen t he suspect vehicle at the reported l ocation whi ch was in Offi cer Mill er’s patr ol area. Of

ficer Miller th en saw the vehicl e and began to fol low it i n an attempt to corroborate the report. Officer

Miller observed Defendant make a “slightly wider turn than what most
cars would take i f you turned.” At this p ointDefe ndan t pulled into the drivew ay to his home and stopped. Off icer Miller pulled i nto Defendant’ s driveway and parked the-3-

patrol car directly behind D efendant’s ve hicl e. Atthe time, Officer Mi ller was
unawa re that the d riveway be longed to Defen dant.

At some point after Office r Mill er pulled i nto the driveway , bu t before he confronted Defenda nt, Officer Robe rt Smith radioe d Offic er Miller and to ld him that the su spec t’s vehicle had nearly hi t his car when he was drivi ng to work justa few minutes earlier . Thereafte r, Offi cerMiller approach ed Defen dant’s truck, whe re he smelled alcoholand saw an open bottl e of whiskey i n the car. Officer Mi ller ask ed Defendant if he had been drinki ng, and Defendant admit ted that he had, and that he had “pro bably ha d too m uch.”

Prior to trial , Defendant filed a motion to suppress the evidence garner ed from the encounter wit h Officer Miller . The proper standard of rev iew for supp res sion issues was set

for th by ou r su pre me court in State v. Odom , 928 S.W.2d 18, 23 (Tenn. 19 96):

The p arty prevailingin the t rial cour t is ent itled t

o the strongest legitim ate view of the e vid ence ad duced at the suppres sion hearing as wel l as allreasonable and legitimate inferences that may be d rawn from that evidence. So lon g as the greater weight of the evidence suppo rts the tri al court’ s findi ngs, those f indings shal l be upheld . In other wo rds, a trialcourt’s findings of fact in a suppression hearing wil l be upheld unl ess the evide nce preponderates ot herwise.
Defendant argue s in this appealthat Offi cer Mill er lacked the reasonabl e suspicion necessary to d etain and qu estion him. Mo re specifically, he contends that Officer Miller’s obs ervations did not provide suffic ient corroborat ion of theinformati on supplied by the anonymous cal l placed to the dispatcher, as is req uired by State v. Pully , 863 S.W .2d 29 (T enn. 19 93).-4- We first note that we find Officer Miller’s acti ons to be an “i nvestigatory stop” according to constitu tional stan dards. “ [S ]topping a n autom obile and detaining its occup ants constitute a ‘ seizu re’ within the m eaning of [the Fou rth and F ourteen th
amen dmen ts of the United States Constit ution], even though the p urpose of the stop is limited and the res ulting detention qu ite brief.” Delaware v. Prouse , 440 U.S. 648, 653, 99 S . Ct. 13 91, 1396 , 59L. E d. 2 d 660(19 79) (ci tat ion s omi tt ed) . I n so me circumstances, an officer m ay brie fly detain a susp ect with out pro bable caus e in orderto investiga te possib le crimina l activity. Brown v. Texas , 443 U.S. 47, 51, 99 S. Ct. 2637 , 2641 , 61 L. E d. 2d 3 57 (19 79). A perso n is seized “i f, in v iew of allof the circumstances s urrou nding the incide nt, a reasonab le person wo uld have believed that he was n ot free to leave.” United States v. Men denh all , 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (19 80). W hen O fficer Miller pu lled into the driveway, and then approached D efendan t’s parke d car, a reaso nable person would have beli eved he was no longer free to l eave.

This type of invest igatory s top is const ituti onally permissible only when a police officer has a reasonable suspi cion, supported by specif ic a nd art iculable facts, thata criminal offense h as bee n or is abo ut to be co mm itted. See Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1 968). In order to determ ine the spec ific and articulable facts , this Court m ust cons ider the “tota lity of the circum stance s.” State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 19 92) (citat ion omitted). Among the relevant elem ents to be considered are “objective obser vations, informati on obtained from other poli ce of fic ers or agenci es, info rmation obtai ned from cit izens, and t he pattern of opera tion of certain offende rs.” Id

.-5- When the info rmatio n reli ed upo n is provi ded by an anonymous person, heightened concerns are raised ab out the rel iability of t he informati on because of the poss ible danger of “false report s, throug h police fabricati on or from vi ndicti ve or unrelia ble informants. ” Pully , 863 S.W .2d at 31. As a re sult, our courts have developed a methodology fo r evaluat ing the rel iability of ci tizen i nformation. For showings of proba ble caus e base d on an informa nt’s ti p , our supreme court has followed the former federal two- prong ed t est tha t require s proo f of the in forma nt’s basis of knowledg e and cred ibility. See Spinelliv. UnitedStates , 393 U.S. 410, 89 S. Ct. 584, 2 1 L. Ed. 2 d 637 (1 969); Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (19 64); State v. Jacu min , 778 S.W .2d 430, 436 (Tenn. 198 9). W hile this standard is t ypically used to determine probable caus e, co urts of th is State have held thi s standard i s to be used as a guide in asse ssing the r eliabi lity of
an informa nt’s tip supp orting an investigative detention
. Pully , 863 S.W.2d at 31; State v. Coleman , 791 S.W.2d 504, 505 (Tenn. Crim. A pp. 198 9), perm. to appeal denied (Tenn. 1990). We also note that r easonable suspic ion requir es a lower

level of proof than pr

obable cause, al lowing for citi zen informati on that is less rel iable th an thatrequired for proba ble caus e show ings. Pully , 863 S.W.2d at 32 ( citing Ala bama v. Wh ite , 496 U.S . 325, 330 , 110 S. C t. 2412, 24 16, 110 L. Ed. 2d 301 (19 90)).

We must determine if there was suff icient corroborat ion of theinformati on supplied to Offi cer Mill er by thedispatc her to support a reasonable suspi cion of illega l activity. The record indicates thatthe Clarksv ille police di spatcher received
a telephone cal l from an unknown ci tizen warni ng of a potent ial drunk driver in a red Ford pickup tru ck in the a rea of the Texac o station a nd Kro ger. The su spect was described by the call er as a whitemale with dar k hair and a bad com p lexion. Although the call er’s basi s of knowledge i s unclear f rom the record, the-6-

circumstancesin which t he informati on was given and t he language of th e caller suggest first-hand, eyewi tness knowledge. “When an informant repor ts an incident at or near the t ime of its occurrence, a court can of ten ass ume that the rep ort is firsthand, and henc e reliable.” Pully , 863 S.W.2d at 32. The prox imity i n time between the anonym ous ca ll to the dispatcher and Offi cer Mill er’s subsequent informati on is signif icantin asses sing the re liability of the inform ation. See id . (citations omitted). Officer Miller receive d corrob orati on of that informati on from Offi cer Papastathi s, who radioed that he had just seen t he red truck i n the area descr ibed by the anon ymous cal ler. There after, Officer Miller saw the truc k and began to fol low it. He then observed Defendant make a “wider turn than m ost ca rs would tak e.” As Offi cer Miller continue d following Defen dant in an att emp t to corr

oborate the i nformation t hat had been given to him, Defendant pulled i nto a driveway. Offi cer Mill er testi fied at the hearing that “[Q]uite frankly , I thought maybe [Defendant]was doing this just to avoid me being behind him, so t hat’s why the obse rvation pe riod was not that lon g.” It is clear fr

om the facts

that Offi cer Mill er was unaware that the driveway Defendant pulled into was actually that of Defendant’s. Once Officer Miller pulled hi s patrol car into Defe ndant’ s driveway, this const ituted a “stop” accordi ng to consti tutional standa rds.

At som e poin t after O fficer M ille r pulled into Defendant’s driv eway, he recei ved informati on from a fe llow officer saying that

the person driving the r ed truck had nearly run him off the road on hi s way to work at the poli ce stati on just minutes earlier. However, thi s informati on came too late, i.e., after the stop, to be considered in determining whether or not the officer’s c orrobora tion was s ufficient. We therefore disagree with the t rial cour t’s fi nding that this last info rmatio n sho uld be considered in the ana lysis.-7- Howeve r, ev en thou gh the tri al court erred in consi dering the i nformation relayed to Officer M iller from his fe llow officer re porting tha t Defe ndant had nearly hit him, we are nonetheles s able to uphol d the tri al court’ s findi ng that suf ficien t corroborat ion existed in thi s case. We base this f inding upon t he informati on provided to Offi cer Mill er by the dispatcher, the subsequent cor roborati on from Officer Papastath is, Defendan t’s unusually w ide t urn, Offi cer Mill er’s personal obse rvations, and his reaso nable belief that D efendant pu lled into the driveway t o avoid being pu rsued b y police. Ba sed on all the foreg oing, w e f ind that t he inform ant’s reliability a nd his basis fo r know ledge were s ufficien tly subs tantiate d in this case to establish the necessary “reasonable and articul able suspici on” requir ed by our sta te constitu tion. See Coleman , 791 S.W.2d at 507.

We m ust also look to t he reasonableness of the investi gatory detention which turns on the facts and circumstances of each particular c ase. See Pully , 863 S.W.2d at 34 ( citing Men denh all , 446 U.S . at 561, 10 0 S. Ct. at 1 881, 6 4 L. Ed. 2 d 497 (Pow ell, J., concur ring)). In order to judge t he reasonab leness of the inves tigatory detention involved in the case before us, we mus t weigh “the gra vity of the public concern, the degr ee to w hic h the seiz ure adva nces tha t concern , and the s everity of the intrusion into individual privac y.” Pu lly 863 S.W .2d at 30 (citation om itted). The public interest served by the investigatory d etention i n this case was the preventi on of a drunk drivi ng acciden t. Certai nly the gr avity of the concer n over drunkdrivi ng is signific ant because of i ts threat to the safety of any

citi zen on the public roads. Also, the brief deten tion of D efend ant for q uestio ning w as a re latively minorintr usion i nto Defend ant’s priva cy. Thus, we find thedetention of Defendant in the case sub judice to be reasonabl e.-8- The e vidence does n ot prepo nderate against th e trial court’s d enial of Defendant’s moti on to suppress t he evidence gai ned as a result of the encounter with Office r Miller. W e acco rdingly affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ L. T. LAFFERTY, Special Judge