### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE D ec em be r 14, 200 4 S es sio n

STA TE OF TEN NES SEE v. JOHN ALL AN LEZ OTTE

Appeal f romthe Cr im inal Cou rt for MonroeCounty No. 04-007 Car roll L. Ross, Jud ge

No. E2004-01002-CC A-R3- CD - F iled Fe bruary 18, 2005

Th e de fe nd a nt, John Al lan L ezott e , e nte re d p le a s o f g uil t to drivi ng un de r the inf lue nc e a ndc hil d endang erme nt, rese rving the right to appea l a certified question of l aw. See Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37( b)(2)

. The single issue prese nted for r eview is whe ther the tria l court er red by deny ing the defe ndant' s motion t o suppress. The judgme nts are a ffirme d.

Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of th e co u rt , i n which J OS EP H M. T I PTON , AND J AM ES C UR WO OD W I TT , J R ., J J ., joined.

Robert M. Cohen, Maryville, Tennesse e, for the appe llant, J ohn Allan L ezotte.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Se th P . K e stn e r, As sis ta nt A tto rn e y Gen eral; Chalmers Thompson, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On Aug ust 17, 2003, Office r Randy Hus k ey o f t h e Tennessee Wil dlife Resourc es Ag ency was patrolling the Car son I sland/Smokey Br anch Are a of Tellico L ake by boat when he observe d the defe ndant, who wa s on shore with a c an of be er i n h i s h an d

. The off icer trave led to the Tellico Har b o r M ar in a , d o c k e d
, a n d th e n d r o v e to th e e n tr a n c e o f th e Ca r s o n I s lan d b o a t r a mp , wher e he met Wil dlife Off

icer J oe Pike. As the two office rs awaited the ar rival of Of

fice r Corey

Russell, the defe ndant, driving a pick- up truck, slowly approa ched the m on a g rave l road. Acc ording to Office r Huskey , a fishing rod in the back of the truck was visible. When he saw cooler s in the rea r of the vehicle and observe d that a child passe ng er w as not wearing a seat be lt, he direc ted the def endant to stop.

At the suppression hea ring , Offic er H uskey , whose intere st was piqued when he saw the defe ndant with the bee r, testified that he stopped the def endant not only

to chec k whether

he had a

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fishing license but also because the child was not prope rly restra ined. The ma

rina wa s known to the office r as a "pr oblem are a" for unruly behavior

. Acc ording to Office r Huskey , when the de fenda nt opened the door he smelled of alcohol and had to use both hands to steady himself. Offic er H uskey saw that the c hild was small, about two y ear s of ag e, and did not have any restra ining de vice. The defe ndant claimed that he had not been f ishing a nd maintained that the of fice r could not have seen the fishing pole in the bac k of his truck. The office r, howe ver, ma intained t hat the primary rea son fo r the sto p w a s to de te rm ine wh e the r the de fe nd a nt h a d a fi shin g lic e ns e . T he sto p e ve ntu a lly evolved into an a

rre st for driving under the influence of alc ohol.

After listening to an audio tape of the preliminary hearing and consi d er i n g the evidenc e

su bmi tte d d ur ing the su pp re ssi on he ari ng , th e tr ial cou rt c on c lud e d th a t th e of fi c e r h a d a c tua lly beg un his investigation as a result of see ing the defe ndant with a beer in his ha nd in "a trouble ar ea . . . a proble m island." The trial court c oncluded t h at Of fi ce r Huskey

had conta cted two other of fi c e rs to a ssi st i n th e inv e sti g a tio n w hic h, in th e ob se rv a tio ns of the tr ia l c ou rt , " ha d n oth ing to do . . . with fish i n g. " Affording littl e cr edenc e to testimony reg arding the pre sence of the fishing pole and the ba sis for a l i ce n s e compl iance chec k, the trial court determined that the office rs

nevertheless had a

valid basis for a n investigatory sto p beca

use Off icer Huskey had see n the defe ndant drinki ng and, mi nutes later, driving his vehicle. I t was the trial court' s observation that if an off icer knows " somebody ' s dri n k i n g and they ' re in a vehicle, but [does not] know to what extent," there is a valid rea son for an investigatory stop. The trial court chose not to addre ss whether "some one on a r amp at a f ishing doc k with fishing tac kle in the bac k o f [ h i s ] v ehicle and cooler s can' t be stopped and a sked for [hi s] l icense ."

I n this appeal, the de fenda nt arg ues that his having been seen with a bee r in his hand was a n ins uf fi c ie nt b a sis fo r a n in ve sti g a tiv e sto p. He a lso c on te nd s th a t th e pr e se nc e of a fi sh ing po le in his vehicle is not an indication that he had be en fishing , there by war ranting a stop, and that a ny ref ere nce to the la ck of r estraint for the child passeng er in his vehicle wa s pretextual. I n response , the state a

rg ues that bec ause O ffice r Huskey saw the de fenda nt with a bee r in his hand minutes befor e the stop and because there had bee n reports of misbehavior in the g ener al ar ea, a n investigatory

stop was war

rante d. I n the alternative, the state, c iting Hug hes v. State, 259 S.W.2d 527 (Tenn. 19 5 3 ), and Monroe v. State, 253 S.W .2d 734 (Tenn. 1952) , contends that wildlife offi ce rs m aymake investig atory stops of those persons pa rticipating in the privileg e of f ishing or hu nti ng a t any tim e

. Th e state a lso arg ue s tha t the of fi c e r ha d a re a so na

ble ba sis to s top the ve hic le when the c hild occupant wa s observe d in the front seat of the vehic le without any restra ining de vice.

Both the state and fe dera l constituti ons protec t individuals from unreasonable sear ches a nd seizures; the g ener al rule is that a war rantless searc h or seiz ure is pre sumed unrea sonable a nd any evidenc e disco v er ed s ubject to suppression. U.S. Const. amend. I V; Tenn. Const. art. I , § 7; Coolidge v. New Hampshire, 403 U .S. 443, 454-55 (1971); State v. B ridg es, 963 S.W.2d 487, 490 (T e nn . 1 99 7) . N e ith e r, ho we ve r, lim its a ll co nta c t bet we e n c iti zen s a ndla w e nf or c e me nt andbo th

are desig ned, instead, " ' to preve nt arbitrary and oppre s sive interfe renc e with the priva cy and per sonal

security of individuals.'" I NS v. Delg ado, 466 U. S

. 2 1 0
, 2 15 (1984) ( quoting United States v.

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Martin ez -F u erte, 428 U.S. 543, 554 (1976)). Our courts have rec og nized three ty pes of police-c itiz en i n t er actions: (1) a full-sca le ar

rest, which must be supported by probable cause ; (2) a brie f investig atory

stop, which must be supported by rea s o n ab l e suspicion; and (3) a brief po lic e -c iti zen e nc ou nte r, wh ic h r e qu ir e s n o o bje c tiv e jus tif ic a tio n. Se e F lorida v. B os tic k, 50 1 U .S. 42 9, 43 4 ( 19 91 ); B ro wn v. I lli no is, 42 2 U .S. 59 0 ( 19 75 ); Te rry v. Oh io, 39 2 U .S. 1 ( 19 68 ). " On ly when the of

fice r, by means of phy sical force or show of authority , has in some way restra ined the liberty of a c itiz en may

we c onclude that a

' seizure' has occ urre d." T erry , 392 U.S. at 19 n.16.

An a uto m o b i l e s t o p c o n s t i t u t e s a " s e i z u r e " w i t h i n t h e m e a n i n g o f b o t h t h e F o u r th Amendment to the United States Constit ution a nd Article I , section 7 of the T ennesse e Constituti on. Michig an De p' t of S tate P olice v. Sitz
, 496 U.S. 444, 450 (1990); De lawar e v. Prouse, 440 U.S. 648, 65 3 (1 97 9) ; Sta te v. B ini on , 90 0 S.W. 2d 70 2, 70 5 (T e nn

. Cr im. Ap p. 19 94 ); Sta te v. Wes tbr oo ks
, 594 S.W .2d 741, 743 (Tenn. Crim. App. 1979). The fact that the de tention may be brie f and limited in scope doe s not alter that fa ct. Prouse, 440 U.S. at 653; State v. Pulley , 863 S.W .2d 29, 30 (Tenn. 1993); Binion, 900 S.W.2d at 705; W estbrooks
, 594 S.W .2d at 743. The ba sic question, as ind ic a te d, is w he the r the se izur e wa s " re a so na ble ." B ini on , 9 00 S.W. 2da t 70 5 ( c iti ng Sitz, 49 6 U .S. at 444). In Pulley , our supreme court ruled that "the rea sonablene ss of seiz ures less intrusive than a full-sc ale a

rre st is judge d by weig hing the g ravity of t he public conc ern, the deg ree to which the seizure adva nces tha t conce rn, and the severity of t he int rusion into individual privac y ." 863 S.W .2d at 30.

Our de termination of the r easona bleness of a st op of a ve hicle depe nds on whether the offic er ha d e ith e r p ro ba

ble c a us e or

a n " art icu lab le a ndre a so na ble su sp ic ion " that th e ve hic le or its occupants were subject to seizure for violation of the law. See Prouse, 440 U.S. at 663; State v. Coleman, 791 S.W .2d 504, 505 (Tenn. Crim. App. 1989) . Probable c ause ha s been g ener ally define d

as a r easona

ble g round for

suspicion, supported by

circ umstances indicative of an illega l a ct. See L ea v. State, 181 T enn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While probable c ause is not

nece ssary for a n investigat ive stop, it is a requireme nt that the office r' s rea sonable suspicion be

su pp orte d b y

" sp e c if ic a ndart ic ula

ble fa c ts w hic h, take n tog e the r with r a tio na l in fe re nc e s f ro m th os e fac ts, reasona

bly war rant that int rusion." Terry , 392 U.S. at 21; Pulley
, 863 S.W .2d at 30; Coleman, 791 S.W .2d at 505; see also State v. Watkins, 827 S.W .2d 293, 294 (Tenn. 1992) (applying T erry doctrine in co n t ext of vehicular stop). In determining whe ther re asonable suspicion exi sts, an important fac tor in the ana ly sis is t h at reasonable suspicion is a less de manding standard tha n probable cause not only

in the sense that r easona

ble suspicion c an be established with information that is differe nt in quantity or content than that require d to e stablish pr obable cause , but a lso in the

se ns e that r e a so na

ble su sp ic ion c a n a

ri se fr om i nf

orma tio n th a t is le ss re lia

ble than that re qu ir e d to show probable cause . Pulley , 863 S.W .2d at 32 (c itin g Al ab am a v

. W hite, 496 U.S. 325, 330 (1990))

. Courts considering the issue of r easona ble suspicion must look t o the totality of the circ umstances. Those circ umstances i n cl u d e the pe rsonal obser vations of the police of fice r, information obtained f

rom other of

fice rs or a g encie s, information obtained fr om citiz ens, and the p a tt e r n o f o p e r a ti o n o f

c e r ta in o f f e n d e r s

. Wa tkin s , 8 2 7 S. W. 2 d a t 2 9 4 ( c it in g U n it e d St a te s v

. Co r te z,

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449 U.S. 411, 417-18 (1 9 8 1 ))

. Ob j ective sta ndards a

pply rathe r than the subjec tive beliefs of the office r making the stop. State v. Norwor d, 938 S.W .2d 23, 25 (Tenn. Crim. App. 1996)

. The scope of re view is limit ed. W h en t h e t ri al court makes a f inding of fac ts at the conclusion of a

suppression hea

ring , the fa cts are acc orded the weig ht of a jury verd i ct

. State v. Ste ph e ns on , 8 78 S.W. 2d53 0, 54 4 ( Te nn . 1 99 4) . T he tr ia l c ou rt ' s f ind ing s a re bind in g upo n th is court unless the evidenc e in the rec ord preponde rate s ag ainst them. State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996) ; see a lso St ephenson, 878 S.W.2d at 544; St ate v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984) . Questi o n s o f cr edibilityof witnesses, the w eig ht and value of the evidenc e, and r esolution of conflicts in evidenc e ar e matter s entrusted to the trial judg e as the trier of fa ct. The pa

rty preva iling in the trial c ourt i s en t i t l ed t o the strong est leg itimate view of the evidenc e adduc ed at the suppression hearing as well as all rea sonable and leg itimate infere nces tha t

ma y be dr a wn fr om the e vid e nc e

. Od om, 92 8 S.W.2 d at 2 3. Th e app lic a tio n o f the la w t o th e fa c ts, howeve r, re quires de novo r eview. State v. D aniel, 12 S.W.3d 420, 423-24 ( Tenn. 2000). Likewise, if the evidenc e does not involve a cre dibilit y

assessment, the r eviewing court must examine the

rec ord de novo w ithout a presumption of corr ectne ss. State v. Y ear g an, 958 S.W.2d 626, 629 (Tenn. 1997).

Be cause the trial court made no finding s bey ond the rea sonablene ss of the stop based upon the def endant' s driving a fter the consumption of beer , this court will e x amine the pr opriety of the

sear ch on that issue. The rec ord establishes that the are a wa s known for unr uly behavior . The of fi c e r h a d s e e n th e de fe nd a nt dri nk ing be e r and
, wh e n he arr a ng e d fo r oth e r o ff ic e rs to m e e t hi m and assist, he obser v ed t h e defe ndant driving with coolers in the ba ck of his truc k and an
unrestra ined two-y ear -old in the f r o n t se at. Under

those circ umstances, a n investigatory stop appea

rs

rea sonable. Some def

ere nce must be give n the findi ng s of fact by the trial judg e. F urthermor e, ther e is a signif icant public conc ern f

or driving safe ty

and especially for the safety of the c hildren who a

re passeng ers of

an automobile. He re, the initial degr ee of intrusion was fair ly minimal. The office rs

wer e on foot a nd t h e defenda nt was driving slowly in their direc tion on a g rave l road. Of fice r Huskey had an articula

ble basis for suspicion. The off icer had see n the def

endant c onsuming a lcohol in an open a

rea known for unr

uly behavior only minutes befor e seeing him driving his vehicle . When the def endant ope ned the door , the smell of alcohol and the unsteadiness of g ait g ave r eason f or a full arr est.

Acc ording ly , the judg ments are aff irmed.

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GARY R. WADE, PRES I DING JUDGE