### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 18, 2002 Sessi on

STATE OF TENN ESSE E v. BRENT T OD PERKI NS

Interlocut

ory Appea

l from the Cr

iminal Cour

t for Sevier C ounty No. 8473 Richard Vance, Judge

No. E2001-01826-CCA-R9-CD August 21, 2002

The defendant, Brent Tod Perkins, was charged wi th driving u nder the inf

luence. The

trial court determine d that

the office

r had reason able suspici on to stop th e defendan

t’s vehicle, but granted

a defense motion to

suppress the results of

a breathalyser

test, conclu ding that the

officer f ailed to comply with the requirements of State v. Sensing
, 843 S.W.2d 412 (Tenn. 1992). Both the state and the defendant were granted an interlocutory appeal pursuant to Rule 9 of the Te nnessee Ru le s of Appellate Procedure. The investigato ry stop was conducted with constitution al safeguar ds. Becaus e the state failed

to establish

adherence to the Sen sing requirements by a preponderance of the evidence, the order suppressing the results of the breathal yser exam is affirmed.

Tenn. R. A pp. P. 9; Judgment of th e Trial Cou rt Affirmed

G ARY R

. W A DE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined.

Paul G. Summ

ers, Attorn ey General & Reporter; Elizabeth B. Marney, Assistant A ttorney General; and Charles Atchley, Jr., A ssistant Dis trict Attorney General, for the cros s-appellee, St ate of Tennessee.
Bryan Deliu s, Seviervi lle, Tennes see, for the cross-appellant, Brent

Tod Perkin s.

OPINION

In the early morning hours of August 17, 2000, Officer Helen Wright of the Pigeon Forge PoliceDepartment observed a vehicle parked near the entrance of the Shady Oaks Campground. The engine was running. When Officer Wright drove closer in ord er to investigate , the vehicle was quicklydriven away. Officer Wright identified

the driver asa male and

followed the vehicle u

ntil it was driven

to the J&B Market. The occupants of the vehicle, a male and a female, went inside the market and, upon t

heir return, the femal e entered the d river’s side o f the truck a

nd the mal e occupied the passenger s eat. Offi cer Wright followed t

he vehicle asit was driven from the m

arket and, a

fter she saw the truck either touch or straddle the lane marke

rs on two occ asions, init

iated a traffic stop.-2-

Officer Wright dir

ected the fe

male drive

r to step out o f the vehicl e and asked h er to explain why she and the m

ale driver, t

he defenda

nt, had swit

ched place s at the ma rket. The w oman informed Officer Wright tha

t the defend ant was too intoxicated t o drive. After smelling alcohol, the officer administe red field sobriet y tests t o the fema le dr iver and determined that she was not too intoxicated

to operate th

e vehicle; up on discover ing that the woman di d not posses s a valid

o perator’s license, ho wever, Of ficer Wri ght approac hed the def endant in an

effort to a s certai n whether he would be able to drive. Again, Officer Wright smelled an odor of alcohol and asked the defendantwhether he had been drinking. When the d efendant a

dmitted th at

he had consu

med a half pint of liquor, Officer Wright administered field sobriety tests. When the defendant failedthe onelegged stand, the w alk and turn , and the hor izontal gaze

nystagmu s tests, he w as arrested for driving under the in

fluence.

After arriving at the police station, Officer W right escort

ed the defend ant to a sma ll office whereshe asked him a number of questions in order to complete the arrest report . Approxim ately twenty-se ven min utes after th eir arrival at

the station, Officer W

right administered a br

eathalyser exam, which indicated a breath alcohol content of .11%. At the hearing on the motion to suppress, Officer Wright ack

nowledged

that she did not observe th e defendan

t “eyeball to

eyeball” for twenty minutes and that she

hadperformed pa per work for between five and seven minutes of the observation period. In addition, Officer W right testif

ied that her b ack was to the defendant during the brief perio d of time r

equired fo

r walking f

rom a small office

into an adjacent room, where she conducted t

he breathaly ser examin ation. The o fficer maintained that the defendant did not belch, vomit, smoke, or pu t an ything into his mouth

at any time

during the tw enty minu tes prior to submittin g to the test.

The trial cou

rt ruled as f

ollows:
[U ]nder the Korsakov

decision, . . . the very strict rules laid down, this 20- minut e observation period did not meet the test.

I’m going to gra

nt th e Motion to Suppress in that under the high standards

r equired by Korsakov and Sensing that this of ficer was u

nable to obs er ve th e defendant for a contin

uous 20 m

inutes up to

the mom ent [of] g iving the tes t.

The trial cou

rt noted, ho wever, that

if the case w ere civil rath er than crim

inal,

a jury would have no difficulty in saying that the State had carried its [burden] by a prepondera

nce of the evidence. . . . There’s n o evidence t hat [the def

endant] ha

d anything in his mouth, but the State, under

these rules i s required to

prove a nega

tive. That is the law. The [c]ourt will follow the law and grant the motion.

In State v. Sensing , our supreme court held that for a breath test to be admissible, the testing officer m ust be able to

testify as f

ollows:-3-

(1) that the testswere perf o rmed in accordance with the standards and operating procedure promulga

tedby the forensic services division of the Tennessee Bureau of Investigati on (TBI); (2) tha t the admi nistering of ficer was p

roperly cert

ified in acc ordance wit

h those standards; (3) that the evid

entiary brea

th testing in strument u sedwas certifi ed by the fore nsic services division, w as tested regularly for a ccuracy and

was working pro

perly when the breath test was performed; (4) that the motorist was observed for the requisite 20 minutes p rior to the test, and during this period, he did not have foreig n matter in his mouth, did not consume any alcoholic be

verage, sm

oke, or regu

rgitate; (5) that the admin

istering of

ficer followed the prescribed operational procedure; and (6) that the adm

inistering o fficer

can identify the printout record off ered in evide

nce as the result of the test given to the person tested.

843 S.W.2d a

t 416. The s ix req uirements in Sensing are mandatory and must be proven by a prepondera

nce of the evidence. State v. Edison , 9 S.W.3 d 75, 77 (Te nn. 1999). This court

has ruled that the Sensing requireme

nts must b e "scrupulou sly follow ed." State v. Harold E. Fields , No. 01C01-9412-CC-00438 (Tenn. Crim . App., at N ashville, A pr. 12, 199 6). The prer

equisite s , once proven by a prepond

erance of th

e evidence, establish the proprie ty of the test results. Edison , 9 S.W.3d at 77. Furth

er, it is the state’s b urden

to establish

compliance with each

of the requ

irements; the defendant does not bea r any burden

to show non -compliance. The fin ding of the trial court is presumed to be correct and should only be overturned if the evi dence prepo nderates oth erwise. Id. at 78.

In this appeal, the state sub mits that th e trial court interpreted t

he fourth Sensing requirement too strictly. Th

e defendan

t asserts that

the trial judg e pro perly conclud ed that the officer did not observe him for a f

ull twenty m

inutes so as t

o assure that

he did not ha

ve any fore

ign matter

in his mouth. Initially, case law provides that an officer may not guess, estimate or approxi mate th e amount o f time the subject was under observation. See State v. Hac kney , No

. 01C01-9704-CC-00152 (Tenn. Crim . App., at N ashville, F eb. 20, 199 8); Fields , slip op. at 5. While

an unblinking gaze is not required, “the officer must be watching the defe ndant rathe r than performing other tasks. ” State v. Korsakov , 34 S.W.3d 534, 540 (Tenn. Crim. App. 2000). The twenty-m inute obs e rvation requ

irement ca

rries with it t

wo distinct

elements: (1) The state

must demonstr ate that the def

endant was o

bserved fo

r twenty m

inutes, and

(2) the state m

ust establis h that the subj ect did not smoke, drink, eat, chew gum, vomit, regurgitate, belch or hiccup during the twenty mi nutes prior t

o taking the

test.

The purpose

of the observation requireme nt is, of course, to ens ure “that no f oreign ma tter is present in th

e defendan

t's mout h that could re

tain alcohol

and potenti ally influence the results of the test.” State v. Cook , 9 S.W.3d 98, 100-01 (Tenn. 19 99). Our s upreme court has fo und that “if credible proof est ablishe s that th e subject did not ha ve foreig n matter i n the mouth , did not c onsume any alcoholic be

verage, and

did not sm

oke or regur

gitate, then

the rule is sa

tisfied.” State v. Hunter , 941 S.W. 2d 56, 57-5 8 (Tenn. 19 97).-4-

Prior to the court’s decision in Sensing , the testif ying offi cer was requ

ired to be qualified through education, training, and experience to “interpret t he test results in evidence” as a prerequisit

e to admissibility. Pruitt v. State , 216 Tenn. 686, 393 S.W.2d 747, 751 (Tenn. 1965). The state was required to “show that the measuring device [wa s] scientif ically accep table and accurate

. . . and that the witness who presents the test results i s qualified

to interpret t

hem.” Id. In Pruitt , oursupre m e court state d that a lesse r standard w ould be tant

amount to approval of

“pure hearsa

y evidence of intoxica

tion.” 393 S .W.2d at 7 52; see also State v. Johnson , 717 S.W.2d 298 (Tenn. Crim. Ap p. 1986).

In 1985, our statutory scheme was amended to establish a statewide procedure for administering breath tests in such a manner as to ensure reliabili ty and accuracy:

(d) (2) Upon appro val of the director of the Tennessee bureau of investigation, local govern ing bodies w

hich have th

e responsi

bility for providing funding for sheriffs' offices and police depart ments, are

authorized t

o purchase from state contracts ap

proved for

bureau purch ases, scientific instrumen ts designed

to examine a person'sbreath and m easure the al cohol conte nt there of , for use as evidence in the tr

ial of cases ; provided, that prior to use thereof

, such instru

ments must be del ive red to the forensic services division of the bureau for testing and certification pursuant to

subsection

(g). The bur

eau shall contin

ue to maintain and certify the inst

ruments and operating personnel, pursuant to subsection (g), and furnish expert testimony in support of the use of such instruments when required.
* * * (g) The bureau, through its f orensic services division, shall establish, authorize, approve and certify techniques, methods, procedures and instruments for the scientific e

xaminatio n and analys is of eviden ce , including

blood, urine, breath

oroth er bodil y substances, and teach and certify qualifying personnel in the operation of such ins truments t o meet the r

equiremen

ts of the law for the admissibi lity of evidenc e. When ex amination s, tests and a nalyses hav e been performe d in complia

nce w ith su ch standards and procedures, the results shall be prima facie adm

issible into

evidence in

any judicial or quasi-

judicial proceeding subject to th

e rules of ev

idence as ad

ministere d by the cour

ts.

Tenn. Code Ann. § 38-6-103( d)(2), (g). T hereafter, our suprem

e c ourt pron ounced the g eneral foundatio nal requireme

nts for the admissibility of breath tests in Sensing

. See 843 S.W.2d at 416.

Under the Sensing guidelines, the requirements for the admission of scientific e

vidence in the form of

breath tes t resul ts were relaxed. Id. In conseque nce, this court has held t hat strict complian ce with the Sensing requireme nts is requir

ed for admis sibility of breath test results. See Fields , slip op. at 4.

Because Officer Wright utilized a portion of the twenty-m inute observ ation period to complete paperwork incident to the arrest, the d efendant contends that the ruling in Sensing precludes admission

of the breat

h test results . It is undisput ed that the documentation took-5-

approximately five to seven m inutes to com

plete and involve d questions by the off icer, respon ses by the defend ant, and the recordation

of those re spo nses in the re port. The pr

oof establi shed that during the five to seven minutes required, Officer Wright was less than an arm’s length away from the defendant and fully enga ged in conve

rsation with

him. Wh ile the off icer concede d that she could notsee the defe

ndant’s fac e as theywalked into the room where the breathalyser examination took place, the room w as ad

jacent to the office where the defendant was questioned and testimony established

that these movements would have taken only a few seconds. Officer W right stated

that there was no

indication t

hat the defend ant belched , vomited , or placed a ny foreign

matter into his mouth in this brief

interlude. Neverthele ss, the state was unable t

o establish t

hat the off icer watched the defendantfor a continuous twenty-minute period. See Korsakov , 34 S.W.3d at 541. In our view, the trial court correctly concluded, under the strict requirements of Sensing and Korsakov , that the breath test results must be excluded. Because the evidence do es not prepond erate agains t the trial court’s finding that the state failed to establish the fourth Sensing requirement, the judgment of the trial court suppressing the results of the breathal yser exam is affirmed.

That the state has failed to co mply with the Sensing requireme

n ts does not necessarily preclude the admission of the results at trial. The state may proceed under Rules 702 and 703 of the Tennessee

Rules of Ev idence and establis h a foundat ion which en sures the rel iability of the test results in order to secure their admission into evidence. State v. Del oit , 964 S.W.2d 909, 913 (Tenn. Crim. App. 1997 ); Korsakov , 34 S.W.3d at 542. Under Rule 702, expert testimony may be use d to present scientific o

r technical in

formatio n if

the evidenc e will “subs tantially ass ist the trier of fact.” Establishing the reliability of the inf ormation i s key in determining whether the trier of fact will be assisted by the evidence. See State v. Har ris , 866 S.W.2d

583, 587 (Tenn Crim. App. 1992). Rule 703 imposes th

e requirem

ent that th e u nderlying f acts or data b e trustworth y. These ge

neral requireme

nts for the admission of scientif ic or technic al evidence f

airly and adequately embrace the

concerns expressed in Pruitt that breath t

est results be “scientifically acceptable and accurate for the purpose for which [they are] used, and that the witness who presents the test results i s qualified

to interpret the

m.” Pruitt , 393 S.W.2d at 751.

II The defendant

also conten ds that the re sults of the exam sh ould b e suppresse d because Officer Wright lacked reasonable s uspicion to

conduct an investigator

y stop of hi s vehicle. T

he trial court identified

the follow ing circum stances as gi ving rise to r easonable suspicion: ( 1) the latene ss of the hour; (2) the officer’s having been directed to “keep an eye on the trailer park;” (3) th e defendant 's vehicle being qui ckly dri ven away a fter the o fficer ent ered the area; (4 ) the defe ndant's having switched po sitions with his female passenger; and (5) the female driver's having “straddled” the lane markers. The trial court determined that “based upon all of the circumsta nces, coupl ed with this officer’s own experie nce[,] . . . [the off

icer] did ha

ve suffici ent, reason able suspici on to stop th is vehicle.”

Both the state and fe deral constitutions prot ect individu als from unreasonable searches and seizures; the general r

ule is that a

warrantlesssearch or seizure is presumed unreasonable and any evidence discovered subject to suppression. U. S . Const. amend IV; Tenn. Const. art. I, § 7; Coolidge v. New Ham

pshire , 403 U.S. 443, 454, 29 L. Ed. 2d 564, 91 S. C t. 2022 (197 1); State v.-6-

Bridges , 963 S.W.2d 487, 490 (Tenn. 1997). An automobile stop constitutes a "seizure" within the meaning of both the

Fourth Am

endment t o the United

States Cons titu tion and Art i cle I, section 7 of the Tennessee Constitution. Michigan De p't of Sta te Police v. Sitz , 496 U.S. 444, 450, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1 990); Delaware v. Prouse , 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979); State v. Binion , 900 S.W.2d 7 02, 705 (Te nn. Crim. App. 1994 ); State v. Westbrooks , 594 S.W.2d 741, 743 (Tenn. Crim. Ap p. 1979). T

hat the detention may be brief and limited in scope does not alter that fact. Prouse , 440 U.S. at 653; State v. Pulley , 863 S.W.2d 29, 30 (Ten

n. 1993); Binion , 900 S.W. 2d at 705; Westbrooks , 594 S. W.2d at 74 3. The basic question, a s indicated, is whether the seizure w as "reasonab le." Binion , 900 S.W.2d at 705 (citing Sitz , 496 U.S. at 444). The state always carri es the burden of esta blishing the reasonableness of any detention. See State v. Matthew Man

uel , No. 87-96 -III (Tenn. C rim. App. , at Nashville, Nov. 23 , 1988).
Among the narrowly defined exceptions to the warrant requirement is an investigatory stop. See Terry v. Oh

io , 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). An investigator y stop i s deemed less intrusive than an arrest. See id. In Pul ley , our supr eme court ruled that "the reasonablen

ess of seizuresless intrusiv e than a full -scale arrest is judged by

wei ghing the gravity of the public concern, the degree to wh ich the seizu

re advances that concern, and the severity of the intrusion into individual privacy." 863 S.W.2d at 30.

Our determination of the reaso nableness of the stop of the vehicle depends on whether the officer had either pr

obable cause or an "articulable and reasonable suspicion" that the vehi cle or its occupants were subjec t 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. 198 9). Pro bable cause has been generally defined as a reasonable ground for suspicion, supported b y circumst ances indicative o f an illegal act. See Lea v. State , 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While probable cause is not necessary for an investigative stop, it is a requirement that the officer's reasonable s uspicion b e supported by "specific and articulable facts which, taken together with ra tion al inferences from thos e facts, reasonably

warrant that

intrusion." Terry , 392 U.S. at 21; Pulley , 863 S.W.2d at 30; Coleman , 792 S.W. 2d at 505; see also State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992) (applying Terry doctrine in context o f vehicular st op). In determining whether r easonable s uspicion ex

ists, an importantfactor in the analysis is that reasonable suspicion i s a less demand i ng standard than probable cause not on

ly in the sens e that

reasonable suspicion can be established with information that is differe nt in quantit

y or content than that required to establish probable cause, but also in the

sense that reasona

ble suspicion can arise from information that is less reliable than t hat required

to show probable cause. Pulley , 863 S.W.2d at 32 (quoting Alabama v . White , 496 U.S. 325, 330, 110 L. Ed. 2d 3 01, 110 S. C t. 2412 (199 0)).

Courts considering

the issue of

reasonable s uspicion m ust look to th

e tota lity of th e circumsta nces. Those circu

mstance s i nclude the p ersonal obs ervations of the police of

ficer, information obtained from other off icers o r agencies, information obtained from citizens, and the pattern of operation of certain o ffenders. Watkins , 827 S.W.2d at 294 (citing United States v. Cortez , 449 U.S. 411, 417-18 (1981)). Objective standards apply rather than the subjective beliefs of the officer making the stop. State v. No rword , 938 S.W .2d 23, 25 ( Tenn. Crim . App. 199 6).-7-

In Stat e v . Odom , 928 S.W.2d 1 8 (Tenn. 1 996), our supreme co urt held that a tr ial cour t's findings of fact in a suppression hearing should be upheld un less the evidence pr eponderate s otherwise. The applica

tion of the l aw to the fa

cts, howev er, remains a question o f law that re quires de novo review. State v. Dan iel , 12 S.W. 3d 420, 423 -24 (Tenn. 2000). If the evidence d oes no t invol ve a c redibility as sessment, the reviewing court mus t examine t

he record de

novo without a presumption of correctness. State v. Yea rgan , 958 S.W .2d 626, 62 9 (Tenn. 19 97).

Th e arresting of

ficer first observed th

e defendan

t’s vehicle p arked at the e ntrance of a campground at approximately 1:45 a.m

. Because the depar tment had prior concer

ns about sus pected illegalactivity in the area, O fficer W right develo

ped imm ediate suspi cion when th e defendan

t’s vehicle, parked with

the engine idling, was driven a way as she d

rove her crui ser within si ght. That the vehicle

was driven a

way at a high

rate of spee d aroused f

urther intere st. When t

he defenda

nt,
as driver, switched placeswith his fe male passe

nger at the m

ark et an d the fem ale driver eit her “straddled” or t ouched the l ane marke rs two time s, the circum stances war ranted an inv estigatory stop. In our view, the trial cou rt properly c oncluded th at there were specific, articulable facts upon which to det

ain the vehic le.
Accordingly, the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE