# FILED
July 8, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE MARCH 1999 SESS ION

STATE OF TENN ESSEE, * C.C.A. #01C01-9808-CC-00 323 Appellant, * WILLIAMSON COUN TY VS. * Honorable Timothy L. Easter, Judge RONALD R. FONTENOT, * (Motion To Suppress)

Appellee. *

FOR THE APPELLANT : FOR THE APPELLEE : JOHN KNOX WALKUP V. MICHAEL FOX Attorney General and Repor ter 315 Deaderick Street

First American Center, 20th Floor MARVIN E. CLEMENTS, JR. Nashville, TN 37238-20 75 Assistant Attorney Gener al 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243 RONALD L. DAVIS District Attorney General LEE E. DRYER Assistant District A

ttorney General P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED: _______________
AFFIRMED

JOHN EVERETT WILLIA MS, Judge1 The three counts ar e: (1) t hat the defen dant operated a motor vehicl e while under the influen ce of an int

oxicant, in vio lati on of Tennessee Code Annotated § 55-10-401; ( 2) that t he defe nda nt op erate d a m otor v ehic le wh ile his b lood a lcoh ol con tent m et or e xce ede d .10 %, in violat ion of Tennessee Code Annotat ed § 55-10-401; and (3) that his acti ons constit uted a second offens e of driving w hile under the influenc e beca use he allegedly had a prior out-o f-state conviction for driving u nder the influence

. -2- 

### OPINI ON The Williamson County Grand Jury indicted the defendant, Ronald R. Fontenot, for three counts of driv ing under the influence. 1 The trial court found that the initial traffic stop w as invalid and thus gr

anted Fontenot’s motion to suppress and dismissed the st ate’s case. The state appeals, al leging that the arresting officer conducted a legitimate investigatory stop based on reasonabl e, articulable suspicion of criminal activity, and, therefore, the trial court should have denied the motion to suppres s. We AFFIRM the trial court’s j udgment.

BACKGROUND Sergeant Ball of the Williamson County S heriff’s Department followed the defendant’s vehicle for some dis tance on Lewisburg Pik e. He observed the defendant execute a left-hand turn ont o Wilhoite Road, a dead-end road. Ball testified that he had no particul ar reason for following the defendant’s vehicle, but he believed the defendant may hav e braked heavily w

hen making this turn. Ball stopped his vehicl e and waited several minutes before entering Wilhoite. Ball met the defendant as he was returning to Lewisburg Pike, approximately 100 yards from the intersection. Ball turned around and, on reachin g Lewisburg Pike, observed that the defendant’ s vehicle had resumed its original direction of travel on that roadway. Ball observed the v ehicle’s “taillig hts in the [unspecified] distance.” Ball pursued the vehicle, believi ng that the defendant might be fleeing, and on his reaching the vehicle he activ

ated his blue lights. The defendant promptly pulled over and stopped his vehicle. Ball testified that during this entire incident he observed no traffic violations.-3- Based on investigation subsequent to the stop, including Ball’s observation of an odor consis tent with consumption of alcohol on or about the defendant, the defenda nt’s red eyes, the defendant’s statements and his performance of field sobriety test s, Ball arrested the defendant for dr iving under the influence. The defendant filed a motion to s uppress all evidence ac quired after the traffic stop. At the subsequent sup pression hearing, the trial court noted that one’s accelerating from an intersection does not nece ssarily constitute fleeing and that the defendant prom ptly pulled over and stopped when Ball activated his blue lig hts. The trial court found “no ar ticulable facts” to support the stop, granted the defendant’s motion, and dismissed the case. The stat e appeals, arguing that Bal l legitimately stop ped the vehicle pursuant to an investigation.

STANDARD OF REVIEW A trial court’s determination of fact at a suppression hea ring “is presumptively correct on appeal.” State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). This Court upholds a trial court’s decision “unless the evidence in the record preponderates against the finding.” State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). “Questions of credibility of wi

tnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id. “The party prevail ing in the trial court is entitled to the strongest view of the evidence, as well as all reasonable and legitimate inferences that may be drawn from the evidence.” Id. ; see also State v. Curtis , 964 S.W.2d 604, 608 (Tenn. Crim. App. 1997) (The state, appealing a trial court’s granting a motion to suppress, must show this Court that the evidence in the record preponderates against the trial court’s findings of fact.). This Court d oes review de nov o the trial court’s appl ication of law. See State v. Yeager , 958 S.W.2d 626, 629 (Tenn. 1997).-4- ANAL YSIS The sole issue presented for rev iew is whether the trial court erred by finding that Ball lacked r easonable suspicion supported b y specific and articulable facts such that w arranted the investig atory stop of the defendant and therefore erred by grant ing the defendant’s motion to suppr ess and dismissing the state’s case.
“Stopping an automobile and detai ning its occupants constitute a ‘seizure’ within the meaning of [the F ourth and Fourteenth Amendments to the U nited States Constitution].” Delaware v. Prouse , 440 U.S. 648, 653 (1979). Ev en absent p robable cause, a wa rrantles s stop ma y be a valid in vestigative procedure if the police officer has reasonab le suspicion, supported by specific and articulable facts, that a c riminal offense has been or is about to be committed. See Brown v. Texas , 443 U.S. 47, 51 (1979); Terry v. Ohio , 392 U.S. 1, 20 (1968); State v. Yeargan , 958 S.W.2d 626, 632 (Tenn. 1997). However, a war

rantless stop is presumpti vely unreasonable. See Simpson , 968 S.W.2d at 780. In the instant case, Ball testi fied that he observed no vi olations by the defendant prior to the stop. Further, the record does not indicate that Ball either had received rel iable information that the defendant had, or was about to, commit an offense, cf. State v. Banner , 685 S.W.2d 298 (Tenn. Crim. App. 1984), or was aware

of an outstanding capias for the defendant’ s arrest, cf. State v. Watkins , 827 S.W.2d 293 (Tenn. 1992).
The record submitted does not prov ide the requisite preponder ance of evidence for this Court’ s interfering with the trial court’s suppre ssing the evidence. See Curtis , 964 S.W.2d at 608. Evidence from an invali d traffic stop-5- is subject to suppressi on. See State v. Norwood , 938 S.W.2d 23, 26 (Tenn. Crim. App. 1996). The trial court did not erroneously grant the defendan t’s motion. Further, the state’s evidence originated s

olely from investig ation after the stop, and without this evidence the record is void of any evidence ag ainst the defendant. Therefore, the trial court pro perly dismissed the case. This issue is without merit.

CONCLUSION We AFFIRM the trial court’s judg ment.

_______________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ JOE G. RILEY, Judge