IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 1, 2009 Session 

STATE OF TENNESSEE v. HARRY RICHARD

Direct Appeal from the Criminal Court for Shelby County

No. 08-00280 Carolyn Wade Blackett, Judge

No. W2008-02458-CCA- R3-CD - Filed April 13, 2010

The Defendant-Appellant, Harry Richard, pled guilty in the Criminal Court of Shelby County

to driving while under the influence of an intoxicant, a Class A misdemeanor. He was

sentenced to eleven months and twenty-nine days in a county workhouse. This sentence was

suspended, and Richard was ordered to serve eleven months and twenty-eight days on

probation. He was also assessed a six hundred dollar fine and ordered to pay fifteen dollars

in other fees. Richard claims on appeal that the trial court erred in denying his motion to

suppress. Pursuant to Rule 37 of the Tennessee Rules of Criminal Procedure, he reserved

the following certified questions of law: (1) “Whether there was reasonable suspicion for a

traffic stop for speeding”; (2) “Whether there was probable cause to arrest Harry Richard for

DUI”; and (3) “Whether placing Harry Richard in the back of the squad car was a ‘brief

detention’ in this instance.” Upon review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which DAVID H. WELLES

and ALAN E. GLENN, JJ., joined.

Randall Tolley, Memphis, Tennessee, for the Defendant-Appellant, Harry Richard. 

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William

L. Gibbons, District Attorney General; and Charles (Bo) W. Bell, Jr., Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. Richard was indicted for reckless driving and driving while under the

influence of an intoxicant. The charges arose from a traffic stop in Shelby County. Richard

filed a motion to suppress all evidence related to the traffic stop and the subsequent arrest.

He claimed the officer lacked reasonable suspicion to initiate the stop and probable cause to

support the arrest. 
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Motion to Suppress Hearing. Officer Keyon Love of the Memphis Police

Department testified that he was conducting stationary radar on the evening of February 18,

2007. Just before 8:00 p.m., he clocked Richard’s vehicle traveling forty-five miles per hour.

Richard’s vehicle was heading southbound on Bellevue Boulevard. Officer Love said the

speed limit on Bellevue Boulevard was twenty-five miles per hour. He tried to initiate a

traffic stop, but Richard did not immediately pull over. Officer Love said Richard “had

turned westbound on North Parkway and about a mile down the road is when he actually

pulled over for me.” Officer Love said Richard “pulled to the left side of the curb, near the

median, in the middle of the street.” Officer Love approached Richard’s vehicle with the

intent of asking Richard for his driver’s license. Upon approach, Richard rolled his window

down and began talking. Richard said that he had been at his brother’s house where he

consumed “a couple of drinks.” Officer Love noticed that Richard had bloodshot, watery

eyes and slurred speech. Officer Love suspected that Richard was intoxicated, so he directed

Richard to step out of his vehicle. Officer Love stated:

[Richard] needed assistance from the car. He had braced himself up against

the car. He nearly fell in the roadway. So I went ahead and ushered him on

back to my car and had him have a seat in the backseat. 

Officer Love testified that Richard “was definitely unsteady with his walk when he initially

got out of his vehicle.” Richard was not handcuffed. Officer Love stated that while in the

police vehicle, Richard “was detained and not free to leave.” Once Richard was placed in the

police vehicle, Officer Love contacted the DUI unit. Officer Love did not conduct any field

sobriety tests during the investigative stop.

On cross-examination, Officer Love said he clocked Richard speeding at the

intersection of Bellevue Boulevard and Tutwiler Avenue. Officer Love’s vehicle was

located on Faxon Avenue, which runs perpendicular to Bellevue and parallel to Tutwiler

Avenue. Tutwiler Avenue is located to the north of Faxon Avenue. Officer Love said his

vehicle was parked to the west of Bellevue Boulevard, facing east. Officer Love was shown

a picture at the hearing. The picture was taken from Faxon Avene looking north towards the

intersection of Bellevue Boulevard and Tutwiler Avenue. Officer Love acknowledged that

there were some trees and growth at the corner of Bellevue Boulevard and Faxon Avenue;

however, Officer Love said his vehicle was parked “on the other side,” thereby allowing him

to view the intersection of Bellevue Boulevard and Tutwiler Avenue. 

Officer Love believed there was a speed limit sign on Bellevue Boulevard to the north

of Jackson Avenue. Jackson Avenue runs perpendicular to Bellevue Boulevard and parallel

with Tutwiler Avenue. It is located to the north of Tutwiler Avenue. Officer Love said when

he first saw Richard’s vehicle, he was already on Bellevue Boulevard south of Jackson

Avenue. Officer Love did not know whether Richard drove past a speed limit sign on
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Bellevue Boulevard. Officer Love was shown two pictures taken from Faxon Avenue, each

showing the north and south perspective of Bellevue Boulevard. Officer Love did not see

a speed limit sign in either picture. Officer Love believed he followed Richard on Bellevue

Boulevard for a mile before Richard pulled over; however, he would not be surprised if the

distance was only a half-mile.

The defense called Richard as its only witness. Richard testified that while driving

southbound on Bellevue Boulevard, he did not see a speed limit sign. He said Officer Love

placed him in the back of the police vehicle within a few minutes of being pulled over.

Richard did not believe he was speeding. 

On cross-examination, Richard testified that he was traveling about thirty-five miles

per hour on Bellevue Boulevard before he was stopped. Richard acknowledged that he was

traveling ten miles per hour over the posted speed limit if the speed limit was twenty-five

miles per hour. Richard said the speed limit on Bellevue Boulevard was thirty-five miles per

hour. Richard explained that he traveled on Bellevue Boulevard “all the time,” and there was

a speed limit sign:

[O]n the right side of the street, just before you get to Faxon [Avene], right off

of North Parkway, if you’re going south. But, it’s not posted going south, it’s

posted going north, in that area. 

Richard denied telling Officer Love that he had been at his brother’s house having drinks.

Richard testified that after being placed in the police vehicle, he told Officer Love that he

consumed some drinks earlier in the day. Richard said he had three or four drinks at around

noon or 1:00 p.m. at a friend’s residence. He disclosed this to Officer Love “[b]ecause

[Officer Love] insisted that I was drunk and I told him that I wasn’t drunk.” Richard stated

that when he got out of his vehicle, his feet “slipped off the curb.” He explained that his

vehicle was parked on the curb. In walking to the police vehicle, Richard denied receiving

assistance from Officer Love. He also denied that his eyes were glassy and watery. 

The record includes the transcript from the preliminary hearing. Officer Daniel Banks

III of the Memphis Police Department testified that he responded to Officer Love’s call for

a DUI technician. Officer Banks said when he first encountered Richard, he noticed a

“strong odor of intoxicant.” Officer Banks had Richard perform several sobriety tests

including a heel-to-toe walk and a one-legged stand. Officer Banks testified that Richard

struggled to perform these tests as instructed. Richard attempted to take a breath test to

measure his blood alcohol level; however, the machine was not functioning properly. Officer

Banks concluded that Richard was under the influence of an intoxicant. 
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Following the suppression hearing, the trial court issued an order denying Richard’s

motion. The order stated: 

In this case, there is no doubt that Officer Love had gathered enough

information to overcome the hurdle of reasonable suspicion in order to initiate

a lawful stop of the Defendant’s vehicle. Officer Love testified that he was

“running radar” at the corner of Bellevue Boulevard and Faxon Avenue when

he “clocked” the Defendant at forty-five miles per hour in a twenty[-]five mile

per hour zone. Officer Love’s observation of his radar gun gave him

reasonable suspicion to believe that the Defendant had committed a violation

of a Tennessee driving statute; therefore, the February 18, 2007 stop was

lawful.

The Defendant argues that Officer Love did not have reasonable

suspicion to detain him after the initial stop. Officer Love testified that when

he stopped the Defendant for speeding, he noticed that the Defendant had

bloodshot eyes and that his speech was slurred. Both Officer Love and the

Defendant testified that the Defendant told Officer Love that he had a few

drinks that day. Tennessee courts have held that while these observations

would not give an officer probable cause to arrest a defendant for DUI, they

are enough to establish the right of an officer to briefly detain the defendant at

the scene and administer field sobriety tests or otherwise ascertain the

defendant’s state of sobriety. See State v. Yeargan, 958 S.W.2d 626, 633

(Tenn. 1997). In this case, Officer Love detained the Defendant in the back

of his squad car until the DUI unit could get to the scene to perform sobriety

tests. Based on Officer Love’s prior observations, his detention of the

Defendant was lawful, and the Defendant’s argument is without merit.

Probable Cause to Arrest

The Defendant argues that Memphis police officers did not have the

requisite probable cause to arrest him. An officer may, without a warrant,

arrest a person if the officer has probable cause to believe that the person

arrested has committed a public offense. TENN. CODE ANN. § 40-7-103(a)(1)

(2008). Probable cause depends on whether the facts and circumstances and

reliable information known to the officer at the time of arrest were sufficient

to warrant a prudent person in believing that the individual had committed or

was committing an offense. State v. Lawrence, 154 S.W.3d 71, 76 (Tenn.

2005). 
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Officer Love had probable cause to arrest the Defendant on February

18, 2007. Officer Love noticed that the Defendant had bloodshot, watery eyes

during the initial stop. The Defendant admitted that he had a few drinks that

day. When Officer Love asked the Defendant to step out of his vehicle, the

Defendant stumbled. Based on these observations, Officer Love detained the

Defendant in his squad car and called a DUI officer to the scene to perform

field sobriety test. During the preliminary hearing, Officer Love testified that

he did not formally arrest the Defendant until after a DUI officer administered

several field sobriety tests and determined that the Defendant was intoxicated.

All of these circumstances were sufficient to warrant a prudent person

in believing that Defendant was driving while intoxicated; therefore, Officer

Love had probable cause to arrest Defendant, and any evidence obtained

pursuant to the lawful arrest is not subject to suppression. 

After the denial of the motion to suppress, Richard pled guilty to driving while under

the influence of an intoxicant. Pursuant to Rule 37 of the Tennessee Rules of Criminal

Procedure, he properly reserved the following certified questions of law: (1) “Whether there

was reasonable suspicion for a traffic stop for speeding”; (2) “Whether there was probable

cause to arrest Harry Richard for DUI”; and (3) “Whether placing Harry Richard in the back

of the squad car was a ‘brief detention’ in this instance.”

ANALYSIS

Standard of Review. The standard of review applicable to suppression issues

involves a mixed question of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn.

2003). “[A] trial court’s finding of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.” State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005)

(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court

explained this standard in State v. Odom: 

Questions of credibility of the witnesses, 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. The party prevailing in the trial court is

entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence. So long as the greater weight of the

evidence supports the trial court’s findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23. The trial court’s application of the law to the facts is reviewed de

novo. State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).
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I. Investigatory Stop of Vehicle. Richard claims Officer Love lacked a reasonable

suspicion to stop him for speeding. He asserts the evidence did not show that the speed limit

on Bellevue Boulevard was twenty-five miles per hour; therefore, Officer Love was not

justified in stopping Richard. The State relies upon the testimony of Officer Love and

Richard as proof that Richard was traveling over the speed limit. The State argues that the

speeding violation provided Officer Love with reasonable suspicion to stop Richard. Upon

review, we agree with the State.

The Fourth Amendment to the United States Constitution and article I, section 7 of

the Tennessee Constitution protect against unreasonable searches and seizures. The stop of

a vehicle and the detention of its occupants constitutes a seizure within the meaning of both

the Fourth Amendment to the United States and article I, section 7 of the Tennessee

Constitution. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996);

State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

A warrantless search or seizure “is presumed unreasonable, and evidence discovered

as a result thereof is subject to suppression unless the State demonstrates that the search or

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997). A warrant is not

required for an investigatory stop if the officer has “a reasonable suspicion, supported by

specific and articulable facts, that a criminal offense has been or is about to be committed.”

State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997) (citing Terry v. Ohio, 392 U.S. 1, 21,

88 S. Ct. 1868, 1880 (1968)). Probable cause is not required for an investigatory stop. State

v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989) (citing Terry, 391 U.S. at 27,

88 S. Ct. at 1883 and Hughes v. State, 588 S.W.2d 296, 305 (Tenn. 1979)). 

The Tennessee Supreme Court has stated that a “[r]easonable suspicion is a less

demanding standard than probable cause.” Bridges, 963 S.W.2d at 492 (quoting Alabama

v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). Reasonable suspicion for an

investigatory stop will be found to exist only when the events which preceded the stop would

cause an objectively reasonable police officer to suspect criminal activity on the part of the

individual stopped. State v. Levitt, 73 S.W.3d 159, 172 (Tenn. Crim. App. 2001); State v.

Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996). The likelihood of criminal activity

required for reasonable suspicion is not as great as that required for probable cause, and is

“considerably 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, 1585 (1989); see also

State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998). 

As stated by the Tennessee Supreme Court, “[T]he stop of an automobile is

constitutionally reasonable, under both the state and federal constitutions, if the police have
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probable cause or reasonable suspicion to believe that a traffic violation has occurred.” State

v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997). Therefore, the sole issue is whether the

evidence preponderates against the trial court’s finding that Richard was speeding. In the

order denying the motion to suppress, the trial court credited Officer Love’s testimony that

Richard was traveling forty-five miles per hour in a twenty-five miles per hour speed zone.

Officer Love was asked at the motion to suppress hearing what the speed limit was

at Bellevue Boulevard and Tutwiler Avenue. He responded, “Twenty-five miles per hour,

if I remember correct.” Officer Love was later asked how he knew the speed limit was

twenty-five miles per hour. He responded, “I believe that that’s the posted speed limit sign

on Bellevue.” Officer Love said he thought there was a speed limit sign on Bellevue

Boulevard that was north of Tutwiler Avenue near Jackson Avenue. The defense showed

Officer Love two pictures from Faxon Avenue, one facing south down Bellevue Boulevard

and the other facing north up Bellevue Boulevard. Officer Love did not see speed limit signs

in either picture. Richard provided the only other testimony regarding the speed limit at

Bellevue Boulevard and Tutwiler Avenue. Richard said he traveled on Bellevue Boulevard

“all the time,” and that the speed limit was thirty-five miles per hour. Richard testified that

there was a speed limit sign on Bellevue Boulevard heading north near Faxon Avenue. 

Based on the record, the evidence does not preponderate against the trial court’s

finding that Richard was speeding. Officer Love testified that using radar, he clocked

Richard traveling forty-five miles per hour. The trial court found that this testimony was

credible, and we will not override that determination. Odom, 928 S.W.2d at 23. Richard

testified that he believed the speed limit was thirty-five miles per hour. Regardless of

Richard’s limited proof of photographs showing that there was not a speed limit sign posted

in the near vicinity of Bellevue Boulevard and Faxon Avenue, we cannot conclude the

evidence preponderates against the finding of the trial court. The record shows that Officer

Love had a reasonable suspicion to stop Richard for speeding. Therefore, Richard is not

entitled to relief on this issue. 

II. Arrest. Richard’s final two certified questions will be addressed together because

they are predicated on a common argument. Richard contends he was arrested once Officer

Love placed him in the back of the police vehicle. Because no sobriety tests had been

performed at that point, Richard argues Officer Love lacked probable cause to arrest him.

The State claims the trial court did not err in finding that Officer Banks had reasonable

suspicion to briefly detain Richard in the police vehicle and probable cause to arrest Richard

following the sobriety tests. Alternatively, the State contends that Officer Banks had

probable cause to arrest Richard even before the arrival of Officer Banks.

 

An arrest is lawful when an officer has “probable cause to believe the person to be

arrested has committed [a] crime.” State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App.
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2000). An officer has probable cause if the facts and circumstances known to the officer are

“sufficient in themselves to warrant a man of reasonable caution in the belief that an offense

has been or is being committed.” State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008) (citing

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302 (1949)) (internal quotations

omitted). “This determination depends upon ‘whether at that moment the facts and

circumstances within [the officers’] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the petitioner had

committed or was committing an offense.’” Id. (quoting Goines v. State, 572 S.W.2d 644,

647 (Tenn. 1978) and quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223 (1964)).

Here, the trial court found that Officer Love had a probable cause to arrest Richard

after the completion of the sobriety tests. This finding is supported by the record. At the

preliminary hearing, Officer Banks testified that Richard performed poorly on several

sobriety tests. Officer Banks also said Richard had “a strong odor of intoxicant.” Officer

Banks concluded that Richard was intoxicated. At the motion to suppress hearing, Officer

Love testified that Richard had bloodshot eyes, slurred speech, and admitted to previously

consuming a couple of drinks. Having ordered Richard to step out of his vehicle, Officer

Love stated, “[Richard] needed assistance from the car. He had braced himself up against

the car. He nearly fell in the roadway.” Richard testified that he had three or four drinks,

albeit considerably earlier in the day. Based on the foregoing, Officer Love had probable

cause to arrest Richard after Officer Banks concluded Richard was intoxicated.

At issue is whether Richard was arrested before he performed the sobriety tests. The

trial court found that Richard was merely detained in the police vehicle before Officer Banks

arrived. At the suppression hearing, Officer Love testified that he suspected that Richard

was intoxicated; therefore, he placed Richard in the police vehicle and contacted the DUI

unit. Richard remained in the police vehicle until Officer Banks arrived. Officer Love

testified that Richard was detained in the police vehicle and not free to leave. 

We believe the present case is comparable to this court’s decision in State v. David

L. Groom, No. M2002-00798-CCA-R3-CD, 2003 WL 1563667 (Tenn. Crim. App., at

Nashville, Mar. 27, 2003). There, an officer responded to a car accident involving the

defendant. Id. at *1. The officer smelled the odor of alcohol on the defendant. The officer

radioed the dispatcher to report the accident and requested the presence of an investigating

officer. The officer instructed the defendant to remain at the scene of the accident. The

officer then directed the traffic caused by the accident. He did not conduct any sobriety tests.

The investigating officer arrived within thirty minutes. Id. at *2. He noticed that the

defendant had bloodshot eyes, slurred speech, and struggled to maintain his balance. The

investigating officer thought the defendant was intoxicated, so he ordered the defendant to

sit in the back of the patrol vehicle while he obtained information from others involved in
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the accident. When the investigating officer returned, the defendant admitted to having a few

beers earlier that night. The defendant then performed sobriety tests, which he failed. The

defendant also failed a breath test. Id. at *2. 

In David L. Groom, this court determined that the defendant was not arrested until

after he took the sobriety tests. Id. at *4. The court stated that when the original officer first

encountered the defendant and smelled the alcohol, he had the right to briefly detain the

defendant to determine his state of sobriety. The court concluded that the thirty-minute

detention was not unreasonable because “the officer diligently pursued a means of

investigating his suspicions regarding the defendant’s intoxication.” Id. The court also

stated that once the investigating officer smelled alcohol on the defendant, “the

[investigating] officer had appropriate reasonable suspicion to detain the defendant for field

sobriety tests.” The court concluded that after the defendant performed poorly on the tests,

the investigating officer had probable cause for the arrest. Id. 

As addressed above, the investigatory stop was initially justified by the speeding

violation. Like the officer in David L. Groom, Officer Love suspected that the defendant

was intoxicated. His suspicion was reasonable based on his observations that Richard’s eyes

were bloodshot and watery, his speech was slurred, he struggled to maintain balance, and he

admitted to having a couple of drinks. Based on this reasonable suspicion, Officer Love was

permitted to briefly detain Richard in order to determine his state of sobriety. See id.; State

v. Jashua Shannon Sides, No. E2000-01422-CCA-R3-CD, 2001 WL 523375, at *3 (Tenn.

Crim. App., at Knoxville, May 16, 2001) (Officer’s statement that he detected the odor of

alcohol on the defendant “did sufficiently establish the right of the officer to briefly detain

the defendant at the scene and administer field sobriety tests or otherwise ascertain

defendant’s state of sobriety.”) (citing State v. Yeargan, 958 S.W.2d 626, 633 (Tenn.1997));

State v. Gregory L. Anderson, No. M2002-02289-CCA-R3-CD, 2003 WL 22490192, at *3

(Tenn. Crim. App., at Nashville, Oct. 31, 2003). 

Thus, the remaining issue is whether the detention was reasonable. If “the time,

manner or scope of the investigation exceeds” the ambit of reasonableness, a constitutionally

permissible stop may be transformed into one which violates the Fourth Amendment and

article 1, section 7 of the Tennessee Constitution. United States v. Childs, 256 F.3d 559, 564

(7th Cir. 2001); see also State v. Morelock, 851 S.W.2d 838, 840 (Tenn. Crim. App. 1992);

State v. Kevon Fly, No. E2006-01979-CCA-R3-CD, 2007 WL 2141543, at *5 (Tenn. Crim.

App., at Knoxville, July 26, 2007). Richard’s detention “must be temporary and last no

longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S.

491, 500, 103 S. Ct. 1319, 1325 (1983). “[T]he proper inquiry is whether during the

detention, the police diligently pursued a means of investigation that was likely to confirm

or dispel their suspicions quickly.” State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998).
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Here, the record shows that Officer Love approached Richard’s vehicle to address the

speeding violation. Upon suspecting that Richard was intoxicated, he asked Richard to step

out of his vehicle. When Richard struggled to maintain balance, Officer Love placed Richard

in the back of his police vehicle and contacted the DUI unit. When Officer Banks arrived,

he had Richard perform the sobriety tests. Based on the evidence presented, both officers

were diligent in determining whether Richard was intoxicated. Nothing in the record

preponderates otherwise. Therefore, we conclude that Richard’s detention was reasonable.

The evidence does not preponderate against the trial court’s findings that Officer Love

had reasonable suspicion to detain Richard in the police vehicle and probable cause to arrest

Richard after the sobriety tests were completed. Accordingly, Richard is not entitled to relief

on his final two certified questions.

Conclusion. Based on the foregoing, the judgment of the trial court is affirmed.

___________________________________

CAMILLE R. McMULLEN, JUDGE