### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs S eptember 27, 2000

STATE OF TENNESSEE v. TRACY L. FRY.

Appeal as of Right from the Criminal Court for Washington County

No. 24456 Lynn W. Brown, Judge

No. E1999-02758-CCA-R3-CD March 22, 2001

Tracy Fry, the Defendant and Appellant, pled guilty to driving under the influence, second offense. With the State's and tr

ial court's ag

reement, howeve

r, she specifica

lly rese rved the right to appeal

a dispositive question of law pursuan t to Tenn. R. Crim. P. 37(b)(2)(1). The issue reserved for review is whether Offic

er Kyte “h

ad reasonable s

uspicion based on s

pecific and articulable

facts, to approach and subsequently seize the defendant leading to the arrest of the defendant.” We conclude that the initial enco unt er between Officer Kyte and the Def endant was not a seizure, that the encounter provided reasonable suspicion sufficient to justify an investigatory detention of the Defendant,

and that sufficient

probable cause to arrest the Defendant developed during the cour

se of the brief investigatory detention. Thus, the judgment of the trial court is aff irmed.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY S MIT H , J., delivered the opinion of the court, in which J OSEPH M. T IPTON , J., and J AMES C URWOOD W ITT , J R ., J., joined.

Mic hael D. K ell um, Joh nso n Ci ty, T enn ess ee, f or t he ap pel lan t, T racy L . Fry.

Paul G. Summers, Attorne y General & Reporter; Clinto

n J. Morgan, Assista

nt Attorney G

eneral, Nashville, Tennessee; Joe Crumley, District Attorney General and Victor Vaughn, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

Factual Backgrou

nd

On February 15, 1998, Officer J. T. Ky te of the Washington County Sheriff’ s Dep artment received a disturbance call from his dispatcher de sc ribing an addre ss and a vehicle.

Officer Ky

te went to the address, an abandoned business, and found the Defendant sitting in the parking lot in a vehicle matching the dispatcher’s description. Officer Kyte a pproached the Defendant and be g an to question her. When

he did, he smelle

d alc ohol emanating from the Defendant’s automobile.-2-

Officer Kyte asked

the Defendant how much she had to drink, and she replied “not enough.” A male, later determined to be theperson who had init ially called the police

about the Defend

ant, drove in the parking lot and parked behind the Defendant’s car. Officer

Kyte went to question the occupant of the secondcar briefly, and returned to the Defendant’s c ar. Officer Kyte then asked the Defendant to exit her vehicle. The Defendant d id so, but became b

elligerent towa

rd the person in

the second

car. Officer Kyte proceeded to perform fie ld sobriety tests on the

Defendant, and the

results of the tests indicated that the Defendant was intoxicated. Officer K yte th en placed the Defendant under arrest. The Defendant

filed a motion to suppress al l evidence r esulting fr om the stop . Followin g a suppression hearing, the trial court denied the Defe ndant’s mot ion. Subsequently, the Defendant pledguilty to driving under the influence, second offense, but reserved a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2) (1). The question , as properly

certified, is sta

ted as follows: “Whether the officer had reasonable suspicion based on specific and a

rticulable fact

s, to approach and subsequently seize the defendant leading to the arrest of the de fendant.”

Standard of Review The proper standard

of review for suppression issues was set forth by our supreme cour

t in State v. Odom : The party prevailing in t

he tri al court is entitled to the strongest legitimate view of the evidence adduc

ed at the suppress

ion hearing as w

ell as all reas onable and legitimate inferences that may be drawn from that evidence. So long as the greater weigh t of t he evidence supports the trial court's findings, those findings shall be upheld. In othe

r words, a trial c

ourt's findings of fact in a suppr ession hearing

will be upheld unless the evidence preponderates otherwise.

928 S.W.2d 18, 23 (Tenn.1996).

Suppression

The Defendant claims that the trial court erred, because Officer Kyte had no basis of suspicion, other than a dispa tcher’s call, tha

t justified his inves

tigation of th

e Defendant. We disagree. In construing

the demands of the

Fourth Amendment, court

s have recognized three distinct types of police-citizen interactions: (1) a full scale arrest which mus t be supported by probable
cause, see Brown v. Illi

nois , 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); (2) a brief investigatory

detention which must be supported by reasonable suspicion, see Terry v. Ohio
, 392 U.S. 1, 8 8 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968); and (3) brief police-citizen encounters which require no objective justification, see Florida v. Bostick , 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991). “Not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only

when th e officer, by means of physic al force or show of authority, has in some way restrained the liberty of a citizen may we

conclude that a 'seizure' has occurred." Terry
, 392 U.S. at

19 n.16. “Indeed, courts have repeatedly held that even when police have no basis for suspecting that an individual has committed or is about to commit a crime, the officer may approach-3-

an individual in a p ublic pl ace and ask questions without implicating constitutional protections.” State v. Daniel , 12 S.W.3d 420, 425 (Tenn. 2000) (citations omitted). In this case, the De

fendant was alr

eady stoppe

d in the parking lot of a closed business when Officer Kyte appro

ached her. The

re is no indicati

on that Offi cer Kyte activated his emergency equipment, or initially detained the D efend ant in any other way. The re cord indicates only that Officer Kyte approached the Defendant’s car a nd began askingher questions. Accordingly, we agree withthe trial court t

hat th is was an “encounter” rather that a “seizure” and required no objective justification. See State v. Pulley , 863 S.W.2d 29, 30 (Te nn. 1993); State v. Wilho it , 962 S. W.2d 482, 486 (Tenn. Crim. App. 1997). It is equally clear, however, that the brief en

counter became

a “seizure” whe

n Officer Ky

te askedthe Defendant to step out of the car. See W ilhoit , 962 S.W.2d at 487. Thu s, we must determine whether that seizu re was justified.

Initially , we note that mere

ly asking th

e Defendant to exit the car was not a

n arrest, but a

n i nvestigatory detention. Id. Although less intrusive than a full-blown arrest, an investigatory detention is subjec

t to the constitutional p

rotection of the F

ourth Amendment

against "unreasonable searches and seizures." Terry , 392 U.S. at 20. The law is well settled in Ten nes see t hat an i nve sti gati ve d ete nti on r equ ire s on ly a showing of reasonable suspicion

r ather than probable cause. See
, e.g. , State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 199 2)

. Reasonable

suspicion must be ba

sed on specific a

nd articulable f

acts i nd icating that a criminal offense has been or is about to be committed. Terry , 392 U.S. at 21; Watkins , 827 S.W.2d at 294. In evaluating whether reasonable suspicion is based on spe cific and articulable

facts, we must consider the totality of the

circumstances, including the personal observations of the police officer, information obtained from other officers or agencies, information obtained from citizens, and the pattern of operation of certain offenders. Watkins , 827 S.W.2d at 294. We must also consider the rational inferences and

deducti ons that a trained pol ice officer may

draw from the cir

cumstances. Watkins , 827 S.W. 2d at 294 (ci ting Terry , 392 U.S. at 21). Here, when Officer Kyte approa ch ed the Defendant, he noticed a strong smell of alcohol coming from the Defendant’s car. He a ske d her how much she had to drink, and she replied “not enough.” As th e Office r tried to question the Defendant further, she became uncooperative and, ultimately, “ belligerant.” We find sufficient specific and articulable facts to support the officer’s reasonable

suspi cion w hich in turn supported the detention of the Defendant for the purpose of conducting field sobriety tests. The De fe ndant’s poor per

formance on the f

ield sobriety

tests provided probable cause for the Defendant’s arrest. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY SMITH, JUDGE