State v. Luke

             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                 FILED
                          AUGUST 1998 SESSION
                                                          December 29, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,           )                          Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9712-CR-00566
                              )
                              )    Putnam County
v.                            )
                              )    Honorable John Turnbull, Judge
                              )
CHARLES B. LUKE,              )    (Certified Question of Law)
                              )
             Appellant.       )



For the Appellant:                 For the Appellee:

Donald G. Dickerson                John Knox Walkup
310D East Broad Street             Attorney General of Tennessee
Cookeville, TN 38501                      and
                                   Timothy Behan
                                   Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   William Edward Gibson
                                   District Attorney General
                                           and
                                   Shawn Fry
                                   Assistant District Attorney General
                                   145 South Jefferson Avenue
                                   Cookeville, TN 38501




OPINION FILED:____________________


CONVICTION AFFIRMED; REMANDED FOR SENTENCE MODIFICATION

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Charles B. Luke, was convicted pursuant to his plea of

nolo contendere in the Putnam County Criminal Court of driving under the influence of

an intoxicant (D.U.I.), a Class A misdemeanor. The trial court sentenced the defendant

to five months, twenty-nine days confinement in the county jail with all but forty-eight

hours to be served on probation and a fine of three hundred sixty dollars. The

defendant appeals as of right upon the following certified question of law that is

dispositive of this case, see T.R.A.P. 3(b); Tenn. R. Crim. P. 37 (b)(2)(i):

              Does a police dispatch based on a phoned-in tip providing a
              description of a vehicle, license number and statement that
              [the] driver “has no business driving” justify the stop of a
              motorist’s vehicle who has exhibited no bad driving, when the
              arresting officer did not speak to or know the name of the
              informant and has no other information about the defendant
              other than that relayed by the dispatcher?

We affirm the trial court’s finding that the stop was justified. However, we note that the

sentence imposed by the trial court was improper, and we remand the case for

imposition of a sentence of eleven months, twenty-nine days instead of five months,

twenty-nine days.



              The defendant filed a Motion to Suppress the evidence obtained from the

investigatory stop that led to his arrest. At the suppression hearing, Angela Chesebro,

a dispatcher for the Cookeville Police Department, testified that on April 12, 1997, she

received a telephone call from the Holiday Inn. The tape of that telephone call, which

was exhibit one at the hearing, states as follows:

              Chesebro: Cookeville Police Department, Operator
              Chesebro, may I help you?

              Derwin:       Hi, this is the Holiday Inn. My security g u a rd
              wanted me to call you and tell you               that there is a
              white Chevy pickup just                                 exited
              our parking lot and headed north on              Jefferson. The
              guy’s got no business
                       driving and I have a plate number.


                                             2
             Chesebro:     What is the plate?

             Derwin:       It is D for dealer.

             Chesebro:     Uh-huh.

             Derwin:       48397.

             Chesebro:     White Chevy pickup?

             Derwin:       White Chevy pickup.      He’s headed north on
             Jefferson.

             Chesebro:     Could I get your name, ma’am?

             Derwin:     My name is Dorinda, D-O-R-I-N-D-A. Last name
             Derwin, D-E-R-W-I-N.

             Chesebro:     Okay, ma’am, we’ll notify our officers, okay?

             Derwin:       Okay, thank you.

             Chesebro:     Alright, bye bye.

Dispatcher Chesebro testified that she wrote this information on a complaint card and

stamped the card with the time, which was 3:16 a.m. She stated that she then handed

the card to Dispatcher Lana Smith, who was in charge of the radio.



             Lana Smith, a dispatcher for the Cookeville Police Department, testified

that on April 12, 1997, she radioed a dispatch concerning a white Chevrolet pickup

truck based upon information she received from Dispatcher Chesebro. A tape of this

dispatch, which was exhibit three at the hearing, stated as follows:

             Smith: Cookeville City east side units, just leaving the
             Holiday Inn going northbound on Jefferson, we        have
             a 10-49 driver be in a white Chevy
                pickup. License number David 48397, 48397.

Dispatcher Smith testified that a 10-49 driver is a driver suspected to be under the

influence.



             Sergeant David Dukes, an officer with the Cookeville Police Department,

testified that on April 12, 1997, he received a dispatch concerning a white Chevrolet

pickup truck. He stated that within three or four minutes, he spotted the truck at a gas


                                             3
station two hundred yards north of the Holiday Inn. Sergeant Dukes stated that he

radioed Officer Matt and Officer Demming about the truck, then he pulled into a nearby

business to watch for the truck to leave the gas station. Sergeant Dukes testified that a

few minutes later, he saw the truck leave the gas station. He stated that a short time

later, he saw Officer Demming responding to his radio call.



              Officer Yvette Demming of the Cookeville Police Department testified that

on April 12, 1997, she heard the dispatch from Dispatcher Smith concerning a white

pickup truck. She stated that after communicating with Sergeant Dukes, she met him

as he was following a white Chevrolet pickup truck with dealer plates and then got

behind the truck as Sergeant Dukes pulled away. She said that once she got behind

the truck, she activated the video camera in her car. She stated that she followed the

truck for one mile before activating her blue lights. Officer Demming testified that the

truck was in the right lane of three lanes of traffic. She said that the driver of the truck

turned on the left blinker and moved into the center lane. She stated that the truck

remained in this lane, although the driver did not turn off the blinker. Officer Demming

further testified that as she followed the truck, it accelerated as it approached a red

light. She stated that when the truck stopped at the light, its bumper bounced up and

down. She stated that when she stopped behind the truck at the traffic light, she

confirmed that the license plate number matched the one given in the dispatch. Officer

Demming testified that she then turned on her blue lights and stopped the truck in a

parking lot. Officer Demming stated that she would not have stopped the defendant

based solely on his driving without the information from the dispatch. She testified that

at the time of the stop, she had no information about the source of the dispatch.



              Gary Murphy testified that he was working as a security guard at the

Holiday Inn at the time of the offense. The trial court limited Murphy’s testimony to the

communications he had with Dorinda Derwin and found this testimony relevant not for



                                              4
its truth but to establish the information known to Derwin when she telephoned the

police. Murphy testified that he asked Derwin to call the Cookeville City Police

Department to notify them that a man was leaving the Holiday Inn parking lot and that

Murphy did not think the man should be driving. He stated that he told Derwin that the

man was driving a white Chevrolet pickup truck with a red dealer’s license tag with the

number D-48397. Murphy testified that he gave this information to Derwin as he stood

in the doorway looking out on the parking lot and watched the defendant attempting to

leave the parking lot in his truck. He stated that he heard Derwin make the telephone

call to the police.



               At the close of the hearing, the trial court made the following factual

findings as summarized below:

               (1) that Officer Demming’s stop was not based upon any bad
               driving on the part of the defendant,

               (2) that Officer Demming’s stop was based upon a police
               dispatch to be on the lookout for a possible D.U.I. involving a
               white Chevrolet pickup truck with license plate number D-
               48397 which left the Holiday Inn at 3:16 a.m,

               (3) that within three minutes of the dispatch, Officer Demming
               spotted a vehicle matching that description and with that
               license plate number and after following
               the pickup for a considerable length of time, she stopped the
               defendant,

               (4) that the information Officer Demming received in the
               dispatch was based upon a telephone call from the clerk at the
               Holiday Inn, who described the make, color and license plate
               number of the vehicle and stated, “This guy’s got no business
               driving,”

               (5) that based upon this information from the clerk, the
               dispatcher, Angela Chesebro, issued a complaint card
               indicating a possible D.U.I.,

               (6) that under the given time and circumstances, it was
               reasonable to conclude that a report that someone should not
               be driving was, in fact, a report of D.U.I.,

               (7) that a second dispatcher, Lana Smith, then placed a
               dispatch for officers to be on the lookout for a possible D.U.I.,
               and the dispatch contained the information upon which Officer
               Demming based her stop of the defendant,


                                              5
              (8) that when Officer Demming confirmed that the description
              and license plate number matched the defendant’s vehicle, this
              adequately validated the information given in the dispatch and
              was sufficient to lead her to believe the information’s validity
              even though she had not received it personally, and

              (9) that the information given to the dispatcher and received
              and confirmed by Officer Demming provided reasonable and
              articulable facts which generated reasonable suspicion that a
              crime was being committed by the driver of a white Chevrolet
              pickup truck with the license plate number D-48397.

Accordingly, the trial court denied the Motion to Suppress.



              The defendant contends that the trial court erred in denying his Motion to

Suppress because the information provided in the telephone tip from Derwin failed to

justify the stop. He argues that the tip did not state that he was engaged in any illegal

activity, the informant gave no factual basis for her tip and the arresting officer’s

personal observations did not verify any illegal conduct on the part of the defendant.

Thus, the defendant argues that Officer Demming’s stop was not supported by

reasonable suspicion.



              In reviewing the trial court’s denial of a Motion to Suppress, we accept the

trial court’s findings of fact unless the evidence preponderates otherwise. See State v.

Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). However, the law as applied to those

facts is subject to de novo review. Id. The defendant bears the burden of

demonstrating that the evidence preponderates against the trial court’s findings. State

v. Odom, 928 S.W.2d 18, 22-23 (Tenn. 1996).

              An automobile stop constitutes a seizure within the meaning of both the

Fourth Amendment of the United States Constitution and Article I, Section 7 of the

Tennessee Constitution. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450,

110 S. Ct. 2481, 2485 (1990); State v. Pully, 863 S.W.2d 29, 30 (Tenn. 1993); State v.

Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994). The police may stop a vehicle if

they have reasonable suspicion based upon specific and articulable facts that an



                                              6
occupant is violating or is about to violate the law. See United States v. Brignoni-

Ponce, 422 U.S. 873, 881, 95 S. Ct. 2412, 2416 (1975); State v. Watkins, 827 S.W.2d

293, 295 (Tenn. 1992); Hughes v. State, 588 S.W.2d 296, 305 (Tenn. 1979).



              When a stop is based upon the tip of an informant, the factors set forth in

State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), are useful in evaluating the

sufficiency of the tip. Pully, 863 S.W.2d at 31. In Jacumin, our supreme court adopted

the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and Spinelli

v. United States, 393 U.S. 410, 89 S. Ct. 584 (1960). Jacumin, 778 S.W.2d at 436. In

Aguilar, the United States Supreme Court concluded that there must be a “basis of

knowledge” when an officer relies on an informant’s tip. The “veracity” prong of the

Aguilar-Spinelli test requires a showing that the informant is credible or the information

is reliable. The Jacumin court held that:

              while independent police corroboration could make up
              deficiencies in either prong, each prong represents an
              independently important consideration that “must be separately
              considered and satisfied in some way.”

778 S.W.2d at 436 (quoting Commonwealth v. Upton, 476 N.E.2d 548, 557 (Mass.

1985)); see Pully, 863 S.W.2d at 31. An investigatory stop based upon reasonable

suspicion requires “‘a lower quantum of proof than probable cause.’” Pully, 863 S.W.2d

at 31.

              “Reasonable suspicion is a less demanding standard than
              probable cause not only in the sense that reasonable suspicion
              can be established with information that is different in quantity
              or content than that required to establish probable cause, but
              also in the sense that reasonable suspicion can arise from
              information that is less reliable than that required to show
              probable cause.”

Id. at 32 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)).

The question of reasonable suspicion is answered by considering the totality of the

circumstances, including looking at the gravity of the public concern at stake, the

degree the police intrusion advances that concern, and the severity of the intrusion.

See Pully, 863 S.W.2d at 30; Watkins, 827 S.W.2d at 294.


                                             7
              The defendant first faults the information provided by Derwin by arguing

that it does not state that the defendant was engaged in or about to engage in any

illegal activity. The tape of Derwin’s call to the dispatcher shows that she stated that

the defendant had no business driving. The trial court found that under the given time

and circumstances, a reasonable person could conclude that a report that someone

should not be driving was, in fact, a report of D.U.I. We hold that the evidence does

not preponderate against this finding.



              When analyzing whether an officer had reasonable suspicion for an

investigatory stop, our supreme court has distinguished between information provided

by a known citizen informant and that obtained from a criminal or professional

informant. State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993); State v. Melson, 638

S.W.2d 342, 354 (Tenn. 1982). Information supplied by a criminal informant must be

analyzed under the Jacumin test, while the known citizen informant is presumed to be

reliable. Cauley, 863 S.W.2d at 417. Citizen informants, whether they be victims or

witnesses, have necessarily gained their information through first-hand experience.

Melson, 638 S.W.2d at 354-56 (citations omitted). The criminal informant provides

information in exchange for some consideration -- whether it be monetary or the

granting of some exemption or privilege -- while the citizen informant acts in the interest

of society or personal safety. State v. Smith, 867 S.W.2d 343, 347 (Tenn. Crim. App.

1993) (citing State v. Paszek, 184 N.W.2d 836, 842-43 (1971)).



              In this case, Officer Demming based her stop of the defendant upon

information given to the police dispatcher by a known citizen informant, Dorinda Derwin,

the clerk at the Holiday Inn. An officer may make an investigatory stop based upon a

police dispatch as long as the individual or agency placing the dispatch has the

requisite reasonable suspicion supported by specific and articulable facts that indicate

criminal conduct. State v. Moore, 775 S.W.2d 372, 378 (Tenn. Crim. App. 1989); see



                                             8
Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 1037 (1971). The presence of

reasonable suspicion may be assessed by looking to the testimony of the individual

placing the dispatch or the testimony of the individuals who witnessed the information

that is eventually passed on to the investigating officer. Moore, 775 S.W.2d at 378.



              The defendant contends that Derwin is not a known citizen informant

because even though she gave her name, location, and occupation to the dispatcher,

“there is no proof she was known to the police dispatcher.” The defendant argues that

when the citizen is anonymous or unknown, concern over the information’s reliability

resurfaces due to the potential danger of false reports. See Pully, 863 S.W.2d at 31.



              The name of the citizen alone is not sufficient to qualify the informant as a

known citizen informant, thereby raising the presumption of reliability. Smith, 867

S.W.2d at 348 (holding that an affidavit giving the informant’s name but otherwise

failing to indicate who he was or how he got the information did not give probable cause

for the issuance of a search warrant). For reliability to be presumed, information about

the citizen’s status or his or her relationship to the events or persons involved must be

present. See Melson, 638 S.W.2d at 354-56 (presuming reliability when the affidavit

listed the sources of the information, their relationship to the victim, and their status as

witnesses to certain events); State v. Joe Ed York, No. 03C01-9609-CC-00345,

Anderson County, slip op. at 5 (Tenn. Crim. App. June 12, 1997) (holding that an

informant known only as a concerned citizen must be judged under the Jacumin

standard). In the instant case, the citizen informant stated her name, Dorinda Derwin,

and she gave her status as a clerk at the Holiday Inn. Thus, Derwin would ordinarily

qualify as a known citizen informant for the presumption of reliability.



              The defendant contends that the information Derwin gave to the

dispatcher is not reliable because she obtained it second-hand from the security guard



                                              9
rather than from her own personal observations. Unlike the typical citizen informant,

Derwin did not gain her information through her own observations. Instead, Derwin told

the dispatcher that the security guard gave her the information.



              While the credibility of an anonymous informant intrinsically cannot be

verified, see State v. Kelly, 948 S.W.2d 757, 761 (Tenn. Crim. App. 1996), in cases

involving named citizen informants, the officer has the ability to contact the citizen

informant in the event of a false report. In State v. Steven Terrence Russell, No.

02C01-9510-CC-00311, Henry County (Tenn. Crim. App. Feb. 28, 1997), this court

upheld a warrantless search of a student at school based in part upon information

concerning drug transactions provided by the principle who gained the information from

student witnesses. The fact that the officer did not talk to the student witnesses before

searching the defendant was immaterial. Id., slip op. at 5. This court held that the

officer had no reason to doubt the credibility of the student witnesses or the reliability of

their information because they were citizen informants and, therefore, presumed

reliable. Id. (also noting the exigency of the circumstances). In this case, Derwin’s

information came from the security guard with whom she worked at the Holiday Inn.

Like the student witnesses in Russell, there is no reason to doubt the security guard’s

credibility. Thus, because Derwin and the security guard can be regarded as citizen

informants, Derwin’s tip can be presumed reliable even though Derwin did not gain her

information through personal observation.



              Alternatively, the instant tip is still sufficient to support Officer Demming’s

reasonable suspicion even if analyzed as if it came from an anonymous citizen

informant. The analysis of an anonymous tip involves consideration of the informant’s

basis of knowledge and reliability and of any corroborating circumstances known to the

police. Pully, 863 S.W.2d at 32. “When an informant reports an incident at or near the

time of its occurrence, a court can often assume that report is first-hand, and hence



                                             10
reliable.” Id. Here, Derwin reported that the security guard told her the vehicle in

question had just left the Holiday Inn parking lot. Sergeant Dukes testified that within

three to four minutes of hearing the dispatch, he located the vehicle at a gas station

two hundred yards north of the Holiday Inn. He then radioed Officer Demming, who

met up with Sergeant Dukes and the defendant. The trial court found that based upon

the time stamped on the complaint card, the dispatch issued at 3:16 a.m. The trial

court also noted that once Officer Demming spotted the defendant, she activated the

video camera in her car at 3:18:45 a.m. This meant that the defendant exited the

parking lot, Derwin called the police, and Officer Demming spotted the defendant within

three minutes.



              The officer’s ability to corroborate the details provided by the anonymous

informant helps establish the reliability of the tip. Kelly, 948 S.W.2d at 761. The officer

does not have to corroborate every detail of the anonymous informant’s tip, but he or

she must corroborate more than a few minor aspects, especially if they are not criminal

in nature. Id. (citing State v. Moon, 841 S.W.2d 336, 341 (Tenn. Crim. App. 1992)). In

this case, the detailed description of the vehicle, the exact match of the license plate

number, and the pinpointing of the vehicle’s location as corroborated by Sergeant

Dukes’ and Officer Demming’s observations lend credibility to Derwin’s tip. Although

Officer Demming stated that she would not have stopped the defendant based on his

driving alone, she testified that the defendant’s acceleration at a red light and the fact

that he left on his blinker though he had already changed lanes, in combination with the

information of a possible D.U.I. from the dispatch, caused her to stop him. This

unusual driving lends some credence to the presence of criminal conduct, in this case

D.U.I. See State v. Brothers, 828 S.W.2d 414, 416 (Tenn. Crim. App. 1991) (noting

that driving ten miles per hour below the speed limit was consistent with the actions of

intoxicated drivers).




                                             11
              In this case, as in Pully, the potential for serious harm justified the stop.

Pully, 863 S.W.2d at 33-34. The dangers inherent in driving on the public streets while

under the influence of an intoxicant are obvious. We conclude that the tip provided by

Derwin is sufficient to support Officer Demming’s reasonable suspicion and justified her

investigatory stop of the defendant. Accordingly, we affirm the trial court’s denial of the

Motion to Suppress.



              The trial court sentenced the defendant to five months, twenty-nine days

confinement in the county jail with all but forty-eight hours to be served on probation.

The D.U.I. statute, T.C.A. § 55-10-403(c), “mandates a maximum sentence for D.U.I.,

with the only function of the trial court being to determine what period above the

minimum period of incarceration established by statute, if any, is to be suspended.”

State v. Combs, 945 S.W.2d 772, 774 (Tenn. Crim. App. 1996). Tenn. Code Ann. § 55-

10-403(a)(1) provides a mandatory minimum of forty-eight hours of confinement and a

mandatory maximum of eleven months, twenty-nine days. Imposition of a five-month,

twenty-nine-day maximum was improper. We remand this case to the trial court for the

imposition of a sentence consistent with T. C. A. § 55-10-403(a)(1) and (c).



                                                  __________________________
                                                  Joseph M. Tipton, Judge


CONCUR:



________________________________
Joe G. Riley, Judge



________________________________
Thomas T. W oodall, Judge




                                             12