IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
April 15, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9706-CC-00220
Appellee, )
) CANNON COUNTY
VS. )
) HON. J.S. DANIEL,
JAMES PINKERTON, ) JUDGE
)
Appellant. ) (Certified Question of Law)
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY D. BRANDON JOHN KNOX WALKUP
103 North Spring Street Attorney General and Reporter
P.O. Box 5065
Murfreesboro, TN 37133-5065 LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
DAVID L. PUCKETT
Assistant District Attorney General
Rutherford County Judicial Bldg.
Room 303
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, James Pinkerton, appeals from a DUI judgment of
conviction entered by the Circuit Court of Cannon County. The defendant pled
guilty to DUI, first offense, reserving the right to appeal as a certified question of
law the trial court’s denial of his motion to suppress. Tenn. R. Crim. P. 37
(b)(2)(i). The defendant contends the actions of the arresting officer constituted
a “stop” for Fourth Amendment purposes, and the officer lacked reasonable
suspicion based upon specific and articulable facts that a crime was being
committed or was about to be committed. After a review of the record, the
judgment of the trial court is AFFIRMED.
BACKGROUND
A.
Cannon County Sheriff’s Deputy Charlie Harris received a telephone
complaint from April Gannon, who resided on Highway 53 South. She advised
that the defendant was driving a white Chevrolet S-10 truck on Highway 53
South, and he had been drinking alcohol. She requested that Deputy Harris
investigate the matter. Deputy Harris proceeded to the location to investigate the
complaint.
The deputy first saw the defendant about thirty (30) yards from Gannon’s
driveway and observed him turn into the driveway. Deputy Harris pulled in
behind the defendant and parked his vehicle. The deputy did not activate his
blue lights. The defendant was walking toward the front door of Gannon’s house
when the deputy approached the defendant and asked for his name. When the
defendant responded, the officer noticed an odor of alcohol on his breath. When
asked if he had been drinking, the defendant stated he had “just a couple.”
Deputy Harris then asked the defendant to perform a field sobriety test. Due to
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the defendant’s poor performance on the field sobriety test, the defendant was
arrested for driving under the influence.
B.
At the hearing on the motion to suppress, the trial court found that the
actions of Deputy Harris did not constitute an “investigatory stop.” The question
certified to this Court is whether the trial court erred “in overruling defendant’s
Motion to Suppress the evidence obtained by Deputy Charley Harris as a result
of [that] court’s finding that the Deputy’s conduct was not a ‘stop’ requiring the
court to apply the law in State v. Cobb, [C.C.A. No. 01C01-9011-CC-00366,
Hickman County (Tenn. Crim. App. filed May 7, 1991, at Nashville)].”
ANALYSIS
The defendant argues the unreported case of State v. Cobb, supra, and
State v. Coleman, 791 S.W.2d 504 (Tenn. Crim. App. 1989), are controlling of
the issue certified.
A.
Deputy Harris received information from a citizen who gave her name,
address, and specific information about the defendant. The deputy observed a
vehicle matching the description given by the complainant pull into her
residence. The officer did not activate his blue lights , but simply parked his
vehicle behind the defendant’s in the driveway. Unlike the facts in Cobb and
Coleman, Deputy Harris did not stop the defendant’s vehicle. The defendant
voluntarily parked his vehicle intending to go inside the residence. There is no
showing the defendant stopped his vehicle as a result of any action by Deputy
Harris. See State v. Moore, 776 S.W .2d 933, 935 (Tenn. 1989). Accordingly,
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there was no investigatory stop of the vehicle.
B.
Defendant also contends that his “seizure” by Deputy Harris was not
supported by specific, articulable facts. We find no constitutional violation. The
officer was on the property of a complainant who asked for his assistance. The
defendant’s vehicle was not “stopped” by the officer. The officer simply
approached the defendant and asked him his name. There was no stop or
seizure at this time. See State v. Moore, 776 S.W.2d at 935; State v. Butler, 795
S.W.2d 680, 685 (Tenn. Crim. App. 1990). Upon the defendant responding, the
officer smelled alcohol. He then had sufficient cause to detain the defendant for
field sobriety tests. Based upon the defendant’s poor performance of the field
sobriety tests, the officer had probable cause to arrest the defendant. We find
no unconstitutional seizure.
The judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
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JOSEPH M. TIPTON, JUDGE
_________________________
DAVID H. WELLES, JUDGE
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