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.
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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
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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
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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,
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(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
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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.
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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
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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
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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
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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).
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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
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