State of Tennessee v. Amanda L. Irwin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 13, 2016 Session

STATE OF TENNESSEE v. AMANDA L. IRWIN

Appeal from the Circuit Court for Coffee County

No. 41206M L. Craig Johnson, Judge

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No. M2016-00219-CCA-R3-CD – Filed November 8, 2016

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Amanda L. Irwin (“the Defendant”) pled guilty to driving under the influence and

possession of an open container of an alcoholic beverage, reserving two certified

questions of law challenging the trial court’s denial of a motion to suppress. On appeal,

the Defendant asserts that the law enforcement officer lacked reasonable suspicion to ask

her to step out of her car and perform field sobriety tests. After a review of the record

and applicable law, we affirm the trial court’s denial of the motion to suppress.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

James H. Threet, III, Manchester, Tennessee, for the appellant, Amanda L. Irwin.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Craig Northcott, District Attorney General; and Marcus Simmons,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

Motion to Suppress

On June 12, 2014, the Defendant was indicted by the Coffee County Grand Jury

for first offense driving under the influence of an intoxicant (“DUI”); driving with a

blood alcohol content of 0.08% or higher; driving with a revoked license, second offense;

operating a motor vehicle while in possession of an open container of alcohol; driving

without proof of registration; and driving without proof of insurance. Thereafter, the

Defendant filed a motion to suppress the evidence against her, arguing that she was

subject to a “warrantless seizure.”

At the suppression hearing, Trooper Jason Boles with the Tennessee Highway

Patrol testified that around 6 a.m. on October 13, 2013, he was off-duty when he arrived

at Sonic restaurant in Manchester for breakfast. The restaurant was not yet open.

Trooper Boles noticed a car that appeared to have entered the Sonic from the exit and had

pulled into a parking space from the wrong direction. As Trooper Boles passed the

irregularly-parked car, he saw that the driver “leaned up in her seat and looked to the

right and looked to the left like she was just unsteady and fell straight back in her seat,

like she just passed out right there.” Concerned that the driver might be intoxicated,

Trooper Boles called an on-duty trooper to inform him of a possible DUI at Sonic.

Trooper Donnie Clark was on duty that morning and responded to Trooper Boles’s

call. When he arrived at Sonic, he circled the restaurant and parked perpendicular to the

irregularly-parked car so as to not block in the vehicle. He did not activate his blue

lights. Trooper Clark exited his patrol car, and as he approached the parked vehicle, the

driver, who was later identified as the Defendant, opened her car door. On the audio of

the dash camera video,1 Trooper Clark could be heard to say, “Howdy. How are you?

How much did you have to drink last night?” The Defendant’s response is unintelligible,

but Trooper Clark testified at the suppression hearing that the Defendant stated that she

had been drinking.

Trooper Clark also testified that the Defendant “appear[ed] to be somewhat

intoxicated,” that he smelled alcohol on the Defendant’s person when he spoke with her,

and that her speech was slurred. After the Defendant informed Trooper Clark that she

had been drinking, Trooper Clark asked the Defendant to exit her vehicle and to perform

three field sobriety tests. The Defendant complied and performed the walk-and-turn,

one-leg-stand, and finger-to-nose tests. Trooper Clark testified that the Defendant

performed “poorly” on the tests, and he arrested the Defendant for DUI.

On cross-examination, Trooper Clark stated that, when he pulled up near the

Defendant’s car in the Sonic parking lot, the Defendant was not breaking any traffic laws.

He also stated that Trooper Boles did not indicate that the Defendant was in physical

distress. However, Trooper Clark said that Trooper Boles informed him that the

1

The State introduced and played the dash camera video from Trooper Clark’s patrol car at the

suppression hearing.

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Defendant “sat up and then fell back in her seat,” so Trooper Clark did not know if the

Defendant was having medical problems when he approached the Defendant’s car.

Trooper Clark testified that Trooper Boles did not relay any information or evidence that

the Defendant had been in a car accident or had damaged anything. Additionally,

Trooper Clark stated that neither he nor Trooper Boles personally witnessed the

Defendant drive her car.

Trooper Clark noted that the Defendant opened her car door as he approached her

car and that he did not speak to the Defendant before she opened her car door. Trooper

Clark also stated that the Defendant was not pulled over the curb and that she had

successfully parked between posts marking the parking space in the Sonic parking lot.

Trooper Clark testified that the keys to the Defendant’s car were “readily available” and

were inside the vehicle, but he could not remember whether the keys were in the ignition

when he spoke with the Defendant.

At the conclusion of the hearing, the trial court found that Trooper Clark’s initial

encounter with the Defendant was not a consensual encounter because “[t]he [D]efendant

did not seek out nor walk by Trooper Clark.” However, the trial court found that the

initial encounter was a “brief investigatory stop based on reasonable suspicion” because

Trooper Clark had been informed of the possible DUI by Trooper Boles, who was a

trustworthy “citizen informant.” The trial court concluded that Trooper Clark had

reasonable suspicion that the Defendant had committed a crime “based on the

observations of the caller, the observations of the actual park[ing lot], and the appearance

that the vehicle came in the wrong way in a one-way alley in a parking lot . . . .”

Additionally, the trial court found that Trooper Clark had probable cause to arrest the

Defendant for DUI. The trial court denied the Defendant’s motion to suppress.

On January 6, 2016, the Defendant pled guilty to one count of DUI (first offense),

a Class A misdemeanor, and one count of operating a motor vehicle with an open

container of alcohol, a Class C misdemeanor, and reserved the following certified

questions of law:

1. Whether Trooper Donnie Clark’s initial encounter with [the

Defendant] was a brief consensual encounter that required no

objective justification, which later evolved into a brief investigatory

stop that was based upon Trooper Clark’s articulable and reasonable

suspicion that a crime had been committed?

2. If Trooper Clark’s initial encounter with [the Defendant] was not a

brief consensual encounter, whether the stop and detention of [the

Defendant] was supported by reasonable suspicion and lawful under

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the [Fourth] Amendment of the U.S. Constitution and Art. 1 Sec[.] 7

of the [Tennessee] Constitution?

In its Judgment Order Reserving Certified Question of Law (“Judgment Order”)

filed the same day, the trial court found that “[t]he questions certified to the Court of

Criminal Appeals are dispositive of the case[]” and that the certified questions “arose

from a suppression hearing that was held on December 17, 2014, . . . the transcript[] of

which is part of the trial court record.”

The Defendant’s remaining charges — driving on a revoked license, second

offense; driving without proof of registration; and driving without proof of insurance —

were dismissed. The trial court sentenced the Defendant to eleven months and twenty-

nine days for the DUI charge and ordered the Defendant to pay a $10 fine for the open

container charge. The trial court ordered the Defendant to serve forty-eight hours of the

DUI sentence, with the remainder of the sentence suspended to supervised probation.

This timely appeal follows.

II. Analysis

Certified Questions of Law

Tennessee Rule of Criminal Procedure 37 states that a defendant may appeal a

judgment of conviction after a guilty plea if:

(A) the defendant entered into a plea agreement under Rule 11(c) but

explicitly reserved-with the consent of the state and of the court-the right to

appeal a certified question of law that is dispositive of the case, and the

following requirements are met:

(i) the judgment of conviction or order reserving the certified question that

is filed before the notice of appeal is filed contains a statement of the

certified question of law that the defendant reserved for appellate review;

(ii) the question of law as stated in the judgment or order reserving the

certified question identifies clearly the scope and limits of the legal issue

reserved;

(iii) the judgment or order reserving the certified question reflects that the

certified question was expressly reserved with the consent of the state and

the trial court; and

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(iv) the judgment or order reserving the certified question reflects that the

defendant, the state, and the trial court are of the opinion that the certified

question is dispositive of the case[.]

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

The defendant has the burden of ensuring that the “prerequisites are in the final

order and that the record brought to the appellate courts contains all of the proceedings

below that bear upon whether the certified question of law is dispositive and the merits of

the question certified.” State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). If the

certified question is not dispositive of the case, the appeal must be dismissed. Id. at 651.

A certified question is dispositive “when the appellate court must either affirm the

judgment [of conviction] or reverse and dismiss [the charges].” State v. Dailey, 235

S.W.3d 131, 134 (Tenn. 2007) (quoting State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001))

(alterations in original) (internal quotation marks omitted). However, this court “is not

bound by the determination and agreement of the trial court, a defendant, and the State

that a certified question of law is dispositive of the case.” Id. (quoting State v.

Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)). We must “make an

independent determination that the certified question is dispositive.” Id. (citing Preston,

759 S.W.2d at 651).

We conclude that the Defendant properly certified two questions of law to this

court. The record shows that the Defendant entered a plea agreement on January 6, 2016,

and the Defendant explicitly reserved the right to appeal two questions of law.2 The trial

court filed the Judgment Order on January 6, 2016, and the Defendant filed her Notice of

Appeal on January 26, 2016; therefore, the Judgment Order reserving the certified

questions was filed before the notice of appeal in this case. Additionally, the Judgment

Order contained statements of the two certified questions of law that the Defendant

reserved for our review.

The questions of law reserved by the Defendant clearly identify the “scope and

limits of the legal issue[s] reserved.” Tenn. R. Crim. P. 37(b)(A)(ii). Moreover, the

certified questions were reserved with the consent of the State and the trial court. Lastly,

the Judgment Order reflects that the trial court, the State, and the Defendant agree that the

two certified questions reserved by the Defendant are dispositive of her case. Upon

review, we likewise conclude that the certified questions are dispositive of the case.

2

We note that while the plain language of Rule 37 refers to a “question of law,” this court has

previously considered multiple certified questions of law arising from a defendant’s guilty plea. See, e.g.

State v. William Gary Mosley, No. M2014-02533-CCA-R3-CD, 2016 WL 309837, at *4-5 (Tenn. Crim.

App. Jan. 26, 2016), no perm. app. filed.

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After answering the two certified questions, this court must either affirm the Defendant’s

convictions or reverse the trial court’s order and dismiss the charges against the

Defendant. Because we hold the Defendant properly certified two questions of law to

this court that are dispositive of the case, we will proceed to analyze the merits of the

certified questions.

Standard of Review

The applicable standard of review for suppression issues is well-established. A

trial court’s findings of fact are binding on this court unless the evidence in the record

preponderates against them. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012) (citing

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). “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.” Id. The prevailing

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

suppression hearing and all reasonable and legitimate inferences that may be drawn

therefrom. Id. The trial court’s application of law to the facts is reviewed under a de

novo standard with no presumption of correctness. Id. (citing State v. Walton, 41 S.W.3d

75, 81 (Tenn. 2001)).

Consensual Police-Citizen Encounters

The Defendant argues that the initial encounter between Trooper Clark and herself

was not consensual.3 The State contends that the initial encounter between Trooper Clark

and the Defendant was consensual.

The United States and Tennessee constitutions protect citizens from unreasonable

searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Binette,

33 S.W.3d 215, 218 (Tenn. 2000). It is well-settled that courts have divided police-

citizen encounters into three different categories: “(1) a full scale arrest which must be

supported by probable cause . . . ; (2) a brief investigatory detention which must be

supported by reasonable suspicion . . . ; and (3) brief police-citizen encounters which

require no objective justification . . . .” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)

(citing Brown v. Illinois, 422 U.S. 590 (1975); Terry v. Ohio, 392 U.S. 1, 20-22 (1968);

Florida v. Bostick, 501 U.S. 429, 434 (1991)). Full scale arrests and brief investigatory

detentions or stops are seizures and therefore implicate an individual’s rights under the

Fourth Amendment of the U.S. Constitution and under Article I, Section 7 of the

Tennessee Constitution, but a consensual police-citizen encounter does not. See id.

3

The Defendant’s appellate brief mentions the trial court’s finding that the Defendant’s initial

encounter with Trooper Clark was not consensual, but the Defendant offers no case law or facts arguing

in support of the trial court’s finding.

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A seizure occurs when “in view of all the circumstances surrounding the incident,

a reasonable person would have believed that he or she was not free to leave.” Id. at 425

(internal citations omitted). “In order to determine whether a particular encounter

constitutes a seizure, a court must consider all the circumstances surrounding the

encounter to determine whether police conduct would have communicated to a

reasonable person that the person was not free to decline the officer’s request or

otherwise terminate the encounter.” Id. (quoting Bostick, 501 U.S. at 440) (internal

quotation marks omitted). The factors that a court should consider when determining

whether a seizure has occurred include, but are not limited, to “the time, place and

purpose of the encounter; the words used by the officer; the officer’s tone of voice and

general demeanor; the officer’s statements to others who were present during the

encounter; the threatening presence of several officers; the display of a weapon by an

officer; and the physical touching of the person of the citizen.” Id. at 425-26 (internal

citations omitted). The Fourth Amendment is implicated when a police officer:

(1) pursues an individual who has attempted to terminate the contact by

departing; (2) continues to interrogate a person who has clearly expressed a

desire not to cooperate; (3) renews interrogation of a person who has earlier

responded fully to police inquiries; (4) verbally orders a citizen to stop and

answer questions; (5) retains a citizen’s identification or other property; (6)

physically restrains a citizen or blocks the citizen’s path; [or] (7) displays a

weapon during the encounter.

Id. at 426 (citing 4 Wayne R. LaFave, Search & Seizure, § 9.3 (a), at 104 (3d ed. 1996 &

Supp. 1999) (collecting cases)). In the context of a traffic stop, a person is also seized

when the officer activates the cruiser’s blue lights. Binette, 33 S.W.3d at 218.

In this case, the trial court found that the initial interaction between Trooper Clark

and the Defendant was not consensual because Trooper Clark approached the Defendant,

and “[t]he [D]efendant did not seek out nor walk by Trooper Clark.” However, the

Tennessee Supreme Court has previously held that “the Fourth Amendment is not

implicated and no seizure occurs when police approach an individual, in a public place,

or in a parked car, ask questions, and request to search, so long as police do not convey a

message that compliance with their requests is required.” Daniel, 12 S.W.3d at 426

(footnotes omitted) (emphasis in original).

Here, the trial court erred by finding that the encounter between the Defendant and

Trooper Clark was non-consensual on the basis that the Defendant did not approach

Trooper Clark. Tennessee law clearly holds that an officer may approach an individual

without violating that individual’s Fourth Amendment rights. Id. In this case, Trooper

Clark parked his car behind the Defendant’s car in a way that did not block her in.

Trooper Clark then got out of his patrol car and began walking up to the Defendant’s car.

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Before Trooper Clark reached the Defendant’s car, she opened her car door. Trooper

Clark then asked the Defendant how she was doing and how much she had had to drink

that night. Because Trooper Clark did not block the Defendant’s car or activate his

emergency lights and because the Defendant opened her car door to speak with Trooper

Clark as he approached, we hold that the initial interaction between Trooper Clark and

the Defendant was consensual.

Reasonable Suspicion

The Defendant further argues that Trooper Clark lacked reasonable suspicion that

she had committed a crime when Trooper Clark asked the Defendant to step out of her

car and perform field sobriety tests. The State contends that Trooper Clark had

reasonable suspicion that the Defendant had been driving under the influence based on

Trooper Boles’s information and Trooper Clark’s observations of the Defendant’s parked

car.

Generally, “under both the federal and state constitutions, 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 525, 629 (Tenn. 1997). A warrant is not required for an

investigatory stop “when 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); see also Terry, 392 U.S. at 21; Binette, 33

S.W.3d at 218; Yeargan, 958 S.W.2d at 630; State v. Watkins, 827 S.W.2d 293, 294

(Tenn. 1992).

Reasonable suspicion is “a particularized and objective basis for suspecting the

subject of a stop of criminal activity . . . , and it is determined by considering the totality

of the circumstances surrounding the stop[.]” Binette, 33 S.W.3d at 218 (citing Ornelas

v. United States, 517 U.S. 690, 696 (1996); Alabama v. White, 496 U.S. 325, 330

(1990)).

Circumstances relevant to [evaluating reasonable suspicion] include, but are

not limited to, the officer’s personal objective observations, information

obtained from other police officers or agencies, information obtained from

citizens, and the pattern of operation of certain offenders. A court must

also consider the rational inferences and deductions that a trained officer

may draw from the facts and circumstances known to him.

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Yeargan, 958 S.W.2d at 632 (citing Watkins, 827 S.W.2d at 294; United States v. Cortez,

449 U.S. 411, 418 (1981); Terry, 392 U.S. at 21).

In the current case, Trooper Clark had reasonable suspicion that the Defendant

was in physical control of a motor vehicle in the Sonic parking lot while under the

influence of alcohol. Trooper Boles was a citizen informant who was found reliable by

the trial court. He informed Trooper Clark that the Defendant’s vehicle was irregularly-

parked and that he saw her move around and fall back in her car; both of these

circumstances suggested to Trooper Boles that the Defendant was intoxicated. When

Trooper Clark arrived at Sonic, he also observed that the Defendant had irregularly

parked her car in such a way to indicate that she pulled into the parking space from the

wrong direction. After Trooper Clark approached the Defendant’s car, she opened her

door, and Trooper Clark spoke with her. Trooper Clark testified that the Defendant

appeared to be intoxicated, that he smelled alcohol on the Defendant’s person, that her

speech was slurred, and that she admitted to drinking. Trooper Clark’s personal

observations along with Trooper Boles’ observations relayed to Trooper Clark by

telephone provided Trooper Clark with reasonable suspicion that the Defendant had been

driving while under the influence of alcohol. Therefore, Trooper Clark’s “seizure” of the

Defendant by asking her to exit her vehicle and perform field sobriety tests was supported

by reasonable suspicion. The Defendant is not entitled to relief.

III. Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE

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