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State v. Fowlkes

Court of Criminal Appeals of Tennessee, Knoxville

September 5, 2017

STATE OF TENNESSEE
v.
CHARLES FOWLKES

          Assigned on Briefs June 27, 2017

         Appeal from the Criminal Court for Hamilton County No. 297534 Don W. Poole, Judge

         The Defendant, Charles Fowlkes, entered a guilty plea to driving under the influence (DUI) in exchange for a sentence of eleven months and twenty-nine days to be served on probation after the service of forty-eight hours in the Hamilton County jail. The Defendant reserved a certified question of law challenging the denial of his motion to suppress, which alleged that he was unconstitutionally stopped and seized. Following our review, we affirm the judgment of the trial court.

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

          W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the Defendant-Appellant, Charles Fowlkes.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Neal Pinkston, District Attorney General; and Andrew Coyle, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille r. MCMULLEN, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., J., joined. Robert L. Holloway, Jr., J., filed a separate concurring opinion.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         On February 17, 2016, the Defendant was indicted by a Hamilton County Grand Jury for one count of DUI and one count of DUI .08% or greater. Subsequently, the Defendant filed a motion to suppress claiming that the police lacked reasonable suspicion or probable cause to stop the Defendant's vehicle in violation of the Fourth Amendment to the United States Constitution and Article I, Section 7, of the Tennessee Constitution. The trial court held an evidentiary hearing on August 22, 2016.

         Motion to Suppress Hearing. At the hearing, Officer Jeffrey Buckner of the Chattanooga Police Department testified that he was on duty on April 25, 2015, around 2:30 a.m. when he first observed the Defendant. Officer Buckner was on Market Street when he "viewed pedestrians on the side of the road pointing to a vehicle across the way." Officer Buckner testified that the pedestrians were pointing at a truck "that appeared to be on the curb going back and forth." He observed the truck and noticed that "[i]t did not seem to have enough room to clear out of the parking space, and . . . it did not appear to be turning its tires either to get out . . . either it was coming into the space or leaving the space." Officer Buckner noted that it was a Friday or Saturday night and that there was a bar nearby so he "was getting more concerned that there could be an intoxicated person in that vehicle." Officer Buckner said there were cars in front of and behind the Defendant's truck and that he thought the Defendant's position "could cause a minor accident trying to get . . . out of that spot if [the Defendant] was attempting to leave." Officer Buckner testified that the Defendant's "passenger side tires were on the curb . . . [a]t least to where [Officer Buckner] could notice that the truck was slightly lifted on that side." After observing the Defendant for some time, Officer Buckner pulled up behind the Defendant's truck and activated his blue lights "to alert other motorists of [his] presence." Upon approaching the Defendant's truck, Officer Buckner viewed "two open containers of alcohol in the center console" and "could smell intoxicant coming from the interior of [the truck]." When the Defendant exited the truck, Officer Buckner "confirmed the smell was also coming from [the Defendant]" and administered various field sobriety tests to the Defendant. After the Defendant performed poorly on the field sobriety tests, Officer Buckner arrested him. Officer Buckner testified that the Defendant's blood alcohol level was .122.

         Officer Buckner recorded the incident, and part of the video was played during the suppression hearing. Officer Buckner said that he activated his camera about thirty seconds before he turned his blue lights on. The beginning of the video showed a group of pedestrians standing at the corner and at least one of the pedestrians pointing across the street. Officer Buckner pauses, makes a U-turn, and then pulls behind the Defendant's truck. When he approaches the Defendant's truck, which is moving forward and backward in a parallel parking spot, the Defendant stops moving, and Officer Buckner activates his blue lights. The video clearly shows the rear passenger side tires of the Defendant's truck on the curb.

         On cross-examination, Officer Buckner testified that he did not speak with the pedestrians who alerted him to the Defendant. Officer Buckner confirmed that, before he turned on his blue lights, he saw the Defendant moving back and forth approximately four times. Officer Buckner acknowledged that some people may have difficulty parking or parallel parking and that the time and location of the Defendant may have influenced his suspicion that the Defendant was intoxicated.

         After hearing arguments from counsel, the trial court took the matter under advisement. On September 8, 2016, the trial court entered a written order denying the motion to suppress. The trial court found that Officer Buckner saw the Defendant's passenger side tires on the curb before initiating the stop. Therefore, the trial court concluded, at the time of the stop there was reason to suspect the Defendant of driving or parking on a curb in violation of Chattanooga city traffic ordinance § 32-12, "which prohibits 'driv[ing] or park[ing] on any sidewalk or curb or on any landscape area between the sidewalk and curb on any street in the city.'"

         On November 3, 2016, the Defendant entered a conditional guilty plea to first offense DUI.[1] As part of his guilty plea, he purported to reserve a certified question of law under Rule 37 of the Tennessee Rules of Criminal Procedure. The judgment form did not contain the certified question of law. However, a handwritten statement with the trial ...


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