Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs June 27, 2017
from the Criminal Court for Hamilton County No. 297534 Don W.
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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
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.
CAMILLE R. McMULLEN, JUDGE.
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.
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
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
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.
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.'"
November 3, 2016, the Defendant entered a conditional guilty
plea to first offense DUI. 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 ...