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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
May 8, 2008 Session Heard at Jacksboro1 STATE OF TENNESSEE v. TYSON LEE DAY
Appeal by Permission from the Court of Criminal Appeals Criminal Court for Sumner County No. 286-2005 Jane Wheatcraft, Judge

No. M2006-00989-SC-R11-CD - Filed September 22, 2008

WILLIAM C. KOCH , JR., J., dissenting in part.

The State of Tennessee filed its Tenn. R. App. P. 11 application in this case to determine whether Tennessee recognizes the "community caretaking" exception to the requirement that police officers have at least reasonable suspicion when they make a traffic stop. I agree with the Court's conclusion that we cannot address this question because it is beyond the scope of the legal issue certified to this Court in accordance with Tenn. R. Crim. P. 37(b)(2). Rather than dismissing the appeal as being improvidently granted, the Court has decided to determine whether, under the essentially undisputed facts, Officer Jeff Tarkington acted reasonably when he stopped Tyson Lee Day's automobile on May 16, 2004. The Court has decided that Officer Tarkington did not act reasonably. I cannot concur with this conclusion. A. The facts are straightforward and compelling. On May 16, 2004, while on a routine patrol on New Shackle Island Road, Hendersonville Police Officer Tarkington observed a vehicle being driven by Lisa C. Ferrell. Although Officer Tarkington did not know Ms. Ferrell's identity at that time, he observed that she was signaling him by flashing her vehicle's headlights and by waving her arms. Ms. Ferrell was also pointing at the white sport utility vehicle (SUV) in front of her. Based on these observations, Officer Tarkington performed a U-turn and pulled between the white SUV and Ms. Ferrell's vehicle. He activated his blue lights to signal the driver of the white SUV to pull over. The driver complied. Officer Tarkington stopped his cruiser in back of the white SUV, and Ms. Ferrell pulled over in back of Officer Tarkington. After a brief conversation with Ms.
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Oral argument was heard M ay 8, 2008, in Jacksboro, Campbell County, Tennessee, as a part of the Supreme Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.

Ferrell, Officer Tarkington approached the white SUV which was being driven by Tyson Lee Day. Officer Tarkington could smell the odor of alcohol on Mr. Day's breath. After Mr. Day failed several field sobriety tests, Officer Tarkington arrested him. Mr. Day's blood alcohol content proved to be .25 percent. Officer Tarkington's subsequent investigation revealed that Mr. Day was driving on a revoked license and that he had two prior DUI convictions. Mr. Day was charged by presentment with his third offense of driving under the influence and with driving on a revoked license. When the trial court denied his motion to suppress the evidence of his intoxication based on his claim that Officer Tarkington did not have a reasonable suspicion to stop him, Mr. Day pleaded guilty to both offenses and was sentenced to one hundred and twenty days in jail followed by seven months on probation. As part of his guilty plea, Mr. Day, acting in accordance with Tenn. R. Crim. P. 37(b)(2), reserved the right to challenge the admissibility of the evidence of his intoxication on appeal. On March 7, 2007, the Court of Criminal Appeals reversed Mr. Day's convictions on the ground that Officer Tarkington did not have a reasonable suspicion to stop Mr. Day on May 16, 2004. State v. Day, No. M2006-00989-CCA-R3CD, 2004 WL 677867, at *4-5 (Tenn. Ct. App. Mar. 7, 2007). B. There is no question that stopping an automobile and detaining its occupants constitutes as "seizure" for the purpose of the constitutional protections against unreasonable searches and seizures.2 Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). These acts necessarily interfere with the occupants' freedom of movement. In addition, they are inconvenient, they consume time, and they can create substantial anxiety. Delaware v. Prouse, 440 U.S. 648, 657 (1979). Thus, the police must have at least an "articulable and reasonable suspicion" that a motorist is subject to being stopped for a violation of the law before stopping an automobile. Delaware v. Prouse, 440 U.S. at 663. An articulable and reasonable suspicion must be something more than an "inchoate and unparticularized suspicion or hunch." Terry v. Ohio, 392 U.S. 1, 27 (1968). It must have a particularized and objective basis. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). When the courts are called upon to determine whether a police officer had an articulable and reasonable suspicion to justify stopping an automobile, they should consider the totality of the circumstances, see Alabama v. White, 496 U.S. 325, 330 (1990); State v. Nicholson, 188 S.W.3d 649, 659 (Tenn. 2006), particularly (1) the objective observations of the officer, (2) the information obtained from other officers or agencies, (3) information obtained from citizens, and (4) the pattern of operation of certain offenders. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). As it has developed over the years, the "reasonable suspicion" standard is a common sense standard that permits an officer to make a brief investigatory stop when he or she reasonably suspects that a specific person has engaged in, is engaging in, or is about to engage in criminal activity. The
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U.S. Const. amend IV; Tenn. Const. art. I,

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