IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 March 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9709-CR-00427 ) Appe llant, ) ) HAMILTON COUNTY V. ) ) ) HON. STEPHEN M. BEVIL, JUDGE EMO RY W OOD , ) ) Appellee. ) (STATE APP EAL)

FOR THE APPELLEE: FOR THE APPELLANT: PHILLIP L. DUV AL JOHN KNOX WALKUP Market Street, Suite 204 Attorney General & Reporter Chattanooga, TN 37402 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordell Hull Building Fifth Avenue North Nashville, TN 37243 WILLIAM COX District Attorn ey Ge neral C. PARKE MASTERSON Assistant District Attorney General Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Appella nt, the Sta te of Tennessee, brings this appeal as of right following a hearing regarding a motion to suppress evidence. The Hamilton County Grand Jury indicted the Appellee, Emory Wood, for driving under the influence of an intoxicant and po ssessio n of a pisto l with the inten t to go arm ed. Appellee filed a motion to suppress all of the evidence discovered through a search of his person and his vehicle. A hearing was cond ucted by the trial court, an d the trial court granted the motion to suppress the evidence. The State appeals on the basis that the evidence was found after a reasonable stop and a lawful search of W ood’s car.

We affirm the ju dgme nt of the trial co urt.

Recently, in State v. Odom, 928 S.W.2d 18 (Tenn . 1996), the sup reme cou rt held as follows: The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence suppo rts the trial court’s findings, those findings shall be upheld. In other words, a trial court’s findin gs of fact in a supp ressio n hea ring will b e uph eld unless the evidence preponderates otherwise.

Odom, 928 S.W.2d at 23.

At the suppression hearing, Officer James Hixson of the Chattanooga Police Department testified that he was patrolling the Main Street area when he saw the car Appellee was driving stop and pick up a woman at the corner of Mitchell and East Main Stree t. Office r Hixso n belie ved the wom an wa s a pro stitute b ecau se tha t is an area known for prostitutes to solicit customers. Officer Hixson stated that he followed A ppellee’s car for sev eral block s in order to investigate his susp icions.

-2- After Officer Hixson pulled A ppellee over an d approac hed the car, Appellee exited the vehicle. Officer Hixson placed him on the back of his vehicle and patted him down. Because he noticed the odor o f an alc oholic bever age u pon A ppelle e’s breath, Officer Hixson administered several field sobriety tests on the Appellee.

Officer Hixson began to search the automobile with a flashlight and located a .357 caliber handgun underneath the driver’s seat. After the initial stop, Officer Hixson learned that the woman inside Appellee’s car was not a prostitute and that the car Appellee was driving belonged to someone else.

On cross-examination, Officer Hixson stated that while he was following the car Appellee was driving, he noticed that Appellee was swerving. Officer Hixson further testified that when Appellee exited his vehicle, he stumbled. On redirect examination, when questioned as to wha t he told Defendant was the reason for the stop, Office r Hixso n state d, “I told h im that I thought that he picke d up a p rostitute.”

Appellee testified that he was driving on Main Street when he stopped and picked up a friend . He wa s on th e way to his au nt’s home when he was stopped by Officer Hixson. Appellee stated that he was not spee ding, w eaving or havin g troub le keeping his vehicle in its lane. After administering the field sobriety tests, Officer Hixson told Ap pellee he wa s und er arre st for driv ing under the influence of an intoxicant. Appellee stated that Officer Hixson then s earch ed his car without asking permission, using a flashlight. Appellee stated that he did not know there was a gun in the vehicle as it was not his vehicle.

The trial court specifically found that the re was not an y basis or reasona ble suspic ion based upon a rticulable fac ts that a crim e was b eing com mitted so as to -3- warrant a stop by Officer Hixson. Reasonable suspicion must be ba sed o n spe cific and articulable facts, that a criminal offense has been or is about to be committed.

State v. Kelley, 948 S.W .2d 757 , 760 (Tenn . Crim. App. 19 96) (citations om itted).

The trial court stated that, “I think it is clear based on the officer’s in itial testimony that the reason he stopped the car was because he thought that Mr. Wood picked up a prostitu te as a basis for stopping the car.” The trial court determined that even if Appellee ha d allow ed a p rostitute to ride in his car , that in its elf is no t a violatio n of the law. The trial court determined that any search which followed the unrea sona ble stop was not lawful and any evidence, as a result, was not admissible.

As the Appellee is entitled to the strongest legitimate view of the evidence and the testimony supports the trial court’s findings, there was no error in the suppression of the evide nce. The evidence does not preponderate against the trial court’s find ings of fac t.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge

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