IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 11, 2022 Session

STATE OF TENNESSEE v. TONY DALE CRASS

Appeal from the Circuit Court for Williamson County

No. W-CR190604 Joseph A. Woodruff, Judge

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No. M2021-00528-CCA-R3-CD

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The Williamson County Grand Jury indicted Tony Dale Crass, Defendant, with driving 

under the influence (DUI), DUI per se, and possession of a firearm while under the 

influence. Defendant moved to suppress the evidence, arguing that the State did not have 

probable cause or reasonable suspicion for the traffic stop and that video evidence of 

Defendant’s driving was erased and deleted as a result of a malfunctioning recording 

system in Tennessee Highway Patrol (THP) Trooper Joey Story’s patrol car. The trial court 

concluded that the loss of video evidence constituted a violation of the State’s duty to 

preserve potentially exculpatory evidence recognized in State v. Ferguson, 2 S.W.3d 912 

(Tenn. 1999), and deprived Defendant of the right to a fair trial. The trial court granted the 

motion to suppress and dismissed the indictment, and the State appealed. We conclude 

that the video was not lost or destroyed by the State, (2) that a Ferguson violation is not 

applicable to a suppression hearing based on reasonable suspicion or probable cause for a 

traffic stop, (3) that the trial court misapplied the “degree of negligence” Ferguson factor 

by equating perceived public policy decisions on the part of the State to negligence, and 

(4) that Defendant’s right to a fair trial can be protected without dismissal of the indictment. 

We reverse the judgment of the trial court, reinstate the indictment, and remand for further 

proceedings.

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

Case Remanded

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

WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior 

Assistant Attorney General; Kim R. Helper, District Attorney General; and Jamie Pulido, 

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

11/22/2022
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Patrick T. McNally and Joseph W. Fuson, Nashville, Tennessee, for the appellee, Tony 

Dale Crass.

OPINION

a. November 6, 2020 Suppression Hearing

On January 3, 2019, THP Trooper Joey Story was returning to his home in 

Rutherford County after working security at the Governor’s residence. While he was 

traveling behind a white pickup truck on Highway 96 in Williamson County, he observed 

the truck cross over the right shoulder line of the road (“the fog line”). Trooper Story’s 

patrol car was equipped with a Mobile Video System (“the MVS”) that continuously

records and deletes until the system is activated, at which time the system preserves what 

is being recorded and what had been recorded during the thirty seconds prior to activation. 

Trooper Story could manually activate the MVS to begin audio and video recording by 

pushing a button on his belt or by pushing a button on the camera, or the system would 

automatically begin recording when the vehicle’s emergency lights were activated. 

Trooper Story testified that he pressed the button on his belt to wirelessly activate the MVS

within thirty seconds of the truck’s crossing the fog line. Trooper Story continued to follow 

the truck. He said that the truck crossed the fog line at least three more times before the 

driver turned right into a driveway and shut off the truck’s lights. Trooper Story testified:

I watched him turn into the driveway. And it may have been a delayed 

reaction of why that I didn’t turn right in, but I was watching him and then 

got almost pass (sic) the driveway before I initiated my lights.1 And then 

when I did I come back (sic) and made the U-turn and come back (sic). I 

watched him turn into the driveway. I watched him pull to the edge of the 

driveway, shut his -- shut the lights off of the vehicle.

Trooper Story turned around and proceeded back to where Defendant was parked. 

As he approached the driveway, Trooper Story activated his emergency lights and pulled 

 

1 The video recording from Trooper Story’s vehicle was entered as Exhibit 1 at the November 6, 

2020 hearing. The video begins at 22:14:15 and shows Trooper Story’s vehicle traveling on Highway 96. 

At 22:14:23, Trooper Story begins to turn around, and at 22:14:36, he begins driving back toward 

Defendant’s location. At 22:14:45, he activates his emergency lights and blue light first becomes visible 

outside Trooper Story’s patrol car. At 22:14:47, Trooper Story turns into the driveway behind Defendant’s 

truck. Thirty seconds of video beginning at 22:14:15 were preserved when Trooper Story activated his 

emergency lights at 22:14:45. The thirty seconds of preserved video does not show Defendant’s driving or 

Defendant’s pulling into the driveway.
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in behind the truck. When asked by defense counsel why he did not follow Defendant 

when Defendant turned into the driveway, Trooper Story said that he “couldn’t tell you 

why [he] passed it.”

After pulling in behind Defendant, Trooper Story contacted dispatch and asked that 

another trooper be sent to the scene to handle the investigation, explaining that he did not 

want to handle a case in Williamson County. Trooper David Green came to the scene and 

completed the DUI investigation. On the audio recording at the scene, Trooper Story can 

be heard telling Trooper Green that Defendant “crossed the fog line and I mean he liked to 

have hit that low shoulder.” After completing the investigation at the scene, Trooper Green 

transported Defendant from the scene and prepared the affidavit of complaint, which stated 

in pertinent part: “On January 3, 2019, at approximately 10:17 p[.]m[.], THP Trooper Story 

observed a vehicle fail to maintain its lane of travel near the 4400 block of Hwy 96.”

Although Trooper Story thought that the MVS began recording when he pressed the 

button on his belt, the camera did not activate and continued deleting the thirty seconds of 

rolling video. Trooper Story explained that, “[o]nce [he] attempted to start it, which is a 

simple push of the button, it should have started. It was a malfunction in the unit, hence 

one reason why [they] changed camera systems.” 

During cross-examination, Trooper Story explained that his main focus was on 

Defendant’s driving habits and that he was not watching the head unit to see if it came on. 

He stated that: “I thought that the unit c[a]me on. It’s never really give[n] me a problem 

in the past.” The following dialogue concerns Trooper Story’s failure to mention that he

manually tried to activate the MVS when asked during the preliminary hearing if he had 

dashcam video of Defendant’s driving: 

Q. At the time you said that you didn’t manually start your video? 

A. No, I didn’t manually -- with the evidence that was presented by 

watching the video, I didn’t start the video. 

Q. But you didn’t even make any mention -- you didn’t say anything 

about well I tried to start it or thought it was going -- you know, I had the 

belt, I could hit the button -- you didn’t mention any of that. 

A. Well, you didn’t ask that. You asked did I manually start it. And 

it was actually I did not start it.

The trial court also questioned Trooper Story about when he became aware of the 

fact that the video did not activate when he pressed the button on his belt. Trooper Story 
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agreed that it was “quite some time” before he actually watched the video, and he stated

that he did not remember “whether it has been [his] interaction with the State when [the 

prosecutor] brought up actually that [they] were going to have the initial hearing.” He 

added that because he did not make the arrest, he “never looked back . . . on it” and “just 

tagged it” so that Trooper Green could access it.

After Trooper Story testified that Defendant crossed the fog line at least four times, 

he was asked if he remembered telling Defendant that he pulled him over “because he 

crossed the line one time.” Trooper Story answered, “I don’t remember -- I just make

reference to crossing the line and about the shoulder. I don’t recall the – how many times 

I said that he crossed the line[.]” When questioned about the affidavit of complaint 

prepared by Trooper Green that stated that Defendant failed to maintain his lane of travel 

near the 4400 block, Trooper Story said that he had not looked at or read the affidavit of 

complaint and did not know why the affidavit of complaint stated that.

Near the end of the first hearing, Defendant moved to amend his motion to suppress 

to raise “the evidence preservation issue.” Defendant argued that he did not know “until 

Trooper Story’s testimony today” that Trooper Story had attempted to activate the video 

recording system by pressing the button on his belt. In granting Defendant’s request to 

amend his motion to suppress to raise a Ferguson violation, the trial court reasoned:

So[,] I think that there is a negligent failure to preserve the evidence, but it is 

not Trooper Story’s negligence. It’s the failure of the Department of Safety 

to provide reliable equipment that turns on when it is supposed to when the 

trooper who as he said is paying attention to the driving habits of the vehicle 

in front of him, paying attention to other things that are going on around him, 

trying to operate his own vehicle safely. He does what he’s trained to do, he 

hits the button on his belt to turn it on and it doesn’t turn on.

The trial court continued the hearing. Defendant filed an amended motion to 

suppress adding as grounds that the State failed to preserve the video evidence.

b. April 9, 2021 Hearing

At the subsequent hearing, Trooper Story again said that he pushed the button on 

his belt to activate the video “within [thirty] seconds of witnessing the [first] lane 

infraction.” Trooper Story agreed that, if the recording system had functioned properly 

when he pressed the button on his belt, it would have captured and saved video showing 
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Defendant’s driving. When asked if he knew why the video did not record, Trooper Story 

explained, “Best likelihood is the old and dated equipment that we had.” 

During cross-examination, Trooper Story agreed that he was familiar with the

Tennessee Department of Safety and Homeland Security (“TDS”) “General Order”

concerning MVS, a copy of which was then entered as Exhibit 2. Trooper Story agreed 

that he was a commissioned member (“Member”) subject to provisions of the General 

Order. 

The stated purpose of the General Order was to “establish policy and procedures . . 

. concerning the use and control of in-car cameras, also known as ‘MVS.’” The General 

Order stated that “the use of the MVS is intended to substantiate probable cause, enhance 

criminal prosecutions, limit civil liabilities, protect Members from unwarranted citizen 

complaints, and document officer contacts.” The stated policy of the General Order was 

“to require Members assigned audio/video recording equipment to utilize the equipment 

for the purpose of collecting accurate accounts of events as they occur.” The failure of a 

Member to utilize the MVS “in accordance with the provisions of the policy could result 

in disciplinary action.”

The General Order further stated,

The Director of the Logistics Division . . . [is] responsible for 

overseeing the installation, implementation, and maintenance of the MVS . . 

. in such a manner as to automatically begin audio and video recording when 

the vehicle’s emergency lights, siren, air horn, PA system are activated, or 

when the vehicles speed exceeds 90 mph. The MVS shall also be capable of 

being activated manually by the wireless transmitter. 

Trooper Story was questioned about the “Operational Procedure and Member 

Responsibilities” section of the General Order, which stated that prior to each shift, 

Members were required to inspect the MVS and to perform a seven-step inspection of the 

MVS “to ensure system integrity.” After the test, Members were to play back the audio 

and video recorded during the test to verify proper operation. The seventh step stated:

(7) Prior to the beginning of each shift, Members are to turn the audio and 

video on and give a test count from 1 to 5, state rank, name, unit number, 

date and shift. Members should then play it back to verify proper operation. 

This procedure can be performed by standing in front of the vehicle or, in the 

event of inclement weather, from inside the patrol unit.
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Defense counsel asked Trooper Story if “he ma[d]e sure the video transmitter was 

actually working properly.” Trooper Story answered that the “red light was on when [he]

made contact” with Defendant and that he had good reception. When defense counsel 

asked whether Trooper Story tested the MVS prior to his shift by pushing the button on his 

belt, Trooper Story interrupted, stating, “That is not part of the check.” Trooper Story did 

not explain how the audio and video test could be performed when standing outside the 

patrol unit without using the wireless transmitter on his belt.

According to the General Order, a Member must report “[a]ny malfunction, 

damage[,] or deviation in operating conditions of the recording equipment . . . to his/her 

immediate supervisor or available District on-duty supervisor and Dispatcher 

immediately.” Trooper Story testified that he did not report the malfunction to his 

immediate supervisor or anyone else at the time of the stop because he “didn’t know there 

was a malfunction . . . [or] review the video until there was a set for suppression.” He also 

said that he did not report the malfunction when he later discovered that the video of

Defendant’s driving was not preserved.

When questioned about the location of his vehicle behind Defendant’s truck, 

Trooper Story said that he “was not very far back” when Defendant turned into the 

driveway. He said that he was watching Defendant and went past the driveway. He said,

“By this time I was almost right at the driveway . . . [and] I activated my lights [and] had 

to actually turn around in the road and then come back.”2 Defense counsel asked, “So if 

you hit your blue lights at about the driveway, we should be backing up [thirty] seconds 

back from that, which [would] have you following him on the roadway three or four car 

lengths, correct?” Trooper Story answered, “Possible.” He explained, “Wherever I 

activated my lights it should have [gone] back [thirty] seconds.” Trooper Story said that it 

did not appear that the video backed up thirty seconds before he activated his emergency 

lights. 

The trial court took the matter under advisement and, on April 21, 2021, issued its 

Memorandum and Order finding that potentially exculpatory evidence was erased and 

deleted as a result of an obsolete recording system installed in Trooper Story’s patrol car 

by TDS. The court found that Trooper Story “was without fault” and that “nothing he did 

 

2 Based on the dashcam video that was entered as Exhibit 1, Trooper Story activated his emergency 

lights after passing the driveway, turning around, and proceeding back to Defendant’s location. The thirty 

seconds of video recorded prior to activation was preserved, but that thirty seconds of video did not show 

Defendant’s truck. 
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or did not do caused or contributed to the destruction of the video evidence.” Based on 

Trooper Story’s testimony, the court found “that the unreliability of the obsolete video 

recording equipment was well-known among his fellow troopers performing patrol duties”

and that troopers “like Tr[ooper] Story had no choice but to continue using this unreliable 

equipment, not knowing from one day to the next whether it would function properly.” 

The court determined that “[t]his state of affairs is a consequence of policy choices” made 

by TDS. The court stated:

There is no evidence in the record of this case of an objective standard 

against which TDS’s policy choice not to replace the obsolete video 

recording equipment can be measured. Therefore, TDS’s inaction cannot be 

found to be negligent. Nevertheless, TDS is charged with the knowledge of 

its employees in the field, such as Tr[ooper] Story, that the obsolete video 

recording system was no longer fit for purpose. By leaving the obsolete 

equipment in the field, TDS was running the risk that relevant evidence could 

be lost, just as it was in this case.

The court found that the State “had a duty to preserve the recorded evidence,” and 

that the State breached its duty. The court found that evidence was “irretrievably lost,” 

thus depriving Defendant of the “only objective evidence with which to challenge” Trooper

Story’s testimony, that there was “no substitute for the video recording of [Defendant’s]

driving which was erased and deleted,” and that Defendant has been “unfairly prejudiced 

as a result.” 

The trial court reasoned that “[t]he missing video relate[d] only to one issue: 

whether [Defendant’s] driving provided a legitimate reason for Trooper Story to detain him 

for investigation.” The court concluded that “the State ha[d] failed to carry its burden of 

proof to show by a preponderance of the evidence that its detention of [Defendant] was 

lawful.” The court also concluded that “relevant evidence was destroyed” and that 

“exclusion of all evidence downstream of the destruction of this relevant, irreplaceable 

evidence [was] the only viable remedy.” The court stated that “[Defendant] ha[d] been 

denied a fundamentally fair trial.”

The trial court granted the motion to suppress the evidence and dismissed the 

indictment. The State appealed.

Analysis

On appeal, the State claims that the trial court erred in finding that Ferguson applied 

at the suppression hearing. Alternatively, the State argues that, if Ferguson does apply, (1) 
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the trial court erred in finding that the State had a duty to preserve the video evidence 

because the evidence never existed, and (2) that the trial court incorrectly applied the three 

Ferguson factors. Defendant claims that the trial court properly applied Ferguson, 

properly found that the State committed a Ferguson violation, and did not abuse its 

discretion by dismissing the indictment. We determined (1) that video of Defendant’s 

driving was never captured and saved and therefore, the video was not lost or destroyed by 

the State, (2) that a Ferguson violation is not applicable to a suppression hearing based on 

reasonable suspicion or probable cause for a traffic stop, (3) that the trial court misapplied 

the “degree of negligence” Ferguson factor by equating perceived public policy decisions 

on the part of the State to negligence, and (4) that Defendant’s right to a fair trial can be 

protected without dismissal of the indictment. 

Ferguson and its Progeny

In Arizona v. Youngblood, the United States Supreme Court held “that unless a 

criminal defendant can show bad faith on the part of the police, failure to preserve 

potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. 

51, 58, (1988). In State v. Ferguson, the Tennessee Supreme Court “rejected the 

Youngblood analysis in its pure form” and adopted “a balancing approach” to be used to 

determine if a trial, conducted without the evidence that was lost or destroyed, would be 

fundamentally fair. Ferguson, 2 S.W.3d at 917.

Ferguson requires the trial court to first determine whether the State had a duty to 

preserve the evidence. Id. “[T]he State’s duty to preserve evidence is limited to 

constitutionally material evidence described as ‘evidence that might be expected to play a 

significant role in the suspect’s defense.’” Merriman, 410 S.W.3d at 785 (quoting 

California v. Trombetta, 467 U.S. 479, 488, (1984)). To meet this constitutional 

materiality standard, “the evidence must potentially possess exculpatory value and be of 

such a nature that the defendant would be unable to obtain comparable evidence by other 

reasonably available means.” Merriman, 410 S.W.3d at 785 (footnote omitted). 

“If the proof demonstrates the existence of a duty to preserve potentially exculpatory 

evidence, the trial court should next determine if the State breached that duty. If the court 

finds that the State breached its duty, “the analysis moves to a consideration of several 

factors which should guide the decision regarding the consequences of the breach.” 

Ferguson, 2 S.W.3d at 917. The three factors to be considered and weighed are: 

1. The degree of negligence involved;
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2. The significance of the destroyed evidence, considered in light of 

the probative value and reliability of secondary or substitute evidence that 

remains available; and

3. The sufficiency of the other evidence used at trial to support the 

conviction.

Id. 

After balancing these three factors, the trial court may then impose an appropriate 

remedy. The court can “craft such orders as may be appropriate to protect the defendant’s 

right to a fair trial.” Id. If the court determines that a trial conducted without the missing 

evidence would be fundamentally unfair, the court can dismiss the indictment. If the court 

determines that a defendant’s right to a fair trial can be protected, the court can fashion a 

lesser remedy such as providing a jury instruction. Id.

A trial court’s decision concerning the fundamental fairness of a trial conducted 

without missing evidence presents a constitutional issue that is reviewed de novo. State v. 

Merriman, 410 S.W.3d 779, 790 (Tenn. 2013). If following a de novo review, an appellate 

court concludes that “the trial would be fundamentally unfair in the absence of the lost 

evidence,” the appellate court “will apply an abuse of discretion standard to review the 

appropriateness of the remedy imposed by the trial court.” Id. at 792. “The decision 

whether to dismiss an indictment lies within the discretion of the trial court.” State v. 

Harris, 33 S.W.3d 767, 769 (Tenn. 2000) (citing State v. Benn, 713 S.W.2d 308, 311 (Tenn. 

1986)). Consequently, “[a]ppellate courts ‘may not interfere with a ruling made within the 

discretionary powers of the trial court absent clear abuse.’” Id. at 769-70 (quoting State v. 

Street, 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988)).

Ferguson evaluated the State’s failure to preserve evidence that could be favorable 

to the defendant “in the context of the entire record” introduced at Mr. Ferguson’s trial. 2 

S.W.3d at 914. The supreme court concluded that Mr. Ferguson received a fundamentally 

fair trial and affirmed the conviction. 

Following the issuance of Ferguson, several Tennessee cases have addressed the 

application of Ferguson to pretrial motions to dismiss an indictment. In Merriman, the 

“arresting officer’s dashcam video recorded his pursuit and stop of the defendant’s vehicle 

using video recording equipment installed in his patrol vehicle, but the video recording was 

subsequently lost.” Id. at 782. At the pretrial hearing, the officer “recounted the pursuit 

and stop of Ms. Merriman’s vehicle and recalled activating the video equipment in his car 

when he first encountered her vehicle.” According to the officer, “the video recording 
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showed Ms. Merriman’s vehicle traveling in his lane of traffic and his pursuit and stop of 

her vehicle, Ms. Merriman’s attempts to complete the field sobriety tests, the officer’s 

recitation of the implied consent law to Ms. Merriman, her refusal to submit to a blood test, 

and her statement that she had taken “a Valium and hydrocodone.” The police department 

procedure required the arresting officer to review the video and make field notes, a

supervisor then removes the hard drive containing the video and delivers it to the patrol 

division captain who enters it into the evidence log. The arresting officer was never able 

to locate the video. Following the pretrial hearing, the trial court determined that the State 

had a duty to preserve the potentially exculpatory video evidence and that the State 

breached its duty. The trial court then balanced the Ferguson factors and concluded that a 

trial without the lost evidence would be fundamentally unfair. Id. at 787. The trial court 

granted Defendant’s motion and dismissed the indictment. 

When a Ferguson motion is brought pretrial, “the trial court is required to assess the 

sufficiency of the evidence that the State intends to introduce at trial.” Id. at 788. The 

Merriman court explained that “[a]lthough one part of that analysis includes a review of 

the sufficiency of the evidence to convict the defendant, the Ferguson inquiry into the 

adequacy of the [S]tate’s evidence is not a vehicle to adjudicate questions of fact involving 

the general issue of guilt or innocence.” Id. at 787 (internal quotation omitted). In 

determining that a defendant could assert a Ferguson violation in a pretrial motion to 

dismiss the indictment, the court noted:

Due to the nature of Ferguson’s inquiry, we are unable to enumerate every 

possible procedural setting in which a Ferguson analysis could be conducted 

prior to trial. We caution, however, that a trial court conducting a Ferguson

analysis must assess the sufficiency of the State’s evidence while being 

mindful that this assessment is not the equivalent of determining the 

defendant’s guilt or innocence beyond a reasonable doubt. Again, 

Ferguson’s inquiry into the sufficiency of the State’s evidence provides 

context to the lost or destroyed evidence, allowing the trial court to weigh 

the significance of the lost evidence in light of the other evidence and to 

determine an appropriate remedy, if one is required.

The supreme court noted that “[a] video recording from a patrol vehicle is unique 

by its very nature. No evidence comparable to this video recording could have been 

obtained through other means.” Id. at 792-93. The court explained that “[b]ecause no 

other secondary or substitute evidence was available, the case was reduced to a credibility 

contest between the officer or officers and Ms. Merriman had she elected to testify at trial.” 

Id. at 794. The court noted that the arresting officer “did not testify as to any indicia of 

alcohol use, and no test results based on breath or blood analysis were available because 
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Ms. Merriman’s refused to submit to testing under the implied consent law” and concluded 

“that the video recording became more significant in light of the relative strength of the 

State’s case.” Id. at 796. After balancing the Ferguson factors, the supreme court 

concluded “that the loss of the video recording under the facts of this case deprived Ms. 

Merriman of her right to a fair trial.” Id.

In State v. Kathy L. Bartlett, No. M2014-01530-CCA-R3-CD, 2015 WL 4381352, 

at *1 (Tenn. Crim. App. July 17, 2015), the defendant was stopped after an officer observed 

her speeding, and she was subsequently indicted for driving under the influence. The 

officer “viewed the recording in his car immediately after the arrest and then submitted it 

wirelessly to the police station’s server.” Id. When the officer attempted to retrieve the 

audio-visual recording depicting the stop, “he was told that it was unavailable.” Id. The 

defendant filed a motion to dismiss the indictment based on the loss of the recording, which 

the trial court granted following a hearing. Id. at *1-2. This court, following a de novo

analysis and balancing of the Ferguson factors, reversed the trial court, specifically noting 

the sufficiency of other evidence that would not have been shown on the video, including 

Ms. Bartlett’s statements to the officer after being placed in the patrol car. Id. at *3-4. This 

court stated:

Based on the above analysis and our balancing of the Ferguson

factors, we conclude that appellee can receive a fundamentally fair trial 

without the missing recording. We surmise that to conclude otherwise would 

construe Merriman as requiring dismissal any time the State, through simple 

negligence, loses a recording of a stop in which the only witnesses are the 

arresting officer and the defendant; we conclude that based on the multifactored analysis espoused in Merriman, our supreme court did not intend 

such a result, and we refuse to adopt such a narrow interpretation of 

Merriman.

Id. at *4.

A Ferguson violation has also been applied pretrial in a limited manner as the basis 

to order the suppression of evidence. State v. Clifford Edward Clark, No. E2009-01795-

CCA-R3-CD, 2011 WL 13165164, at *1 (Tenn. Crim. App. Oct. 24, 2011). In that case, 

the defendant was “stopped by officers as he was leaving the parking lot of a closed 

business where the officers had just heard four shots fired.” Two rifle scope lens covers 

were discovered during a Terry pat-down search and a rifle case was observed partially 

covered behind the defendant’s seat. A Ruger rifle and a box of rifle rounds with four 

bullets missing were found inside the rifle case. “Immediately thereafter, the officers 

discovered that a nearby red light traffic camera had been shot four times.” Id. The 
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defendant was charged with vandalism and reckless endangerment for shooting a traffic 

light camera. 

When the State failed to provide the damaged camera and camera housing as part 

of discovery, the defendant filed a motion to dismiss, or in the alternative, to suppress

evidence based on Ferguson and the warrantless search of vehicles based on Arizona v. 

Gant, 129 S. Ct. 1710 (2009). Id. The trial court suppressed the evidence and dismissed 

the indictment. This court determined that the officers had a reasonable suspicion that the 

defendant was currently engaging or had been engaged in illegal activity. Following a de 

novo review, this court concluded that the Ferguson factors weighed in favor of the 

defendant’s receiving some remedy for the Ferguson violation associated with the 

damaged camera and its housing. Id. at *15. This court reversed the trial court’s judgment 

dismissing the indictment and suppressing the evidence found in the defendant’s vehicle 

and determined that the appropriate Ferguson remedy was to suppress the photographic 

evidence of the camera housing. Id.

Application of Ferguson to a Motion to Suppress Based on Reasonable Suspicion for 

a Traffic Stop

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution provides for every defendant the right to a fair trial. Ferguson, 2 S.W.3d at

915. The due process principles of the Tennessee Constitution are broader than those 

enunciated in the United States Constitution. Id. at 914 (Tenn. 1999); Tenn. Const. art. I, 

§ 8. The issue in Ferguson was whether Mr. Ferguson’s trial, conducted without the

evidence that was lost or destroyed, was fundamentally fair under the due process 

principles of the Tennessee Constitution. In Merriman, the supreme court held that a 

“defendant could assert a Ferguson violation in a pretrial motion to dismiss.” Merriman,

at 779. “When a Ferguson motion is brought prior to trial, however, the trial court is 

required to assess the sufficiency of the evidence that the State intends to introduce at trial.” 

Id. at 788. 

In this case, Defendant raised a Ferguson violation in a pretrial motion to suppress 

evidence in which he claimed that Trooper Story did not have reasonable suspicion to 

conduct a traffic stop. When Trooper Story activated his vehicle’s emergency lights, 

Defendant was seized. At the time of the seizure, Trooper Story was required to have

specific and articulable facts that Defendant had committed a criminal offense in order for 

the traffic stop to be constitutionally valid. State v. Garcia, 123 S.W.3d 335 (Tenn. 2003). 

In determining if Trooper Story had reasonable suspicion to seize Defendant, the trial court 

was limited to the “facts and circumstances within the knowledge” of Trooper Story at the 

time he activated his blue lights. State v. Smith, 484 S.W.3d 393, 400 (Tenn. 2016). This 
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limitation runs afoul to the requirement in Merriman that the trial court in deciding a 

Ferguson violation pretrial “assess the sufficiency of the evidence that the State intends to 

introduce at trial.” Merriman, at 778. Therefore, we conclude that a Ferguson violation 

cannot be asserted in a pretrial motion to suppress evidence based on the lack of reasonable 

suspicion for a traffic stop. 

Lost or Destroyed Video Evidence

The State argues on appeal that the video recording of Defendant’s driving never 

existed. Defendant argues that video evidence did exist and that it was erased and deleted. 

The trial court found that thirty seconds of rolling video was constantly saved and then 

erased unless the MVS was activated. The reason that the MVS was not activated is 

immaterial to the trial court’s finding. It does not matter if the MVS malfunctioned when 

Trooper Story pressed the button on his belt or if Trooper Story did not push the button to 

activate the MVS. The result is the same. Video of Defendant’s driving was not captured 

and saved to the MVS and therefore there was no video for the State to lose or destroy. 

Defendant argues that Merriman “involved nearly identical circumstances, in determining 

that the defendant would be deprived of his right to a fair trial without the evidence as no 

secondary nontestimonial evidence remain to challenge the validity of the stop.” In 

Merriman, the dashcam video was saved to the hard drive, the arresting officer watched 

video and was able to describe the contents of the video, and the hard drive was removed 

by the arresting officer’s supervisor who turned the hard drive over to the patrol division 

captain to be logged into evidence. When the arresting officer attempted to retrieve the 

video, it could not be found. The trial court determined that the video was lost by the 

police. Merriman, 410 S.W.3d at 782. We determine that the fact that the video in 

Merriman was captured and saved to the hard drive, and was subsequently lost, 

distinguishes Merriman from the facts of this case. The evidence preponderates against 

the trial court’s finding that the video was lost or destroyed by the State.

Ferguson Factors

Even if we assumed that the video was captured and saved and subsequently lost or 

destroyed by the State, that the State had a duty to preserve the video, and that the State 

breached its duty; we determine that the Ferguson factors do not support dismissal of the 

indictment. The first of the three Ferguson factors to consider when determining the 

consequences of a breach of the duty to preserve evidence is the degree of negligence 

involved on the part of the State in losing or destroying evidence that it had a duty to 

preserve. Ferguson, 2 S.W.3d at 917. 
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In Ferguson, the supreme court determined that the evidence was destroyed as a 

result of simple negligence. When the court balanced the simple negligence of the State, 

together with “the significance of the missing evidence” and “the sufficiency of the 

convicting evidence,” it determined that the defendant received a fundamentally fair trial. 

Id. at 918. In Merriman, the supreme court conducted a de novo review and determined 

that the dashcam video was lost as a result of simple negligence of the State. When the 

court balanced the three Ferguson factors, it determined that “the loss of the video 

recording under the facts of this case deprived Ms. Merriman of her right to a fair trial.” 

410 S.W.3d at 796.

In the Memorandum and Order filed in this case, the trial court found that Trooper 

Story was “without fault” and that the loss of the video recording was a “consequence of 

policy choices” made by the TDS, stating that

[t]here is no evidence in the record of this case of an objective standard 

against which TDS’s policy choice not to replace the obsolete video 

recording equipment can be measured. Therefore, TDS’s inaction cannot be 

found to be negligent. Nevertheless, TDS is charged with the knowledge of 

its employees in the field, such as [Trooper] Story, that the obsolete video 

recording system was no longer fit for purpose. By leaving the obsolete 

equipment in the field, TDS was running the risk that relevant evidence could 

be lost, just as it was in this case.

A footnote to the second sentence of the above quoted paragraph stated: 

See Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427, 431 (Tenn. 

1992) (“[T]he judiciary confines itself to adjudication of facts based on 

discernible objective standards of law. In the context of tort actions . . . these 

objective standards are notably lacking when the question is not negligence 

but social wisdom, not due care but political practicability, not 

[reasonableness] but economic expediency. Tort law simply furnishes an 

inadequate crucible for testing the merits of social, political, or economic 

decisions.”)

The trial court found “that the unreliability of the obsolete video recording 

equipment was well-known among his fellow troopers performing patrol duties” and that 

troopers “like Tr[ooper] Story had no choice but to continue using this unreliable 

equipment, not knowing from one day to the next whether it would function properly.”
- 15 -

There is no proof in the record concerning TDS’s reasons for not updating Trooper 

Story’s MVS before the date the Defendant was stopped. There is no proof in the record 

concerning what Trooper Story’s fellow troopers knew about the reliability of the MVS. 

When questioned about the MVS in his patrol car, Trooper Story described the equipment

as “old and dated” and said that the reason the MVS did not activate “was a malfunction in 

the unit, hence one reason why we changed camera systems.” He then explained: “But like 

I said I wasn’t watching the head unit, I thought the unit c[a]me on. In all fairness, I thought 

the unit c[a]me on. It’s never really give[n] me a problem in the past.” The trial court did 

not find that TDS or Trooper Story committed simple negligence, committed gross 

negligence, or acted in bad faith by failing to capture and save the video recording of 

Defendant’s driving. We are unwilling to expand the Ferguson “degree of negligence” 

factor to include decisions based on perceived “social wisdom,” assumed “political 

practicability,” or potential economic factors. We conclude that this factor weighs heavily 

against dismissal of the indictment and outweighs the second and third Ferguson factors.

Fundamentally Fair Trial

A trial court’s decision concerning the fundamental fairness of a trial conducted 

without missing evidence presents a constitutional issue that is reviewed de novo. 

Merriman, 410 S.W.3d at 790. Following de novo review, we conclude that Defendant’s 

right to a fair trial can be protected without dismissal of the indictment. 

Conclusion

Based upon our review of the record, the arguments of the parties, and the applicable 

law, we reverse the ruling of the trial court suppressing evidence and dismissing the

indictment. We reinstate the indictment and remand for further proceedings consistent 

with this opinion.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE