IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 9, 2014

STATE OF TENNESSEE v. CHARLIE E. MULLICAN

Appeal from the Circuit Court for Warren County

No. M14237 Larry B. Stanley, Jr., Judge

No. M2014-01122-CCA-R3-CD - Filed March 4, 2015

Defendant, Charlie E. Mullican, pled guilty pursuant to a negotiated plea agreement, to

driving under the influence of an intoxicant (DUI), second offense, and possession of a

handgun while under the influence of intoxicants. He properly reserved a certified question

of law for appeal. The question of the law is dispositive of the case. After a thorough review

we affirm the judgment of the trial court.

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

THOMAST.WOODALL, P.J., delivered the opinion of the Court, in which ALAN E. GLENN and

TIMOTHY L. EASTER, JJ., joined.

Bud Sharp, McMinnville, Tennessee, for the appellant, Charlie E. Mullican.

Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; Lisa S. Zavogiannis, District Attorney General; and Darrel Julian,

Assistant District Attorney General; for the appellee, the State of Tennessee.

OPINION

Background

After he was indicted for second offense DUI, second offense driving with a blood

or breath alcohol content of 0.08% or greater, possession of a handgun while under the

influence of intoxicants, and violation of the light law, Defendant filed a motion to suppress

all evidence obtained as a result of the vehicle stop which led to his arrest. In the motion,

Defendant asserted that the stop of his vehicle was not based upon reasonable suspicion. A

suppression hearing was held, and the trial court denied the motion. Defendant entered his
guilty plea but reserved for appeal, pursuant to Tennessee Rule of Criminal Procedure

37(b)(2)(A)(i)-(iv), the following certified question of law:

Whether the State of Tennessee had reasonable suspicion to stop the

Defendant’s automobile at night time when both headlights are required to

be on and working because of the officer’s belief based on his perception

that there was a headlight inoperable; that upon further investigation

conducted by the defendant and his attorney in the presence of a detective

both headlights were found to be in working condition some months later

after the vehicle was seized by the State the night of the stop and had been

stored at a unsecured impound lot; accordingly, whether this stop and all

evidence from this stop should be suppressed.

Facts

Officer Eddie Caldwell of the McMinnville Police Department testified that at

approximately midnight on May 4, 2013, he was on patrol on “New Smithville and the

bypass” when he observed a silver Honda with the driver’s side headlight out traveling

southbound on New Smithville Highway. Officer Caldwell proceeded through the red light

where he had been stopped and followed the car into the Waffle House parking lot and made

contact with Defendant who was driving the vehicle. Defendant’s car was taken to the police

department’s impound lot.

Officer Stuart Whitman testified that within “a couple months” before the suppression

hearing on January 22, 2014, he met with Defendant’s trial counsel at the impound lot to look

at Defendant’s car. Officer Whitman turned the headlights on, and at that time, both

headlights were working.

On cross-examination, Officer Whitman testified that the City of McMinnville’s

impound lot was located behind the Public Works Building on Belmont Drive, and the

property was also shared with the animal control division. He noted that there was a fence

surrounding the lot with two gates “going into the impound lot there.” Officer Whitman

testified that the gates were unlocked during business hours, and he did not know if they were

locked after business hours. He did not know if there was any surveillance equipment on the

lot. Officer Whitman also noted that there was no lighting in the back corner of the property

and that Defendant’s vehicle was parked in the far left corner of the lot. Officer Whitman did

not know who had access in and out of the property. He noted that the gates to the property

are unguarded. On redirect examination, Officer Whitman testified that there had been

previous thefts from some of the vehicles parked in the impound lot.

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Defendant testified that on the night of his arrest, both headlights on his vehicle were

in working order, and he told Officer Caldwell that they were both working. Defendant

testified that he later accompanied an officer to the impound lot to retrieve some of his

belongings but he never broke into the lot or had any one else enter the lot to repair his

headlight.

On cross-examination, Defendant testified that he did not have a chance to show

Officer Caldwell that his headlight was working because the officer noticed an odor of

alcohol. Defendant testified that when he accompanied Officer Holt to the impound lot to

retrieve his belongings, the gates were locked.

During the State’s rebuttal proof, Captain Derwin Adcock of the McMinnville Police

Department testified he wasthe division commander over the criminal investigation division,

and he was also a custodian of evidence. He said that the impound lot on Belmont Drive was

shared with the Public Works Department and Animal Control. Captain Adcock testified that

the only security measure at the impound lot was a fence, and he noted that there were two

entrances and exits to the lot and that employees of the police department, public works, and

others had access to the lot. Captain Adcock did not know if the gates remained locked at

all times, and he was not aware of any guard or video surveillance equipment on the property.

He noted that the lighting in the impound lot was limited, and there had been past problems

with controlling access to the area. Captain Adcock testified that he considered the impound

lot to be an unsecured area.

At the conclusion of all testimony, the trial court ruled as follows:

I think the law is pretty clear. The question is whether or not the officer

believed he saw a vehicle traveling without a headlight, which I assume both

parties acknowledge is required. His testimony was - - doesn’t appear to have

any bias - - that he saw this vehicle proceed through the intersection without

a driver’s side headlight on or illuminated when it was supposed to be. I don’t

have any idea about what happened to the vehicle afterwards. I don’t have any

reason to believe that he did not believe what he saw, that there was a vehicle

traveling through the intersection without a light on. There could be a lot of

explanations for why it would not be on at one point and on at another. The

driver could have turned it on afterwards. There could have been a short that

comes and goes with the vehicle. I honestly don’t know. It could have been

fixed later. I’m not accusing this gentleman of doing anything like that. There

is no proof that he did but I think at the time the officer saw the vehicle his

testimony, again no reason to doubt him, that he saw a vehicle traveling at

midnight with no lights on when they’re required to be.

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So I would respectfully overrule the motion to suppress, that the officer did

have reasonable suspicion to stop the vehicle at the time that he did.

Analysis

Our review shows that Defendant properly reserved a certified question of law for

appeal following his guilty plea in compliance with Tenn. R. App. P. 37(b)(2)(A).

A trial court’sfactual findings on a motion to suppress are conclusive on appeal unless

the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);

State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Furthermore, questions about

the “credibility of the witnesses, the weight and value of the evidence, and resolution of

conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom,

928 S.W.2d at 23. The application of the law to the facts as determined by the trial court is

a question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,

629 (Tenn. 1997).

The Fourth Amendment to the United States Constitution and article 1, section 7 of

the Tennessee Constitution protect against unreasonable searches and seizures. See State v.

Downey, 945 S.W.2d 102, 106 (Tenn. 1997). An automobile stop constitutes a seizure within

the meaning of these constitutional provisions. Michigan Dep't of State Police v. Sitz, 496

U.S. 444, 450 (1990); State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993); State v. Binion, 900

S.W.2d 702, 705 (Tenn. Crim. App. 1994). The police may stop a vehicle if they have

reasonable suspicion based upon specific and articulable facts that an occupant is violating

or is about to violate the law. See United States v. Brignoni–Ponce, 422 U.S. 873 (1975);

State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992); Hughes v. State, 588 S.W.2d 296, 305

(Tenn. 1979). In determining whether an officer’s reasonable suspicion is supported by

specific and articulable facts, “a court must consider the totality of the circumstances-the

entire picture.” State v. Moore, 775 S.W.2d 372, 377 (Tenn. Crim. App. 1989).

We must strictly limit our review to the precise issue certified as the question of law

reserved for appeal. State v. Day, 263 S.W.3d 891, 999 (Tenn. 2008) (“As we have stated

repeatedly, no issue beyond the scope of the certified question will be considered.”); State

v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988); Tenn. R. Crim. P. 37(b)(2)(A)(ii) (“the

question of law as stated in the judgment or order reserving the certified question identified

clearly the scope and limits of the legal issue reserved”). Defendant’s issue is framed such

that he asserts Officer Caldwell lacked “reasonable suspicion” of a crime being committed

by Defendant to justify the stop. As noted above, for constitutional purposes the stop began

as soon as Officer Caldwell activated his blue lights. State v. Williams, 185 S.W.3d 311,

317-18 (Tenn. 2006). An investigatory stop of a vehicle does not require an officer to have

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probable cause of a crime being committed. All that is constitutionally required to justify a

stop of a vehicle is for the officer to have reasonable suspicion, based upon specific and

articulable facts, that an occupant of the vehicle is violating or is about to violate the law.

Watkins, 827 S.W.2d at 294. Reasonable suspicion to justify a stop of a vehicle is a

subjective standard, to be determined by looking at the totality of the circumstances

surrounding the stop. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

Defendant argues that both of his headlights were working at the time of the stop;

therefore, the reason given by Officer Caldwell for stopping him “had to be invalid, as the

reason given for the stop was not that the Appellant appeared to be intoxicated, but that one

of his headlights was out.” Defendant further argues that “[i]f his headlight was not out, then

there is no way that the arresting officer can point to specific and articulable facts that would

reasonably warrant intrusion.”

In the case sub judice the trial court obviously accredited the testimony of Officer

Caldwell that he observed Defendant driving with one headlight inoperable at midnight in

violation of T.C.A. § 55-9-402(a)(1) which provides that “[e]very motor vehicle other than

a motorcycle, road roller, road machinery or farm tractor shall be equipped with at least two

(2) and not more than four (4) headlights, with at least one (1) on each side of the front of the

motor vehicle,” and T.C.A. § 55-9-406(a) which further provides:

The headlights of every motor vehicle shall be so constructed, equipped,

arranged, focused, aimed, and adjusted, that they will at all times mentioned

in § 55-9-401, and under normal atmospheric conditions and on a level road

produce a driving light sufficient to render clearly discernible a person two

hundred feet (200') ahead, but shall not project a glaring or dazzling light to

persons in front of such headlights. Such headlights shall be displayed during

the period from one half (1⁄2) hour after sunset to one half (1⁄2) hour before

sunrise, during fog, smoke, or rain and at all other times when there is not

sufficient light to render clearly discernible any person on the road at a

distance of two hundred feet (200') ahead of the vehicle.

This Court has held that such driving in similar situations provides at least reasonable

suspicion of criminal activity, based upon specific and articulable facts, or probable cause

of a crime being committed. See State v. Johnathan R. Johnson, No. M2013-00301-CCAR3-CD, 2014 WL 2016712, at *7 (Tenn. Crim. App. May 15, 2014)(Officer had reasonable

suspicion to stop the defendant when the officer observed Defendant’s taillight inoperable

and not in compliance with the applicable statute); State v. Raleigh Kristopher Frye, No.

M2011-00395-CCA-R3-CD, 2012 WL 1656989, at *5(Tenn. Crim. App. May 9,

2012)(Officer had reasonable suspicion to stop the defendant’s vehicle when defendant drove

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without his headlights on for some period of time and crossed the center line on at least two

occasions); and State v. Deshawn Wentz, No. M2010-01668-CCA-R3-CD, 2011 WL

3654539, at *4 (Tenn. Crim. App. Aug. 19, 2011)(Trial court specifically accredited the

officer’s testimony that the defendant’s vehicle’s taillights were not on over that of the

defendant’s testimony and properly denied the defendant’s motion to suppress).

What is observed by the officer need not be sufficient evidence to prove guilt beyond

a reasonable doubt of the traffic offense. In the context of a stop based upon an officer’s

perception that a taillight’s faulty condition was in violation of T.C.A. § 55-9-402, our

supreme court has held,

the proper inquiry should have been whether [the arresting officer] had an

“articulable and reasonable suspicion” that [the defendant’s] taillight violated

[T.C.A.] § 55-9-402, not whether [the defendant’s] taillight, in fact,

violated [T.C.A.] § 55-9-402. See United States v. Johnson, 242 F.3d [707]

[ ] 709-710 [(6 Cir. 2001)] (“[T]he question is not whether a Tennessee court

th

would have found defendant guilty of the traffic infraction, but whether the

officers had probable cause to believe that a violation had occurred.”)

State v. Brotherton, 323 S.W.3d 866, 871 (Tenn. 2010)(emphasis added).

The evidence does not preponderate against the trial court’s ruling that Officer

Caldwell had “reasonable suspicion” to stop Defendant’s vehicle based upon the officer’s

observation of an inoperable headlight. The fact that the headlight was functioning properly

approximately two months before the suppression hearing, after Defendant’s car had been

sitting in an unsecured impound lot for several months after his arrest, does not render the

stop illegal nor does it prove that the headlight was functioning properly on the night of May

4, 2013. The trial court properly denied Defendant’s motion to suppress. Defendant is not

entitled to relief in this appeal.

The judgment of the trial court is affirmed.

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THOMAS T. WOODALL, PRESIDING JUDGE

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